Agenda packet — Orinda City Council, May 2, 2023 (part 1 of 2)

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CITY COUNCIL
AGENDA
Tuesday, May 2, 2023
7:00 PM - REGULAR MEETING
City Council
Agenda Page 1 05.02.23
How to follow and/or participate in the meeting:

IN PERSON SPEAKER CARDS: If you would like to speak during the public forum or on an item listed on the agenda, you are invited to submit a speaker card to the City Clerk. You will be permitted to speak even if you elect not to submit a speaker card or decline to provide information requested on the card. After the City Council has heard from everyone who submitted speaker cards, anyone electing not to submit a speaker card may form a line at the lectern. Public comment is generally limited to 3 minutes per speaker per agenda item.

REMOTE COMMENTS: Use the Zoom “raise hand” function on your computer screen, or the *9 function on your phone to comment remotely. Public comment is generally limited to 3 minutes per speaker per agenda item.

WRITTEN COMMENTS: You may also submit a public comment in advance of the meeting by following instructions below:

Deliver to City Hall at 22 Orinda Way or send an e-mail to [email protected] by 3pm on the day of the meeting. Those comments will be forwarded to the City Council. They will also be made a part of the public record and be available to view in the public review binder at Orinda City Hall, 22 Orinda Way. In addition, they will be available electronically by 5pm on the day of the meeting by selecting the date of the meeting in this Box account link:
https://tinyurl.com/Orinda-Public-Comments
7:00 PM - REGULAR SESSION
A. CALL TO ORDER / ROLL CALL
Councilmembers: Brandyn Iverson, Latika Malkani, Janet Riley Vice Mayor Darlene Gee, Mayor Inga Miller
City Council
Agenda Page 2 05.02.23
B. PLEDGE OF ALLEGIANCE
C. ADOPTION OF AGENDA
The City Council may take action on any item listed on the agenda.

D. ITEMS FOR THE GOOD OF THE CITY
D.1. Recognition of Service to Outgoing Commissioners and Committee Members: John Smith, Planning Commission, Abe Mintz, Finance Advisory Committee
D.2. Proclamation Recognizing May 21-27 as National Public Works Week D.3. Proclamation Recognizing May as National Wildfire Awareness Month
D.4. Tripepi Smith - City Communications Update
E. PUBLIC FORUM
The public forum provides an opportunity for members of the public to speak on any item within the jurisdiction of the City Council that is not on the agenda.

Additionally, a speaker has the option of addressing the Council on an item listed on the agenda, if the speaker will not be present when that agenda item is taken up. When an item is not listed on the agenda, State law prohibits Council discussion or action. Councilmembers may only “briefly respond” to statements made and questions posed. For example, State law allows Councilmembers to ask questions for clarification and provide a reference to staff or other resources for factual information. Additionally, consistent with the “Matters Initiated” rule contained in its Policies and Procedures Manual, the Council may also direct staff to report back and/or place a matter on a future agenda for discussion.

F. CONSENT CALENDAR
F.1. City Council Minutes
Recommendation:

Approve City Council Minutes:

1. March 21, 2023 - Regular Meeting

2. April 11, 2023 - Regular Meeting
F.2. Terminate the Existence of a Local State of Emergency with Respect to the 2022-23 Winter Storms
Recommendation:

Staff recommends that the City Council adopt Resolution 32-23 F.3. Approval of Fiscal Year 2023-2024 SB1 Road Repair and Accountability Act Project List
Recommendation:

City Council
Agenda Page 3 05.02.23
Staff recommends the City Council adopt Resolution 28-23 which formalizes the City of Orinda’s intention to use the funding from the Road Maintenance and Rehabilitation Account (RMRA) for the 2023 Annual Pavement Project which includes work on several streets.

G. PUBLIC HEARING
H. POLICY MATTERS
H.1. Adoption of Ordinance No. 23-02, An Ordinance Updating Chapter

17.17 (Landscaping) of the Orinda Municipal Code to Amend Section

17.17.1 (Landscaping plans Required) and Add Section 17.17.4 (Water Efficient Landscape Requirements)
Recommendation:

Adopt Ordinance No. 23-02, waiving second reading, An Ordinance Updating Chapter 17.17 (Landscaping) of the Orinda Municipal Code to Amend Section 17.17.1 (Landscaping plans Required) and Add Section

17.17.4 (Water Efficient Landscape Requirements)
H.2. Discussion of Annual Updates to the Capital Improvement Plan for Fiscal Years 2023/24-2027/28
Recommendation:

Staff recommends the City Council conduct its first review and discussion of the annual update to the City's rolling five year Capital Improvement Plan (CIP) for Fiscal Years 2023/24-2027/28. No action is being taken to approve projects or appropriate funds. The information obtained from this meeting will be used to develop the Draft CIP document, including the addition of new projects. The City Council will have additional opportunities to review and provide input before the CIP is approved.

H.3. Inclusionary Housing Ordinance
Recommendation:

Receive Report regarding Inclusionary Housing Ordinances, Discuss Key Parameters, and Direct Staff to Prepare an Ordinance for Review and Consideration.

I. COUNCILMEMBERS' REPORTS
J. CITY MANAGER'S REPORT
K. MATTERS INITIATED
L. CLOSED SESSION

1. OPEN SESSION IDENTIFICATION of Closed Session Matters

2. PUBLIC COMMENTS of Closed Session Matters

3. CLOSED SESSION
A. CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL -- ANTICIPATED City Council
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LITIGATION. Pursuant to Government Code Section 54956.9(d)(4), conference with Legal Counsel regarding initiation of litigation (1 potential case)
B. CONFERENCE WITH LABOR NEGOTIATORS. Pursuant to Government Code Section 54957.6 - Conference with the City's designated labor negotiators, David Biggs (City Manager), Doug Alessio, (Administrative Services Director), Ginger Staton (Human Resources Manager), to review the City's position and instruct the City's designated representatives regarding negotiations all bargaining units.

4. OPEN SESSION REPORT REGARDING CLOSED SESSION
M. ADJOURNMENT
M.1. Close in Memory of Port Chicago Sailor and Activist Harry Belafonte The next meeting of the Orinda City Council will be held on Tuesday, May 09, 2023 at 7:00 PM.

Please visit the City’s website at www.cityoforinda.org to view the City Council Calendar.

I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this special meeting agenda has been posted at least 24 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way.

Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org. At least 24 hours in advance of the meeting, this agenda was also delivered to and received by each member of the City Council as well as each local newspaper, radio station and television station requesting written notice of special meetings.

I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this regular meeting agenda has been posted at least 72 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way. Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org
~ Notices ~
There is a 90-day limit for the filing of a challenge in Court to certain City decisions that require a hearing by law, the receipt of evidence, and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6). Further, if you file a challenge in Court, you may be limited by California law, including but not limited to Government Code §65009, to those issues raised in connection with the public hearing. The City Council may be requested to reconsider a decision if the request is made prior to the next City Council meeting. For information on the next City Council meeting, please call 925.253.4221 or visit the website at www.cityoforinda.org. Unless otherwise noted, City Council actions include a determination that the California Environmental Quality Act (CEQA) does not apply. ~ Accessible Public Meetings ~
The City of Orinda will provide special assistance for disabled citizens to participate in public meetings upon advance notice. If you need auxiliary hearing aid or sign language assistance at City Council
Agenda Page 5 05.02.23
least two (2) working days advanced notice is necessary. Please contact the City Clerk’s Office, 22 Orinda Way, Orinda, Ca 94563 or 925.253.4221 or [email protected] with the following information: name, mailing address, phone number and type of assistance requested.

AGENDA TITLE: City Council Minutes
RECOMMENDATION:

Approve City Council Minutes:

1. March 21, 2023 - Regular Meeting

2. April 11, 2023 - Regular Meeting
ATTACHMENTS:

A. City Council Meeting Minutes of March 21, 2023
B. City Council Meeting Minutes of April 11, 2023
Respectfully Submitted by:

Sheri Smith
City Clerk
Prepared By: Sheri Smith, City Clerk
Approved by:

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Orinda City Council Minutes Page 1 of 9 03.21.23
March 21, 2023

CITY OF ORINDA

CITY COUNCIL MINUTES
Note: Written communications received from the public prior to the start of this meeting can be viewed at: https://tinyurl.com/Orinda-Public-Comments.They are also kept in the City Clerk’s Office as part of the public record and available upon request. 7:00 P.M. –REGULAR MEETING– GARDEN ROOM, ORINDA LIBRARY A. CALL TO ORDER / ROLL CALL:

Mayor Miller called the Regular Meeting to order at approximately 7:00 p.m.

COUNCILMEMBERS PRESENT: Brandyn Iverson, Latika Malkani, Janet Riley Vice Mayor Darlene Gee, Mayor Inga Miller
COUNCILMEMBERS ABSENT: None
B. PLEDGE OF ALLEGIANCE – Led by Mayor Miller
C. ADOPTION OF AGENDA
Mayor Miller asked and confirmed there were no requests for removal of items from Councilmembers, staff, or the public, and there were no public comments.

MOTION by Councilmember Malkani moved and seconded by Vice Mayor Gee to adopt the agenda. Said motion carried by unanimous (4-0) roll call vote.

D. ITEMS FOR THE GOOD OF THE CITY
D.1. Recognition of Service to Outgoing Commissioners and Committee Members: Bobbie Landers, Historic Landmarks Committee, Bergen Kenny Woodbury, Parks and Recreation Commission; Travis Baschek-Miller, Traffic Safety Advisory Committee; Jeffrey Lyon, Finance Advisory Committee
Mayor Miller and Councilmembers thanked outgoing Commissioners and Committee Members for their work and volunteerism, and recognized the service of Bobbie Landers, Historic Landmarks Committee; Bergen Kenny Woodbury, Parks and Recreation Commission; Travis Baschek-Miller, Traffic Safety Advisory Committee; and Jeffrey Lyon, Finance Advisory Committee.

Members provided brief comments on their service, importance of their commissions and committees, and their experience, and thanked the Council.

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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 2 of 9 03.21.23
Mayor Miller then presented Certificates of Appreciation to each member, and a round of applause followed.

D.2. Proclamation Declaring March, 2023 as American Red Cross Month Mayor Miller read the Proclamation declaring March, 2023 as American Red Cross Month.

D.3. Proclamation Declaring March, 2023 as Prescription Drug Abuse Awareness Month
Mayor Miller read the Proclamation declaring March, 2023 as Prescription Drug Abuse Awareness Month.

Mariella Sanding, Coalition Coordinator, CCC MEDS Coalition, thanked the City Council for the proclamation and provided a background of the CCC MEDS Coalition which she described as focusing on primary prevention of substance use disorders and prescription drug-related overdoses throughout the County.

Mayor Miller and Councilmembers thanked Ms. Sanding for attending and bringing attention to the matter and cited the coalition’s importance and suggested the City provide linked information on the City’s website.

E. PUBLIC FORUM
There were no speakers or emails, and City Clerk Smith stated two communications were received from Nick Waranoff in the packet and on the City’s website.

F. CONSENT CALENDAR
Mayor Miller asked and confirmed there were no items requested for removal and no public comments.

F.1. City Council Minutes
Recommendation:

Approve City Council Minutes:

1. February 11, 2023 - Special Meeting

2. March 7, 2023 - Regular Meeting
F.2. Local Commission Appointment List (Maddy Act)
Recommendation:

Review and Receive the Annual Local Commission Appointment List commonly referred to as the Maddy Act
F.3. Adoption of Ordinance No. 23-02 - Fire Code
Recommendation:

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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 3 of 9 03.21.23
Adopt Ordinance No. 23-03, waiving second reading, An Ordinance Repealing Chapter 8.20 and Adopting a New Chapter 8.20 to Reflect the City's Ratification of Moraga-Orinda Fire District Ordinance 23-01 F.4. Quarterly Report of Cash Disbursements for the Period July 1, 2022 through September 30, 2022 and Summary of Revenue, Expenditures, and Preliminary Fund Balances for July 1, 2022 through September 30, 2022
Recommendation:

Staff recommends that the City Council receive and file this report of cash disbursements, and preliminary fund balances for the period of JulySeptember 2022.

F.5. Reaffirm proclamation of the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms
Recommendation:

Staff recommends that the City Council adopt Resolution 24-23 F.6. Establishing the Rate per Equivalent Runoff Unit (ERU) for Fiscal Year 2023-2024 and requesting the Contra Costa County Flood Control and Water Conservation District to Adopt an Annual Parcel Assessment for Drainage Maintenance and the National Pollutant Discharge Elimination System (NPDES) Program
Recommendation:

Staff recommends adoption of Resolution No. 16-23, establishing the Equivalent Runoff Unit (ERU) for Fiscal Year 2023-2024 for the National Pollutant Discharge Elimination System (NPDES) Program at the same rate as was levied in the current year.

F.7. Revision of the Adopted Job Classification Specifications for the Recreation Leader and Recreation Program Specialist
Recommendation:

Staff recommends the City Council adopt Resolution 23-23 modifying the Recreation Leader and Recreation Program Specialist job classification specification.

MOTION by Councilmember Iverson moved and seconded by Vice Mayor Gee to approve Consent Calendar Items F.1.1, F.1.2, F.3. F.4, F.6 and F.7. Said motion carried by unanimous (5-0) roll call vote.

G. PUBLIC HEARING
G.1. Introduce Ordinance 23-02 Amending Chapter 17.17 of the Orinda Municipal Code and Adopting the State Model Water Efficient Landscape Ordinance ("MWELO") by Reference
Recommendation:

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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 4 of 9 03.21.23
Introduce Ordinance 23-02, waiving full reading, which includes a determination that it is exempt from the California Environmental Quality Act (CEQA).

City Manager David Biggs introduced the item, stating the City’s planning consultant previously provided a presentation, the item was re-noticed, and continued due to concern of potential conflicts of MOFD’s pending ordinance and this ordinance.

Planning Director Drummond Buckley gave the staff report and overview of the State Model Water Efficient Landscape Ordinance (MWELO).

Councilmember Iverson referred to non-residential parcels which state there cannot be any landscape turf or grass, and asked what happens with school sports fields or outdoor parks which use traditional lawn areas for recreation.

Mr. Buckley said he has found nothing on how it applies to public parks and facilities so it appears it is not being utilized for public parks.

Mr. Biggs said the City must adopt the State model ordinance or something that is more restrictive. He again confirmed there is nothing in the ordinance relating to turf or grass in public parks, said public facilities are not considered to be commercial facilities, and the ordinance allows a certain amount of landscaping under WELO requirements. Parks and Recreation Director Todd Trimble added that in times of rationing EBMUD will give the City and school fields an exemption to continue irrigating because of safety issues and usability issues involved.

Councilmember Malkani asked if public projects, i.e., remodel of a park would require a landscape permit plan check or design review. Mr. Trimble said redesign of the Community Park would require plan review and inspection by the County.

Mr. Buckley added that the City of Lafayette ordinance that was before their Council in October indicated the triggers are identical for private versus public property, but public agencies have more flexibility to comply and this is likely why staff has not heard of public playfields being ripped up to comply with State law.

Councilmember Iverson said if feels like the State is outlying golf courses and all new lawns anywhere of any type beyond 25% of people’s yards and none for commercial.

Therefore, she questioned what happens if the City does not pass the model law. The State law would still apply but she would imagine the enforcement is not on the City because they would not have the matching local ordinance.

Mr. Biggs explained that the MWELO ordinance has been out since 2015, but recently SB 1383 mandates reporting, so it could impact some of the City’s recycling and other revenues if they are non-compliant. The City has a list of updates needing to be processed on its OMC based on State mandates.

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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 5 of 9 03.21.23
The ordinance also states that much of this fall on the local water purveyor, i.e., EBMUD which has information about compliance with MWELO guides for residents. There are annual reporting requirements for the City to inspect and conduct verification, and he believes this will be done by EBMUD as the City provides them with an annual list of building permits so they can follow-up.

Councilmember Iverson apologized for her concerns, but voiced difficulties with the vague and poorly written language regarding responsibilities and enforcement. She referred to the 25% of residential landscaping that may be turf and asked the City Attorney if this was 25% of someone’s yard or the actively landscaped portion, noting that a typical Wilder home has a small actively landscaped portion, a large natural portion, and it feels punitive to define it that they must be actively landscaped to measure what the 25% relates to.

City Attorney Osa Wolff clarified that Councilmember Iverson was saying the 25% relates to the landscaped area as opposed to the whole yard. She said the way staff proposed this ordinance is that they have not repeated, summarized, or changed in any way the State’s model because of efficiency and because they think the State model might change in the future so they do not want to have to return each time. This is an adoption by reference with three added definitions recommended by the City’s consultant and none of those relate to the 25% question. If the Council wanted to revise it, it would be on packet page 93 by making some of the local changes to what the State’s model says.

Mr. Biggs added that the City can make things more restrictive but not less restrictive than what the State’s goals are regarding water retention.

Councilmember Malkani noted there could be a potential consequence of a funding component if the City is not in compliance. She voiced support of the definition and reference to mulch, voiced concerns that the local ordinance should be interpreted in a manner consistent with the local Fire Code, suggested including a statement of intent either now or in the future, and to forward the ordinance to the 2x2 Committee for review and revisit to make changes which might allow time for additional research.

Mr. Biggs said tonight is the introduction of the ordinance and there would be an opportunity to make changes before the final adoption. He and Councilmember Riley discussed mulch and shrubs today and examples relating to how to define these. He researched the ordinance and there is language in the model ordinance that states, “The requirement for mulch is over-ridden by local ordinance that requires fuel mitigation.” The checklist says 75% of the area must be mulched which is based on the Fire District’s defensible space ordinance, but this would not be a requirement here in Orinda because the State model ordinance already provides that exemption.

City Attorney Wolff added that the City has been implementing the ordinance as if it were adopted because they have understood that is the requirement of State law. In order to prove compliance with SB 1383, the City will need to say it has adopted the ordinance.

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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 6 of 9 03.21.23
Mayor Miller asked and confirmed the City needs to prove compliance of the ordinance and the JPA is assisting the City with several aspects of compliance but this falls on the City.

Council discussion ensued, and Mr. Buckley described the two ways of compliance; a prescriptive pathway and a performance pathway. Larger private and public projects are given more flexibility by demonstrating performance without having to comply with all numerical standards.

Mayor Miller opened the Public Forum, and there were no speakers or emails.

Mayor Miller and Councilmembers confirmed with the City Attorney that staff’s recommendation is to introduce the ordinance and return with some of the answers based upon discussion. The Council recognized the need for conservation, climate changes, a livable community, being fire safe, and voiced support of introduction of the ordinance.

MOTION by Councilmember Riley moved and seconded by Councilmember Malkani to introduce Ordinance 23-02, waiving full reading, which includes a determination that it is exempt from the California Environmental Quality Act (CEQA). Said motion carried by unanimous (5-0) roll call vote.

H. POLICY MATTERS
H.1. Resolution of Support of Metropolitan Transportation Commission (MTC) Priority Development Area (PDA) Grant Application re BART Station (Resolution 25-23)
Recommendation:

Adopt Resolution 25-23 in support of grant application submittal to the MTC for $200,000 for a PDA Grant to work towards a Memorandum of Understanding between the City, BART, and Caltrans regarding a path forward for future Transit Oriented Development (TOD) at the BART site, in support of Downtown Precise Plan Policy 2.3.1 and Housing Element Section 5.7.4, for the Downtown Orinda PDA.

Mr. Biggs briefly introduced the item.

Planning Director Buckley gave the staff report, stating TOD has been planned for the BART station and staff recommends the Council adopt a resolution in support of the grant application submittal to MTC for $200,000 for a PDA grant to work towards an MOU between the City, BART, and Caltrans. He spoke about BART’s access constraints from high voltage power lines, easements, and ownership by Caltrans through a use agreement with BART. He spoke about Caltrans’ de-certification process for both the Gateway site and BART site, and the grant will work through those issues with Caltrans and constraints so when the City is ready to do TOD, a successful process will be in place.

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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 7 of 9 03.21.23
Councilmember Gee asked and confirmed that staff has a copy of the BART agreement with Caltrans which is only a couple of pages long and is very old. Staff did not feel it gave BART the right to do projects without getting Caltrans’ approval, that the property can be used the way it is used now, and it did not have a timeframe.

Mayor Miller opened the Public Forum, and there were no speakers or emails.

Councilmember Gee said assuming the grant is approved and the process begins, she asked staff to actively publish and provide outreach about the grant award and the City’s efforts. Councilmembers agreed and voiced their excitement for the process to move forward.

MOTION by Vice Mayor Gee moved and seconded by Councilmember Iverson to adopt Resolution 25-23 in support of grant application submittal to the MTC for $200,000 for a PDA Grant to work towards a Memorandum of Understanding between the City, BART, and Caltrans regarding a path forward for future Transit Oriented Development (TOD) at the BART site, in support of Downtown Precise Plan Policy

2.3.1 and Housing Element Section 5.7.4, for the Downtown Orinda PDA. Said motion carried by unanimous (5-0) roll call vote.

H.2. Commission/Committee Recruitment Update
Recommendation:

Consider appointment of applicants for the Planning Commission and Finance Advisory Committee or select date to conduct interviews.

City Clerk Sheri Smith stated in February the Council conducted interviews for Commissions and Committee members and appointed several members. There are remaining vacancies but subsequently, staff has received 3 statements of interest; 1 for the Planning Commission and 2 for the Finance Advisory Committee in which there are openings for. The Council can either appoint the applicants or schedule interviews by the Mayor and/or subcommittee to return to the Council with a recommendation.

Councilmember Malkani confirmed that a second Planning Commissioner is serving until a replacement can be found and technically the City was recruiting for 2 new Commissioners.

Mayor Miller opened the Public Forum, and there were no speakers or emails.

Councilmembers briefly discussed candidates, whether they wished to appoint the applicants or move forward with an alternate process, voiced support of candidates and appointments, and to continue recruitment efforts for the 1 vacancy for the Planning Commission.

MOTION by Councilmember Iverson moved and seconded by Vice Mayor Gee to appoint applicants for the Planning Commission and Finance Advisory Committee without an interview process. Said motion carried by unanimous (5-0) roll call vote.

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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 8 of 9 03.21.23
H.3. Consider any Amendments and Adopt City Council Policy & Procedures Manual
Recommendation:

Adopt Resolution No. 20-23 adopting the City Council Policies and Procedures Manual
City Manager Biggs gave an introduction of the item regarding the Council’s annual review of the City Council Policy & Procedures Manual, and said staff does not have any proposed updates at this time.

Mayor Miller opened the Public Forum, and there were no speakers or emails.

Councilmember Riley referred to changing Section 2.1 of meeting dates and starting and ending times for meetings. She proposed a 6:00 p.m. start time and 10:00 p.m. ending time.

Councilmember Iverson said she thinks the 6:00 p.m. start time might be a little difficult for those commuting and to be able to eat something. However, if Closed Sessions are held possibly once every now and then, she could start as early as 5:00 or 5:30 p.m.

Councilmember Malkani said she feels a 7:00 p.m. start time is easier for families with parents and children.

Mayor Miller asked and confirmed Closed Sessions could be scheduled at the end of meetings, but this may pose difficulties for attending guests, public comment, and starting/ending times and cost.

Mr. Biggs said when the Council met in Closed Session in the past and in-person the City provided a light dinner and other cities do this as well.

Councilmember Riley suggested trying to make these changes for a 6:00 p.m. Closed Session start time and a 10:00 p.m. end time, and see how it works out.

Councilmember Gee said Closed Sessions are often challenging and preferred not holding them at the end of the evening. The 7:00 p.m. start time is geared to accommodate the public, and while Zoom is easier, now the Council is holding in-person meetings it may be challenging for people and Councilmembers to get home from work and be able to attend/participate. She also thinks the time should be something expected for the public.

Mayor Miller agreed with making the timing consistent for the public’s benefit, supported a 6:00 p.m. start time with the goal of finishing up by 9:00 p.m. if possible.

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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 9 of 9 03.21.23
City Attorney Wolff said the question of when Council meetings start is addressed in 2 locations; the policies and procedures manual and in the Municipal Code which must be changed by ordinance, and both state 7:00 p.m. start time. So, if a 6:00 p.m. start time is supported, the Council would need to adopt a resolution for the manual and bring back an ordinance.

Councilmember Malkani voiced concerns with consistency and thinks people need time to get home and settle their families and then come to the Council meeting and a 6:00 p.m. start time might discourage people. However, she voiced support to start earlier for a Closed Session so as not to have to reconvene to Closed Session at the end of the meeting.

After some discussion around ideas to condense meeting length, it was decided to modify the Policy & Procedures Manual Section 2.1.3 as noted in redline below:

2.1.3. Ending Time. Meetings will adjourn at or before 11:00 p.m. 10:00 p.m. A majority vote of the City Council will be required to continue the meeting past 11:00 p.m. 10:00 p.m. A unanimous vote of the City Council will be required to continue meetings beyond 10:30 p.m. 11:00 p.m. A continuance beyond 10:30 11:30 shall specify time of adjournment. More than one such continuance may be adopted.

There were no other changes proposed to the Policy and Procedures Manual.

MOTION by Vice Mayor Iverson moved and seconded by Councilmember Riley to adopt Resolution No. 20-23 adopting the City Council Policies and Procedures Manual as amended. Said motion carried by unanimous (5-0) roll call vote.

I. COUNCILMEMBERS’ REPORTS
Councilmembers gave updates on attendance at the ONE Celebration Party and the Lamorinda Tri Cities Meeting.

J. CITY MANAGER’S REPORT
City Manager Biggs gave updates on Storm preparation and safety, the upcoming Wildfire Prevention Fair planned for 4/22, and a future Council discussion item about providing hybrid meeting options in May, 2022.

K. MATTERS INITIATED – None.

L. ADJOURNMENT
The Regular Meeting was adjourned at approximately 9:15 p.m. to the next Regular Council Meeting on Tuesday, April 11, 2023, at 7:00 p.m. ______________________________________
Sheri Marie Smith, City Clerk
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Attachment: City Council Meeting Minutes of March 21, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 1 of 23 04.11.23
April 11, 2023

CITY OF ORINDA

Mayor Miller called the Regular Meeting to order at approximately 7:00 p.m.

COUNCILMEMBERS PRESENT: Brandyn Iverson, Latika Malkani, Janet Riley Mayor Inga Miller
COUNCILMEMBERS ABSENT: Vice Mayor Darlene Gee
B. PLEDGE OF ALLEGIANCE – Led by Mayor Miller
C. ADOPTION OF AGENDA
Mayor Miller asked and confirmed there were no requests for removal of items from Councilmembers, staff, or the public, and there were no public comments.

City Manager Biggs referred to Consent Calendar Item F.5 stating that the attachment was inadvertently an older version of the City’s contract, and staff will update it to the 2022 version. He also thanked Human Resources Manger Ginger Staton for stepping in for the City Clerk. City Attorney Osa Wolff is on vacation this week, and Heather Minner is present serving as legal counsel.

MOTION by Councilmember Malkani moved and seconded by Councilmember Iverson to adopt the agenda, as amended. Said motion carried by unanimous (4-0) roll call vote.

D. ITEMS FOR THE GOOD OF THE CITY
D.1. Proclamation Declaring April as Fair Housing Month Mayor Miller introduced David Schubb, President of the Contra Costa Association of Realtors who is an Orinda native to receive the proclamation.

David Schubb, President, Contra Costa Association of Realtors, gave a brief background of growing up in Orinda, recognized the City of Orinda for partnering with them and for the 55th anniversary of Fair Housing Act which ensures fair housing rights for all residents.

He asked to consider their association as a housing resource and thanked the Council for the proclamation.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 2 of 23 04.11.23
E. PUBLIC FORUM
There were no public speakers or emails received.

F. CONSENT CALENDAR
Mayor Miller stated a member of the public has requested removal of Item F.4.

Councilmember Malkani requested Items F.5 and F.6 be removed. Mayor Miller confirmed there were no other items requested for removal.

F.1. Quarterly Report of Cash Disbursements for the Period October 1, 2022 through December 31, 2022 and Summary of Revenue,
Expenditures, and Preliminary Fund Balances for July 1, 2022 through December 31, 2022
Recommendation:

Staff recommends that the City Council receive and file this report of cash disbursements, and preliminary fund balances for the period of OctoberDecember 2022.

F.2. Extension of Agreement for Professional Audit Services With Maze & Associates For Fiscal Year 2022-2023 Financial Statements Recommendation:

Staff recommend that the City Council authorize the City Manager to execute a one year extension for audit services with Maze & Associates at a cost not to exceed $35,000, which includes a contingency of $1,590 for any additional work which may be required.

F.3. Reaffirm proclamation of the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms
Recommendation:

Staff recommends that the City Council adopt Resolution 26-23 MOTION by Councilmember Riley moved and seconded by Councilmember Iverson to approve Consent Calendar Items F.1, F.2, and F.3. Said motion carried by unanimous (4-0) roll call vote.

Items Removed from the Consent Calendar:

F.4. Update Regarding 6th Cycle Housing Element and Annual Housing Element Progress Report for Calendar Year 2022
Recommendation:
(1) Receive update regarding 6th Cycle Housing Element. and (2) review and approve the Housing Element Annual Progress Report for Calendar Year 2022.

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Planning Director Drummond Buckley introduced Chris Hazel who has been the City’s intern since July. He has been very productive and this is his last week. On Monday, he starts a job with PlaceWorks, just graduated from San Jose State University, prepared all work on the Annual Progress Report which is the subject of the staff report.

Councilmember Iverson said this item is the 2022 year in review. Given how comprehensively it was discussed where all materials were a subset of materials the Council extensively reviewed, she voiced support for approval.

Mayor Miller opened the Public Forum, and there were no speakers.

MOTION by Councilmember Iverson moved, and seconded by Councilmember Malkani, to approve the Housing Element Annual Progress Report for Calendar Year 2022.

Said motion carried by unanimous (4-0) roll call vote.

F.5. Award Engineering Design Services Contract to CSG for the 2023 Annual Pavement Rehabilitation Project #4171
Recommendation:

Staff recommends that the City Council award the Engineering Design Services Contract for the 2023 Annual Pavement Rehabilitation Project (Project No. 4171) to CSG Consultants, Inc. for the total amount of $110,100; authorize program expenditure up to $150,000 to include thirty six percent (36%) contingency; and authorize the City Manager to execute the contract on behalf of the City per Ordinance No. 2.55.105 subject to approval as to form by the City Attorney.

City Manager Biggs briefly introduced the item.

Public Works Director Scott Christie explained this item is a routine matter where staff designs the annual paving project and the City uses Street Smarts through MTC. They scope out the most efficient use of available funds to keep the roads well maintained.

Now that they are through with much of the major rehabilitation thanks to the bond measures, the City is in a maintenance type of program.

Staff is looking to award the professional engineering or design contract for the selected streets for this year. Part of the item deals with the process staff went through to select the consultant by using on-call firms that are part of the City’s design list for civil engineering and they chose CSG since they previously had done design work on some of the same streets. The other firm, Harris & Associates, did not have available at this time, so CSG was able to meet their needs to move forward on a tight schedule to meet the summer construction season.

Also included with these projects is evaluation of storm drain pipes under the public roadway. If they have not been upgraded or not in satisfactory condition they line it or open trench replace them. He therefore recommended moving forward with the design phase to have the project out to bid in time for the summer season.

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Councilmember Malkani said if the City wanted to at some point in the future do an additional assessment of other roads, including private roads or look at storm drains more she asked if this is something the City could do. She asked if moving forward with approval of this item would not prohibit that.

Mr. Christie replied the City would not be prohibited, but this would involve a major assessment on a Citywide basis.

Mayor Miller opened the Public Forum, and there were no speakers or emails.

MOTION by Councilmember Malkani moved, and seconded by Councilmember Riley, to award the Engineering Design Services Contract for the 2023 Annual Pavement Rehabilitation Project (Project No. 4171) to CSG Consultants, Inc. for the total amount of $ 110,100; authorize program expenditure up to $150,000 to include thirty six percent (36%) contingency; and authorize the City Manager to execute the contract on behalf of the City per Ordinance No. 2.55.105 subject to approval as to form by the City Attorney. Said motion carried by unanimous (4-0) roll call vote.

F.6. Award a Contract for the Construction of the federally funded projects to seismically retrofit Miner Road Bridge over San Pablo Creek (CIP # 0044) and Bear Creek Road Bridge over San Pablo Creek (CIP # 0087) to Gordon N. Ball Inc. of Alamo, CA.

Recommendation:

Staff recommends that City Council (1) award said contract for an amount of $1,425,213, (2) authorize the City Manager to administratively approve change orders not to exceed $213,800 (15% contingency); appropriate additional funding in the amount of $210,000 and (4) approve the design of said projects.

City Manager Biggs stated the only unusual thing about this item is that the project ended up being short under the federal funds allocated and staff is working to determine whether the City can get it covered by the federal government. In order to not delay the award of contract, staff is recommending use of allocated pandemic funds from the federal government. The Council previously allocated a total of $5 million under several categories and one is $576,000 of unfunded or underfunded CIPs. Staff is recommending the use of $210,000 from that allocation in order to award the contract in the hopes the City will be able to increase the federal funding and have it available for other projects.

Public Works Director Christie added there is a request for additional funding, as staff anticipated this to some extent because of inflation impacts and the fact the construction industry is doing very well and will bid higher due to the competitive market.

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Staff was happy to receive 4 bids and believes they are reasonable given market conditions and circumstances. Staff is not able to delay the project further, as these projects have been on the books for a long time and the City is under pressure from Caltrans and the California Transportation Commission who manages Prop 1b funding dating back to 10 years to pick up a portion of the local share portion. Staff has exercised diligence in the environmental and design process and has a narrow window.

He then spoke about the contractor, EBMUD’s participation, and bid price. He concluded and said staff hopes to receive $200,000 from Caltrans and the City needs to put in $200,000 of local funds, or in this case, the ARPA Fund Number 256. Staff recommends moving forward to approve award of the contract and appropriate additional funding.

Councilmember Malkani said she removed this from the Consent Calendar because in reviewing the staff report, she had questions about the funding which have been answered.

Councilmember Riley questioned and confirmed with Mr. Christie that the City had discussions with Caltrans about the bridge years ago when it was scoped out for replacement. The project replacement was denied due to Caltrans’ standards, and he spoke about the City’s own efforts to upgrade the diagonal bracing and on-going review of the bracing. Mayor Miller agreed this would fall under the City’s strategic priorities when opportunities arise.

Mayor Miller opened the Public Forum, and there were no speakers.

MOTION by Councilmember Malkani moved, and seconded by Councilmember Iverson, to (1) award said contract for an amount of $1,425,213, (2) authorize the City Manager to administratively approve change orders not to exceed $213,800 (15% contingency); appropriate additional funding in the amount of $210,000 and (4) approve the design of said projects. Said motion carried by unanimous (4-0) roll call vote.

G. PUBLIC HEARING – None.

H. POLICY MATTERS
H.1. Continued Grazing Options for Fire Fuel Reduction at Orinda Oaks Park and Open Space
Recommendation:

Supplemental Sales Tax Oversight Commission Recommendation to Transition to Cattle Grazing and/or provide Other Direction.

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City Manager Biggs gave the staff report, background, and overview of the recommendation to transition to cattle grazing and/or provide other direction to staff. He said the Council has 3 primary options: 1) To continue to meet minimums and clear properties mechanically on an on-going basis at a cost of $30,000 to $40,000/year, depending on growth and season; 2) To continue with goat grazing, although goats are in high demand right now and staff was unsure the City would comply by the June deadline, and 3) To transition to cattle grazing, which would take time to get the property fenced and introduce cattle. He was available for questions.

Councilmember Iverson said there was a goat grazing contract from 2021 and they had offered it for $60,000, and the new budget is about $138,000. She asked if the $60,000 was only a one-year offer.

Mr. Biggs said the reason the City got the $60,000 price the first year was because it was a discounted price for grazing outside of the prime season. Rains caused the second round of growth and this had to be undertaken mechanically. The price proposed assumes the City would have grazing during the peak season, and it is more costly given the demand-driven business.

Councilmember Iverson commented she was surprised the price of goats was similar to the use of a lawnmower where a 100-foot perimeter can be done and then the cross section. She asked if this has been considered and/or is feasible.

Mr. Biggs said this is an additional option. The intent was to graze the entire parcel because this is what makes Orinda more fire safe, and this is the recommendation of the Fire Chief and SSTOC, but the Council can do something different than that.

Councilmember Malkani asked to comment about who received the letter, the survey, and how the survey was conducted. She also said the educational letter had a significant typographical error and the survey was corrected. She asked if a communication was sent to those who had received the original letter pointing out the typo.

Mr. Biggs said the same survey list was used as in the prior year to approximately 130 people live immediately adjacent to Orinda Oaks. They get a letter with a QR code that took them to the survey because they were interested about feedback from immediate neighbors. He said Respondent #3 to the survey pointed out the typo, and James Duff went into the question that related to that and added the correction to the cost table, fixed the typo in the 25-year cost of goat grazing mitigation, which is $2,295,000 and not $22,950,000. The thought was at that point when people are asking a specific question about their preferences, the correction was highlighted there, but staff did not send out a general correction letter.

Councilmember Malkani said everyone has been educated of the history and involvement of a few families in fundraising for this land. She asked if those families or area were included in the survey.

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Mr. Biggs said staff did not have access to a list of who those individuals were, and they did not go out specifically to the extent they are on an adjacent parcel.

Councilmember Riley said when you walk on the paved road through the Orinda Oaks Park she asked and confirmed with Mr. Biggs that on the right side there are cows right now and this Donald Drive or the Mulholland Open Space. If you were to walk to the end of Donald Drive, it is on the right and left of Donald Drive, and most people are hiking off Alice Lane, but the City limits are right there at the end of Donald Drive.

Mayor Miller said she spoke with City Attorney Wolff who has not had the opportunity to weigh in on this to the extent the Council is moving forward with any cattle grazing because of the CEQA issue and for the Surplus Lands Act to the extent there is a lease.

Staff believes they can issue this as a license and avoid a lease as a grant of a property interest, and therefore, it falls under the Surplus Lands Act. She asked if Ms. Minner could comment on the license issue.

Mr. Biggs stated City Attorney Osa Wolff and he have spoken about that and they disagree on the topic. He does not believe it would fall under the Surplus Land Act because this is maintenance of property and not a lease of a property for development purposes or a concession. They would prepare a Professionals Services Contract for the services they are providing or a license, which does not take the form of a lease and it is not anticipated to be a long-term lease or license.

Mayor Miller said her mother grew up one-half mile away and has experience with the park. She feels like there is some form of wetlands or a creek in it but was not sure, and if so, she asked if this is something that comes up with the cattle grazing at all.

Mr. Biggs said he does not have the extensive history the Mayor has but for goats, the goat herder does fence off areas where they do not want the goats to go into. Cattle generally will graze in those areas if vegetation allows them to get in, but they do not tend to eat the vegetation they might find in a swale or a seasonal creek. He knows this was one of the concerns expressed, as the land has a complex process.

He noted that research had also been done by the City’s former Public Works Director Larry Theis in 2019 which shows there is a restriction that states it will be used for open space, recreational use, or natural resource conservation use. So, the question is whether this is inconsistent with that restriction and a question might be whether it makes sense to do a Resource Management Plan that would evaluate that.

He went go back and looked at old minutes when the MOU was done with the donors and when the purchase and sales agreement was approved, but the minutes are not a comprehensive reflection. At no point in time did the staff report or comments made have any mention of grazing, pro or con. He also spoke with Councilmember Worth as well, and she did not have any recollection of it.

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Councilmember Malkani said she was not able to attend the SSTOC meeting where this was recently discussed and saw the staff report for the March 8th meeting. She wondered if there was any history of how this land was gifted to the City by residents, or any consideration of the deed. In reading the deed, she would be concerned if cattle grazing is inconsistent with the language of the deed, given the context and history of residents who were gifting this land.

Mr. Biggs stated the restriction came about as a result of the Resolution Trust Corporation and purchase process they had, and this is the way it was acquired for $600,000 instead of $1.1 or $1.2 million which is outlined in the staff report when the Council approved the purchase and sales agreement. Later, the MOU occurred on May 2, 2000 where residents provided the final check to the City. They had 5 years to raise the funds and the City advanced the purchase price for the property.

The deed restriction was referred to in the MOU where it was referred as the Resolution Trust Corporation’s requirement but he could only go back and look at the staff reports, minutes, and does not doubt the property owners had discussions about grazing.

Residents told him stories of waking up and finding cattle in their backyard and this is why staff recommended last year to the SSTOC the goat grazing option, which was ultimately ratified.

In looking at a memo from Mr. Theis from 2019 where he researched restrictions, he does not know if this was shared with the Commission in meetings prior to his arrival to the City in April 2021.

Councilmember Malkani asked if there has been any discussion about concerns about additional methane or the environmental impact in terms of cows versus goats versus mechanical.

Mr. Biggs said no, he does not recall it being a focus of discussion last year or this year at all. The Commission’s main goal was to be as cost-effective as possible and make the area as safe as possible from wildfires.

Councilmember Malkani said MOFD is recommending that fuel mitigation and reduction should occur on the entire parcel and not just the perimeter.

Mr. Biggs agreed and said they would encourage all property owners to meet or exceed the Fire Code, and it would be great if the City could go above and beyond and make the community more fire safe. They think cattle grazing is the most effective. The Chief has expressed that if they do grazing year-round which has not been explored, it could be cattle, sheep, goats, and llamas. If they are there year-round, they do not have to do as much focused work on the perimeter which might reduce some of the mechanical costs.

Staff is still learning about this but there is the potential if that goats were there all year, there would be that benefit.

Mayor Miller asked what is the term, “ruminants” was. Mr. Biggs said it is cattle, goats, sheep, and llamas.

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Mayor Miller opened the Public Forum.

Jim Landau commented first that sheep lift plants up by their roots so the weed is gone, so there is a huge difference between cattle and sheep and goats. He and his wife, Linda have lived adjacent to the Orinda Oaks Open Space for 44 years, went to every meeting of the City Council on the item under discussion once he got involved with the Orinda Parks and Recreation Foundation in 1998 and they handed over the final check in May of 2000. The entire enterprise was begun by the late Dr. Steve Arnon who lived adjacent to the property and was a close neighbor of theirs. Dr. Arnon discovered the legal permit that gave the City the option to purchase the property at an extraordinary good price so this was the basis upon which he got them involved.

Basically, they had been sitting adjacent to the property where their driveway was across from the open space entrance on Casa Reale. They had been involved for a long time because developers were constantly moving in and proposing putting 253 houses on the 111 acres and they would then point out that dozens of estimates were that there were +90 identified slide zones that had occurred on that property. The topography did not lend itself to construction, as the people on Alice Lane learned the hard was later on. What they experienced prior to the removal of the cattle led his wife to have on their wall next to the phone the number of the rancher who would hitch up the trailer, load his horse, drive over and pick the cattle that had wandered off, and they crossed their fingers that no teenager late to school would hit the cow. Dr. Arnon was quite environmentally active and his goal of this area which had been slides and cattle trails throughout, allow the invasive species to come in and they spread seeds nicely through the cow patties, nip any new growth of oaks, and to make this an open space recreation area, a study area for kids’ science classes to walk across the street. They had the director of Wagner Ranch who said the OIS kids could have their biology classes here and learn about the environment.

Dr. Arnon was very much opposed to the concept of cattle being there because it was not an open space or a reversion from the invasive species to be replaced by native California species which was what he hoped to accomplish. So, there was definitely a sentiment and expression this would be part of the concept of turning this into a park. It was the people who lived directly adjacent to it of 4 families that provided almost 2/3 of the money.

Hundreds of citizens also participated in contributing to raise money, and they were doing this at the same time the Friends of the Orinda Library were raising $5 million towards the $10 million cost of the new library, so there was active competition and it took a long time to raise this money.

Since there are questions that indicate to him that all Councilmembers have not been there or walked the area, he suggested driving up Donald Drive, park in the parking area, look at what you see down below in the Orinda Open Space. There will be one slide that is visible after these years now.

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There are no cattle paths, a lot of grass and greenery, lots of native and Cal poppies, and keep walking south along Donald Drive past Julie’s house to the very sound end of Orinda, go through a gate and now you are in Moraga or the Mulholland Open Space, and Donald Drive continues there. It is no longer open to auto traffic other EBMUD. Then, walk along for another half-mile into the Mulholland Open Space and look to the right down the hill and you will see the cattle grazing. Count the slides, look at the paths that the cattle have cut and see where they have widened into 20 feet wide and 100 foot slide.

Look at the bottom of the hill and the spring that comes out, and look at the way the ground is caving in there. Look around the salt licks, water sources, and you will get to a sign that says, Town of Moraga – Trail Closed due to Water Damage, etc. and as you go along there, in 2 spots the trail has subsided all the way up to the pathway. It is very important to see what it is, see what has happened, see how the land on the Orinda side has reverted to a natural shape and how the Mulholland Open Space on the other end with the same grazing and same kind of process has deteriorated relative to what the original state had been as a result, they feel, of the cattle grazing. The topography is about the same but the difference is the cattle have been grazing there for a long time.

Mayor Miller asked Mr. Landau to continue and said the speakers can get the same amount of time.

Mr. Landau said he thinks the goats would be fine if it is feasible, but mechanical is probably the most reliable. The City can focus on where they want it to be, and then controlled prescribed burns at the right time during the season, bit by bit, region by region on the 111 acres so it can be kept clearly under control on an appropriate day. He thinks this is the solution. Once they get into fire season the prescribed burn is a tough one to beat and the land recovers nicely from burns so this makes sense to him.

Mayor Miller asked about MOFD’s prescribed burns on the Moraga side, and Mr. Landau said these were superb, effective, and well done.

Mayor Miller said when she has been walking up the hill she recalled that at one point the developers of Wilder were looking at putting some of the mitigation dollars there and eventually it went to a project downtown in the Orinda Creek. She though there was a riparian corridor through there, and asked if there is or not.

Mr. Landau said no, he does not know of one.

Mayor Miller said it is hard to see because you mostly see it by seeing the poison oak bushes so it is not easy to see. Mr. Landau said there is a clear spring on the Mulholland side which can be seen and it has some real issues.

Councilmember Malkani asked if there was more of a stream on the Mulholland side and she asked if they know if cattle grazing has impacted that. Mr. Landau said he believes there is more of a stream. It is there and you can hear frogs seasonally there now, but it is really a difficult area for slides. Once again, he asked to look at the two and contrast them which is all very evident.

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Mayor Miller confirmed with Ms. Minner that Mr. Landau had spoken for 8 minutes and 45 seconds.

MOTION by Councilmember Malkani moved and seconded by Councilmember Riley to allow each speaker to have 8 minutes and 45 seconds each to speak for this item only. Said motion carried by unanimous (4-0) roll call vote.

Julie Rossiter said she is one of the 4 homeowners who has lived within the open space behind the gate for 18 years. She speaks on behalf of all residents here who are all opposed to cattle grazing on the property. Her sense is that the City is interested in this because of the potential to earn some income from it, but she believes there are other mitigation measures that are more effective and better serve the purpose of the open space and are more in compliance with the restrictions on the grant deed that limit use of the property to parkland. She said she thinks the entire time she has lived here, there has been clearing done on the hillside annually, so this is not something new. When they brought in the goats they were trying something new. What happened was they would use a tractor on the land which sparked on the street which then caused a fire several years ago. The hill was on fire and thankfully, MOFD came and put it out. After that, they began looking at other options because of the concern from a mechanical approach. The reality is, the mechanical clearing was working fine and frankly, if a second worker was with that person with a fire extinguisher, it could have been avoided in the first place.

One thing to keep in mind when looking at this is in Moraga, the Mulholland piece is twice as big or more of the Orinda Oaks Open Space and they have 20 cows. She walks there everyday and it is not that impactful yet there could be a herd of 300 heads of cattle on the open space so she has no idea what the plan is. She thinks this would be a concern for sure, and again, she thought the goats were fine and worked, but the City tried to save money by using them too early in the season. She did not think there was a huge benefit from them because the grass grew back very quickly. So, combining goats with some mechanical clearing could be an option, but she does not see cattle grazing as being a good option in line with the restrictions placed on the property by the grant deed.

She also pointed out that she filled out the survey Sunday night and she doubts her answers are included in the results, but she found out about this survey because someone on NextDoor.com posted that this meeting would discuss this. So, she suggested having more communication with neighbors so they know what is going on. She also encouraged the Council to go and look at the difference between the Orinda open space and the Moraga open space. At the fence line where the cows are, there are poppies and wildflowers on the Orinda side and it is just nothing like that on the other side and a stark difference. Again, homeowners are opposed to cattle grazing, are happy to work with the City and discuss other options, but they request the Council not pursue cattle grazing as an option.

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Caroline Mills, President, Orinda Park and Recreation Foundation, said much of what Jim and Julie said also had in her notes so she will not repeat it. For those who are unaware of the Foundation’s role in securing the open space, they raised the $600,000 to repay the City when the City made the initial purchase. She has also been a member of the Board since those early days and am an avid user of the roadway open space area.

There is a major difference between the Orinda side and the Moraga side of the entire ridgeline, and you must walk it to understand it to go into the Moraga open space where the cattle graze and see all the landslides that occurred this winter. They did not have any of that on the Orinda side.

As a member of the Board, she provided a history of what transpired in those early days of securing the land for the city. When the late Steve Arnon first approached the City to obtain the 111-acre site that had become available as a result of the savings and loan crisis, he had a local biologist assess the property to determine its value as a wildlife habitat area. The biologist recommended that the open space be preserved as such and cattle grazing should not be allowed, as well as dogs not be allowed to run free through the open space which could disturb the wildlife. Steve felt strongly that cattle should not be permitted.

And, the RTC grant deed which the City Manager spoke about which was attached to the City Council resolution 23-95, dated March 31, 1995 states in the restrictions, “The described real property shall be retained as parkland and used for open space, recreational, and natural resource conservation purposes.” She is not a lawyer but the wording “natural resource conservation” would infer that the property be left in its natural state. Also, Jim mentioned that there is a creek area and while she does not know it is still being used, but early on classes from either Del Rey or OIS would come over and they would have their Environmental Science classes there and gather in the creek and take it back to the classroom.

Cattle have not been placed in the open space. Last year, when the goats were brought in, that was the first use of grazing to reduce fire hazard. All the years that the land has been the City-owned property the fire reduction measures have been done through mechanical means using labor to mow grass and weeds along the roadway and using a tractor and disc to create fire breaks. That seems to have worked well. She finds it interesting that now the City wants to bring in the rancher to run cattle which they would get rental fees for when, in fact, it really should be left as an open space completely unhindered with the use of cattle.

The property as others have said is very different from the Moraga open space area which is much larger. Moraga’s is 260 acres and Orinda’s is 111 acres. It is also interesting to note that with cattle grazing the Moraga property is pretty much devoid of flowering plants while the Orinda Oaks site has poppies covering the hillside. She hopes the Council has been up there to see it because it is beautiful. Therefore, she asked the Council to please consider keeping cattle off the Orinda Oaks open space preserve.

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Frank Darling said he is a neighbor and walks the neighborhood and this trail a lot. It is not often when you do volunteer work in Orinda that you can add value to a conversation but 25 years ago, he was on the Parks and Recreation Commission. He remembers Steve Arnon coming to their meetings and talking about how he envisioned this land to be. That is the way it has been for the last 25 years.

He has a personal pet peeve that when you raise money for a specific purpose and the people who give the money for a specific purpose, over time those that were not involved with what was happening at the time forget about that. He and Todd have been talking about raising money for the park here. If the money raised is not used for that purpose, then he is out. He thinks the people who gave money 25 years ago would be probably a little concerned with the conversation about the cattle. He does not want cattle. Goats are fine, respects cost savings, is a prudent and frugal guy but in this case it is not appropriate given the fact that the money given was for a specific purpose.

Mayor Miller returned to Council discussion and said this has brought up several important themes and concepts in the community.

Councilmember Iverson said this has been the most informative, helpful public comment she has ever experienced. She appreciates the speakers not taking longer time, but this was very helpful because it is a difficult issue and she appreciates the constructive input.

Mayor Miller agreed and voiced appreciation of speakers for the historical account and to staff for the staff report and background, as well.

Councilmember Iverson said she was on the Planning Commission for many years, and when the immediate neighbors speak passionately and loudly they really listened. What she heard based on the correspondence and public comments is that cattle is off the table and she understands why the SSTOC felt so strongly about it. The burden falls on the Council and when she hears everything about the original intent and the fundraising, she finds herself agreeing with the appreciation of the open space. As a decision-maker, she thinks the Council’s choice should not involve cattle.

Mayor Miller agreed and said she is the SSTOC liaison. This discussion tonight was extremely foreseeable having lived in the neighborhood. There is more of an issue here than just cost and the feeling that the Fire Chief would like the City to do this. The Chief is very popular and the SSTOC listens to him and what he says, which is important. The SSTOC’s mission is to advise the Council on the sales tax so being fiscally conservative is certainly important, but there is a wider picture here.

Councilmember Malkani said she remembers when she was on the SSTOC having some of these concerns, but not having the historical background at all. She echoed Councilmember Iverson’s gratitude to the speakers tonight as well as other members of the public who provided history and context.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 14 of 23 04.11.23
The Council must balance interests, said fuel reduction might look a little different than it did in years past, and she would like to continue to look at the possibility of goat grazing because they may need something more than mechanical. She cited the initial section on Donald Drive which is very beautifully preserved open space that many Lamorinda residents enjoy and did not want to take away that beauty if there is a solution they can achieve by also providing fuels mitigation.

The MOU and grant deed states, “The real property shall be retained as parkland and used for open space, recreational, and natural resource conservation purposes.” Therefore, she would like to see that maintained, look at cost options that do not include cattle grazing, examine more about when they would be grazing if they use goats, and asked this be brought back to the Council.

Councilmember Riley said she would hate to see cattle in that park, feeling it devalues the human experience when walking dogs among cows. She thinks the open space is a real value to many residents and she would want to keep it the way it is. In terms of goats versus mechanical, there is a lot of history with mechanical and they had a one year pilot with goats. There is really no competition and suggested future discussion, as well.

Councilmember Iverson agreed and does not think the Council should micromanage this decision. What they are being asked is for 2024. She would support mechanical in the near term to deal with regrowth experienced, said she is horrified with the cost of the goat proposal, and would hope the SSTOC would look at other options like llamas, periphery goats, or goats maybe every third year given their expensiveness.

Mayor Miller suggested asking staff to start those negotiations. If they start early enough there might be goats born or something of that nature which may allow the price to be different if there is a longer contract or significant lead time for use of the goats.

Councilmember Iverson questioned whether this should be a SSTOC recommendation or Council recommendation.

Mr. Biggs said staff did this level of work in bringing the item forward and received an updated proposal from Goats R Us. There are not many options in the local area as goats are in demand. The number identified is for the grazing to avoid additional cost for 2023 and he did not know the costs would go down.

Mayor Miller suggested staff have the discussion because this is an Orinda company and there may be opportunities given the longer lead time on a contract. Mr. Biggs said the discount was based on the time of the grazing, but they can ask again.

Councilmember Malkani said the item is to provide direction and there appears to be consensus tonight to not pursue cattle grazing. Beyond that, she asked for any additional direction.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 15 of 23 04.11.23
Mayor Miller suggested staff have an initial conversation with Goats R Us and maybe look out to 2025 or 2026 to see if there are benefits of mixing prescribed burns with some goats when perhaps they are not in demand.

Councilmember Iverson said looking at options and exploring is right in terms of the guidance. For this year, it is no cattle. She would not support the $138,000 for Goat Part 2, and would prefer mechanical in the short term until the appropriate parties can come back with a recommendation for 2024 and beyond, and this is her motion.

Councilmember Iverson said if the SSTOC would like to provide further advice given concerns about cattle grazing, she would support that .

Mr. Biggs said before bringing a proposal before the Council staff would present the 2024 option to the SSTOC.

Mayor Miller said Julie Rossiter brought up the timing of the goat grazing done and she asked if this was because the Council decided to early graze.

Mr. Biggs said normally it would have worked well, but they had some late rains.

MOTION by Councilmember Iverson moved and seconded by Councilmember Riley to direct staff to omit cattle grazing, undergo mechanical fuels reduction in the shortterm, and start discussions and obtain an updated proposal for goat grazing for 2024 and beyond. Said motion carried by unanimous (4-0) roll call vote.

H.2. Taxpayer Protection and Government Accountability Act Resolution of Opposition
Recommendation:

Adopt a Resolution Opposing Initiative 21-0042A1 Taxpayer Protection and Government Accountability Act
Mr. Biggs said on occasion staff brings to the Council opposition to legislation and in this case, an initiative that has qualified for the 2024 ballot. The League of California Cities has requested that their members oppose the Taxpayer Protection and Government Accountability Act which is sponsored by the California Business Roundtable. Included in the staff report is background information, and staff recommends adoption of the resolution which has also been opposed by Moraga and Lafayette. He noted the resolution was personalized for Orinda and the City Clerk will do this and she will assign a resolution number.

Councilmember Riley asked if schools were being approached to oppose this because of the parcel tax and suggested they join in the opposition.

Mr. Biggs said staff can contact them and recommend opposition. Councilmember Iverson asked that this be brought to the 2x2 committee to ensure the school board is aware.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 16 of 23 04.11.23
Mayor Miller opened the Public Forum, and there were no speakers or emails.

MOTION by Councilmember Malkani moved and seconded by Councilmember Riley to adopt a Resolution Opposing Initiative 21-0042A1 Taxpayer Protection and Government Accountability Act. Said motion carried by unanimous (4-0) roll call vote.

H.3. Strategic Priorities for Fiscal Year 2023-2024 and 2024-2025 Recommendation:

Review and Confirm Strategic Priorities for the City
City Manager Biggs said every two years staff brings to the Council updates on strategic priorities which was last done in March 2019 which is in the packet. Also included is the working matrix. Staff has accomplished most of the strategic goals in the matrix but because of COVID and the transition to a new City Manager they did not do an update in 2021.

This year, they had the Institute of Local Government, a non-profit affiliate of the League which facilitates these types of workshops to do that for the Council, had 3 new Councilmembers, so it seemed timely to revisit the strategic priorities. The approval or update will also help staff to inform its development of the budget which will be presented on June 6th.

On Saturday, February 19th there was a daylong Saturday Council meeting and he described the process. A community survey was done prior to that and Councilmembers responded to questions prior to the event and each Councilmember was interviewed by the Institute.

Before the Council is the final draft from the Institute of Local Government of their report out of that workshop. He and Micki Cronin worked on this primarily and they captured items from the workshop and the purpose tonight is to present the summary, have the Council review it, and agree or decide on a process by which the Council might like to refine these. If the Institute captured it, staff would poll those under a new matrix of strategic priorities, and at the budget meeting, staff will share additional information and identify resources required. They would then revisit and update the priorities in 2025 during the two-year budget consideration.

Mayor Miller opened the Public Forum, and there were no speakers or emails.

Mayor Miller said she has some very minor items which are wording changes, but she asked Councilmembers for comments.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 17 of 23 04.11.23
Councilmember Riley said she focused on the language of the goals and said 3 out of 5 of them expressed what they want to happen. One example would be under packet page 200 under 2b which reads: “Leverage best practices in human resources and employee development to attract and retain high quality City staff to ensure that Orinda maintains exceptional public services and programs.” She thinks most important is attracting and retaining high quality City staff and not leveraging best practices. It should be use best practices to get the best staff. Councilmembers agreed.

Councilmember Iverson said she has no wording changes so she suggested that those Councilmembers that do could give their comments to the City Manager. She provided general feedback for the City Manager in the way the facilitation occurred for certain topics and what she is hearing is some of the feedback which is what their real priorities were, and this is what they meant.

Councilmember Riley referred to Number 4; Resilience and Wildfire Preparedness, it starts out with “Employ a collaborative regional approach.” She thinks the main focus should be to “Continue implementation of wildfire preparedness and resilience goals by employing a collaborative regional approach and advocate for enhanced fire safety resources and funding.” Councilmembers concurred.

She then referred to 2 again under Staffing and Technology, it reads, “Evaluate Orinda’s technology needs so City staff can be equipped with the right technological tools to perform efficiently across departments.” This is not enough to evaluate and she suggested it read, “Evaluate Orinda’s technology needs and equip City staff with the appropriate technological tools to perform efficiently across departments.” Councilmembers agreed.

She then referred to Economic Development at the top and she likes it except for the last word “blight.” She is not sure that is appropriate. She thinks the goal is to minimize vacancies and to delete “eliminate blight.”
Councilmember Iverson agreed and said she would like something to pick up that theme of how neglected things appear, to enhance curb appeal or beauty, maintenance, or something that says the Council cares about the aesthetic property maintenance.

Councilmember Riley suggested the word “improve” versus “eliminate.” She suggested “Improve the aesthetics and the community’s economic health.” She is passionate about buildings not being kept up to standards so she suggested revising this somehow to indicate “it is unacceptable due to the comprehensive lack of maintenance and upkeep in the built environment.”
Councilmember Malkani suggested eliminating “to minimize vacancies” and include a positive aspect such as “encourage a successful, vibrant business community.” Mr. Biggs suggested, “Enhance the attractiveness and vitality of the built environment.” He also suggested forming an ad-hoc committee and bringing this back for final Council approval.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 18 of 23 04.11.23
Councilmembers Iverson suggested Mayor Miller and Councilmember Riley meet to confirm the changes, as she did not have revisions.

Lastly, Councilmember Riley referred to Number 3 it is fine to “Begin implementation” which makes sense. Number 5 is fine, except she does not understand the second half of the sentence which reads, “Continue timely implementation of capital improvement plan projects while seeking additional funding for city facility maintenance to address needs in a timely manner.” She noted “timely” is called out twice and she questioned “while seeking.” She asked if they were talking about the 4th bullet; “Assess and seek funding to repair and maintain City facilities.”
Mr. Biggs said capital projects are not necessarily repair and maintenance unless doing a replacement of a facility. He thinks it is trying to capture more of an emphasis on facility maintenance which will require additional funding to come from some source in order to keep up with those needs as opposed to designing new facilities or replacing a bridge.

This gets to the condition of the Library, the Auditorium, Community Center, City Hall, etc.

Councilmember Riley asked if the goal is to seek funding or address those additional facility needs. Mr. Biggs said they cannot address facility needs unless funding is identified. Mayor Miller suggested working on this one in the ad-hoc committee.

Mayor Miller referred to packet page 198. There was an energy the facilitators were trying to get at but she did not remember any Councilmembers stating the quote “5 awesome women speaking their minds.” This might have been just a fun thing but cited sensitivities.

She suggested the 3
rd bullet point might state, “There are 5 people very willing to represent the community as passionately as they can.”
Councilmember Riley suggested removing everything after the word “listening.” Mayor Miller agreed.

Mayor Miller referred to the bottom of the page under the City Visioning Discussion. The first bullet point is interesting because when they were asked this question she had a diabolically different understanding of what happened next. It states, “The Council and staff were asked what City would Orinda like to emulate as it plans the next 50 years” and were led through a group discussion. She recalled that all Councilmembers sat silently and that they did not say that they sought to emulate a different city, and they certainly did not say that they said “Lafayette.” She believes there were staff members who said Lafayette does something they think does very well and this is what was said.

Councilmember Riley said she thinks the question is, “How would you like to see Orinda in 50 years.” She took notes and can go back to them.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 19 of 23 04.11.23
Mayor Miller said the next page includes the top one as Berkeley. This states, “Orinda has similarities to Berkeley—challenges with building, land access, and parking. For a long time, there was no new housing in Berkeley.” She does not think they want their housing in Orinda to emulate what happened in Berkeley when there was no new housing built.

Councilmember Iverson clarified this was her comment which was that she was surprised when someone pointed out certain similarities between Orinda and Berkeley as in dealing with residences being in a lot of topography and how the residential and downtown must relate to each other, and parking challenges. So, she was saying it was surprising there were any similarities and it was not about how much housing they were building. She thinks this was a misquote and can be paired down or eliminated.

Councilmember Riley and Mayor Miller said they can note this was the facilitator’s comment or they can take it out.

Mayor Miller referred to page 8, the 3rd to the last bullet point on packet page 203. She agrees that “All Councilmembers commend the highest level our staff for their tremendous response and work in response to the tragedy on Cedar Lane.” The 3rd bullet point uses the word “great” and it bothered her. She asked to replace that with something else and suggests “commendable.”
Mayor Miller referred to packet page 10 under number 4; “What are the 3 things you know Orinda needs to improve on.” The Council said “raising money from State and other sources.” Due to conversations from today, she knows the Parks and Recreation Foundation brought up that they want to raise money for the Orinda Community Park, which is so important because it speaks to folks wanting to put their money into a certain design, and fund certain types of things. She also heard this in relationship with the schools today, and people feeling passionate about certain school facilities they want to fund. Those things are affected when public agencies hire grant fund writers who are professionally doing it, as it sometimes changes the project. This seems to be what are 3 things and it tends to be more of a list of what happened at the meeting.

Councilmember Malkani said her recollection of reading this list was that it was feedback from different Councilmembers. They may have shared some bullet points but may not recall. She recalled submitting a few of these items but not all of them.

Mr. Biggs said this is a summary of the written survey Councilmembers and staff members did before the retreat, and there is a separate summary of what the interviews were.

Councilmember Riley confirmed it states on the top of page 2 of 3; “Notes from Written Survey.”
Mayor Miller said similarly packet page 211 states, “Orinda community priorities survey report.”
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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 20 of 23 04.11.23
Mr. Biggs noted a community survey was done and this summarizes the results of that, including comments community members provided when they were given a free response.

Mayor Miller asked that their actual priorities come out of this when this is finalized versus brainstorming notes. Mr. Biggs agreed and said on pages 5 to 6 will be just Strategic Priorities and Related Goals. The rest is all background information. Staff will be bringing back the matrix which can be fine-tuned. They could also delegate that to a small working group, and staff is happy to facilitate that.

Councilmember Malkani said one thing that seemed to be missing from the ILG report was explanation or context. It does not need to be a lot, but for those participating, they have the background, but even then it was confusing. Usually, there is some explanation of methodology in the report and this was more a recitation to her than an explanation or analysis, even the way the strategic priorities the way they were laid out. She feels what they ended up in the ILG report was a repeat verbatim of what was processed during the retreat which was done on the spot.

Councilmember Iverson said they talk about having more efficient meetings and using staff time efficiently, and thinks people will look at it during the budget meetings, but writing things for those who were not there is not a great use of staff time.

Mayor Miller asked and confirmed that Councilmember Malkani agreed to serve with Councilmember Riley and meet as an ad-hoc committee.

MOTION by Councilmember Riley moved and seconded by Councilmember Malkani to create the Ad-Hoc Committee of Councilmember Malkani and Councilmember Riley to work with staff to update on the Strategic Priorities for the City based on items discussed. Said motion carried by unanimous (4-0) roll call vote.

H.4. Hybrid Meetings Implementation Options
Recommendation:

Commence Offering a Hybrid Option for City Council Meetings starting May 2, 2023, and Planning Commission starting June 2023
City Manager Biggs stated they came back in person in March and did have to work through some technological issues, but they have used different tools that would allow them to go to hybrid. They think on May 2nd they can introduce a hybrid option for 60 days or so and transition that to the Planning Commission as well. They have only live streamed or broadcast the Council meeting. The Planning Commission was about to go live when the pandemic hit. Once they see how it is working and it might be part of the budget discussion, if they want to expand the hybrid option to other boards and commissions they can consider this.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 21 of 23 04.11.23
Mayor Miller asked even after the 60-day pilot, if they want to continue it, she asked and confirmed they can stop at any point. Mr. Biggs said the City Clerk must put certain descriptive language on the agendas and rework the agenda format on how to participate remotely. There have been cities that have gone to hybrid meetings and have abandoned them due to finding it did not work. There is no legal requirement also to offer a hybrid option, but the legislature has allowed them to do that.

Councilmember Malkani said a resident reached out to her and whether the SSTOC meetings could be hybrid. One concern is it is no longer being recorded and she asked staff to speak to the feasibility of this.

Mr. Biggs said this is a follow-up from a prior report staff did where there are additional costs and staff time associated with facilitating and setting up for hybrid options. Prior to COVID they had to rely on minutes to determine what occurred at board or commission meetings other than the Council.

It is evolving and the City has almost 30 advisory bodies so it will be an interesting question of the Council on which ones they elect to do hybrid and those they do not. They can flush this out when they get a better idea of when they do the Council and Planning Commission meetings. They have been exploring other tools that might allow them to still hold meetings in the Sarge Room but there are technological and set up costs to do that, as well and it could be $400 to $600 in addition per meeting.

Councilmember Iverson said she realizes all department managers must sit through these very long meetings every two weeks and she suggested that if anyone is there just to answer questions and not presenting on a matter that they be allowed to attend via Zoom.

Mayor Miller opened the Public Forum.

Paula Reinman said he wanted to advocate for interactive and open accessible meetings by all City bodies for people wherever they are. They should be interactive and people should be able to comment. She thinks any person who pays taxes in Orinda should be able to participate in meetings remotely. She was unsure of costs, tools, or options but asked staff to consider a minimum viable product for the simplest way to make this happen. If a large part of the cost are cameras or making visuals happen, she asked it be deleted and just make it an audio file and interactive for participation.

Mayor Miller restated the staff recommendation and asked if there were further comments.

Councilmember Iverson voiced support of the staff recommendation, commended staff for getting this done so quickly.

Councilmember Malkani voiced support of the recommendation but given the public comment received, she thinks once that is done she asked to think about low cost options to make some of the other bodies more accessible and recorded.

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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 22 of 23 04.11.23
Councilmember Riley said she likes the staff recommendation but said it is a pilot where they learn as they go, supported taking Ms. Reinman’s suggestion, and continue to talk and think about it.

Mr. Biggs said they will be assessing all options but there are some complications. The current bill has a sunset so the League is trying to get the legislature more permanent, so staff must look to that for guidance, as well as a potential budget concern.

MOTION by Councilmember Iverson moved and seconded by Councilmember Malkani to commence offering a hybrid option for City Council Meetings starting May 2, 2023, and Planning Commission meetings starting June 2023. Said motion carried by unanimous (4-0) roll call vote.

H.5. Commission Recruitment Update
Recommendation:

Consider appointment to the Planning Commission or provide direction to staff to set up interviews.

Mr. Biggs reported that Commissioner Smith, after hearing there was a candidate, has said he wanted to withdraw from consideration. Therefore, the City has one application.

Councilmember Iverson asked if the candidate is a male or female in terms of discussing the candidate. She thinks “they” seemed very qualified and she would be happy to appoint the candidate without an interview.

Mayor Miller opened the Public Forum, and there were no speakers.

Councilmember Riley said they have only been here one year and possibly the Council would be more welcoming if one Councilmember met the candidate.

Councilmember Iverson said she is the Planning Commission liaison and had the same idea and plans on meeting the candidate, but she recalled appointing the previous candidate based upon their applications, but she agreed to meet with the candidate.

MOTION by Councilmember Iverson moved and seconded by Councilmember Malkani to appoint Karmani Armstrong, Planning Commission applicant, without an interview to the Planning Commission. Said motion carried by unanimous (4-0) roll call vote.

I. COUNCILMEMBERS’ REPORTS – Mayor Miller gave the following report:

The Mayor’s Liaison meeting was held today where community groups attended and shared their upcoming events;
• Assemblymember Bauer-Kahan has found a survivor of the Holocaust who will come and meet with people and give a presentation at the Orinda Theater at 6:30 p.m. on April 19th in remembrance of Holocaust Remembrance Day;
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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) Orinda City Council Minutes Page 23 of 23 04.11.23
• The Wildfire Prevention and Safety Fair will be held April 22nd at the Park; • April 15th will be the Plant Sale by Orinda Garden Club; • On May 6th residents can obtain compost from Republic Service and those interested must register in advance;
• Orinda Action Day is on April 22nd;
• Orinda Teen Blood Drive is on April 22
nd;
• On June 4th at 1:00 p.m. will be the William Penn Ma Awards; • The 4th of July Parade will have food trucks this year; and • On the 28th or 29th the former Mayor of Tabor will be visiting Orinda at the end of his bicycle ride along Hwy 1 from Seattle; and
• Lamorinda Presents holds regular meetings and maintains a calendar of events.

J. CITY MANAGER’S REPORT – He reminded the Council of the Wildfire Prevention and Safety Fair on April 22nd and hopes to see many people. Councilmembers are welcome to attend the event and the City will have a City booth.

K. MATTERS INITIATED – Councilmember Iverson said she has not discussed this with the City Manager, but would be excited to get an off-leash dog park. She said Mr. Buckley indicated there is a spot in Wilder or other areas and this would be a perfect Eagle Scout project. She would like to approach the Scouts to see if someone might take that on, as well as fundraising.

She also would like to see if they could request Library usage to include those working from home who want to get out of the house and have some work space.

This might be a good summer internship for someone, as well as talking to the Library about what they would permit so as not to use City resources in the preliminary phase. Mr. Biggs said both these items and others are included as the parking lot of items as seen in the summary report. Staff will bring back discussions of all items as part of the budget discussion in June, and he will add these.

Councilmember Riley said she will not be able to attend the first budget meeting in June but if anyone else has a conflict with the June 6th meeting she would propose the Council consider changing the schedule. Mr. Biggs said sometimes there may be a third meeting scheduled and there is no problem with a Councilmember providing a colleague with their written observations and questions.

L. ADJOURNMENT
The Regular Meeting was adjourned at approximately 10:06 p.m. to the next Special Council Meeting on Tuesday, April 18, 2023, at 7:00 p.m. ______________________________________
Sheri Marie Smith, City Clerk
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Attachment: City Council Meeting Minutes of April 11, 2023 (3099 : City Council Minutes) City Council
Staff Report
Agenda Item: F.2
Date: May 2, 2023
Department:

Public Works and
Engineering Services
AGENDA TITLE: Terminate the Existence of a Local State of Emergency with Respect to the 2022-23 Winter Storms
RECOMMENDATION:

Staff recommends that the City Council adopt Resolution 32-23 BACKGROUND:

At its January 17, 2023 meeting, City Council adopted Resolution 05-23, proclaiming the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms, which began on or around December 27, 2022. At subsequent regular City Council meetings, City Council adopted resolutions to reaffirm the proclamation of the subject Emergency. The following significant damage occurred to public property, which required immediate response and/or repair, as described below:

1. Sinkhole at bike lane fronting 190 Moraga Way – interim repairs completed.

Repairs to the underlying storm drain pipe will be performed with CIP project #4167, currently out to bid

2. Shoulder/road edge failure near 57 Tarry Ln. – lane closure in effect. Repair plans preparation underway.

3. Landslide at 14 Cedar Ln. Roadway evaluations performed and no immediate impacts found.

4. Sinkhole/48” storm drain pipe failure in city easement at 7 North Ln. First phase of repair (sinkhole) is being repaired (estimated completion in early May 2023).

Permanent repair (entire pipe segment) will be proposed as a CIP project.

5. Damaged 72” storm drain pipe under Miner Rd. south of Camino Don Miguel.

Debris (damaged remnant of pipe) removed. Permanent repair (replace dislodged rock rip rap and repair damaged potions of pipe) will be proposed as a CIP project.

6. City buildings – water intrusion. Impacts to Community Center and City Hall.

Interim repairs underway.

7. Failed retaining wall on Camino Sobrante (fronting #56). Preliminary evaluations performed; repair plans underway.

8. Failing roadway on upper El Toyonal (1/4 mile north of Chapparal Pl.) due to incipient landslide. Temporary repairs performed. Field evaluation/testing complete. Repair: plans underway and will be proposed as a CIP project.

9. Road embankment failure on Glorietta Blvd. (fronting #202). Temporary repairs completed; permanent repair options being evaluated. Will be proposed as a CIP project.

F.2
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DISCUSSION:

Staff has performed various emergency response work, hired construction contractors to perform necessary temporary and some permanent repairs, utilized on-call professional service engineering and consulting firms to evaluate damages and recommend appropriate repairs, at the various damaged sites (including those delineated above).

Staff is in contact with county, state and federal agencies to determine potential disaster assistance that may be available to Orinda. The Federal Emergency Management Agency (FEMA) and the State Office of Emergency Services (OES) generally handle programs for public infrastructure, except federal aid roads, which are handled by the Federal Highway Administration (FHWA). To qualify for such funding, the damage must occur during designated disaster dates, which vary depending on the agency: FEMA and Cal OES have appeared to indicate their end date is January 31, 2023, while FHWA has allowed for two separate disasters, the January 2023 Storms and the late February/March 2023 Storms. The amount of financial assistance provided by federal and state funding varies, however for FHWA funds a repair project must comply with all federal project delivery requirements, as administered by Caltrans. Therefore, Staff has determined that for the level of damage sustained by Orinda to federal aid roads in the subject Storms, the net benefit, including likely delays in repairs, does not warrant applying for FHWA assistance. Staff is applying for FEMA and OES assistance.

Given that federal and state agencies have established end dates for the subject Winter Storms and it appears the peak rainy season is behind us, and Staff has performed necessary emergency response work as described above, the aforesaid conditions of extreme peril that warranted and necessitated the proclamation of the existence of a local state of emergency are now deemed to be within the control of the normal protective services, personnel, equipment and facilities of and within the City of Orinda.

NEXT STEPS:

Staff and city consultants and contractors will perform additional repair or corrective work as needed, including work as described in proposed CIP projects as denoted above.

FISCAL IMPACT:

It is estimated that cost to date for cleanup and repair activities for all of the public facilities (including the specific significant locations noted above) is approximately $250,000. This includes contractors, consultants and overtime for city staff. Total cost estimate, for complete repairs is roughly estimated to be $ 1.7 million. The extent of funding through reimbursement programs (OES and FEMA) is not known at this time.

Furthermore, the timing of when complete repairs are necessary has not been fully determined, and would be affected by available funding sources.

ATTACHMENTS:

F.2
Packet Pg. 40
A. Resolution 32-23 Terminate Winter Storms Emergency
Respectfully Submitted by:

Scott Christie
Public Works Director
Prepared By: Scott Christie, Public Works Director
Approved by:

F.2
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BEFORE THE CITY COUN CIL OF THE CITY OF ORINDA
In the Matter of:

Resolution of the City Council of
the City of Orinda Proclaiming the
Termination of the Existence of a
Local State of Emergency with
Respect to the 2022-23 Winter
Storms
)
) Resolution No. 32-23
)
)
)
)
WHEREAS, Section 2.32.090 of the Orinda Municipal Code, empowers the City Manager/Director of Emergency Services to proclaim the existence or threatened existence of a local state of emergency when the City is affected by a public calamity; and
WHEREAS, a series of severe winter rainstorms began in northern California, bringing high winds and significant amounts of precipitation in Contra Costa County starting on or about December 27, 2022, and continued into March 2023; and WHEREAS, the rainstorms have resulted in flooding and earth movement, which has endangered public health and safety and presented a hazard to the members of the community, private property, and public infrastructure; and WHEREAS, during and/or immediately following the rainstorms, there have been a variety of impacts to the City’s buildings, roadway network, storm drains and culverts, and earth movement has occurred: and
WHEREAS, the City Manager issued a Proclamation on January 6, 2023, declaring a local emergency; and
WHEREAS, a sink hole occurred on January 16, 2023, as a result of the major storms and which threatened to undermine a portion of Moraga Way north of Brookside Road necessitating emergency repairs, and due to concerns for continuing storm impacts the City Manager issued a new Emergency Proclamation on January 17, 2023, declaring a local emergency; and
WHEREAS, since the Emergency Proclamation on January 17, 2023, additional significant damages occurred, including:
• Shoulder/road edge failure near 57 Tarry Ln.
• Landslide at 14 Cedar Ln (potential road edge impacts). • Sinkhole/48” storm drain pipe failure in city easement at 7 North Ln. • City buildings – water intrusion. Impacts to Community Center and City Hall. • Damaged 72” storm drain pipe under Miner Rd. south of Camino Don Miguel • Failed retaining wall on Camino Sobrante (fronting #56) F.2.a
Packet Pg. 42
Attachment: Resolution 32-23 Terminate Winter Storms Emergency (3100 : Terminate storms emergency) • Failing roadway on upper El Toyonal (1/4 mile north of Chapparal Pl.) due to incipient landslide
• Road embankment failure on Glorietta Blvd. (fronting #202) WHEREAS, at its regular meeting on January 17, 2023 the City Council adopted Resolution 05-23, proclaiming the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms; and
WHEREAS, at subsequent regular meetings the City Council adopted resolutions to reaffirm the proclamation of the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms; and
WHEREAS, City Staff has diligently monitored the various damaged sites (including those delineated above) to determine emergency response measures and maintained various temporary mitigation measures; and
WHEREAS, mitigating and repairing the damages caused to public infrastructure, has been complex and costly; and
WHEREAS, the situation as described was an emergency event thereby not contemplated in the City of Orinda’s Capital Improvement Budget and was beyond the City’s ability to restore infrastructure without compromising other priorities; and WHEREAS, City Staff has performed various emergency response work, hired construction contractors to perform necessary temporary and some permanent repairs, utilized on-call professional service engineering and consulting firms to evaluate damages and recommend appropriate repairs, at the various damaged sites (including those delineated above) ; and
WHEREAS, the aforesaid conditions of extreme peril that warranted and necessitated the proclamation of the existence of a local state of emergency are now deemed to be within the control of the normal protective services, personnel, equipment and facilities of and within the City of Orinda;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORINDA, DOES HEREBY PROCLAIM AND ORDER:

Section 1. That conditions of extreme peril to the safety of persons and property arose within the City of Orinda, as a result of the high winds and significant amounts of precipitation in Contra Costa County starting on or about December 27, 2022, created a local state of emergency throughout the City.

Section 2. The City Council has reviewed the emergency actions taken since its proclamation of a local state of emergency and determined that, given current conditions, the local state of emergency can be terminated Section 3. The City Council hereby proclaims the termination of the local state of emergency.

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Attachment: Resolution 32-23 Terminate Winter Storms Emergency (3100 : Terminate storms emergency) Section 4. That City staff is hereby authorized and directed to take any action that may be necessary or convenient to assist in obtaining federal, state or regional disaster / emergency relief funding.

Section 5. This Resolution shall take effect immediately upon its adoption.

Adopted by the City Council of the City of Orinda at a regular meeting on May 2, 2023 by the following vote:

AYES:COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Inga Miller, Mayor
ATTEST:

Sheri M. Smith, City Clerk
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Attachment: Resolution 32-23 Terminate Winter Storms Emergency (3100 : Terminate storms emergency) City Council
Staff Report
Agenda Item: F.3
Date: May 2, 2023
Department:

Public Works and
Engineering Services
AGENDA TITLE: Approval of Fiscal Year 2023-2024 SB1 Road Repair and Accountability Act Project List
RECOMMENDATION:

Staff recommends the City Council adopt Resolution 28-23 which formalizes the City of Orinda’s intention to use the funding from the Road Maintenance and Rehabilitation Account (RMRA) for the 2023 Annual Pavement Project which includes work on several streets.

BACKGROUND:

On April 28, 2017 the Governor Signed Senate Bill (SB) 1, which is known as the Road Repair and Accountability Act of 2017. This legislation increased the per gallon fuel exercise taxes ($0.12 per gallon), as well as increases diesel fuel sales taxes and vehicle registration fees. The use of the new funds also comes with additional reporting requirements and a focus on using the new funds for basic road maintenance, rehabilitation, and critical safety projects on the local streets and roads system.

These funds require separate action by the City identifying the specific use of the funds.

In the current year (Fiscal Year 2022-2023) the City designated the use of the funds towards a portion of the costs to rehabilitate various roads in the 2022 Annual Pavement Rehabilitation Project.

The State requires adoption of a Resolution and submittal of the Fiscal Year 2023-2024 Project List by July 1, 2023. The exact amounts of Gas Taxes received by the City fluctuate based on a variety of factors.

The amount estimated in the currently adopted CIP Budget for FY 23-24 is $482,539.

DISCUSSION:

In order to simplify the reporting and administration, the proposed Project List consists of one project, the “2023 Annual Pavement Rehabilitation – Project#4171”. This project includes several roadway segments as described below:

Project Description: Rehabilitate existing pavement.

Locations: Refer to attached list of streets
Scheduled Completion: December 31, 2023
Estimated Useful Life: 15 Years
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Funding Sources: The total cost of the project exceeds the anticipated amount of RMRA funds. Other funding to be used on the project includes General Gas Tax; CCTA Return to Source funds; and Road Maintenance Fees (Solid Waste Provider).

NEXT STEPS:

Staff will submit Resolution No. 28-23 to the State Transportation Commission. The project is currently under design and when bids are received for construction, Staff will submit a request to City Council for approvals of the design and the award of the construction contract.

FISCAL IMPACT:

The 2023 Annual Pavement Rehabilitation Project will likely use several funding sources including: General Gas Tax; Gas Tax RMRA; SB1 Local Partnership Program (LPP), CCTA Return to Source, and Road Maintenance Fee (Solid Waste Provider) funds as shown in the CIP detail page for this project (Attachment B).

ATTACHMENTS:

A. Resolution 28-23 SB1 (RMRA) 2023-24 Project List
B. List of Streets 2023 Paving Project 4171
C. CIP project sheet for 4171
Respectfully Submitted by:

Scott Christie
Public Works Director
Prepared By: Sivakumar Natarajan, City Engineer
Approved by:

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BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of:

Approval of Fiscal Year 2023-2024 )
Project List as required by the Road )
Repair and Accountability Act of 2017 ) Resolution No. 28-23 WHEREAS, Senate Bill 1 (SB 1), the Road Repair and Accountability Act of 2017 (Chapter 5, Statutes of 2017) was passed by the Legislature and Signed into law by the Governor in April 2017 in order to address the significant multi-modal transportation funding shortfalls statewide; and
WHEREAS, SB 1 includes accountability and transparency provisions that will ensure the residents of our City are aware of the projects proposed for funding in our community and which projects have been completed each fiscal year; and WHEREAS, the City must adopt by resolution a list of all projects proposed to receive funding from the Road Maintenance and Rehabilitation Account (RMRA), created by SB 1 by resolution, which must include a description and the location of each proposed project, a proposed schedule for the project’s completion, and the estimated useful life of the improvement; and
WHEREAS, the City estimates $482,539 in RMRA funding in Fiscal Year 2023- 2024 from State Gas Tax based on current estimates; and WHEREAS, this is the seventh year in which the City is receiving SB 1 funding and will enable the City to continue essential road maintenance and rehabilitation projects, safety improvements, repairing and replacing aging bridges, and increasing access and mobility options for the traveling public that would not have otherwise been possible without SB 1; and
WHEREAS, the City has undergone a robust public process to ensure public input into our community’s transportation priorities/the project list; and WHEREAS, the City used a Pavement Management System to develop the SB 1 project list to ensure revenues are being used on the most high-priority and cost-effective projects that also meet the communities priorities for transportation investment; and WHEREAS, the funding from SB 1 will help the City maintain and rehabilitate 23 roads throughout the City this year and more of similar projects into the future; and WHEREAS, the 2018 California Statewide Local Streets and Roads Needs Assessment found that the City’s streets and roads are in “at-risk” condition and this revenue will help us increase the overall quality of our road system and over the next decade will bring our streets and roads into a “good” condition; and F.3.a
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Attachment: Resolution 28-23 SB1 (RMRA) 2023-24 Project List (3086 : SB1 RMRA Proejct List 2023-24) WHEREAS, the SB 1 project list and overall investment in our local streets and roads infrastructure with a focus on basic maintenance and safety, investing in complete streets infrastructure, and using cutting-edge technology, materials and practices, will have significant positive co-benefits statewide.

NOW, THEREFORE IT IS HEREBY RESOLVED, ORDERED AND FOUND by the City Council of the City of Orinda, State of California, as follows:

1. The foregoing recitals are true and correct.

2. The following list of newly proposed projects will be funded in-part or solely with fiscal year 2023-2024 Road Maintenance and Rehabilitation Account revenues:
• Project Title: 2023 Annual Pavement Rehabilitation Project, No. 4171 • Project Description: Rehabilitate paved public streets. • Location: Refer to attachment
• Anticipated Project Scheduled: July 1, 2023 to December 31, 2023 • Estimated Useful Life: 15 Years
Adopted by the City Council of the City of Orinda on May 2, 2023, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Inga Miller, Mayor
ATTEST:

Sheri M. Smith, City Clerk
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Attachment: Resolution 28-23 SB1 (RMRA) 2023-24 Project List (3086 : SB1 RMRA Proejct List 2023-24) 1/26/2023 Street List for FY 2023 Pavement Rehabilitation Project (Project No. 4171) Street Name Begin location End Location Length Width Area (Sq.Ft) PCI FC Happy Valler Road City Limit City Limit (North) 2,383 23 54,809 36 CTara Road Southwood Drive Nonie ROAD 2,349 25 58,725 70 C Tara Road Nonie Road Overhill Road 908 23 20,884 48 C
Lost Valley Drive Edgewood Road Cul-de-sac 906 24 21,744 87 RLost Valley drive Don Gabriel Way 700' W of PGE Substation 700 30 21,000 87 RLost Valley Drive 700' west of PGE Substation Edgewwod Road 2,664 24 63,936 85 RMiner Road Lombardy Lane Tigertail Ct 2,350 23 54,050 32 CMiner Road Tigertail CT Sycamore 2,048 24 49,152 27 El Nido Ranch Road St. Stevens Drive City Limit 1,935 37 71,595 86 ACharles Hills Road 31 Charles Hills Soule Road 899 22 19,778 80 R Sleepy Hollow Lane Lombardy Lane Sly Edge of Normandy Lane 2,809 22 61,798 79 ULSleepy Hollow Lane Sly Edge of Normany Lane Tarry Lane 1,853 22 40,766 UL Washington Lane Sleepy Hollow Lane to End End 550 20 11,000 74 ULNormandy Lane Sleepy Hollow Lane Ridge lane 1,277 20 25,540 73Ridge Lane East End West End 727 19 13,813 88 R Tarry Lane Lombardy lane Sleepy Hollow 434 20 8,680 65 R Amber Valley Drive Dalewood Cul-l De- Sac 1,060 29 30,740 89 R Singingingwood Lane Amber Valley Drive Cul- De-Sac 550 29 15,950 89 RFallen Leaf TR Dalewood Drive Cul-De-Sac 837 29 24,273 85 RCandel Terrace Dale wood Drive Cul-de-sac 496 31 15,376 75 REdgwood Road Lost Valley Drive End 591 25 14,775 R Kenmore Ct Lost Valley Drive Cul-de-sac 487 25 12,175 93 RSnow Court Lost Valley Drive Cul-de-sac 581 30 17,430 92 RAlbo Court Kemore Court Cul-De-Sac 387 25 9,675 82 RDon Gabriel Way Valley View Drive El Camino Moraga 2,058 24 49,392 85 ULSunDown TR Dalewood Drive Happy Valley Road 1,850 33 61,050 88 REl Camino Moraga Dona Maria Way Don Gabriel Way 693 26 18,018 85 ULEl Camino Moraga Donna Maria Way Moraga Way 737 26 19,162 86 ULVan Ripper Lane Lombardy lane Van Tassel Lane 3,819 19 72,561 88 R PCI - Pavement Condition IndexFC - Functional Classification (Residential, Collector, Arterial, Urban Local) F.3.b
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Attachment: List of Streets 2023 Paving Project 4171 (3086 : SB1 RMRA Proejct List 2023-24) Capital Improvement Plan
City of Orinda, California
Department PUBLIC WORKS
'22/'23 '26/'27 thru
Contact Public Works (925) 253-4231
Description
This year's annual pavement maintenance project utilizes Gas Tax, CCTA Return to Source Funds and Road Maintenance Fees (Solid Waste Provider). Pavement maintenance streets are selcted in accordance with the City's Street Rehabilitation Policy, which is based on the Pavement Maintenace Program "StreetSaver" developed by the Metropolitan Transportation Commission.

Funding by Gas Tax includes estimated SB1 RMRA $384,000 + SB1 LPP $200,000 + Gas Tax (portion) + LPP-CCTA exchange agreement $1,000,000= $1,610,000 in FY 23/24 (Construciton expenditures) Project # 4171
Justification
Roadway pavement rehabilitation work is necessary to prevent the pavement condition to fall into the "Poor" condition rating. Research has shown it would cost more to repair a roadway that deteriorated to the point where major rehabilitation or reconstruction is necessary.

Useful Life 15
Project Name 2023 Annual Paving Project Category TRANSPORTATION / DRAI Type ROADS
Total Project Cost: $2,475,000
Expenditures '22/'23 '23/'24 '24/'25 '25/'26 '26/'27 Total 7125 Design Contracts 225,000 0 225,000
7127 Construction Costs 0 2,100,000 2,100,000
7126 Construction 0 150,000 150,000
Management
Total 225,000 2,250,000 2,475,000
Funding Sources '22/'23 '23/'24 '24/'25 '25/'26 '26/'27 Total 200 Gas Tax 1,610,000 1,610,000
330 CCTA Return To Source 273,000 273,000
(Local Share)
335 Road Maint Fee (Solid 225,000 367,000 592,000
Waste Provider)
Total 225,000 2,250,000 2,475,000
2022-2027 CIP Page 1 Wednesday, April 12, 2023
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Attachment: CIP project sheet for 4171 (3086 : SB1 RMRA Proejct List 2023-24) City Council
Staff Report
Agenda Item: H.1
Date: May 2, 2023
Department: Administration
AGENDA TITLE: Adoption of Ordinance No. 23-02, An Ordinance Updating Chapter

17.17 (Landscaping) of the Orinda Municipal Code to Amend Section 17.17.1 (Landscaping plans Required) and Add Section 17.17.4 (Water Efficient Landscape Requirements)
RECOMMENDATION:

Adopt Ordinance No. 23-02, waiving second reading, An Ordinance Updating Chapter

17.17 (Landscaping) of the Orinda Municipal Code to Amend Section 17.17.1 (Landscaping plans Required) and Add Section 17.17.4 (Water Efficient Landscape Requirements)
BACKGROUND:

At the meeting of March 21, 2023, the City Council introduced Ordinance No. 23-02, An Ordinance Updating Chapter 17.17 (Landscaping) of the Orinda Municipal Code to Amend Section 17.17.1 (Landscaping plans Required) and Add Section 17.17.4 (Water Efficient Landscape Requirements)
DISCUSSION:

The Staff Report from the March 21, 2023 City Council Meeting is attached to provide an overview.

Ordinance No. 23-02 was introduced without changes and is on this agenda for consideration of adoption.

There were questions raised by Councilmember at the March 21, 2023 meeting which staff committed to provide responses to when this Ordinance returned for adoption. As part of looking at future implementation, staff has met with EBMUD and the City of Lafayette, which is also addressing MWELO requirements, to gain a better understanding on how the MWELO would be implemented and the reporting requirements. EBMUD was a tremendous resource, and the cities of Lafayette, Moraga, and Orinda will continue to coordinate on implementation as we all rely on the County of Contra Costa for our building permit and plan check services, and they will be capturing some of the reporting data.

The State’s requirements for a variety of data under MWELO have always exceeded what is available to most local governments. However, that is acknowledged informally by the State and is likely to be addressed by future modifications to MWELO. Orinda has reported what data it can collect, in part by relying on what EBMUD is able to provide. The City is slightly behind in its annual reporting due to staff changes and the H.1
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Pandemic, and will be working to get caught up later this year. We will also be looking to expand the data we can provide as noted above.

In addition, we clarified that landscape areas like parks, sports fields, and golf courses, as they are not ornamental in nature, are not subject to MWELO.

FISCAL IMPACT:

None.

ATTACHMENTS:

A. Ordinance 23-02 MWELO Ordinance
B. Weblink to Staff Report from March 21, 2023 Meeting
Respectfully Submitted by:

David Biggs
City Manager
Prepared By: Sheri Smith, City Clerk
Approved by:

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1 BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
Ordinance 23-02
Whereas, to conserve water, State law requires local jurisdictions to enforce requirements consistent with the California Model Water Efficient Landscape Ordinance (Chapter 2.7 of Division 2, Title 23, of the California Code of Regulations, Sections 490 and following) (MWELO);
Whereas, the City has been implementing the State’s MWELO requirements, but limited staff time and resources have precluded formal City adoption of a MWELO until now; Whereas, the purpose of a water efficient landscape ordinance is to promote the conservation and efficient use of water and to prevent the waste of this valuable resource, while recognizing the values and benefits of landscaping; Whereas, adoption of the State MWELO by reference in the City’s Zoning Code will help ensure that the City remains in compliance with State regulations, as they may be amended from time to time;
Whereas, on January 24, 2023, the Planning Commission held a duly noticed public hearing and adopted Resolution No. 23-01 recommending that the City Council approve this ordinance; and
Whereas, on February 7, 2023, the City Council considered the draft MWELO Ordinance (23-02) and after some discussion, continued the item to a future hearing; Whereas, the City Council of the City of Orinda has determined it is appropriate to make certain modifications to Chapter 17.17 (Landscaping) of the Zoning Code.

Now therefore, the City Council DOES ORDAIN as follows:

SECTION 1.

Chapter 17.17 (Landscaping) is amended to add Section 17.17.4 (Water Efficient Landscape Requirements) as shown in Attachment A.

SECTION 2.

This ordinance is consistent with the Orinda General Plan.

In the Matter of: An Ordinance Updating
Chapter 17.17 (Landscaping) of the Orinda
Municipal Code to Amend Section 17.17.1
(Landscaping Plans Required) and Add Section

17.17.4 (Water Efficient Landscape
Requirements).

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Attachment: Ordinance 23-02 MWELO Ordinance (3088 : MWELO Ordinance Second Reading and Adoption) 2 SECTION 3.

The City Council finds that this ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines (Title 14 of the California Code of Regulations) Sections 15305 (Minor Alterations in Land Use Limitations), 15060(c)(1) (the activity does not involve the exercise of discretionary powers), 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change in the environment, directly or indirectly. Further, this action is exempt from CEQA under CEQA Guidelines section 15061(b)(3) (the amendments are exempt because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment).

SECTION 4.

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance irrespective of the invalidity of any section, subsection, subdivision, paragraph, sentence, clause or phrase.

SECTION 5.

The City Clerk shall either (a) have this ordinance published once within fifteen (15) days after adoption in a newspaper of general circulation, or (b) have a summary of this ordinance published twice in a newspaper of general circulation, once five (5) days before its adoption and again within fifteen (15) days after adoption.

This ordinance becomes effective 30 days after adoption.

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Attachment: Ordinance 23-02 MWELO Ordinance (3088 : MWELO Ordinance Second Reading and Adoption) 3 Following a duly-noticed public hearing, the foregoing ordinance was introduced at a meeting of the City Council of the City of Orinda held on March 21, 2023 and was adopted and ordered published at a regular meeting held on _____ by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:
_____________________________
Mayor
ATTEST:

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Attachment: Ordinance 23-02 MWELO Ordinance (3088 : MWELO Ordinance Second Reading and Adoption) 4 ATTACHMENT A:

Municipal Code Chapter 17.17 (Landscaping) is amended by amending Section 17.17.1 and adding Section 17.17.4 (Water Efficient Landscaping Requirements) as follows:

17.17.1 – Landscaping Plans Required
Each application for construction of a new residential or commercial structure must include a landscape plan and/or compliance with the model water efficiency landscape ordinance (MWELO) as described in this chapter. Each application for an addition or a remodel of a residential or commercial structure must include a landscape plan as described in this chapter, when the proposed addition or remodel will have a significant effect on existing landscaping. In addition, as a condition of approval of any permit or design review required under this title, a landscaping plan may be required. In all cases, riparian landscape restoration shall be required if the subject property includes or is bordered by a watercourse as defined in Title 18 of this code. No fence may be constructed in the front yard or a side yard with street frontage without landscape plan approval when landscaping is required under Subsection 17.4.27(B)(1) of this title.

17.17.4 – Water Efficient Landscape Requirements
A. The water-efficient landscape ordinance of the City of Orinda is the State of California Model Water-Efficient Landscape Ordinance adopted by the California Department of Water Resources and set forth in Chapter 2.7 of Division 2, Title 23, of the California Code of Regulations, Sections 490 and following, including all appendices (the “MWELO”), as that MWELO may be amended from time to time, together with the definitions added below.

B. The following definitions are added to those contained in MWELO Section 491 (Definitions).

1. “Microspray” means a microirrigation emission device with one or more orifices to convert irrigation water pressure to water discharge with a flow rate not to exceed thirty gallons per hour at the largest area of coverage available for the nozzle series when operated at thirty psi. Microsprays are inclusive of microbubbers, microspinners, and microspray jets.

2. “No-water using plant” means a plant species with water needs that are compatible with local climate and soil conditions such that regular supplemental irrigation is not required to sustain the plant after it has become established.

3. “Swimming pool” means any structure intended for swimming, recreational bathing or wading that contains water over twenty-four inches deep. This includes in-ground, above ground, and on-ground pools; hot tubs; spa and fixed in place wading pools.

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Attachment: Ordinance 23-02 MWELO Ordinance (3088 : MWELO Ordinance Second Reading and Adoption) 5 1602386.1
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Attachment: Ordinance 23-02 MWELO Ordinance (3088 : MWELO Ordinance Second Reading and Adoption) City Council
Staff Report
Agenda Item: H.2
Date: May 2, 2023
Department:

Public Works and
Engineering Services
AGENDA TITLE: Discussion of Annual Updates to the Capital Improvement Plan for Fiscal Years 2023/24-2027/28
RECOMMENDATION:

The information obtained from this meeting will be used to develop the Draft CIP document, including the addition of new projects. The City Council will have additional opportunities to review and provide input before the CIP is approved.

CIP PLANNING PROCESS
The Capital Improvement Plan (CIP) is a financial planning document which relies on estimates of available resources. The plan then presents a road map balancing the various funding needs over numerous proposed projects, to ensure sufficient funding exists. For Capital Projects it is important to look beyond one year. In some cases, the City may have accumulated funds over multiple years, or it may still be in a saving mode to address critical deficiencies.

While the impacts from the COVID-19 pandemic appear to be behind us, impacts to City resources from inflation and strong construction demand continue to persist. In light of this environment, Staff recommends continuing a fiscally conservative approach to only fund the most essential projects.

BACKGROUND:

The CIP identifies public infrastructure projects and funding sources for long-term investments that are designed to protect, preserve, and enhance the City's infrastructure, extend the useful service life of public facilities and improve or enhance delivery of City services. The City Council annually discusses priorities, overall funding of future projects, and new projects to be added to the CIP.

The City Council last approved the CIP on June 21, 2022, for the five-year period ending June 30, 2027. It included estimated expenditures for the remainder of the fiscal year ending June 30, 2022, and forecasted expenditures for a five-year period (to June 30, 2027). The same concept will be used for the subject CIP update, which will include estimated expenditures for the remainder of the current fiscal year ending June 30, 2023, and estimating project budgets going forward five years. Programming for future years enables the CIP to be used as a planning tool to prioritize potential projects and schedule them in light of projected fund balances. Consistent with the two-year city operating budget cycle, The first two fiscal years of the final approved CIP is H.2
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incorporated into the City’s biennial operating budget and appropriated for expenditure at that time. The CIP and the operating budget are reviewed and potentially revised each year in order to utilize the most current data for financial planning purposes.

Attachment A is a listing of the current approved CIP projects by category.

The CIP update and adoption process encompasses three City Council meetings, and others, as described below:
• City Staff meets with the City Council to present proposed changes to the CIP which includes consideration of new projects. (This is the subject meeting.) • Staff presents an overview of the CIP process to the SSTOC, in light of potential funding from Measure R (Fund 106) for drainage and road projects, for their review and input. This is scheduled for their May 10, 2023 meeting. • Based on input received at the above meetings, Staff prepares a Draft updated CIP, which requires analysis of cash flows and fund balances for all projects including addition of new proposed projects, changes to current projects based on scheduling or actual cost adjustments and removal of completed or discontinued projects. This will be presented to the City Council, scheduled for the June 6, 2023, meeting.
• Planning Commission reviews new projects in the CIP update to determine conformance with the General Plan, scheduled for their June 13, 2023, meeting. • Staff prepares the final updated CIP that will be recommended for adoption by the City Council, scheduled for the June 20, 2023, meeting.

DISCUSSION:

The purpose of this item is to receive input from the City Council (concurrence and/or direction) on proposed new projects and changes to existing projects as described in the Tables below. This will allow Staff to be better informed before proceeding with further analyses which includes balancing the various fund sources to ensure minimum levels are maintained. Depending on the priority and needs for proposed project(s), it may be warranted to reschedule or even cancel future year projects already in the approved CIP to allow funding of such new projects.

Staff proposes the projects noted below based on the following criteria:
• Continuation of annual large scale maintenance projects (e.g., paving or storm drain repairs). These are based on approved programs such as “StreetSaver” Pavement Management Program and the 2019 Storm Drain Repair Plan. • Projects for which the City has tentatively received grant funding. • Essential projects such as significant repairs to facilities or roadways which have sustained damage during recent winter storms or other emergencies. • Projects which are currently on the Unfunded Project List approved as part of last year’s CIP (Attachment B) if funding has been identified.

It should be noted that Staff is generally not including new maintenance related projects under $60,000 such as building painting and carpet installation, as these typically are not classified as capital improvements. Costs for such work would be charged to the operating budgets. Also excluded from the CIP are Planning related Studies and longH.2 Packet Pg. 59
term Plans, and Vehicle /Fleet Replacements – these items more appropriately appear in the city operating budget and are not considered infrastructure capital projects.

Staff have separated the potential projects into the categories as described below:

Table 1 - Proposed New Projects with proposed funding identifiedNo. Project Name Expenditure Year(s)
Potential Fund Source
(Fund #)
Estimated
Cost

1.1 2027 Annual Pavement
Project
27/28 Various (*)
$2,600,000

1.2 Moraga Way Pathway
Project – Phase 3
24/25 TDA (Fund #263) $150,000

1.3 2023 Annual Storm
Drain Repair (Category
B)
23/24 ARPA (Fund #256)
$350,000

1.4 2024 Annual Storm
Drain Repair (Cat. B)
24/25 Measure R
(Fund #106) $350,000

1.5 2025 Annual Storm
Drain Repair (Cat. B)
25/26 Measure R
(Fund #106) $350,000

1.6 2026 Annual Storm
Drain Repair (Cat. B)
26/27 Measure R
(Fund #106) $350,000

1.7 2027 Annual Storm
Drain Repair (Cat. B)
27/28 Measure R
(Fund #106) $350,000
Winter Storm damage Repair Projects

1.8 Glorietta SD Pipe
Repair
23/24 Road/Drainage
Stabilization
(Fund #704)
$100,000

1.9 Miner Rd. Culvert
Repair (near Cam. Don
Miguel)
24/25 Road/Drainage
Stabilization
(Fund #704)
$100,000

1.10 Upper El Toyonal road
stabilization (Winter
Storm damage)
23/24 Road/Drainage
Stabilization
(Fund #704)
$100,000

1.11 North Lane Pipe 48”
Lining
24/25 Road/Drainage
Stabilization
(Fund #704)
$100,000
* Gas Tax (Fund #200), Garbage Co. Road Maint. Fees (#335), CCTA Return To Source (#330), Measure R (Fund #106)
Table 2 - Selected Projects from the CIP Unfunded Project List - Staff selected for discussion on priorities, should funding sources become available in the future.

No. Project Name Estimated Cost

2.1 Orinda Oaks Park Restroom Replacement $150,000
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Table 2 - Selected Projects from the CIP Unfunded Project List - Staff selected for discussion on priorities, should funding sources become available in the future.

No. Project Name Estimated Cost
Table 3 - Changes to the Unfunded CIP Projects list - Staff recommends the addition of new projects as shown, which may include requests from the public.

No. Project Name Estimated Cost

3.1 Wilder/Downtown Class I Multi-Use Path $1,000,000 + The discussion presented in this report is to gather input on potential projects to be examined further. No final decisions are being made as part of the consideration of this item. Staff also proposes to update/revise the Unfunded Project List to provide current cost estimates when available and remove certain non-feasible projects; this will be provided at the next City Council CIP review meeting June 6, 2023.

NEXT STEPS:

Staff will follow the direction given by the City Council and address/incorporate any comments into the draft of the CIP to be reviewed by City Council on June 6, 2023. Staff will further analyze the selected projects and determine the impact to funding sources and fund balances.

FISCAL IMPACT:

Project budgets, cost estimates, project funding sources and fund balances are preliminary. No funding is being appropriated by the City Council with this item – it is for preliminary review only, and no new projects are approved to move forward.

ATTACHMENTS:

A. Projects by Category CIP (current)
B. Master Unfunded CIP Project List 6-21-2022
Respectfully Submitted by:

Scott Christie
Public Works Director
Prepared By: Sivakumar Natarajan, City Engineer
Approved by:

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Capital Improvement Plan
City of Orinda, California

PROJECTS BY CATEGORY
'22/'23 '27/'28 thru
Category # '22/'23 '23/'24 '24/'25 '25/'26 '26/'27 '27/'28 Total

CITY BUILDINGS & FACILITIES
Community Center Window Replacement 4016 250,000 250,000 Community Center HVAC 4050 65,000 65,000
Community Center Exterior Painting 4083 150,000 150,000 Community Center Accessibility Improvements 4086 15,000 15,000 15,000 15,000 60,000 Community Center Roof Replacement 4141 347,000 347,000
Library Boiler Replacement 4161 125,000 125,000
Solar Back-Up Community Center 4164 504,701 504,701
Library Roof Replacement 4173 85,000 85,000
Replace Library Air Handlers 4174 190,000 190,000
Library Painting (Ext. & Interior) 4175 150,000 150,000 Community Center Vinyl Flooring Replacement 4180 50,000 50,000 Art & Garden Ctr Audio Visual 4181 20,000 20,000
City Hall Exterior Painting 4182 130,000 130,000
Library elevator modernization 4192 320,000 320,000
Emergency generators - various buildings 4193 300,000 300,000 Community Center Carpet Replacement 4196 55,000 55,000
CITY BUILDINGS & FACILITIES Total 1,821,701 630,000 335,000 15,000 2,801,701

PARK IMPROVEMENTS
Mini Park (Crossroads Park) 4103 285,000 285,000
Community Park Renovation Plan & Improvements 4112 652,000 652,000 Lighting retrofit (LED) - tennis courts 4194 55,000 55,000 Lighting retrofit (LED) – Wilder fields #1 & #2 4195 173,300 173,300 PARK IMPROVEMENTS Total 992,000 173,300 1,165,300

TRANSPORTATION / DRAINAGE
Miner Road Bridge Seismic Retrofit 0044 899,000 899,000 Bear Creek Bridge Seismic Retrofit 0087 1,113,000 1,113,000 Camino Pablo Path-Orinda Way to Monte Vista 3066 470,000 1,150,000 1,620,000 Glorietta-Rheem SD Repair PL-492 3100 25,000 1,000,000 1,025,000 Orchard SD Repair PL-409 & PL-513 3101 200,000 1,000,000 1,200,000 Ivy Dr. SD Repairs, PL-958/959 & PL864 3102 200,000 1,100,000 1,300,000 Canon SD Repairs PL-1765, -1766 &-1775 3103 300,000 1,300,000 1,600,000 Ranch SD Repairs PL-1074; PL-1089, PL-1809 3104 200,000 900,000 1,100,000 Brookside SD Repair PL-751, PL-867 3105 200,000 900,000 1,100,000 Canon Dr. Embankment repair 3548 73,000 73,000
Traffic Signal Operation Improvements 3608 1,100,000 1,100,000 ADA Transition Plan Compliance (Roadway) 4074 50,000 50,000 50,000 50,000 200,000 Camino Pablo Pathway Rehabilitation 4076 55,000 95,000 150,000 Storm Drain Plan & Inventory 4092 15,000 15,000 15,000 15,000 60,000 Storm Drain Liner Ivy Dr (48in) 4094 130,000 130,000
Traffic Calming Improvements Program 4107 30,000 30,000 30,000 30,000 120,000 Annual Bicycle, Trails, and Walkways Program 4109 40,000 40,000 40,000 40,000 160,000 Annual Drainage Facilities Improvement Program 4111 170,000 125,000 105,000 85,000 485,000 Martha Rd-Catherine Ct Ped Path 4140 123,200 123,200
2022-2027 CIP Page 1 Wednesday, April 26, 2023
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Attachment: Projects by Category CIP (current) (3096 : Draft CIP Discussion FY 2023-2028) Category # '22/'23 '23/'24 '24/'25 '25/'26 '26/'27 '27/'28 Total Green Infrastructure Program for Pavement 4146 30,000 30,000 30,000 90,000 Projects
Lavenida Culvert Repair 4148 923,000 923,000
Camino Sobrante at Golf Course Slide 4152 896,000 896,000 Stabilization
2021 Annual Pavement Project 4155 1,378,000 1,378,000
Pavement Rehab - El Toyonal, Oak Flat, La 4165 900,000 900,000 Espiral
2022 Annual Pavement Project 4166 3,951,696 3,951,696
Storm Drain Moraga Wy & Coral 4167 100,000 773,900 873,900 Ped Path MoragaWy ECM to Altam 4168 185,000 185,000
Drainage Impvt 25 La Cuesta 4170 31,500 31,500
2023 Annual Paving Project 4171 225,000 2,250,000 2,475,000 Camino Pablo Underground Utility District 4177 200,000 100,000 1,200,000 1,500,000 2024 Annual Pavement Rehabilitation 4178 225,000 2,210,000 2,435,000 2025 Annual Pavement Rehabilitation 4183 200,000 1,650,000 1,850,000 Mitigation - Brookwood Rd. ROW- Study 4186 90,000 90,000 San Pablo Creek Culvert Repair 4187 290,000 1,750,000 1,620,000 540,000 4,200,000 RRFB Crosswalk, Moraga Way at Valley View 4188 100,000 100,000 2026 Annual Paving Project 4190 225,000 1,775,000 2,000,000 Glorietta SRTS Raised Crosswalks at Martha 4191 65,000 275,000 340,000 TRANSPORTATION / DRAINAGE Total 14,058,396 10,008,900 6,200,000 5,735,000 1,775,000 37,777,296 GRAND TOTAL 16,872,097 10,638,900 6,535,000 5,923,300 1,775,000 41,744,297 2022-2027 CIP Page 2 Wednesday, April 26, 2023
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Attachment: Projects by Category CIP (current) (3096 : Draft CIP Discussion FY 2023-2028)

CITY OF ORINDA - CAPITAL IMPROVEMENT PLAN

UNFUNDED CIP PROJECTS LIST
FY 21/22 to FY 26/27 CIP
In lieu of individual project sheets for projects that do not have funding, this list represent projects that of significance but do not have funding sources identified. These projects will not move forward unless funding sources can be identified. The order of the project listed below do not present priority.

Public Works Dept. /Transportation Projects

1. Downtown Intersection Operational Improvements
Description/Notes: Consider reconfiguration of the intersection of Camino Pablo/EB Hwy 24 Offramp/Brookwood Rd, including a traffic circle/roundabout or removal of some traffic movements. Due to the five legs to this intersection, signal operations are protracted and can be somewhat difficult to discern. Due to the high volumes of vehicles along Camino Pablo and the Hwy 24 off-ramp, multi-lanes within the circle must be considered to operate with reasonable level of service. Special consideration must be evaluated for pedestrian and bicycle traffic safety due to the lack of right of way control afforded by standard traffic signals.

Cost: TBD

2. Camino Sobrante Slope Stabilization
Description/Notes: This project contemplates a reconstruction and rehabilitation of Camino Sobrante from Orinda Way east to El Ribero. No funds have been secured for this major reconstruction project, which will include a geotechnical study for slope stabilization and repair.

Cost: TBD

3. Moraga Way at Stein Way Improvements
Description/Notes: The project is identified in the Lamorinda Fee and Financing Authority Expenditure Plan. It would address the increased traffic accessing Moraga Way at this intersection. The scope of the project is still to be determined.

Cost: $750,000

4. Rheem Blvd. & Glorietta Blvd. Intersection Improvements (#3038) Description/Notes: The need for installation of a traffic signal at this intersection was identified in the Lamorinda Transportation Improvement Program (1994) based on the proposed Rancho Palos Colorados project in Moraga, which has not yet occurred. The need for improvements to this intersection continues to be monitored and will likely not be implemented until Moraga completes their Rancho Palos Colorados project.

Cost: $TBD

5. Sign Inventory and Replacement
Description/Notes: Inventory of Existing Roadway Signage including condition and retroreflectivity; add to GIS database. Establish a protocol of sign replacement by type or age Cost: $TBD
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Attachment: Master Unfunded CIP Project List 6-21-2022 (3096 : Draft CIP Discussion FY 2023-2028)

6. Full trash capture/Triton Drop Inlet to capture oil & grease runoff from Chevron Description/Notes: Install full trash capture device at inlet near Chevron gas station. Chevron may have a future improvement project. Depending on the future improvement project, the City may place a requirement for Chevron to construct this project.

Cost: $TBD

7. Happy Valley Road Guardrail/Embankment Stabilization Description/Notes: Repair the slide on the northerly side of Happy Valley Road south of Sundown Terrance (near the border of Lafayette), consider soldier pile retaining walls along the west side of Happy Valley Road just north of the Sundown Terrance, and provide additional pavement width to install metal beam guardrails. Ref. CCTA CTPL potential project list.

Cost: $1,250,000+

8. Ichabod Ln. Drainage (Project #4154)
Description/Notes: Per request from resident to reduce surface drainage in gutter along the frontage of the beginning of Ichabod Lane (89 Sleepy Hollow Lane) by installing new storm drain system 200’ uphill to open space ditch.

Cost: $425,000

9. Daryl Drive Neighborhood Drainage Improvements
Description/Notes: Perform drainage studies on the Daryl Drive culvert between Overhill Rd. and Marth Rd. to allow design and construction of capacity improvements to the system. This will require permitting from regulatory agencies and the associated environmental studies.

Easements to allow improvements on portions of private property will likely be required.

Cost: $800,000

10. Washington Ln. Widening
Description/Notes: Utilizing Study completed in 2020 (project #4176), acquire easement if necessary to widen street for improved fire dept. access.

Cost: $800,000

11. Hwy 24/Camino Pablo Interchange Landscape Improvements Description/Notes: Improve landscaping appearance at this location. Determine if Caltrans, who has control of this location, would entertain a design prepared by the City for their review.

Irrigation of the site would be a major consideration as new service meters are very expensive and drought surcharges may apply. Review and approval by Caltrans will be required if such project is allowed to proceed by Caltrans. Ongoing maintenance agreements would likely be required.

Cost: Initial landscaping plans and review $30,000. Irrigation and installation: $100,000 plus, depending on extent of improvements.

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Attachment: Master Unfunded CIP Project List 6-21-2022 (3096 : Draft CIP Discussion FY 2023-2028) Public Works Dept. /Trail, Pedestrian and Bicycle Projects

12. Miner Road Pedestrian Bridge at San Pablo Creek
Description/Notes: Construct a pedestrian bridge over San Pablo Creek. Ref. CCTA CTPL potential project list.

Cost: $TBD

13. Brookwood Road Walkway
Description/Notes: Provide a pedestrian walkway along Brookwood Road. (#7 on “Top 10” list compiled from BTW Plan)
Cost: $TBD

14. Aesthetic Enhancement - Sandblast & Paint Pedestrian Overcrossing Hwy. 24 on-ramp (end of Orinda Way)
Description/Notes: Existing bridge surface meets minimum maintenance level, consider aesthetic enhancement with sandblast and paint this Caltrans-owned bridge, which is maintained by the City under a Maintenance Agreement with Caltrans. Work will need to include containment facilities. Caltrans permits will be required.

Cost: $125,000

15. Orinda Oaks/Oak Springs Fire Evacuation & Trail Access to Wilder Description/Notes: Acquire easements to connect to existing easement to provide trail connecting the Wilder development (at the east end of Fiddleneck Way) to Stein Way (west of Oak Rd.

Cost: $300,000
Parks & Recreation Dept./Parks

16. Park and Recreation Master Plan (#4059)
Description/Notes: Develop a Parks and recreation Master Plan with consideration of the recently adopted Bicycle, Trails, and Walkways Master Plan. The existing Master Plan was adopted in 1988.

Cost: $100,000

17. Parklands Acquisition (#4060)
Description/Notes: Provide funding for parkland acquisition opportunities as provided in the Orinda General Plan and Parks Master Plan.

Cost: $TBD

18. Park Monument Signage (#4113)
Description/Notes: Develop program to replace aging signs, and implement, subject to design and cost estimates.

Cost: $ TBD
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Attachment: Master Unfunded CIP Project List 6-21-2022 (3096 : Draft CIP Discussion FY 2023-2028)

19. Community Park Tennis Court Lighting Retrofit and Pole Painting Description/Notes: Replace the outdated, inefficient existing lighting system for the 3 tennis courts and practice court in the community park with LED technology will result in a more efficient, effective, and environmentally-friendly facility. The existing poles also require repainting.

Cost: $ 75,000

20. Wilder Fields 1 & 2 Lighting Retrofit
Description/Notes: Replacing the existing lighting system for Wilder Fields 1 and 2 with LED technology will provide more efficient, effective, and environmentally-friendly lighting for these heavily used sports fields.

Cost: $ 200,000
Parks & Recreation Dept./Facilities

21. Art & Garden Center Parking Lot
Description/Notes: Construct a parking lot uphill of the Art & Garden Center with ADA pathway.

Funding has not be identified. Wilder residents have provided initial feedbacks. The scope of this parking lot needs to be further developed.

Cost: $150,000

22. Upgrades to City Hall Pedestrian Paths
Description/Notes: Upgrade City Hall pedestrian paths, including adding lighting and railing.

Cost: $50,000

23. Community Center Kitchen Renovations (#4022)
Description/Notes: Upgrade kitchen to meet current health and safety codes.

Cost: $75,000

24. Orinda Oaks Park Restroom Replacement (#TBD4012)
Description/Notes: The project replaces the existing aged restroom with a new, efficient and accessible facility.

Cost: $100,000

25. Camino Pablo Median Landscaping Upgrade – Santa Maria to Camino Encinas.

Description/Notes: Landscaping upgrade for remaining areas following 2019 project.

Cost: $120,000
Date added to this list: June 7, 2022
Planning Dept.

26. Near-Term Downtown Pedestrian Safety and Beautification Enhancements Description/Notes: The project area for this project is focused on the connections between the Theatre District and BART and the Village District and BART. This includes re-opening the second pedestrian entrance to BART, beautification of the pedestrian undercrossing, pedestrian safety and comfort improvements, and improving the landing of the walkway from the pedestrian H.2.b
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Attachment: Master Unfunded CIP Project List 6-21-2022 (3096 : Draft CIP Discussion FY 2023-2028) bridge from BART to the Village District, including creating a gateway to the existing pedestrian bridge near the southern end of Orinda Way (as detailed on pages 22-27 and 36-38 of the ConnectOrinda Plan). Potential funding could come from Measure RR and CCTA Measure J. Ref.

CCTA CTPL potential project #3043.

Cost: $50,000 - 650,000

27. Construct Living Landscape Berm on Bryant Way
Description/Notes: Enhance Bryant Way through visual screening and freeway noise attenuation by creating an earthen mound with vegetation on top of it along the freeway side of Bryant Way (as detailed on pages 42-44 of the ConnectOrindaPlan). (Note this project is an expansion of the “Visual Screening Enhancements” project which appeared in the 2019-2023 Potential Project List (F). The planting work in that project was completed) Cost: $200,000 - $400,000

28. San Pablo Creek Restoration (CIP Project #4159)
Description/Notes: Perform creek hydrology study work, determine potential creek alignments, determine trail alignments for future pedestrian creek trail, provide a pedestrian connection to the de Laveaga (EBMUD) trail, and perform property acquisition due diligence. Plan for public creek access (as detailed on pages 28-32 of the ConnectOrinda Plan). Future creek restoration phases would include CEQA compliance and project implementation. Note: The State Water Board has allowed mitigation fees (from creek/culvert project regulatory permit conditions) to be paid into this project. Note: A portion of this work (technical/ hydraulic evaluations) will be included as part of the Downtown Precise Plan CIP Project #4163.

Cost: $125,000 (study only)

29. Library Terrace Area Pedestrian Improvements
Description/Notes: This project will include replacing the existing surface material with decomposed granite, installing string lighting (if not already completed through remaining ConnectOrinda funds), permanent games (such as concrete foosball), and outdoor furnishings that transform the area into a well-used area for people of all ages that remains beautiful (as detailed on pages 33-35 of the ConnectOrinda Plan).

Cost: $100,000

30. Murals Along Camino Pablo Near State Route 24
Description/Notes: Create murals along Camino Pablo near State Route 24 and Vashell Way. This includes the pedestrian bridges between the two sides of Downtown and BART (as shown on pages 61-62 of the ConnectOrinda Plan). The Vashell Way mural would be located on the south-east wall of the Casa Orinda building (as shown on page 40 of the ConnectOrinda Plan).

This project includes funding for the community process of selecting qualified artists as well as partial funding for the murals. The intent is to use the city funding as seed money to be used as matching funds for community fundraising. Staff will outreach to the community groups for possible partnerships and potential philanthropic giving to fully fund the mural art desired by the community.

Cost: $10,000 (seed money only; private donations needed to implement project) H.2.b
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Attachment: Master Unfunded CIP Project List 6-21-2022 (3096 : Draft CIP Discussion FY 2023-2028)

31. Vashell Way Pedestrian Activation
Description/Notes: Enhance Theatre District activity through transformation of Vashell Way into a part-time pedestrian alley. The project would include special paving, murals, lighting, and bollards (as detailed on pages 39-41 of the ConnectOrinda Plan). Potential funding could come from Measure RR and philanthropic community groups/community members.

Cost: $250,000
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Attachment: Master Unfunded CIP Project List 6-21-2022 (3096 : Draft CIP Discussion FY 2023-2028) City Council
Staff Report
Agenda Item: H.3
Date: May 2, 2023
Department: Administration
AGENDA TITLE: Inclusionary Housing Ordinance
RECOMMENDATION:

Receive Report regarding Inclusionary Housing Ordinances, Discuss Key Parameters, and Direct Staff to Prepare an Ordinance for Review and Consideration.

BACKGROUND: On January 31, 2023, the City Council approved an updated Housing Element for the City’s General Plan. Since that time, the State Department of Housing and Community Development has deemed the City’s Housing Element to be in substantial compliance with State law and our attention has turned to implementation activities. As discussed during the consideration of the Housing Element, one of the first action items which the City Manager and staff committed to bring back for consideration is a possible inclusionary housing ordinance. This report is the first step in that process.

An Action Item on page 222 of the adopted Housing Element regarding an inclusionary ordinance provides:
“Action 3.G: Inclusionary Housing Ordinance. The City will research an inclusionary housing ordinance. This ordinance will identify acceptable methods to provide affordable housing such as: a) construction of housing on- site, b) construction of housing off-site, c) dedication of land for housing, and d) payment of an in-lieu fee. Development of this ordinance requires an analysis of the following variables:
● Limiting the application of the ordinance to developments exceeding a certain size.
● Percentage of housing units required to be set aside as affordable. ● Design and building requirements.
● Timing of affordable unit construction.
● Determination of a fee in lieu of developing affordable units. ● Developer incentives, such as fee deferrals and waivers. ● Administration of affordability control.

Responsible Agency: Planning Department
Timeframe: Determine the appropriateness of an inclusionary ordinance within two years after adoption of the Housing Element. If determined appropriate, adopt an inclusionary ordinance within one year of making the determination.

Funding Source: General Fund
Quantified Objective: 145 lower income units in high opportunity areas to promote access to resources and mobility for target households.” H.3
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DISCUSSION: Any consideration of an inclusionary ordinance in Orinda should reflect the goals in the recently approved Housing Element and diverse range of tools and programs to be put in place to encourage the development of housing, especially affordable housing including the higher densities to be implemented in parts of the community. It is anticipated that many market-rate developments will take advantage of the bonus density laws which provide for additional density and waivers/concessions in exchange for including affordable housing in new development. As such, the staff has approached the development of an inclusionary ordinance as mainly being the tool to ensure what would otherwise be 100% market projects also do their fair share and contribute towards the provision of affordable units.

Inclusionary housing ordinances have been utilized in many communities across the State for many years. They became more important after the elimination of Redevelopment Agencies in 2011-12 as redevelopment project areas had a mandate that 15% of all housing be affordable, plus 20% of any property tax increment received by a Redevelopment Agency was set aside for affordable housing. It should be noted that Orinda did not have a Redevelopment Agency.

Attached is publication of the Local Government Commission and others from 2018 entitled: Meeting California’s Housing Needs: Best Practices for Inclusionary Housing (Attachment A). While this is slightly dated, it does provide a good overview on inclusionary housing and the main approaches and considerations.

Another resource is the California Coalition for Rural Housing website on which inclusionary housing programs from many jurisdictions across the State are catalogued.

The link below provides access to that website as an additional resource:
https://experience.arcgis.com/experience/ccee391adbe9461cbe32c6b3423939be?org= ucdavis
Welcome to the California Inclusionary Housing Programs Searchable Database, created by the California Coalition for Rural Housing in June 2021. This database includes all of California’s Inclusionary Housing programs and allows stakeholders to filter programs by various characteristics, see where the programs are located within California, and discover and download more detailed information.

Click on the information icon on the Filter Inclusionary Housing label for brief instructions on how to use the database, and see the Inclusionary Housing User Manual for more detailed information.

An additional resource is a publication on from the Western Center on Law and Poverty which is attached: Inclusionary Housing in California – The Legal Landscape (Attachment B). This publication explains some of the legal constraints regarding inclusionary housing and its evolution due to legislation and case law. As discussed in this publication, a few years after we have an inclusionary ordinance in place, the State Department of Housing and Community Development (HCD) will require an economic H.3
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study demonstrating that the ordinance is not an impediment to new housing construction. In addition, we should be mindful that the legal landscape can change, and a current example is a bill which has been introduced in the State Legislature this year. SB 423 would make, if passed, inclusionary ordinances unenforceable if their income limits don’t match those in SB 35, an existing piece of housing legislation.

Finally, two neighboring communities have local inclusionary ordinance. the Town of Moraga considered and adopted an inclusionary housing ordinance in December of 2022, a very recent local example. The staff report and final adopted ordinance is provided as an additional touchstone (Attachment C). Plus, in conjunction with their new inclusionary housing ordinance, the Town of Moraga has embarked on the establishment of an in-lieu fee for inclusionary units, or fractional units. That staff report and study may also be of interest (Attachment D). The Council may also consider the City of Lafayette’s inclusionary Ordinance which was originally adopted in 2016 and which has been amended since. A summary of the Lafayette Ordinance is excerpted from their Housing Element is provided as Attachment D and the text of the Ordinance is provided as Attachment E. These communities’ inclusionary ordinances can inform the Orinda City Council discussion of options.

Parameters for Consideration
As staff begins work on a draft inclusionary housing ordinance, it would be helpful to get some initial feedback from the City Council on a number of parameters.

1. Size of development to which the inclusionary housing ordinance would apply.

A high-level review of inclusionary ordinances indicates that 10 units or more is a often used threshold. The Moraga ordinance exempts projects of 5 units or less from the on-site requirement, though a fractional in-lieu fee is established. Given the densities contemplated on the opportunity sites in the Downtown and other areas, the 10-unit threshold is what staff would be proposing.

2. Percentage of units required to be set aside as affordable and at what target levels of affordability.

A 10% to 15% level of inclusionary seems to be most common. As an initial target, City staff suggest that 10% would be the desirable target level given we have numerous housing opportunity sites which are slated for affordable housing development. The City is looking to facilitate or encourage the development of housing affordable in three categories – Very Low, Low, and Moderate income.

Having projects producing inclusionary units at a mix of 50% Very Low/Low and 50% Moderate would be recommended. It is anticipated that some sites developed in conjunction with an affordable housing developer would be 100% affordable to the Very Low/Low categories.

3. Should the mix of on-site affordable units be proportionate to the unit mix for the market rate components?
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While staff anticipates that the affordable units can vary in size and amenity levels from the market rate units, any on-site units should be proportionate to the overall mix of the market rate units. For example, if there are 80 market rates units in a mix of 10 studio, 20 one-bedroom and 10 two-bedroom, the affordable units should match that mix with 2 studios, 4 one-bedroom, and 2 two-bedroom units for a total of 8 units at a 10% requirement. Some flexibility may be desirable, so a factor like a 10% variation could be allowed or some other goal established or required.

4. Should an in-lieu fee be considered for projects below the on-site requirement minimum?
An in-lieu fee should be established to ensure all development is contributing to the production of affordable units. There are some broader policy questions such as should the in-lieu fee apply to projects under threshold requiring on-site production of housing like in Moraga where a fractional fee is levied or are their situations where a developer could “buy” their way out of on-site production by perhaps paying the in-lieu at a higher level, say 150% of the standard in-lieu fee.

This may on occasion also be desirable if the City is working to facilitate housing at the lower income levels with the fees collected being able to help assist in that effort.

5. What, if any, development incentives should be considered? As noted, while many developments are anticipated to utilize the State’s density bonus law for additional density in exchange for providing a level of affordability, they are also entitled under State law to additional concessions and waivers.

While we don’t expect that the City’s inclusionary housing ordinance would be applicable to the projects already taking advantage of the State’s density bonus law, should market rate projects subject to the inclusionary housing ordinance also be afforded some incentives to off-set the cost for providing the affordable units?
NEXT STEPS: Staff will utilize the initial feedback received as part of this agenda item to develop a draft inclusionary ordinance to present to the Planning Commission as the next step in the consideration process. If additional feedback is desirable prior to that step, staff could work with the City Council’s Downtown Planning & Housing Element Subcommittee to refine the proposed components.

FISCAL IMPACT: None because of this item. There will be costs both direct and staff time to develop an inclusionary housing ordinance, and after adoption to further implement and administer the program on an on-going basis.

ATTACHMENTS:

A. Attachment A - Inclusionary Factsheet
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B. Attachment B - Inclusionary Housing in California - The Legal Landscape C. Attachment C - Moraga Affordable Housing Ord
D. Attachment D - Moraga Inclusionary Zoning In-Lieu Fee E. Attachment E -Lafayette Inclusionary Program Summary - Excerpt from Housing Element Contraints Analysis
F. Attachment f - Lafayette Inclusionary Ordinance
Respectfully Submitted by:

David Biggs
City Manager
Prepared By: Sheri Smith, City Clerk
Approved by:

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I
nclusionary housing is used in hundreds of communities across the country tocreate units that are affordable to lower-income households in new market-rate residential developments. More than 170 cities and counties in California have used inclusionary-housing policies to help address affordable-housing needs while advancing equitable-development goals.

Inclusionary policies capture some of the value of rising real-estate prices to provide community benefits byusing local land-use controls to ensure that muchneeded affordable-housing units are produced along with market-rate units and that the limited supply of developable land is put to work in a way that serves households atall income levels.

Inclusionary housing – also referred to as “inclusionary zoning”– is a flexible tool that can be tailored to local circumstances. There is no one “model” inclusionary-housing policy, but rather a number of best practices to consider when adopting or amending an ordinance.

This factsheet explores the range of policy options to consider when designing a local inclusionary ordinance and highlights best practices that maximize community benefits and fulfill policy goals.

An inclusionary-housing ordinance is one part of an equitable-development strategy, and should not be viewed as the sole way to address affordable-housing needs. In most communities, building the needed amount of housing for lower-income families will still require public subsidies and must be integrated with other strategies.

Following a period of legal
uncertainty around inclusionary
ordinances, a 2015 Supreme
Court decision affirmed city
and county authority to impose
inclusionary requirements
based on local government’s
broad police powers.

And passage of Assembly Bill
1505 in 2017 reinstated the
authority to apply inclusionary
policies for rental housing.

Meeting California’s Housing Needs:

Best Practices for Inclusionary Housing
■ November 2018
Produced by Local Government Commission,
Western Center on Law and Poverty and
California Rural Legal Assistance Foundation,
with funding from the Climate, Land Use,
and Transportation program of
the Resources Legacy Fund.

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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) 2 MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING Awell-designed ordinance can generate numerous benefits for communities seeking to increase housing affordability and develop diverse, inclusive neighborhoods. These include:
✦ More choices for lower-income households about where to live. ✦ Reduced opposition to affordable housing by producing affordable units within communities as they develop, not after.
✦ Support for compact infill development, reduced sprawl and achievement of local Regional Housing Needs Assessment
(RHNA) targets for all income levels.
✦ Reduced vehicle miles traveled (VMT) and greenhouse gas emissions byproviding people at all income levels more opportunities to live closer to work and in transit-rich areas.
✦ Ensuring that the entire community benefits from a growing economy.

Public and private investments help create economic growth that raises property values. Inclusionary housing helps capture some of the value created by these investments to ensure that the benefits do not accrue solely to property owners and helps buffer against displacement pressures byensuring that lower-income residents can remain in the community. ✦ Reduced segregation and concentration of poverty.

Benefits of an Inclusionary Housing Ordinance
Keys to a Successful Ordinance
Adopting a detailed inclusionary ordinance with input from a wide range of community stakeholders is the best method for implementing effective and legally defensible inclusionary requirements.

The ordinance’s language should provide clarity and certainty for the development community, and be structured to realistically achieve its goals. It should be backed by data and research that establishes both the need for the policy and the feasibility of the requirement.

The key elements of a well-crafted inclusionary ordinance include:

1. State the need.

Local governments have broad discretion under the police powergranted by the state constitution to regulate the use of land within their borders, so long as the regulation is reasonably related to advancing the general welfare.

A local inclusionary ordinance, then, should start with a statement of findings related to the need for the policy to improve the community’s well-being.

Most California jurisdictions have a severe shortage of housing units affordable to low- and very low-income households.The need to address that shortage provides a strong basis for inclusionary zoning, as does the need to meet the jurisdiction’s share of the region’s ongoing housing need at the lower-income levels (which is nearly impossible to do with subsidy alone).

Jurisdictions also frequently point to the need to address past patterns of racial and economic segregation in their community,ensure the preservation and development of diverse neighborhoods, meet fair-housing mandates, and make the best use of a limited supply of developable land.

The ordinance should be directly tied to the findings establishing the need for the policy. For example, if the findings cite the shortage of low- and very low-income housing units in the community, then one of the policy’s goals should be to ensure that those units get produced. A well-crafted ordinance will start with findings that support the policy choices reflected in the design of the ordinance.
“Lower-income” households refers to those making 80% or less of area median income (AMI). The term encompasses households that are “low-income” (those making 50-80% of AMI) and “very low-income” (those making less than 50% of AMI).

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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options)

2. Get the numbers right: how many, where,
when and for how long?
How many affordable units should be required
and to whom should they be affordable?
An inclusionary ordinance should clearly define how many affordable units must be included in a project and at which income levels. The vast majority of ordinances set the requirement as a percentage of the total number of units in the project, while a few communities use a square-footage metric.

LOW AND VERY-LOW: The requirement will typically be split between lowand very low-income households (for example, 15% of the total are affordable units, with 10% low and 5% very low). Some laws also include a target for extremely low-income households.

MODERATE: Some communities also require moderate-income units, but this should be based on a careful analysis of the market and its ability to serve moderate-income households. If the market is producing moderate-income units on its own, there would be no rationale for having a inclusionary requirement for moderate-income units.

Whatpercentage a community establishes will be dependent on its affordable housing needs, local market conditions, the financial incentives available to developers, and the mix of affordability levels required.

FIXED: Some communities require fixed percentages at each designated income level, whereas others may provide some flexibility (for example, allowing for a lower percentage of inclusionary units overall when the units are provided at a deeper affordability level).

FLEXIBLE: Some jurisdictions structure their inclusionary policies to involve a sliding scale, so that projects that include higher percentages of affordable units also qualify for more incentives, such as greater density increases.

While there may be reasons to build flexibility for the required number of affordable units into an ordinance,too much flexibility can undermine the creation of new housing at the income levels needed most and cannot be produced by the market alone.

Which projects should have to comply with
the inclusionary requirement?
While it may be tempting to carve out various exceptions to an inclusionary requirement, the best practice is to apply the requirement to all housingdevelopment projects throughout a community or the geographic area covered by the policy. This is the best way to ensure that the policy is In California, the requirements in most inclusionary policies adopted so far have fallen within the 10-20% range –
15% being the most common.

MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING 3 implemented equitably and serves the overall goal of ensuring that all neighborhoods – single-family and multi-family, lower-density and higherdensity – incorporate housing options at a range of income levels.

SMALL PROJECTS: Many jurisdictions choose to exempt small projects from complying with an inclusionary requirement. The rationale is often to ensure that smaller development projects are financially feasible. While a smallproject exemption may be well-intended, it can be difficult to reconcile an exemption with the ordinance’s overall goals and create potential legal issues.

It can also be a challenge to settle on a definition of “small”that doesn’t simply encourage projects that come in just under the threshold, thus frustrating the goal of ensuring that all new housing development contributes to meeting the community’s affordable-housing needs.

Rather exempting these projects altogether,a better practice is to provide small projects with the option to pay an in-lieu fee as an alternative tocompliance with on-site production requirements. This is particularly true in areas where a high proportion of development activity occurs on smaller projects.

Should inclusionary requirements be different for
for-sale projects and rental projects?
In most jurisdictions, the most defensible ordinance will be one that imposes an inclusionary requirement equally on rental and for-sale housing. Requirements that treat the two differently may have fairhousing implications and, much like exemptions for small projects, can be challenging to reconcile with the ordinance’s goals.

For example, an ordinance that requires the inclusion of low- and very lowincome units in rental developments, but only moderate-income units in for-sale developments, could run counter to the goal of ensuring that all neighborhoods have a mix of housing at all income levels in cities where rental and for-sale development generally happen in different neighborhoods.

Furthermore,depending on local demographics, such policies may lead to disparate impacts on certain protected classes,potentially violating legal requirements. In weighing whether to impose the same or different requirements on rental and for-sale housing, it’s crucial to consult with an attorney with expertise in fair-housing laws.

RENTAL/FOR-SALE MIX: One way to maximize the production of affordable units and increase flexibility is to allow developers of single-family projects the option of meeting the inclusionary requirement by including affordable multi-family rental units within the development rather than affordable for-sale, single-family homes.

However, this option should be crafted carefully to ensure consistency with the ordinance’s overall goals and fair-housing obligations. Rental units can generally be produced more cost-effectively than for-sale units, so this option should reflect that by requiring that a higher percentage of rental units be produced.

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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) 4 MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING Under California law, if the inclusionary requirement is adopted through a program in the jurisdiction’s housing element, the program must provide developers with this option. However, nothing requires a jurisdiction to adopt an inclusionary requirement through its housing element, and this approach is not ideal.

Should inclusionary requirements be structured
differently in different neighborhoods?
Inclusionary requirements most typically apply jurisdiction-wide. While different neighborhoods within a city may have differing development markets, a well-designed policy already adjusts for those differences.

For example, in a neighborhood where the development market is especially hot and land costs are high, the value of an increase in allowable density is also much higher, making a higher inclusionary requirement feasible.

SPECIFIC PLANS: However, in large cities, it may make sense to consider areaspecific increases in an inclusionary requirement because some parts of town may be much hotter development markets than others. An effective way to accomplish this is through the adoption of a specific plan that lays out the land-use controls that apply within a designated geographic area.

TRANSIT AREAS: Some jurisdictions have also crafted specific inclusionary policies that apply to areas adjacent to transit stations, recognizing the wide body of research demonstrating how crucial it is to build affordability into transit-oriented development and the resulting benefits that increase transit ridership, reduce greenhouse gas emissions, and strengthen community stability.

How long should inclusionary units remain
affordable?
Given the time and resources that go into developing housing, an inclusionary ordinance should aim to set the affordability term – how many years a unit must remain “affordable”– for the longest period of time that is feasible.

One important thing to consider in determining the affordability term is the cost of maintaining a unit’s affordability over time compared to the cost of having to provide a new affordable unit to replace it when the deed-restriction period ends. In most cases, the former will be far more cost-effective than the latter.

BUILDING WEALTH: One advantage of homeownership is the ability to build wealth through the ownership of an appreciable asset. Strict resale controls that require the home to be resold at an affordable price to another lowincome homeowner significantly restrict the wealth-building advantages of homeownership.On the other hand, the program should protect against the owner of a for-sale inclusionary home quickly reselling the home at a significant profit.

SHARING EQUITY: The most common way of balancing these interests is an equity-sharing policy in which any appreciation is split between the selling homeowner and the jurisdiction. The jurisdiction then uses its share to assist in future homeownership opportunities for low-income buyers.

Some policies have initial limits on resale (such as 10 years) that require the home to be resold only to a low-income buyer at an affordable price during that period.

Other ordinances have a sliding-scale, equity-sharing provision that states that no proceeds to a homeowner who sells during the initial years, but provides a greater share of the proceeds to the homeowner closer toward the end of the 45-year term.

Should the inclusionary requirement change
over time?
Housing markets are constantly changing, and it would be a challenge to amend an inclusionary requirement in response to every rise and dip in local conditions. However, building in a set review period can be useful for a number of reasons. Periodic review can help determine whether the percentage of units required remains appropriate for local conditions so that the community is not losing out on affordable units that could feasibly be achieved with a higher inclusionary requirement.

It can also help in assessing whether changes to income targeting are necessary. For example, if a community has steadily produced low-income units but not very low-income units, it may be necessary to increase the percentage of very low-income units required by the ordinance and adjust available incentives accordingly to account for the higher cost of providing these units. Every five years is a reasonable review period.

SYNC WITH HOUSING ELEMENT: Another option is to review the ordinance concurrent with the housing-element adoption process every eight years. (While most local jurisdictions in California must update their housing element every eight years, some rural jurisdictions remain on a five-year cycle.) For rental units, 55 years is a common affordability term required by many affordable-housing funding programs in California. An inclusionary ordinance should require at least as long a period, although it’s not uncommon for jurisdictions to require longer periods – or even to mandate that inclusionary rental units be deed restricted in perpetuity, as West Hollywood does.

The typical term with for-sale units is 45 years. Affordability restrictions for these units present some additional policy considerations about the sale of the home during the affordability term.

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3. Couple with incentives and concessions.

From both a legal and a practical standpoint, an inclusionary-housing policy should include incentives and concessions for developers to help offset the cost of providing the affordable units. Common concessions and incentives include:
✦ Density increases, including the option of greater density increases in exchange for higher percentages of affordable units. ✦ Waivers of development standards, such as height and setback requirements.
✦ Reduction in or a waiver of minimum parking requirements, especially for projects located in transit areas.
✦ Expedited permit processing or ministerial approval.
✦ Waiver, reduction or deferral of development fees, either on the inclusionary units or the entire project.
✦ Direct financial subsidies.

California law requires that developers who comply with an on-site inclusionary requirement that meets the affordable-housing requirements of the state Density Bonus Law must receive all of the benefits to which they are entitled under that law. These benefits include a density increase, concessions and incentives, waivers of development standards and reduced parking requirements. For example, a project that includes 20% of units affordable to low-income households is entitled to a 35% density bonus, two concessions or incentives and various other benefits provided under the state law.

4. Establish clear development standards.

In addition to specifying the percentage of affordable units and at which income levels, an ordinance should establish clear standards for the inclusionary units. Among such best practices:
✦ The affordable units must be indistinguishable from the market-rate units in the development, at least outwardly.
✦ The project includes a similar mix of unit types. For example, if a multifamily rental development will have an equal number of 1-, 2- and 3-bedroom units, the affordable units should also incorporate an equal mix of 1-, 2- and 3-bedroom units. Many ordinances also require that inclusionary units be the same square footage as the market-rate units, although in some cases jurisdictions have built in flexibility to reduce square footage while including the same number of bedrooms to reduce project costs.
✦ Inclusionary units must be located throughout the development rather than clustered in one area.
✦ Residents of the affordable units must have access to all amenities – such as a pool, a fitness center and parking – that market-rate residents have.
✦ The affordable units must be completed either prior to or concurrent with the market-rate units, and prior to issuance of a certificate of occupancy.

ACCESSORY DWELLING UNITS: For single-family for-sale developments, some jurisdictions have allowed accessory dwelling units (ADUs) as a way tofulfill an inclusionary requirement. This is not considered a best practice and should be avoided. While cities and counties should encourage the construction of ADUs, which can be a land- and cost-efficient way of expanding a community’s housing supply, they are problematic from an inclusionary standpoint.

ADUs are readily distinguishable from the other units in a for-sale development, and may raise equity and fair-housing concerns if used as the means for achieving compliance with an inclusionary policy.

ADUs are also typically studios or 1-bedrooms rather than a match of the bedroom mix of the primary development, and are often designed as “micro” or “efficiency” units without similar amenities as the primary development.

They are challenging to deed-restrict and monitor, and are unlikely to provide the long-term affordability that an inclusionary ordinance should require.

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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) 6 MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING If properly designed, an in-lieu fee option can have advantages in certain jurisdictions. In-lieu fees can enable a jurisdiction to leverage state and federal funds that may not have otherwise been available, allowing for more affordable units to be built than would have been created on-site.

IN-LIEU ADVANTAGES: It can also provide flexibility to produce needed units that the inclusionary requirement is not producing, such as extremely lowincome units; use funds to preserve existing affordable housing with expiring deed restrictions; produce rental units in places where the inclusionary requirement is primarily creating for-sale units (or vice versa); or develop affordable units in parts of the city where development isn’t happening and thus the inclusionary requirement is having no impact.

If allowed, the fee amount should be set at a level comparable to the cost of producing a similar unit to the one that otherwise would have been provided on-site. One of the most common methods for determining the fee amount is to base it on the gap between the affordable-housing and market-rate costs. For example, if it costs $300,000 to produce a low-income unit but the rent only covers the financing on $230,000, then the in-lieu fee would be set at $70,000 to cover the difference.

The amount of an in-lieu fee will need to change over time to reflect changes in construction costs, inflation and other market factors. Therefore, it is better to put the formula for determining the fee amount into an ordinance rather than state the amount itself,since amending an ordinance on a regular basis can be time-consuming, costly and potentially controversial.

ADJUSTING THE FEE: The ordinance should specify the mechanism for adjusting the fee over time, such as tying it to increases in the local Construction Cost Index, as San Francisco does. If an ordinance distinguishes between rental and for-sale units in its inclusionary requirements, in-lieu fees should also be distinguished in the same manner to ensure they are an adequate substitute for the provision of on-site units.

Off-site construction
Allowing construction of inclusionary units off-site can have advantages.

For example, a developer may be able to build affordable units more costeffectively off-site, thus enabling more units to be produced. However, there are also pitfalls that jurisdictions should work to avoid.

5. Provide alternative methods of compliance.

Because one of the primary goals of an inclusionary requirement is to make affordable units available in all housing developments, ordinances should require on-site construction of the inclusionary units to the maximum extent possible. However, most jurisdictions have chosen to allow alternatives to on-site production of inclusionary units under certain circumstances.

In California,state law requires that alternative methods of compliance be provided to developers of inclusionary rental housing,although what those alternatives are, and when each alternative is available, is left up to individual jurisdictions. The law doesn’t require alternatives for developers of forsale housing. Common alternatives include in-lieu fees, off-site construction, land donation, and the acquisition and rehabilitation of existing units.

When weighing how to offer to provide some flexibility, alternatives should be appropriately limited to maximize on-site construction. Alternatives should be available where on-site production of units is less feasible, rather than as a default option for all developments. Common mistakes that can lead to inadequate production of actual housing units include setting in-lieu fees too low and failing to establish adequate standards for land donation.

Timing is also a crucial factor in the structure of alternatives. For example, some jurisdictions have required that off-site inclusionary units be completed concurrent with or prior to the development that triggered the inclusionary requirement, or before a certificate of occupancy for that development is issued. Ideally, alternatives should be used only when they will lead to the production of more affordable units than would otherwise be provided on-site, while still being consistent with the ordinance’s other goals.

In-lieu fees
One common alternative is in-lieu fees, which are paid instead of constructing the required affordable units. In-lieu fees are generally paid into a local affordable-housing trust fund that finances the construction of affordable housing at other locations within the community. Of all the alternatives, in-lieu fees provide the greatest challenge to achieving inclusionary goals and therefore should be considered carefully and sparingly.

Unlike off-site construction and land-dedication alternatives, in-lieu fees don’t guarantee a site for the construction of the affordable units. If the amount of the fee is not sufficiently high, the payment may also not produce enough revenue to help produce new affordable units. Without adequate funding and identified locations for their use, the fee revenue could sit unused.

TRUE COST: Furthermore, if in-lieu fees don’t reflect the true cost of producing on-site units, this may drive most developers to opt for paying the fee rather than producing an affordable unit on-site. Over time, this can frustrate the policy and lead to an insufficient proportion of affordable units being developed.

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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING 7 One important consideration with off-site construction is the allowable geography – how far from the development site. Given that the inclusionary requirement seeks to foster mixed-income neighborhoods and reduce segregation, even if inclusionary units can’t be produced on-site in a new development, they should be produced nearby. In cases where that isn’t possible, the jurisdiction should ensure that they are dispersed equitably throughout the community and not clustered in lower-income neighborhoods.

Jurisdictions also typically require more units to be built off-site than would be required on-site. This means the value of the cost savings over on-site construction is captured and translated into a community benefit, and that the policy properly expresses an appropriate preference for on-site units.

Ensuring on-site and off-site construction have similar costs incentivizes on-site construction (which should be the norm), while still providing a meaningful alternative for those projects that can’t feasibly accommodate on-site affordable units.

Another best practice is to require that the off-site units be constructed before or concurrent with the market-rate units,which can be achieved byhaving the off-site units finished before building permits are issued for the market-rate development site. That way an off-site alternative doesn’t simply become an escape hatch to avoid complying with the site’s inclusionary requirement.

Land donation
Land donation can be a useful option where affordable-housing developers have difficulty finding building sites. Paired with in-lieu fees or other sources of affordable-housing funding,dedicated land can be used to produce needed types of housing that might not otherwise get built,such as homes for people with special needs or permanent supportive housing.

However, jurisdictions must establish clear parameters for exercising this alternative. Donated land should be equivalent or greater in value to the affordable units that otherwise would have been produced on-site, and should be ready for development at the time it is donated. It is also important here to consider the allowable geography to make sure that the required affordable units are not concentrated in certain neighborhoods.

6. Include procedure for requesting waivers
or reductions.

An inclusionary requirement may not withstand legal scrutiny if it doesn’t include a process by which a developer can request a waiver or reduction of the requirement. Much like the inclusionary requirement itself,the waiver process should be as clear and specific as possible,detailing both the procedures for requesting the waiver – process, timeline, appeal procedure – and the standards by which the request will be evaluated.

The waiver or reduction process should be carefully structured so that it functions as the exception and not the rule, and is only used in rare cases.

The City of Napa’s inclusionary requirement withstood a constitutional challenge in part because it included a waiver-request provision. The City used a constitutional test todetermine whether a waiver would be approved, under which the developer had to show that the requirement as applied would be unconstitutional.

Other jurisdictions apply a hardship standard,allowing for a waiver or reduction if the developer can show that the requirement would deprive them of all economically viable use of the land. An economic-hardship standard should not be about the level of profit, but about whether any profit can be made.

Feasibility Studies
While not required by state law in California, preparing a feasibility study in support of an inclusionary requirement helps ensure that the requirement is right-sized for local conditions. It’s important not to set an inclusionary requirement so high that it stops development, and equally crucial not to set it too low and miss out on affordable units.

A feasibility study is an opportunity to analyze local market conditions and the economics and tradeoffs of various policy options – affordability percentages and levels, incentives – to make sure the ordinance delivers the number and type of affordable units that a community needs.

It also provides a data-driven foundation for the requirement, which can help overcome opposition by showing that it can be implemented without impeding the developers’ability to earn a profit.

The California Department of Housing and Community Development generally requires local jurisdictions to analyze inclusionary requirements as a potential constraint on development in their housing elements. A feasibility study can help demonstrate that the requirement isn’t a barrier.

NEXUS STUDIES: Feasibility studies should not be confused with nexus studies. A jurisdiction must prepare a nexus study to impose an exaction.

A nexus study would be required if a jurisdiction wanted to adopt a commercial linkage fee, for example, where it must show that the amount of the fee is roughly proportional to the need for affordable housing generated by new commercial development.

An inclusionary requirement is not an exaction but rather a land-use regulation, much like a density requirement or a height restriction, and need only be related to advancing a legitimate purpose. A nexus study is not required when adopting a traditional inclusionary ordinance.

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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) 8 MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING Some jurisdictions require that tenants move at the end of the lease term as soon as their household income exceeds the income limit for the unit. Others allow a tenant to remain until their household income exceeds the income limit by a set amount or percentage.

The policy should be tied to the cost of market-rate housing in the community and ensure that tenants are aware of requirements and receive adequate notice when they exceed income limits and must vacate the unit. To avoid displacement, consider allowing tenants to stay in a unit after their income exceeds allowable limits but convert that unit rent to market rate. The next comparable unit in the development that becomes vacant would then be offered as affordable to replace that “lost”unit. ✦ State how sales of for-sale units will be handled, including the referral of potential buyers and how funds derived from equity-sharing agreements will be used. Also, if the jurisdiction has an option to purchase a unit upon resale or at the end of the regulatory period, it should have a mechanism in place for handling those options.

A strong monitoring program can have the added benefit of providing clear data about the success of the ordinance. This information can then be used to establish that the inclusionary requirement is not a constraint on development for purposes of the housing-element review process,and for potential future discussions about amendments to the inclusionary requirement.

MORE RESOURCES
✦ inclusionaryhousing.org
✦ lgc.org/advancing-inclusionary-housing-policy
While “inclusionary housing”usually refers to mandatory land-use policies designed to construct affordable housing within market-rate developments, other tools can also capture land value to produce needed affordable units.

Voluntary inclusionary requirements
California has a statewide, voluntary inclusionary method in the form of Density Bonus Law, with which all cities and counties must comply.

Under this law, developers who include affordable units in their projects are entitled to a density increase and other incentives.

Local governments can offer density increases above those specified in the state law in exchange for higher levels of affordability (units for households at the lower AMI levels).

Linkage fees
A linkage fee can be imposed on commercial and residential development togenerate funds for affordable housing. The amount of this fee is set based on the community’s need for affordable housing generated by new development. A growing number of California cities have adopted commercial linkage fees, including Los Angeles, Oakland, Sacramento and San Diego.

While linkage fees can be a crucial revenue source, a linkage fee for affordable housing doesn’t produce the other community-wide benefits of a traditional inclusionary requirement, such as economically integrated neighborhoods, and may also not be as economically valuable. Pairing a commercial linkage fee with a traditional inclusionary requirement is one way for a community to maximize the production of affordable housing while also advancing other important policy goals.

Ad hoc inclusionary requirements
Some jurisdictions have tried to negotiate inclusionary requirements on a project-by-project basis, often on larger projects. These ad hoc requirements are problematic from a legal standpoint and don’t ensure that all new residential development includes housing affordable at a range of income levels.

Other Value-Capture Tools to Produce Affordable Housing in Development

7. Monitor implementation and compliance.

A jurisdiction that chooses to adopt an inclusionary ordinance should be prepared to devote staff time and resources to ongoing monitoring and other administrative tasks needed to implement the ordinance effectively.

In addition to ensuring that deed restrictions and covenants are recorded in time and that affordability is maintained for the required time period, it is important to ensure that units are occupied by households at the appropriate income levels over time and that resale provisions are enforced.

To maximize the program’s effectiveness, a jurisdiction should adopt procedures that:
✦ Establish whether the jurisdiction, property managers or a designated third party will be responsible for verifying tenant or homebuyer eligibility, income recertification and other occupancy factors.

The best practice is to have the jurisdiction perform these tasks, although smaller jurisdictions may find it more cost-effective to pool resources with other neighboring jurisdictions and contract with a third party. Having property managers perform these tasks can prove overly burdensome due to the training required. ✦ Ensure that a list of available units is up-to-date and readily accessible to households in the targeted income categories, and that the list is maintained in a way that ensures compliance with fair-housing obligations. ✦ Determine which qualified applicants (those meeting household-income restrictions) are chosen to rent or buy inclusionary units. ✦ Recertify tenant income annually and determine when a tenant household no longer qualifies for residency in the inclusionary unit.

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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) 1 Inclusionary Housing in California: The Legal Landscape With the signing of 2017’s landmark housing package, California restored local governments’ ability to apply locally adopted inclusionary housing requirements—which generally mandate that private housing developers include affordable units in their projects—to rental housing.
1 The legislation, combined with recent court decisions upholding the validity of local inclusionary requirements, creates a powerful tool for local governments to wield when crafting policies to promote development that benefits all segments of their community.

A Brief History of Inclusionary Housing
Inclusionary housing ordinances in California “were instituted as a response to . . . exclusionary zoning[], to severe shortages of affordable housing combined with a reduction of federal housing subsidies, and to legal pressures in California and New Jersey.”2 Those legal pressures included the seminal lawsuit filed in New Jersey when a group of low-income African-American and Puerto Rican residents sought to build affordable housing in the Township of Mount Laurel, which maintained exclusionary single-family zoning practices. After that group mounted a legal challenge to the township’s exclusionary practices, the Supreme Court of New Jersey declared that municipalities had an “affirmative obligation” to meet their “fair share” of the regional need for low- and moderate-income housing.3 Later, in enforcing its prior decision, the court found that an affirmative obligation to provide housing opportunities for families of all social strata can sometimes only be satisfied though the use of inclusionary policies.
4 These principles became a blueprint for numerous municipalities across the country, including in California, to promote economic and racial integration within their jurisdictions.

California declared an affirmative legal obligation to meet fair share housing requirements in the state Housing Element Law, enacted in 1969.5 Under the law, “[l]ocal and state governments have a responsibility to use the powers vested in them to facilitate the improvement and development of housing to make adequate provision 1 AB 1505 (Bloom), Chapter 376, Statutes of 2017. 2 Barbara Erlich Kautz, In Defense of Inclusionary Zoning: Successfully Creating Affordable Housing, 36 U.S.F. L. REV. 971, 972 (2002). 3 S. Burlington County N.A.A.C.P. et al. v. Township of Mount Laurel, 336 A.2d 713, 727-8. (N.J. 1975) (Mt.

Laurel I). 4 S. Burlington Cnty. N.A.A.C.P. v. Mount Laurel Twp., 456 A.2d 390, 449 (N.J. 1983) (Mt. Laurel II). 5 Cal. Gov't Code §§ 65580 et seq.

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Attachment: Attachment B - Inclusionary Housing in California - The Legal Landscape (3098 : Inclusionary Housing Ordinance Options) 2 for the housing needs of all economic segments of the community.”6 Local jurisdictions that receive federal funding similarly have a duty to reverse the harmful effects of exclusionary zoning under the federal duty to affirmatively further fair housing.7 In addition, California law now requires cities and counties to affirmatively further fair housing in the administration of their housing and community development activities.8 These issues continue to be pressing to this day, and as the New Jersey Supreme Court noted, inclusionary housing policies remain one of the only ways for cities and counties to address them.

The Problem with 2009: Palmer and Patterson
By 2007, over 170 California jurisdictions had adopted inclusionary housing policies, encompassing mandates for rental, for-sale, or a combination of rental and for-sale units.9 Then, in 2009, two Court of Appeal decisions created uncertainty around inclusionary ordinances: Palmer/Sixth St. Properties, L.P. v. City of Los Angeles, 175 Cal.

App. 4th 1396 (2009) and Building Industry Assn. of Central California v. City of Patterson, 171 Cal.App.4th 886 (2009).

The Palmer Decision
In Palmer/Sixth St. Properties, L.P. v. City of Los Angeles, a developer challenged a mandatory rental inclusionary requirement included in a specific plan governing development in a portion of Los Angeles. He argued that the Costa-Hawkins Rental Housing Act, a law that limits rent control in residential tenancies, prohibited the imposition of mandatory inclusionary policies in rental housing. Costa-Hawkins, in relevant part, states “’[n]otwithstanding any other provision of law,’ all residential landlords may, except in specified situations, ‘establish the initial rental rate for a dwelling or unit.’”10 Though the Legislature never considered or addressed inclusionary ordinances when passing Costa-Hawkins, the Court of Appeal agreed with the developer.11 The court’s decision effectively made invalid local inclusionary requirements imposed on rental housing and any in lieu fees associated with them.

Importantly, local for-sale inclusionary requirements remained valid. 6 Cal. Gov't Code § 65580(d). 7 42 U.S.C. §3608.
8 AB 686 (Santiago), Chapter 958, Statutes of 2018
9 Non-Profit Housing Association of Northern California, Affordable by Choice: Trends in California Inclusionary Housing Programs (2007). 10 Palmer/Sixth St. Properties, L.P. v. City of Los Angeles, 175 Cal. App. 4th 1396, 1410–11, 96 Cal. Rptr. 3d 875, 886 (2009). 11 Id. at 886-87.

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Attachment: Attachment B - Inclusionary Housing in California - The Legal Landscape (3098 : Inclusionary Housing Ordinance Options) 3 The Patterson Decision
In a much narrower holding, another Court of Appeal determined that an in lieu fee associated with the City of Patterson’s inclusionary ordinance was not “‘reasonably justified’ as required by the development agreement for the project at issue unless there [was] a reasonable relationship between the amount of the fee, as increased, and ‘the deleterious public impact of the development.’”12 The court’s decision was based on the language of the development agreement, the unusual formula the city used to determine the in lieu fee, and the failure of the City of Patterson to articulate an alternative formula. The decision created some uncertainty, temporarily, as to what standard of review courts would use when assessing the validity of an inclusionary ordinance, whether applicable to for sale or rental units.

The combination of the Palmer and Patterson decisions created some uncertainty in the landscape of the law applicable to inclusionary housing ordinances for several years.

Fortunately, recent legislation and court decisions have clarified the law and affirmed the continuing validity and importance of such local measures.

Present Opportunities
Two critical changes in the law related to inclusionary housing have occurred in the last several years. First, the California Supreme Court has clarified that the validity of inclusionary housing ordinances should be judged by the traditional standard applicable to a locality’s exercise of its police powers: whether they are “reasonably related to the broad general welfare purposes for which the ordinance was enacted.”13 Second, the Governor signed AB 1505, which reinstated a municipality’s right to apply inclusionary requirements to rental housing.

The CBIA Decision
Two main issues in CBIA v. City of San Jose were: 1) whether San Jose’s local inclusionary ordinance was an unconstitutional exaction as outlined in the United States Supreme Court’s Nollan/Dolan line of cases; and 2) whether the City’s inclusionary ordinance was subject to the San Remo standard that the ordinance be “reasonably related to the impact of a particular development to which the ordinance applies.”14 12 Bldg. Indus. Assn. of Cent. California v. City of Patterson, 171 Cal. App. 4th 886, 898 (2009) (disapproved of by California Bldg. Indus. Assn. v. City of San Jose, 61 Cal. 4th 435 (2015)). 13 California Bldg. Indus. Assn. v. City of San Jose, 61 Cal. 4th 435, 474 (2015). 14 San Remo Hotel v. City and County of San Francisco, 27 Cal.4th 643, 663–664 (2002), relating to the Mitigation Fee Act.

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Attachment: Attachment B - Inclusionary Housing in California - The Legal Landscape (3098 : Inclusionary Housing Ordinance Options) 4 First, the court held that the ordinance was not an exaction. To constitute an exaction, the ordinance would have had to “require a developer to give up a property interest for which the government would have been required to pay just compensation under the takings clause outside of the permit process.” 15 The court reasoned that the law was akin to land use regulations that restrict usage of the property (i.e., setbacks, density requirements, etc.) and price controls (i.e., rent stabilization), which have been held to be constitutional and do not require just compensation. 16 Accordingly, restricting the
amount for which a developer can sell or rent a unit is subject only to the same review as any other land use regulation.

Second, the court held that the city need only show that the ordinance is reasonably related to the broad general welfare purposes for which it was enacted, meaning the San Remo standard did not apply. This decision expressly overturned Patterson “to the extent it indicates that the conditions imposed by an inclusionary housing ordinance are valid only if they are reasonably related to the need for affordable housing attributable to the projects to which the ordinance applies.”17 The court found that the higher standard found in San Remo is intended to apply “to permit conditions that require the payment of monetary fees,” not land use regulations.18 Even more narrowly, the court found that the San Remo standard only applies to development mitigation fees.19 In distinguishing San Remo and overturning Patterson, the court noted that San Jose’s law was passed in order to allow the city to meet its affordable housing goals and to ensure that new economically diverse affordable housing was spread throughout the city. In short, pursuant to CBIA, cities and counties are free to impose inclusionary requirements based on their broad police powers.

The Palmer Fix: AB1505
In 2017, Governor Brown signed the long-awaited Palmer fix, once again allowing municipalities to apply inclusionary requirements to rental housing. However, the fix imposes some new standards for the imposition of those restrictions.

Government Code §65850(g) states that cities may:
“Require, as a condition of the development of residential rental units, that the development include a certain percentage of residential rental units affordable to, and 15 California Bldg. Indus. Assn. v. City of San Jose, 61 Cal. 4th 435, 461 (2015). 16 Id. at 461-464. 17 Id. at 479
18 Id. at 472
19 Id. at 473
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Attachment: Attachment B - Inclusionary Housing in California - The Legal Landscape (3098 : Inclusionary Housing Ordinance Options) 5 occupied by, households with incomes that do not exceed the limits for moderateincome, lower income, very low income, or extremely low income households. . .” This first section reinstates the law as it was prior to Palmer. However, it continues:
“The ordinance shall provide alternative means of compliance that may include, but are not limited to, in-lieu fees, land dedication, off-site construction, or acquisition and rehabilitation of existing units.”
By that language, the fix creates a new requirement that a municipality’s local inclusionary ordinance, as applied to rental housing, must include alternative means of compliance other than the construction of affordable rental units on site in a housing development. While the statute provides examples of alternatives, it does not provide an exhaustive list of what those alternatives could be or when they must be granted, leaving it up to cities and counties to decide. As a practical matter, nearly all inclusionary ordinances adopted in California prior to the passage of AB 1505 had already included alternative means of compliance under certain circumstances.

The second portion of AB 1505 allows the Department of Housing and Community Development (HCD) to review local inclusionary ordinances in specific, limited circumstances. Specifically, Government Code §65850.01 authorizes HCD to review a local inclusionary ordinance if all of the following apply:

1. The ordinance was adopted or amended after September 15, 2017, and no more than 10 years have passed since the adoption or most recent amendment of the ordinance.

2. The ordinance requires that more than 15% of the total units in a residential rental development be affordable to occupants at or below 80% of area median income (i.e, lower-income households).

3. The jurisdiction, according to its annual housing element report, has not met at least 75% of its above-moderate share of the regional housing need over at least a five-year period (prorated based on the length of time within the planning period pursuant to Gov’t Code 65588(f)(1)), or the jurisdiction has not submitted the annual housing element report for at least two consecutive years.

If all of these conditions apply, then HCD may request, and the local jurisdiction must provide within 180 days, an economic feasibility study demonstrating that “the ordinance does not unduly constrain the production of housing.”20 Leaving aside best 20 Gov’t Code §65850.01(b).

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Attachment: Attachment B - Inclusionary Housing in California - The Legal Landscape (3098 : Inclusionary Housing Ordinance Options) 6 practices, the feasibility study is only required if HCD has requested it pursuant to its aforementioned authority; it is not required in order to pass a valid ordinance.

Once a jurisdiction submits a requested economic feasibility analysis, HCD can only review it to determine the following:

1. The preparer of the study is a qualified entity with demonstrated expertise in the area.

2. The study was available on the jurisdiction’s website for at least 30 days and then considered at a regularly scheduled legislative meeting prior to approval.

3. The study was sufficiently rigorous and followed best professional practices.

Importantly, HCD’s authority does not extend to imposing its own analysis of economic feasibility. Once a jurisdiction has submitted the study, HCD has 90 days to determine whether the study meets the requirements described above. If HCD finds that it does not and the jurisdiction disagrees with HCD’s negative determination, it may appeal to the Director of HCD or his or her designee. The Director or designee must then make a decision within 90 days of receipt of the appeal.

If a jurisdiction fails to submit the required feasibility study within 180 days or HCD makes a final determination that the study does not meet the prescribed requirements, the ordinance is still valid. However, until the jurisdiction submits a feasibility study that HCD determines meets the prescribed requirements, it may not impose a requirement to include units affordable to households at 80% of area median income in excess of 15%.

With the resolution of several outstanding legal issues that have clouded the policy choices on inclusionary housing in recent years, local governments once again have clear authority to enact these policies for both rental and for-sale housing. Inclusionary housing policies remain an important local tool for increasing the supply of affordable housing and building equitable, inclusive communities.

For questions, contact:

Brian Augusta, California Rural Legal Assistance Foundation, [email protected]
Navneet Grewal, Western Center on Law and Poverty, [email protected] Anya Lawler, Western Center on Law and Poverty, [email protected] H.3.b
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Attachment: Attachment B - Inclusionary Housing in California - The Legal Landscape (3098 : Inclusionary Housing Ordinance Options) 1 1 2 Meeting Date: December 7, 2022
3 4
5 TOWN OF MORAGA STAFF REPORT
6 7 To: Honorable Mayor and Councilmembers
8 9 From: Afshan Hamid, AICP, Planning Director
10 Barry Miller, FAICP, Planning Consultant
11 12 Subject: Conduct a Public Hearing and Consider Waiving the First Reading and 13 Introducing by Title Only an Ordinance Adding Chapter 8.180 to the 14 Moraga Municipal Code Creating an Affordable Housing Requirement 15 for New Residential Development; and Provide Direction to Staff on 16 the Proposed Development Incentives Policy for Projects Meeting the 17 Town’s Affordable Housing Requirements On-site (California 18 Environmental Quality Act (CEQA) - Exempt Pursuant to CEQA 19 Guidelines Section 15061(b)(3)
20 21 Request
22 23 The Town Council is being asked to consider waiving the first reading and introducing by 24 title only an Ordinance adding Chapter 8.180 to the Moraga Municipal Code creating 25 requirements for affordable housing in new residential development of six units or more. 26 The Planning Commission held a study session on November 7 and conducted a public 27 hearing on November 14, to consider the proposed Chapter 8.180. On November 14, the 28 Commission voted 6-1 in support of a Resolution recommending Council adoption. 29 30 The Council is also being asked to provide direction on the proposed Development 31 Incentives Policy for Projects Meeting the Town’s Affordable Housing Requirements On32 site which is tentatively scheduled for adoption on December 14, 2022. 33 34 Background
35 36 The Town is in the process of undertaking a Comprehensive Advanced Planning Initiative, 37 including a State-mandated update of the Moraga Housing Element, and related General 38 Plan and zoning amendments. As part of the Housing Element, the Town is required to 39 demonstrate to the State Department of Housing and Community Development (HCD) 40 that it has the capacity to add at least 1,118 new housing units by 2031, including 673 41 units that are potentially affordable to lower- and moderate-income households. The 42 1,118-unit assignment is commonly referred to as the Town’s “RHNA”—or Regional 43 Housing Needs Allocation.

Town of Moraga Agenda Item
Public Hearing 8. A.

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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 2 1
2 While the Town is proactively rezoning property to accommodate its RHNA, additional 3 measures are needed to ensure that a substantial share of the housing built is actually 4 affordable to lower- and moderate-income households. Without Town intervention, 5 housing developers would likely produce only market rate units on designated housing 6 opportunity sites. Some of these units might meet affordability guidelines for moderate7 income households but few, if any, would be considered affordable to lower-income households.1 8 In the last two Housing Element cycles, the Town did not produce any of 9 the RHNA-required low- or very low-income housing units. HCD has classified Moraga 10 as a “High Resource Area” and is requiring such areas to meet a larger share of the 11 region’s affordable housing needs than they have in the past. 12 13 On November 10, 2022, the Town received the 90-day letter on the Working Draft 14 Housing Element. A common thread throughout the letter is that the Element must 15 demonstrate that the sites identified to meet the Regional Housing Needs Allocation 16 (RHNA) are distributed throughout the community in a manner that Affirmatively Furthers 17 Fair Housing (AFFH). HCD has provided Affirmatively Furthering Fair Housing (AFFH) 18 Guidance for All Public Entities and for Housing Elements, see AFFH link. As of January 19 1, 2019, AB 686 creates a state mandate requiring public agencies and jurisdictions to 20 “take meaningful actions that overcome patterns of segregation and foster inclusive 21 communities free from barriers that restrict access to opportunity based on protected 22 characteristics.” The AFFH Guidance covers a wide range of locally-based solutions for 23 jurisdictions State wide, and also provides Examples of Affirmatively Furthering Fair 24 Housing Actions (page 72). The actions include Housing Mobility Strategies, New 25 Housing Choices and Affordability in Areas of Opportunity, Place-based Strategies to 26 Encourage Community Conservation and Revitalization, Protecting Existing Residents 27 from Displacement.
28 29 One of the tools commonly used and recommended by HCD to ensure that at least some 30 of the units in new developments are “affordable” is inclusionary housing (also called 31 inclusionary zoning). Inclusionary housing ordinances require developers to provide a 32 percentage of new residential units at a price that is considered affordable to very low-, 33 low-, or moderate-income households. The “Inclusionary” units have deed restrictions 34 that limit the rent (or sales price) that may be charged, as well as the annual income of 35 the tenant (or purchaser). Inclusionary Housing is an Affordable Housing tool to help the 36 Town meet its RHNA goal. Over 60 percent of the Town’s RHNA goal is comprised of 37 housing units that are affordable to lower- and moderate-income households. State 38 Density Bonus Law provides an additional tool to meet these targets; however, it is 39 voluntary while the proposed Inclusionary Zoning Ordinance would be mandatory. 40 41 Staff provided an overview on housing implementation tools, including inclusionary 42 housing, at a Joint Planning Commission and Town Council meeting on May 4, 2022. 43 After receiving the report, Council provided direction to staff for a more detailed 1 In 2022, the upper income limit for a “lower income” household was $76,750 for a one-person household, $87,700 for a two-person household, $98,650 for a three-person household, and $109,600 for a four-person household. The equivalent “affordable” monthly housing costs were $1,919 (1 pp), $2,193 (2 pp), $2,466 (3 pp), and $2,740 (4 pp).

For “moderate-income” households, affordable monthly housing costs were $2,999 (1 pp), $3,428 (2 pp), $3,855 (3 pp), and $4,283 (4 pp).

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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 3 1 presentation at a future Town Council meeting. On August 24, 2022, staff provided a 2 focused discussion on Inclusionary Housing requesting feedback on policy prior to 3 developing an ordinance. The staff reports for these study sessions provide more context 4 and may be consulted for additional detail. Hyperlinks are provided below:
5 6 • The May 4, 2022 staff report may be accessed here. (see pages 13-18) 7 • The August 24, 2022 staff report may be accessed here. 8 9 The policy areas discussed at the August 24th meeting and the direction provided by 10 Council were as follows:
11 12 • The percentage of units that must be affordable. Council direction was to include 13 a 10% affordability requirement.
14 • The depth of affordability required (i.e., of the BMR units, what percentage need 15 to be very low, low, and moderate?) Council direction was 10% low-income 16 affordability for rental units and 10% moderate affordability for for-sale units. 17 • Exemptions (small projects may be exempt from the ordinance). Council direction 18 was to provide an exemption for projects with five or fewer units. 19 • Treatment of “fractional” units (when the total number of units is multiplied by the 20 percentage requirement, the product is usually not a round number). Council 21 direction was to collect an in-lieu fee for fractional units. 22 • Applicability to rental vs ownership units (most ordinances apply to both). Council 23 direction was to apply the affordable requirement to both rental and ownership 24 units.
25 • Alternatives for developers who wish to meet the requirement without providing the 26 unit(s) on-site (this allowance is required by State law). Council provided direction 27 that the off-site affordable unit requirement should be 50 percent higher than the 28 percent required for on-site construction. Council also provided direction that if the 29 affordable requirement was met through acquisition and rehabilitation of existing 30 multi-family housing, at least two units shall be rehabilitated for each affordable 31 unit required.
32 • Design of inclusionary units (do they need to look the same as the market rate 33 units?) Council provided direction on the following:
34 o The units should be dispersed through the project
35 o The units should be comparable in terms of bedroom count, however, the 36 units may be smaller
37 o The exterior design and character should be consistent with the market rate 38 units
39 o The interior finishes may be different but they must be good quality 40 o The affordable units must have access to all amenities. 41 • Calculation of in-lieu fees. Council directed staff to provide additional information 42 on a recommended methodology.
43 • Length of affordability. Council direction was that for-sale units should be 44 affordable for 45 years, while rental units should be affordable for 55 years.

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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 4 1 • Jurisdiction-wide vs applicability in specific areas only. Council direction was that 2 the ordinance should apply townwide.
3 • Incentives that offset the economic impact of the inclusionary units. Council 4 direction was to take into consideration the concerns of developers. 5 6 The Town Council also requested that staff solicit feedback from developers prior to 7 developing an Inclusionary Housing Ordinance. Staff convened a “Developer 8 Roundtable” on October 20 to receive input on potential Inclusionary Housing 9 requirements. A link to the video of the Developer Roundtable can be found here. 10 11 Staff has developed a Draft Affordable Housing Ordinance based on the input and 12 feedback received from Town Council, at the Developer Roundtable, and from 13 stakeholders. The Planning Commission received a presentation on the proposed 14 Affordable Housing Ordinance on November 7. The Planning Commission held a public 15 hearing to consider the proposed Ordinance on November 14, 2022. 16 17 The Commission approved a resolution recommending adoption of the Ordinance by a 18 6:1 vote at its November 14 meeting. Of the six Commissioners voting in favor, three 19 supported the proposed Ordinance “as is” and three supported a modification to avoid 20 encouraging additional housing units in wildland-urban interface areas. The 21 Commission’s specific concern was that the proposal to allow developers in lower-density 22 zones to meet affordable housing requirements through Accessory Dwelling Units (ADUs) 23 would potentially increase the number of households in high fire hazard areas. The 24 Commissioner casting the “no” vote on the Ordinance indicated his support for the 25 concept of inclusionary zoning but expressed that it should apply only in the Town’s two 26 commercial centers.
27 28 On November 16, the Town Council received a briefing on the proposed Ordinance. The 29 following points were raised:
30 31 • The Town Council was generally supportive of Planning Commission direction to avoid 32 creating incentives for additional housing units in wildland-urban interface areas. A 33 distinction was made between the Town’s ADU regulations, which are guided by State 34 law, and the proposed affordable housing provisions, which are set by the Town. 35 • The Council reiterated the desire to ensure the Ordinance is flexible and responsive 36 to the real estate market.
37 • The issue of expanding public awareness of the proposed ordinance and soliciting 38 community input to the extent possible was raised. Staff explained that public input 39 had been solicited at meetings throughout 2022.
40 • The alternative of using market-rate ADUs rather than deed-restricted units (either for41 sale or for-rent) was generally supported. Councilmembers expressed differing views 42 on the proposed alternative, and discussion occurred regarding the 500 square foot 43 minimum, the 25 percent threshold, and the potential applicability of the ADU 44 alternative to higher density districts.
45 46 Local developer and property-owner David Bruzzone spoke at the November 16 meeting 47 and provided correspondence on the Draft Ordinance. Mr. Bruzzone expressed his view 48 that the Affordable Housing requirement should be voluntary rather than mandatory, that H.3.c
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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 5 1 there should be no size limit on ADUs for developers using the ADU option, that the ADU 2 option be available in all residential zoning districts, and that the Town allow “banking” or 3 “transfer” of affordable housing credits for developers building market rate housing in one 4 location while providing ADUs in another. Mr. Bruzzone further expressed that fees for 5 fractional units should be required at the time of occupancy rather than Final Map 6 approval or building permit issuance, that the “25 percent ADU option” be reduced to 10 7 percent, and that “off-site alternatives” require the same number of affordable units as the 8 “on-site” requirements. As directed by Council, Staff met with Mr. Bruzzone on November 9 22 to further discuss his concerns about the Ordinance. 10 11 The next section of this report provides an overview of the Draft Ordinance (Attachment 12 “A”). The Ordinance refers to a Policy Resolution (Attachment “B”) which will be adopted 13 by the Town Council separately, rather than as part of the Municipal Code Amendment. 14 The Policy Resolution includes development incentives. Because the incentives require 15 a greater degree of flexibility and potentially amendments in the future, they are not 16 included as part of the proposed Ordinance.
17 18 Discussion
19 20 The proposed Chapter 8.180 (Affordable Housing) is included as Attachment “A” to this 21 Report and is summarized as follows:
22 23 Sections 8.180.010 and .020 indicate the title and purpose of the Ordinance, respectively. 24 The purpose statement explains the importance of the Ordinance to meeting the Town’s 25 RHNA and providing a tool for affirmatively furthering fair housing and creating housing 26 for the Moraga workforce, seniors, students, and other special needs groups in the 27 community.
28 29 Section 8.180.030 provides definitions of key terms used in the Ordinance. All of the 30 terms referenced in the definition appear in later sections of the Ordinance. 31 32 Section 8.180.040 identifies the General Requirements for the program, including the 33 types of projects that are covered (and exemptions), and the percentage of affordable 34 units that are required. Recognizing economic considerations, the Ordinance has 35 different requirements for for-rent and for-sale housing and allows flexibility in the 36 percentages of affordable units to be provided based on the depth of affordability. This 37 section also addresses “fractional” units.
38 39 Section 8.180.050 addresses Administration of the program, including requirements for 40 inclusionary housing plans and agreements. The agreements establish resale restrictions 41 for inclusionary for-sale units, and rental restrictions for rental units, as well as provisions 42 to monitor compliance once units are created. This section also gives the Council the 43 authority to adopt in-lieu fees for fractional units, Very High Fire Hazard Severity Zones 44 and for developers who cannot feasibly provide the inclusionary housing units on-site. 45 The basis for the fee is the gap between the value of a market-rate unit and an affordable 46 unit, which will be established through a future fee resolution. 47 H.3.c
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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 6 1 Section 8.180.060 identifies alternative means of compliance. In each case, the Town 2 Council must find that on-site provision of affordable units is infeasible or that greater 3 public benefit will result from the units being off-site. The alternative options include 4 building the units off-site, partnering with a non-profit for off-site construction, acquiring 5 and rehabilitating existing multi-family housing in Moraga and making it affordable, or 6 paying an in-lieu fee. The Ordinance also allows applicants to propose other creative 7 concepts for meeting the requirements of the chapter. 8 9 Section 8.180.070 indicates the standards for inclusionary units. This includes the 10 required length of affordability (45 years if for-sale, 55 years if for-rent), requirements for 11 the design of affordable units, and requirements for timing (i.e., when the inclusionary 12 units become available relative to the market rate units). 13 14 Section 8.180.080 identifies incentives to offset the profit loss associated with limiting 15 rents and sales prices for the inclusionary units. These incentives include fee deferral (at 16 the discretion of the Town Council), density bonuses, and modified development 17 standards that support the development of additional units. The incentives are designed 18 to work in tandem with the State density bonus program. The bonuses and incentives 19 themselves are not quantified in the Municipal Code, but a separate document (to be 20 adopted by Resolution) would establish a schedule for use in future applications. 21 22 Section 8.180.090 provides further detail for applicants who choose to comply with the 23 Inclusionary Ordinance by providing accessory dwelling units (ADUs) rather than deed 24 restricted affordable units. This option is only available to for-sale development in lower25 density zoning districts. Projects choosing this option are not eligible for density bonuses 26 but also are not subject to limitations on occupancy, income, or rent of the ADUs. 27 28 Section 8.180.100 includes provisions for applicants requesting waivers or adjustments 29 to the requirements. These are only available in limited circumstances and are subject 30 to approval by the Town Council. Section 8.180.110 addresses enforcement and includes 31 provisions for appeal.
32 33 The sections below highlight how specific issues are addressed by the proposed 34 Ordinance.
35 36 Exemptions/ Applicability
37 38 The Ordinance would apply to all residential projects with six or more units. Projects with 39 five or fewer units would be exempt. The Ordinance would apply Town-wide, but projects 40 in lower density zones would have the option of meeting the inclusionary requirement 41 through ADUs, as described below.
42 43 Percentage of Units Required and Depth of Affordability 44 45 In rental projects, applicants would meet the requirement by dedicating 10 percent of the 46 units for low-income households. Consistent with the RHNA, low income is defined as 47 80% of areawide median income (AMI) and very low income is defined as 50% of AMI.

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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 7 1 “Affordable” rents may represent no more than 30 percent of monthly income for 2 households in these units.
3 4 In for-sale projects, applicants are required to dedicate 10 percent of the units for 5 purchase by moderate income households. However, in zones with densities of R-6 or 6 lower (e.g., R-6, 3 DUA, 2 DUA, 1 DUA, and Rural Residential), developers may meet the 7 requirement by including ADUs in 25 percent of all new housing units. No deed 8 restrictions or occupancy limitations would apply to the ADUs. 9 10 The Ordinance is written in a flexible manner so that developers may propose alternative 11 percentages upon demonstration that they are of equivalent value to the Town. For 12 instance, a developer may propose a smaller inclusionary percentage in a rental project 13 if the inclusionary units serve very low-income households rather than low-income 14 households.
15 16 Fractional Units and In-lieu Fees
17 18 The Ordinance gives the Town Council the authority to adopt an in-lieu fee. The primary 19 purpose of the fee would be to calculate the amount due for fractional units. In other 20 words, if an applicant proposed a 24-unit rental project, they would be required to include 21 2.4 lower income units in their project (or a smaller number of very low-income units 22 equivalent in value). Since dwelling units are counted in whole numbers, the “fractional” 23 remainder would be converted to a fee. The amount of the fee has not been established 24 and would be determined by the Town Council. The basis for the fee is included in the 25 Ordinance. It represents the gap between the market-rate price (sales or rent) and the 26 affordable price (sales or rent) of the inclusionary unit. 27 28 Alternate Means of Compliance
29 30 AB 1505 requires that at least one alternate means of compliance is provided in 31 inclusionary housing ordinances. Some developers may find it infeasible to include 32 affordable units in their projects, and request relief through such alternate means. As 33 noted above, the alternatives are off-site construction, acquisition/rehabilitation of existing 34 units, and partnership with a non-profit developer. In the latter case, the partnership could 35 include land donation and financial assistance to facilitate off-site construction of 36 affordable units. The off-site alternatives require higher ratios of affordable units to 37 market rate units. The goal is to assist the Town in meeting AFFH requirements and 38 prioritize units built on site.
39 40 For off-site construction (or assistance to a non-profit), a ratio of 1.5:1 is applied so that 41 the applicant must build 50% more units than would otherwise be required. For 42 developers choosing acquisition/rehab in lieu of building the units off-site (or assistance 43 to a non-profit for this purpose), the applicant must rehabilitate twice the number of units 44 that would otherwise be required. The higher ratios are intended to disincentivize the 45 alternatives and encourage applicants to build the units on-site. 46 H.3.c
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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 8 1 As noted earlier, another alternate means of compliance is provided for lower-density 2 residential projects (R-6 or lower). This refers to the provision to include ADUs in 25 3 percent of the units rather than dedicating deed-restricted affordable units. 4 5 Based on Planning Commission and Town Council input, staff has added a new 6 alternative that provides developers in Very High Fire Hazard Severity Zones with the 7 option to pay an in-lieu fee rather than developing the 10% affordable units. 8 9 The Ordinance also allows developers to propose other “creative concepts” for meeting 10 the intent of the requirement, subject to Town Council approval. 11 12 Length of Affordability
13 14 The Ordinance proposes that for-sale units are deed restricted for 45 years, and for-rent 15 units are deed restricted for 55 years. These affordability terms are consistent with State 16 Density Bonus Law.
17 18 Timing of Construction
19 20 The Ordinance requires inclusionary units to be constructed prior to or concurrently with 21 construction of the market rate units. In general, construction of affordable units may not 22 be deferred to a future date after the market rate units are completed. However, the 23 Ordinance does establish limited opportunities for a deferral of up to three years where 24 an Agreement has been signed between the market-rate developer and an affordable 25 housing developer. This is in response to comments by developers at the roundtable 26 meeting.
27 28 Design
29 30 The Ordinance requires that the inclusionary units be reasonably dispersed around the 31 project, comparable in bedroom count, compatible in exterior design and character, and 32 have access to all amenities in the project. However, inclusionary rental units may be 33 20% smaller than market-rate units, and inclusionary for-sale units may be 30% smaller 34 than market-rate units. The inclusionary units may have different interior finishes than 35 the market rate units, provided they are durable and of high quality. 36 37 Policy Resolution: Development Incentives for Projects Meeting the Town’s Affordable 38 Housing Requirements On-Site
39 40 Attachment “B” to this Staff Report is a Policy Resolution with specific bonuses and 41 incentives available to developers providing inclusionary units on-site. Developers are 42 entitled to the bonuses provided by the State of California under State Density Bonus Law 43 (SDBL), and an additional local bonus that allows construction of 30 to 36 units per acre. 44 Developers are further entitled to incentives comparable to those offered through the 45 SDBL.
46 47 The Policy Resolution is proposed for adoption at the December 14 Council meeting, 48 following the Second Reading of the Ordinance. The incentives can be adopted by H.3.c
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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 9 1 resolution rather than by ordinance so that they can be more easily amended in the future. 2 The incentives respond to feedback from the developer roundtable that multi-family 3 projects may not be economically viable at the proposed General Plan and zoning density 4 of 24 units per acre. Additional incentives have been proposed on top of those already 5 allowed by the State, enabling densities of up to 30 units per acre for projects complying 6 with the Ordinance, and up to 36 units per acre for projects providing student or senior 7 housing.
8 9 The incentives would allow some of the provisions of SDBL for lower-income households 10 to apply to projects with affordable housing units serving households earning up to 80 11 percent of AMI. Current SDBL defines low-income households as earning up to 60 12 percent of AMI, so the broader definition (which is consistent with the RHNA definition) 13 would provide an expansion of potential incentives. More specifically, projects meeting 14 the inclusionary requirements on-site would be eligible for the SDBL parking standards, 15 which are lower than the Town’s standards, plus one development incentive, such as 16 reduced setbacks, additional height, or increased lot coverage. 17 18 Next Steps
19 20 The December 7 meeting is the first reading of the Ordinance. A second reading is 21 scheduled for December 14. The Council is scheduled to adopt the Policy Resolution 22 concurrently with the second reading on December 14. The Ordinance will become 23 effective on January 13, 2023, 30 days after the second reading. Once adopted, the 24 effectiveness of the Ordinance and policy resolution will be periodically evaluated, with 25 modifications made as needed based on results.
26 27 The Town Council has retained Keyser Marston, an economics consulting firm, to develop 28 the in-lieu fee/ fractional fee required to implement the Affordable Housing Ordinance. 29 The Council is scheduled to consider a resolution at the January 11, 2023 meeting to 30 adopt the fee.
31 32 CEQA
33 34 The proposed Municipal Code Amendments are exempt from the provisions of the 35 California Environmental Quality Act (CEQA) (Public Resources Code Section 2100, et 36 seq.) pursuant to CEQA Guidelines Section 15061(b)(3). Adoption and implementation 37 of the proposed Ordinance does not constitute a “project” as defined by CEQA because 38 the Ordinance by itself would not result in a direct physical change to the environment or 39 a reasonably foreseeable indirect change.
40 41 The Code Amendments are occurring within the context of a broader planning initiative 42 that is subject to CEQA. A Draft EIR has been prepared for the Comprehensive Advanced 43 Planning Initiative and was published on October 27. The comment period for the 44 Planning Initiative EIR ends on December 12, 2022 at 5:00 p.m. 45 46
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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 10 1 Fiscal Impact
2 3 Adoption of affordable housing requirements will require the collection of fees for 4 fractional units. A dedicated Affordable Housing Fund would be created by the Town as 5 a repository for these fees. As they accrue, the fees would be used to support Housing 6 Element programs and potentially provide a supplemental funding source for non-profit 7 affordable housing developers. There would be additional costs associated with 8 administering affordable housing requirements, reviewing affordable housing plans and 9 Agreements, and monitoring compliance with the program. Some of these functions 10 could be carried out by third parties, as the Town has limited staff capacity. 11 12 Recommendations
13 14 1. Find the proposed Municipal Code Amendments to be exempt from CEQA pursuant 15 to CEQA Guidelines Section 15061(b)(3) and Adopt Ordinance ___ Amending the 16 Moraga Municipal Code to create Chapter 8.180 – Affordable Housing (first reading). 17 2. Provide feedback to staff on the proposed Development Incentives Policy for Projects 18 Meeting the Town’s Affordable Housing Requirements On-site. 19 20 Report reviewed by: Cynthia Battenberg, Town Manager 21 Karen Murphy, Assistant Town Attorney
22 23 Attachments:
24 25 A. Draft Ordinance Amending the Moraga Municipal Code to Add Chapter 8.180:
26 Affordable Housing
27 B. Draft Development Incentives Policy for Projects Meeting the Town’s Affordable 28 Housing Requirements On-Site
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Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options)

ATTACHMENT A
Draft Ordinance Amending the Moraga Municipal Code to
Add Chapter 8.180: Affordable Housing
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BEFORE THE TOWN COUNCIL OF THE TOWN OF MORAGA
In the Matter of:

An Ordinance Adding )
Chapter 8.180 to the Moraga )
Municipal Code to Create an )
Affordable Housing Requirement for )
New Residential Development )
Ordinance No. -2022
Affordable Housing
WHEREAS, the State of California has found that local governments have a responsibility to facilitate the development of housing for all economic segments of the community (Government Code Section 65580(d)); and
WHEREAS, the Regional Housing Needs Allocation (RHNA) assigned to the Town of Moraga by the Association of Bay Area Governments requires that the Town plan for 1,118 units of new housing between 2023 and 2031, including 673 units affordable to very low-, low-, and moderate-income households; and
WHEREAS, the Town of Moraga has not produced a sufficient number of affordable units to meet its RHNA in prior Housing Element cycles; and WHEREAS, the State of California has provided limited funding for affordable housing construction, thereby requiring the private sector to participate in meeting the Town’s RHNA; WHEREAS, the Town currently does not have mechanisms in place to compel developers to include housing affordable to very low-, low-, and moderate-income households in future projects; and
WHEREAS the median sales price of a home in Moraga exceeded $1.5 million in 2022, and the median rent for a two-bedroom apartment was $2,900, prices that are not affordable to lower-income households; and
WHEREAS, the shortage of affordable housing in Moraga has resulted in many households overpaying for their housing, including 23 percent of the town’s renters paying more than 50 percent of their incomes on housing and over 60 percent of the town’s very low-income households paying more than 50 percent of their incomes on housing; and Attachment A: Draft Ordinance.

NOTE: Changes from the version provided on November 16 are identified in redlined text.

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WHEREAS, the shortage of affordable housing in the town has also led to insufficient supply of housing for the local workforce and student population, leading to overcrowding in some units, and long commutes as workers seek affordable housing in other communities; and WHEREAS, a stated Goal of the Moraga Housing Element is to achieve a balanced supply of housing for all income groups; and
WHEREAS, legislation adopted in 2017 (AB 1505; Government Code Sections 65850(g) and 65850.01) authorizes cities to adopt inclusionary requirements for rental residential developments, provided that such ordinances provides alternative means of compliance, and the proposed Ordinance provides such alternative means of compliance; and WHEREAS, additional legislation adopted in 2017 (SB 686) requires that every jurisdiction in California affirmatively further fair housing by distributing opportunities for very low-, low-, and moderate-income housing in multiple locations rather than concentrating it in a single location, an outcome that is supported by this Ordinance; and WHEREAS, the Town has drafted a 2023-2031 Housing Element in compliance with State law that includes a program to adopt an Inclusionary Zoning Ordinance; and WHEREAS, the Moraga Town Council convened a public meeting on May 4, 2022 to discuss tools for implementing affordable housing policies and expressed support for an inclusionary housing requirement; and
WHEREAS, the Moraga Town Council convened a public meeting on August 24, 2022 to discuss a framework for inclusionary housing and to provide direction to staff on the specific components of an Ordinance; and
WHEREAS, the Town of Moraga convened a developer roundtable on October 20, 2022 to solicit input from the development community on ways to mitigate the economic effects of an inclusionary housing requirement; and
WHEREAS, the Town finds that the housing shortage for persons of very low, low, and moderate incomes is detrimental to the public health, safety and welfare and that it is a public purpose of the Town, and a public policy of the State of California, to make an adequate supply of housing available for persons of all income groups; and WHEREAS, on November 14, 2022, the Planning Commission held a duly noticed public hearing to consider the proposed amendments related to affordable housing, received the staff report and staff presentation, received comments from the public and interested parties, and after closing the public comments portion discussed the matter; and WHEREAS, following the November 14, 2022 public hearing, the Moraga Planning Commission adopted Resolution No.##-2022, recommending that the Town Council adopt proposed amendments to Town of Moraga Municipal Code to add Chapter 8.180, Affordable Housing, as contained herein; and
WHEREAS, the Town Council received a briefing on the proposed Ordinance at its regularly scheduled meeting on November 16; and
WHEREAS, the Town Council introduced this Ordinance on
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December 7, 2022, after a duly noticed public hearing and adopted the Ordinance on December 14, 2022;

NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF MORAGA
DOES ORDAIN AS FOLLOWS:

SECTION 1. The City Council finds that the proposed Municipal Code amendments are exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3) in that they do not constitute a “project” as defined by CEQA since they do not have the potential to result in either a direct physical change to the environment or a reasonably foreseeable indirect physical change to the environment.

SECTION 2. Amendment. Title 8 of the Moraga Municipal Code, Planning and Zoning, is hereby amended to add Chapter 8.180 “Affordable Housing” as follows:

CHAPTER 8.180: AFFORDABLE HOUSING

8.180.010 – Title
This chapter shall be entitled the Affordable Housing Ordinance.

8.180.020 - Purpose
The purpose of this Chapter is to establish standards and procedures to facilitate the development and availability of housing for all economic segments of the community, as required by State law. The Chapter is one of several tools to implement the Town’s Housing Element and fulfill the Town’s obligation to provide housing for very low-, low-, and moderateincome households. It is also a tool for providing housing for the Moraga workforce as well as groups with special housing needs such as college students, persons with disabilities, and older adults. This Chapter supports the State mandate to affirmatively further fair housing by ensuring that housing for lower income households is geographically dispersed and not concentrated in a single location within the Town.

8.180.030 - Definitions
For the purposes of this Chapter, the words and phrases below shall be interpreted as set forth in this section, unless it is apparent from the context that a different meaning is intended.
"Accessory Dwelling Unit," or "ADU," is defined in Chapter 8.124.020. “Affordable Housing Agreement” means a legally binding, written agreement between a Developer and the Town, in form and substance satisfactory to the Planning Director and Town Attorney, setting forth those provisions necessary to ensure that the requirements of this Chapter, whether through the provision of Inclusionary Units or through an alternative method, are satisfied.
“Affordable Housing Fund” is a separate fund of the Town into which all monies collected pursuant to this Chapter shall be deposited. Additional monies from other sources also may be deposited in the Affordable Housing Fund.

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“Affordable Housing Plan” means a plan demonstrating how an Applicant will comply with the requirements of this Chapter and containing the components listed in Section

8.180.050(B).
“Affordable Rent” means monthly rent and utility allowance, which does not exceed onetwelfth of 30 percent of the maximum annual income for a household of the applicable income level.
“Affordable Sales Price” means a sales price which results in a monthly mortgage (including principal and interest), property taxes, utilities, and homeowner association fees, where applicable, which do not exceed one-twelfth of 35 percent of the maximum annual income for a household of the applicable income level.
“Amenities” means and includes features which are not essential to the health and safety of the resident, but provide visual or aesthetic appeal, or are provided as conveniences rather than as necessities. Interior amenities may include, but are not limited to, fireplaces, garbage disposals, dishwashers, cabinet and storage space and bathrooms in excess of one. Exterior amenities include features such as patios and balconies, and common facilities accessible to a development such as fitness centers, play areas, resident community rooms, gardens, bike storage facilities or similar conveniences provided for residents of the development. Amenities do not include items required by building codes or other ordinances that are necessary to ensure the safety of the building and its residents.
“Applicant” means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities which seeks Town real property development permits and approvals.
“Area Median Income” means the Area Median Income for Contra Costa County, adjusted for household size, as published by the State Department of Housing and Community Development.
“Developer” means the same as "Applicant" (see above definition). "Dwelling Unit" means a building of portion thereof that is designed, intended, or used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household. For purposes of this Chapter, "Dwelling Unit" does not include an Accessory Dwelling Unit. Dwelling Units include “For-Sale Units” and Rental Units” as defined elsewhere in this section.
"For-Sale Units” means a single-family detached Dwelling Unit or a Dwelling Unit in a multifamily Residential Development that will be offered for sale, not for rent. “Fractional Unit” is a numeric equivalent that is less than one Dwelling Unit. It is the product of the affordable housing percentage requirement multiplied by the number of units in a Residential Development and expressed to one decimal point, minus the nearest whole number below that product.
“Household” means one person living alone or two or more persons sharing residency.

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“Incentive” means a benefit offered by the Town to facilitate construction of Residential Developments which include Inclusionary Units. Among others, Incentives may include fee reductions for Inclusionary Units, density bonuses beyond State requirements, and flexibility and/or relaxation of development regulations. Incentives are adopted through a Policy Resolution.
“Inclusionary Unit” means a Dwelling Unit developed pursuant to an Affordable Housing Agreement that will be offered For-Sale or rent to Very Low-, Low- and Moderate- Income Households, at an Affordable Rent or Affordable Sales Price, as applicable, pursuant to this Chapter.
“In-Lieu Fee” means a fee paid to the Town by an Applicant for a Residential Development in the Town in lieu of providing the Inclusionary Units required by Section

8.180.040. It includes fees for Fractional Units, as defined in this Section. “Low-Income Household” means a household with an annual income between 50 percent and 80 percent of Area Median Income limits applicable to Contra Costa County, adjusted for household size, as published by the State Department of Housing and Community Development for Contra Costa County.
“Market-Rate Units” mean those Dwelling Units in a Residential Development that are not Inclusionary Units or otherwise subject to deed restrictions and income limits. “Moderate-Income Household,” means a household with an annual income between 80 percent and 120 percent of Area Median Income limits applicable to Contra Costa County, adjusted for household size, as published by the State Department of Housing and Community Development for Contra Costa County.
"Rental Unit" means a single-family detached Dwelling Unit or a Dwelling Unit in a multifamily Residential Development that will be offered for rent, not for sale. “Residential Development” means a development of six (6) or more residential units or lots for, without limitation, detached single family dwellings, multiple dwelling structures, groups of dwellings, condominium conversions, cooperative developments and land subdivisions. “Town” means the Town of Moraga or its designee, or any entity with which the Town contracts with to administer this section.
“Very Low-Income Household” means a household whose income does not exceed 50 percent of the Area Median Income limits applicable to Contra Costa County, adjusted for household size, as published by the State Department of Housing and Community Development for Contra Costa County.

8.180.040 General Requirements
Each Residential Development shall be subject to the requirements set forth in this Section.

Developments with five or fewer Dwelling Units are exempt from this Chapter.

A. For-Rent Residential Developments:
(1) At least ten (10) percent of the Rental Units shall be Inclusionary Units for occupancy by Low-Income Households; or
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(2) The Developer may propose alternate percentages of Low- and Very Low-income Rental Units to meet this requirement upon demonstration that they are of equivalent value. Satisfying the requirement with moderate-income Rental Units is not permitted.

B. For-Sale Residential Developments:
(1) At least ten (10) percent of the Dwelling Units shall be Inclusionary Units for occupancy by Moderate-Income Households. These units may be either Rental or For-Sale Units, or a combination of both. Any Rental Units that are provided shall be subject to an agreement prepared by the Applicant and approved by the Town, including provisions ensuring the long-term affordability of the units and their occupancy by a qualifying Household; or
(2) For Residential Developments in zoning districts of R-6 densities or lower, at least 25 percent of the Dwelling Units shall include Accessory Dwelling Units. These units are subject to the provisions defined in Section 8.180.090 and shall have no restrictions on income or occupancy.

C. Incentives, as specified in Section 8.180.080 shall be available to Applicants meeting the inclusionary requirements on-site.

D. Residential Developments with six (6), seven (7), eight (8), or nine (9) units shall have the option of providing one full Inclusionary Unit or paying the In-Lieu Fee in an amount equal to the following schedule for the fractional unit multiplied by the In-Lieu Fee as authorized in Section 8.180.050(D)(4).

Total Units in Project Fractional Inclusionary Unit Required 6 0.20
7 0.40
8 0.60
9 0.80
E. Applicants proposing ten (10) or more units shall calculate the required number of Inclusionary Units. In the event this calculation results in a Fractional Unit, the Developer shall have the option of either: (i) providing a full Inclusionary Unit; or (ii) paying an InLieu Fee in an amount equal to the percentage represented by the fractional unit multiplied by the In-Lieu Fee, as authorized in Section 8.180.050(D)(4).

F. Additional units authorized through a density bonus under California Government Code Section 65915(b)(1) or (b)(2) will not be counted in determining the required number of Inclusionary Units. Inclusionary requirements apply to the initial base number of units proposed.

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8.180.050 Administration
A. Applicability. Any Town action approving a Residential Development subject to this Chapter shall contain conditions sufficient to ensure compliance with the provisions of this Chapter. No building permit or final inspection shall be issued, nor any development approval granted which does not meet the requirements of this Chapter.

B. Affordable Housing Plan. Developers subject to the provisions of this Chapter shall prepare a draft Affordable Housing Plan setting forth in detail the manner in which the requirements shall be implemented as part of their development application. No discretionary approval, Town approval or building permit shall be issued until the Affordable Housing Plan has been finalized and approved by the entity approving the underlying approval or permit. The Affordable Housing Plan shall be submitted as part of the initial application and include:
(1) The location, tenure (rental or ownership) and size of the proposed Market-Rate and Inclusionary Units;
(2) The calculations used to determine the number of Inclusionary Units; (3) A floor plan or site plan depicting the location of the Inclusionary Units; (4) The affordability level for each Inclusionary Unit; (5) The term of affordability;
(6) A phasing plan for the Inclusionary Units, in the event the project includes phases; (7) A description and details of any requested density bonuses, Incentives, waivers or exemptions;
(8) The process by which eligibility of qualified Households will be reviewed and selected to rent or purchase affordable units;
(9) An annual reporting schedule; and
(10) Additional information that may be requested by the Planning Director.

C. Affordable Housing Agreement. The Developer shall execute and cause to be recorded an Affordable Housing Agreement with the Town prior to the earlier of the issuance of the first building permit or final map approval. The form of the Affordable Housing Agreement will vary depending on the manner in which the provisions of this Chapter are satisfied for a particular development and whether an Alternative is proposed and approved. All Affordable Housing Agreements for Residential Developments providing Inclusionary Units on-site must include, at a minimum, the following:
(1) Description of the development, including whether the Inclusionary Units will be rented or owner-occupied;
(2) The number, size and location of Very Low-, Low- or Moderate-income Units; (3) Inclusionary Incentives offered by the Town that are being requested, including the nature and amount of any local public funding;
(4) Provisions and/or documents for resale and/ or rental restrictions, rights of first refusal, and/or rental restrictions, and performance deeds of trust, as appropriate; H.3.c
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(5) A deed restriction or other enforceable obligation approved by the Town Attorney ensuring the ongoing affordability requirements (this requirement shall not apply to Developers of For-Sale Units using the Accessory Dwelling Unit option described in Section 8.180.90); and
(6) Provisions for monitoring the ongoing affordability of the units and the process for qualifying prospective resident Households for income eligibility.

D. In-Lieu Fees. The Town Council shall, by resolution or other action, establish an Affordable Housing In-Lieu Fee. Fees may be based on a fee per Market-Rate unit, fee per square foot, or any other reasonable basis. The fees may be periodically adjusted based on the annual percentage increase or decrease in the construction cost index since the last update.
(1) For-Sale Units. The fee amount should represent a reasonable portion of the gap between the Affordable Sales Price at the corresponding income level and the Market-Rate sales price of for-sale housing of a similar product type. (2) Rental Units, the fee amount should represent a reasonable portion of the gap between the Affordable Rent at the corresponding income level and the market-rate rent for a similar product type over the lifetime of the affordability term. (3) Affordable Housing Fund. All fees collected shall be deposited in an Affordable Housing Fund. The monies deposited in the Affordable Housing Fund must be used to increase or maintain the supply of housing affordable to very low-, low-, and moderate-income Households, including reasonable administrative or related expenses.
(4) Applicability to Fractional Units. The In-Lieu Fee shall be applied to Fractional Units that result when the inclusionary requirements are applied to Residential Development when the Applicant chooses not to build an additional Inclusionary Unit.
(5) Timing of Payment. Payment of In-Lieu Fees is due as follows:
a. For custom lot subdivisions where lots will be sold and homes will be constructed a future date, the In-Lieu Fee shall be paid at time of Final Map approval.
b. For all other Dwelling Units, the fee shall be paid to prior to building permit issuance for the project.

8.180.060 Alternatives
In lieu of including the Inclusionary Units in the Residential Development pursuant to Section

8.180.040, the requirements of this Chapter may be satisfied through the alternatives listed below. In each case, the Town Council must first find that on-site production of the Inclusionary Units is infeasible or that greater public benefit will result from the proposed alternative.

A. Off-Site Alternatives for Developer. As an alternative to providing all or a portion of the Inclusionary Units on the same site as the Residential Development, the Developer may H.3.c
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elect to construct the units off-site elsewhere in the Town of Moraga, subject to the following requirements:
(1) At least 1.5 units shall be provided for each Inclusionary Unit required. (2) The following provisions shall apply to the off-site development:
a. The off-site development shall be governed by the terms of a deed restriction limiting occupancy of the required number of units to qualified Low- or Very LowIncome households and establishing rents meeting affordability criteria for Low or Very Low-Income households.
b. Environmental review shall have been completed, including provisions to mitigate any hazardous materials or geologic conditions, to the satisfaction of the Town . c. If applicable, the off-site units shall include a declaration of covenants, conditions, and restrictions similar to that required for on-site Inclusionary Units. d. Construction of the off-site Inclusionary Units shall be completed prior to the issuance of the first certificate of occupancy of the Residential Development, e. The off-site parcel shall have General Plan and zoning densities equivalent to R6 or higher.

B. Agreement with Non-Profit Developer. As an alternative to providing all or a portion of the Inclusionary Units on the same site as the Residential Development, the Developer may enter into an agreement with a non-profit developer to (i) fund a portion of a proposed affordable housing project in Moraga; or (ii) to provide a land donation for the construction of affordable housing units on an alternative site in the Town of Moraga, subject to the following requirements:
(1) At least 1.5 units shall be provided for each Inclusionary Unit required. (2) The value of the land donation and/or funding shall be approximately equivalent to or greater than the Developer cost associated with Alternative (A) described above. (3) The Developer and the Non-Profit Housing Developer shall enter into a signed written agreement to construct the required Inclusionary Units at the time of project entitlement.
(4) The following provisions shall apply to the off-site residential development:
a. The off-site development shall be governed by the terms of a deed restriction limiting occupancy of the required number of units to qualified Low or Very Lowincome households and establishing rents meeting affordability criteria for Low or Very Low-income households.
b. If applicable, the off-site units shall include a declaration of covenants, conditions and restrictions similar to that required for on-site Inclusionary Units. c. In the event that off-site construction is used, the Affordable Housing Agreement shall include a construction schedule which ensures the off-site units will be available for occupancy concurrently with the Market-Rate Units. Where concurrent construction cannot be guaranteed, an alternate method may be used to ensure construction within three years of occupancy of the Residential Development.

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d. The off-site parcel shall have General Plan and zoning densities equivalent to R6 or higher.

C. Acquisition, Rehabilitation, and Deed Restriction of Existing Multi-Family Housing Units.

As an alternative to providing all or a portion of the Inclusionary Units on the same site as the Residential Development, the Developer may acquire housing units on an alternative site in Moraga and rehabilitate and deed restrict the units as affordable units, subject to the following requirements:
(1) At least 2.0 rehabilitated units shall be provided for each Inclusionary Unit required. (2) The following provisions shall apply:
a. The off-site development shall be governed by the terms of a deed restriction limiting occupancy of the required number of units to qualified Low or Very Lowincome households and establishing rents meeting affordability criteria for Low or Very Low-income households.
b. If applicable, the off-site units shall include a declaration of covenants, conditions and restrictions similar to that required for on-site Inclusionary Units. c. The Affordable Housing Agreement shall include a schedule which ensures the off-site units will be available for occupancy concurrently with the Market-Rate project. Where concurrent implementation cannot be guaranteed, an alternate method may be used to ensure implementation within three years of occupancy of the Residential Development.
d. With respect to rehabilitation, a tenant displacement reduction plan shall be prepared by the Developer, including relocation assistance and first right of return for impacted tenants.

D. In-Lieu Fee for Projects in Very High Fire Severity Zones (VHFSZ). Applicants of projects in a VHFSZ as determined by CAL FIRE may at their discretion, select to pay an in-lieu fee as an alternative to constructing the affordable units on-site, off-site, or through Accessory Dwelling Units (ADUs). Nothing in this provision precludes the owner from including ADUs in their project, as permitted by State law.

E. Alternate Methods of Compliance. Applicants may propose creative concepts for meeting the requirements of this Chapter, whether on or off-site. The Town Council may approve such alternate methods if the Applicant demonstrates that the purpose of this Chapter (as set forth in Section 8.18.020) has been met.

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8.180.070 Standards
A. Term of Affordability. For-Sale Inclusionary Units shall be deed restricted pursuant to this Chapter for a period not less than 45 years. Rental Inclusionary Units shall be deed restricted pursuant to this Chapter for a period not less than 55 years.

B. Design. The following requirements shall apply:
(1) Inclusionary Units should be reasonably dispersed throughout the entirety of the Residential Development.
(2) Inclusionary Units should be comparable in terms of bedroom count to the MarketRate units, excluding ADUs. However, on-site Rental Units may be up to 20% smaller than the Market-Rate Units in the Residential Development project and onsite For-Sale Units may be up to 30% smaller than the Market-Rate Units in the Residential Development.
(3) The exterior design and character of the Inclusionary Units shall be substantially consistent with that of the Market-Rate Units in the Residential Development. (4) Interior Finishes. Inclusionary Units may have different interior finishes than Market Rate units so long as the interior finishes are durable, of good quality and consistent with current State building code standards for new housing. (5) The Inclusionary Units must have access to all Amenities available to the MarketRate Units.

C. Timing. Inclusionary Units must be constructed prior to or concurrently with the construction of the Market-Rate Units. In the event the Town approves a phased project, the Inclusionary Units required by this Chapter shall be constructed and occupied in proportion to the number of units in each phase of the Residential Development. In no case shall an Affordable Housing Unit be the final Dwelling Unit issued a Certificate of Occupancy of a Residential Development or its approved phase(s).

D. Segmentation. Segmentation of a project to avoid the requirements of this Chapter is not permitted. Construction of proximate Dwelling Units within any five-year period for which there is evidence of common ownership, control or interest, whether or not covered by the same land use entitlements, shall be subject to the regulations of this Chapter. However, nothing herein shall prohibit the phased development of a project, as approved by the Town.

8.180.080 Incentives
The Town shall make available to the Applicant Incentives to increase the feasibility of Residential Developments to provide Inclusionary Units. These Incentives shall only be available to Applicants who construct the Inclusionary Units on-site:

A. Fee Deferral. The Town Council, by resolution, may defer payment of Town of Moraga development impact fees (e.g. General Government, Public Safety, Park Development, Storm Drain, Parkland Development, the Lamorinda Fee and Finance Authority Fee, H.3.c
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etc.) applicable to the Residential Development of which they are a part. Development impact fees for each unit shall be paid no later than the time of transfer of the unit to the first occupant, or at the time a certificate of occupancy is issued for Rental Units. The Developer and Town shall enter into a fee deferral agreement to be recorded against the real property prior to building permit issuance that restricts the transfer of any Dwelling Unit until all development fees for that parcel have been paid in full.

B. Incentives. Density bonuses and reduced parking requirements shall be available to projects meeting the requirements of this Chapter by providing Inclusionary Units onsite, in accordance with a schedule of Incentives to be adopted through a Moraga Affordable Housing Incentive Policy Resolution by the Town. Incentives shall be consistent with and may exceed the concessions and waivers available through State Density Bonus Law. Such Incentives may include but are not limited to:
(1) Increased height/stories
(2) Reduced setbacks or stepbacks
(3) Reduced private open space requirements
(4) Increased floor area ratio, where applicable
(5) Increased lot coverage

8.180.090 Accessory Dwelling Unit (ADU) Alternative Means of Compliance As indicated in Section 8.180.040(B)(2), an Applicant constructing a For-Sale Residential Development in any zoning district with densities equivalent to R-6 or lower may fulfill a development’s inclusionary housing requirements with the development of Accessory Dwelling Units, as set forth in this section.

A. Applicability. The provisions of this section shall apply to all new For-Sale Residential Developments with six or more units in the RR, R-1 DUA, R-2 DUA, R-3 DUA, and R-6 zoning districts.

B. Scope. Developers shall include Accessory Dwelling Units (ADUs) in a minimum of 25 percent of all primary units in the Residential Development. Such ADUs shall be at least 500 square feet in floor area, or no less than the maximum allowable size of Junior ADUs established by State law, whichever is less. Junior Accessory Dwelling Units (Junior ADUs) shall be ineligible to meet this requirement. In the event the number of required ADUs is not a whole number, the number of units shall be rounded up to the nearest whole number regardless of the fractional amount. No restrictions on occupancy or the income of occupants shall be required.

C. Ineligibility for Density Bonus. Developers providing ADUs as provided in this Section to meet their affordable housing requirements shall be ineligible for density bonuses or Incentives.

D. Design Parameters. Any ADUs constructed pursuant to this Section shall meet the design and development standards at Chapter 8.124 of the Municipal Code (Accessory Dwelling Units).

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E. Reporting. The Town may, from time to time, request that the owner of each unit ADU subject to this Section report the occupancy status of the ADU using a Town-supplied reporting form.

8.180.100 Waivers
A. The requirements of this Chapter may be waived, adjusted, or reduced if a Developer shows, based on substantial evidence, that there is no reasonable relationship between the impact of a proposed Residential Development and the requirements of this Chapter, or that applying the requirements of this Chapter would take property in violation of the United States or California Constitutions.

B. Any request for a waiver, adjustment, or reduction under this section shall be submitted to the Town concurrently with the Affordable Housing Plan required by Section

8.180.050(B). The request for a waiver, adjustment, or reduction shall set forth in detail the factual and legal basis for the claim.

C. The request for a waiver, adjustment, or reduction shall be reviewed and considered in the same manner and at the same time as the Affordable Housing Plan.

D. In making a determination on an application for waiver, adjustment, or reduction, the Developer shall bear the burden of presenting substantial evidence to support the claim.

The waiver, adjustment or reduction may be approved only to the extent necessary to avoid an unconstitutional result, after adoption of written findings, based on substantial evidence, supporting the determinations required by this section.

8.180.110 Enforcement
A. Applicability. The provisions of this Chapter shall apply to all agents, successors and assigns of an Applicant.

Enforcing Authority. The Town Manager or their designee is the enforcing authority for this Chapter. The Town Manager may suspend or revoke any building permit or approval upon finding a violation of any provision of this Chapter.

C. Excessive Sales Price and Rents/Legal Action. It is unlawful, a public nuisance and a misdemeanor for any person to sell or rent an Inclusionary Unit at a price or rent exceeding the maximum allowed under this Chapter or to a household not qualified under this Chapter. If the Town determines that the sales price or rents in excess of those allowed by operation of this Chapter have been charged to a household residing in an affordable unit, the Town may take appropriate legal action.

SECTION 3. Effective Date. This Ordinance becomes effective thirty (30) days after its final passage and adoption.

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Packet Pg. 113 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) Ordinance No. XX-2022 A-14 December 7, 2022
SECTION 4. Severability. If any provision of the Ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Ordinance which can be given effect without the invalid provisions or applications of the Ordinance. To this end, the provisions of this Ordinance are severable. This Town Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof.

SECTION 6. Publication. The Town Clerk shall cause this Ordinance to be published in accordance with State law.

The foregoing Ordinance was introduced at a regular meeting of the Town Council of the Town of Moraga, California, held on December 7, 2022, and was adopted and ordered published at a regular meeting of the Town Council held on December 14, 2022 by the following vote:

Ayes:

Noes:

Abstain:

Absent:

Recused:
____________________________
Steve Woehleke, Mayor
ATTEST:
___________________________________
Yashin Abbas, Interim Town Clerk
H.3.c
Packet Pg. 114 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options)

ATTACHMENT B
Draft Development Incentives Policy Resolution for Projects Meeting the Town’s Affordable Housing Requirements On-Site H.3.c
Packet Pg. 115 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) B-2
Development Incentives Policy
Developers meeting the Town’s affordable housing requirements on-site shall be eligible for the density bonuses listed below. Developers meeting the requirements through an Alternative means of compliance as defined in Section 8.180.060 of the Moraga Municipal Code shall not be eligible for local bonuses. Projects with five units or fewer shall likewise be ineligible for local bonuses.

State Density Bonus Law (SDBL) requires that projects receiving low-income housing density bonuses must be affordable to households earning 60 percent of Areawide Median Income (AMI) or lower. As an incentive, the Town of Moraga will award equivalent density bonuses for projects serving households earning 80 percent of AMI or less. In addition, the Town will offer a supplemental local density bonus which may be added to the State bonus for projects providing on-site inclusionary units. The tables below represent the aggregate of the State Density Bonus and an additional Town of Moraga bonus for various housing types. As the table indicates, higher bonuses are provided for housing types identified in the 2023-2031 Housing Element as being particularly important to the Town.

R-24 Zoning District:

Housing Type Base
Density
(General
Plan and
Zoning)
State Density
Bonus
Available to
Projects
providing
10% low
income (*)
State
Density
Bonus
Available to
Projects
providing
10%
moderate(*)
Town of Moraga
Supplemental
Bonus for
Projects
meeting the
inclusionary
requirement onsite
Total
Bonus
Allowable
Density
with
Local
Bonus
Rental Housing,
General
24 DUA 20% N/A 5% 25% 30 DUA
Rental Housing,
Senior
30 DUA 20% N/A N/A (**) 20% 36 DUA
Rental Housing,
Student
24 DUA 35% N/A 15% 50% 36 DUA
For-Sale
Housing, Senior
30 DUA N/A 15% 5% 20% 36 DUA
DUA= Dwelling Units Per Acre
Attachment B
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Packet Pg. 116 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) B-3
MSCP MU-RR, MSCP MU-OR zoning districts, and for the Rheem Center Commercial/Residential (RM-CR), and Rheem Center Office/Residential (RM-OR) zoning districts once established:

Housing Type Base
Density
(General
Plan and
Zoning)
State Density
Bonus
Available to
Projects
providing
10% low
income (*)
State
Density
Bonus
Available to
Projects
providing
10%
moderate(*)
Town of Moraga
Supplemental
Bonus for
Projects
meeting the
inclusionary
requirement onsite
Total
Bonus
Allowable
Density
with
Local
Bonus
Rental Housing,
General
6 DUA 20% N/A 13.4% 33.4% 8 DUA
Rental Housing,
Senior
6 DUA 20% N/A 13.4% 33.4% 8 DUA
Rental Housing,
Student
6 DUA 35% N/A 0% 35% 8 DUA
For-Sale
Housing, Senior
6 DUA N/A 15% 18.4% 33.4% 8 DUA
(*) For the purposes of these tables, low-Income is defined as 80% of AMI and moderate-income is defined as 120% of AMI, adjusted for household size.
(**) For senior housing in the R-20 and R24 zoning districts, the Town’s zoning already establishes a base density of 30 DUA, which is higher than the density allowed for other housing types. Thus, a supplemental local bonus is not provided for senior housing. Such projects may use the State Density Bonus of 20 percent to achieve 36 DUA.

H.3.c
Packet Pg. 118 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) B-5
Parking
In addition to the density bonus, such projects shall be entitled to use State Density Bonus parking requirements for lower income housing for projects serving households up to 80 % of AMI, rather than the 60% AMI required by the State. The parking requirements are:
• Studio and One-Bedroom: 1 space
• Two or Three Bedrooms: 1.5 space
• Four Bedrooms: 2.5 spaces
Concession or Incentive
Consistent with State Density Bonus Law, applicants who meet the 10% affordable housing requirement on-site are also automatically eligible for one concession or incentive. Only one incentive may be requested unless deeper levels of affordability are provided. Developers seeking relief from other development standards may request waivers as allowed by State Density Bonus Law.

Examples of desired incentives include but are not limited to:
(1) Increased height/ stories
(2) Reduced setbacks or stepbacks
(3) Reduced private open space requirements
(4) Increased floor area ratio, where applicable
(5) Increased lot coverage
H.3.c
Packet Pg. 119 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) 1 1 2 Meeting Date: February 22, 2022
3 4
5 TOWN OF MORAGA STAFF REPORT
6 7 To: Honorable Mayor and Councilmembers
8 9 From: Afshan Hamid, AICP, Planning Director
10 Barry Miller, FAICP, Planning Consultant
11 David Doezema, Keyser Marston Associates, Inc
12 13 Subject: Study Session on Establishing a Fractional In Lieu Fee in Accordance 14 with the Town’s Affordable Housing Ordinance
15 16 CEQA: The project is consistent with the previously certified Environmental 17 Impact Report for the Comprehensive Advanced Planning Initiative and is 18 categorically exempt under the California Environmental Quality Act 19 Guidelines 15061(b)(3) and is covered by the commonsense exemption. 20 21 Request
22 23 Receive an informational report on the proposed Affordable Housing Fractional In Lieu 24 Fees pursuant to the adopted Affordable Housing Chapter 8.180 in the Moraga Municipal 25 Code, which created requirements for affordable housing in new residential development 26 of six units or more. The Town Council adopted Chapter 8.180 on December 14, 2022, 27 and it went into effect on January 13, 2023.
28 29 Background
30 31 On December 14, the Town Council adopted an Affordable Housing Ordinance 32 (Ordinance) to increase affordable housing production and meet a new State requirement 33 to Affirmatively Furthering Fair Housing (AFFH). The Ordinance requires developers to 34 provide a percentage of new residential units at a price that is considered affordable to 35 very low-, low-, or moderate-income households. The “Inclusionary” units will have deed 36 restrictions that limit the rent (or sales price) that may be charged, as well as the annual 37 income of the tenant (or purchaser). Inclusionary Housing is a tool to help the Town meet 38 its Regional Housing Needs Allocation (RHNA) goal of 1,118 new units. Over 60 percent 39 of the Town’s RHNA goal is comprised of housing units that are affordable to lower- and 40 moderate-income households. The detailed December 7, 2022 staff report for the 41 Affordable Housing Ordinance may be accessed here.
42 43 The Ordinance gives the Town Council the authority to adopt a fractional in-lieu fee. The 44 primary purpose is to address situations where the inclusionary requirement does not Town of Moraga Agenda Item
Ordinances,
Resolutions,
Requests for Action

10.C
H.3.d
Packet Pg. 120 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 2 1 result in a whole number of affordable units that are required. Projects with a fractional 2 inclusionary unit requirement are eligible to either pay an in-lieu fee for the fractional unit 3 or provide a whole inclusionary unit. For example, if an applicant proposed a 24-unit rental 4 project, the 10% inclusionary requirement represents 2.4 lower income units. Since 5 dwelling units are counted in whole numbers, the “fractional” remainder of 0.4 units could 6 either be satisfied through payment of an the proposed fractional in-lieu fee or the 7 applicant could choose to round up and provide 3 affordable units within the project. In 8 this instance, the requirement for 2.4 units would mean two affordable units would be 9 provided and the applicant would pay a fee equal to four-tenths of a dwelling unit. 10 11 The amount of the fee has not yet been established and must be determined by the Town 12 Council. The basis for the fee is included in the Ordinance. It represents the gap between 13 the market-rate price (sales or rent) and the affordable price (sales or rent) of the 14 inclusionary unit. At the December 7 meeting, staff shared that a study is required for the 15 in lieu fees and it would be brought to Council as a future separate action. Since the 16 December meeting, staff contracted with Keyser Marston Associates, Inc. (KMA) on an 17 Inclusionary Housing Fee Calculation memorandum (see Attachment B). 18 19 Section 8.180.040 identifies the General Requirements for the program, including the 20 types of projects that are covered (and exemptions), and the percentage of affordable 21 units that are required. Recognizing economic considerations, the Ordinance has 22 different requirements for for-rent and for-sale housing and allows flexibility in the 23 percentages of affordable units to be provided based on the depth of affordability. This 24 section also addresses “fractional” units.
25 26 Section 8.180.050 addresses Administration of the program, including requirements for 27 inclusionary housing plans and agreements. The agreements establish resale restrictions 28 for inclusionary for-sale units, and rental restrictions for rental units, as well as provisions 29 to monitor compliance once units are created. A summary of the Ordinance specific to In 30 Lieu Fees is as follows:
31 32 1. Applicability to rental vs ownership units (most ordinances apply to both). Council 33 direction was to apply the affordable requirement to both rental and ownership 34 units.
35 2. Exemptions (small projects may be exempt from the ordinance). Council direction 36 was to provide an exemption for projects with five or fewer units for inclusionary 37 units, with no fee collected for these projects.
38 3. Residential Developments with 6 (six), 7 (seven), 8 (eight), or 9 (nine) units shall 39 have the option of providing one full Inclusionary Unit or paying the In-Lieu Fee in 40 an amount equal to the following schedule:
41 42 Total Units in Project Fractional Inclusionary Unit Required 43 6 0.20
44 7 0.40
45 8 0.60
46 9 0.80
47 4. Applicants proposing ten (10) or more units shall calculate the required number 48 of Inclusionary Units. In the event this calculation results in a Fractional Unit, the H.3.d
Packet Pg. 121 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 3 1 Developer shall have the option or either: (i) providing a full Inclusionary Unit; or 2 (ii) paying an In Lieu Fee in an amount equal to the percentage represented by 3 the fractional unit multiplied by the In Lieu Fee
4 5. For-Sale Units. The fee amount should represent a reasonable portion of the gap 5 between the Affordable Sales Price at the corresponding income level and the 6 Market-Rate sales price of for-sale housing of a similar product type. 7 6. Rental Units. The fee amount should represent a reasonable portion of the gap 8 between the Affordable Rent at the corresponding income level and the market9 rate rent for a similar product type over the lifetime of the affordability term. 10 7. In Lieu Fee for Projects in Very High Fire Severity Zones (VHFSZ). Applicants of 11 projects in a VHFSZ as determined by CALFIRE may at their discretion, select to 12 pay an in-lieu fee as an alternative to constructing the affordable units on -site, off13 site, or through Accessory Dwelling Units (ADUs). Nothing in this provision 14 precludes the owner from including ADUs in their project, as permitted by State 15 Law.
16 17 Exemptions/ Applicability
18 19 Per the Ordinance, inclusionary requirements and in-lieu fees do not apply to projects of 20 five or fewer units. The Ordinance applies Town-wide, but projects in lower density zones 21 would have the option of meeting the inclusionary requirement through 25% Accessory 22 Dwelling Units (ADUs). No rent or income restrictions would apply to the ADUs and they 23 may be used at the owner’s discretion (rental of the ADUs is not required). 24 25 The focus of this report is the methodology and fee calculation as set forth in the KMA 26 memorandum (Attachment B).
27 28 Discussion
29 30 Based on a review of inclusionary housing fees in other communities, there are two 31 primary ways of calculating the fee—on a square foot basis or on a dwelling unit basis. 32 The square foot basis was used in this case, as it is more equitable and places a lower 33 burden on smaller units. A 1,000 square foot condominium would be subject to a much 34 lower fee than 3,000 square foot home; this would not be the case if the fee was based 35 on the number of dwelling units in the project. This square foot basis allows the fee to 36 scale with the size of the market rate units and avoids creating a disincentive for smaller 37 more affordable market rate units.
38 39 The KMA memo and appendix is extensive and provides a comprehensive methodology 40 and calculations to determine an in-lieu fee consistent with the requirements of the 41 Ordinance. The KMA overall basis for the affordable housing in-lieu fee was calculated to 42 be $39.00 per square foot for for-sale projects and $25.00 per square foot for rental 43 projects. These figures represent the gross per square foot in-lieu that would apply if no 44 affordable units were provided by the project. The gross in-lieu fee amounts are adjusted 45 downward based on the portion of the overall inclusionary requirement to be satisfied with 46 fractional unit in-lieu fees. Gross in-lieu fees are also adjusted downward for smaller six 47 to nine unit projects based on the fractional unit requirements specified in the Ordinance.

H.3.d
Packet Pg. 122 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 4 1 The basis for the fee is described below, first for for-sale projects and then for rental 2 projects.
3 4 For-Sale Projects Gross in-lieu fee
5 6 a. The methodology is as follows: Estimate the average market rate sales 7 price for Moraga.
8 b. Determine the average square footage for new units in Moraga 9 c. Determine the sales price that would be considered “affordable” to a 10 moderate income household
11 d. Calculate the for-sale affordability gap by subtracting the (c) affordable 12 sales price from the (a) market rates sales price
13 e. Apply the required inclusionary percentage (10%) to (d) affordability 14 gap and divide the result by (b) average unit square feet to calculate the 15 gross-lieu fee applied to for sale projects
16 17 The data points for (a) through (e) are shown below:
18 Gross In-Lieu Fee Calculation, For Sale
a. Average sales price for newer units in Moraga $1,798,000 b. Average net square footage 3,040 sq. ft.
c. Affordable sales price (Moderate) $612,000
d. Affordability Gap (a. – c.) $1,186,000
e. Gross In-Lieu Fee, For-Sale = affordability gap
(d.) x inclusionary % (10%) ÷ avg unit sq. ft. (b.)
$39 per sq. ft.
19 20
21 Rental Projects Gross in-lieu fee
22 23 a. The methodology is as follows: Determine average unit square feet for 24 rental apartments in Moraga
b. Identify market rents for existing apartments in Moraga1 25 , which are 26 primarily built in 1960s and 1970s
27 c. Estimate market rents for newly built apartments in Moraga 28 • Rents for new apartments are estimated based on applying a 50% 29 premium to rents for older existing units in Moraga. This premium 30 is estimated based on a comparison of rents for older and newly 31 built units in Walnut Creek. This step is necessary because no 32 recently built market rate apartments were identified in Moraga 33 d. Determine the rent that would be considered “affordable” to a lower 34 income household (assuming 30% of income set aside for housing costs). 35 e. Calculate the annual rent difference by subtracting the monthly affordable 36 rent from the monthly market rate rent, and then multiplying by 12 37 f. Calculate the rental affordability gap as the forgone project value 38 associated with setting aside an affordable housing unit. 39 The calculation is based on:
1 Nearly all Moraga apartments were built in the 1960s and 1970s. Used market rates for new apartments in Walnut Creek to estimate rent premium for new apartments built in Moraga H.3.d
Packet Pg. 123 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 5 1 dividing the annual rent difference by a 4% capitalization rate 2 based on averages reported for the submarket
3 g. Multiply the affordability gap by the inclusionary percentage (10%) and 4 divide by (a) average unit per square feet to determine the gross in-lieu 5 fee for rental projects
6 7 The data points for (a) through (g) are shown below:
8 Gross In-Lieu Fee Calculation, For Rent
a. Average rental unit square feet 1,028 sq. ft.
b. Identify market rate rents for current apartments in Moraga.
$2,110
c. Apply a 50% premium to current rents to determine
market rates for new apartments ($2,110 x 50%)
$3,165
d. Calculate affordable monthly rent for a low-income
household (per 30% of monthly income, etc.)
$2,300
e. Subtract monthly affordable rent ($2,300) from market rate rent ($3,165)
$865
f. Multiply monthly difference ($865) x 12 to calculate annual rent difference
$10,382
g. Divide annual rent difference ($10,382) by capitalization rate (4%)2 to determine the capitalized value of rent
difference
$260,000
h. Multiply affordability gap ($260,000) x inclusionary percentage (10%) ÷ average unit square feet (1,028 sq.
ft.) =Gross In-lieu for rental projects
$25 per sq. ft.
9 10 Fee Calculation for Typical Projects
11 12 A number of examples are provided below to explain how the fees would apply to actual 13 projects. The examples used are a 24-unit townhome project (average unit size of 2,200 14 SF), a 42-unit rental project (average unit size of 1,200 SF), and a 66-unit rental apartment 15 project (average unit size of 900 SF).
16 17 Case Study: 24 unit for-sale townhome project (2,200 SF each, or total net area of 52,800 18 square feet in the entire project)
19 20 The applicant is obligated to provide 2.4 units affordable to moderate income households 21 (10 percent). The applicant could meet this obligation by rounding the 2.4 up to three 22 affordable units or by providing two affordable units and paying an in-lieu fee equivalent 23 to 0.4 units. The affordable units would be sold to qualifying buyers at moderate income 24 prices (roughly $612,000) and the remaining units would sell at market rates. 25 26 Assuming the developer chose to pay the in-lieu fee, the fee amount would be $343,200. 27 This is essentially four-tenths of the “gap” between one market-rate unit and one 2 4% average capitalization rate reported by Costar for apartment properties sold in the prior one-year period within the Walnut Creek submarket.

H.3.d
Packet Pg. 124 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 6 1 subsidized unit in the project. The cost is calculated by applying the unit cost of $39 per 2 square foot as follows:
3 4 0.4/2.4 x $39 x 52,800 = $343,200
5 (Fractional amount / Total requirement) x in-lieu fee x project area 6 7 Case Study: 42-unit apartment project (1,200 SF each, or total net area of 50,400 SF in 8 the entire project)
9 10 The applicant is obligated to provide 4.2 units affordable to lower income households (10 11 percent). The applicant could meet this obligation by rounding the 4.2 up to five affordable 12 units or by providing four affordable units and paying an in-lieu fee equivalent to 0.2 units. 13 The affordable units would be rented to qualifying buyers at lower-income rents (roughly 14 $2,300) and the remaining units would rent at market rates. 15 16 Assuming the developer chose to pay the in-lieu fee, the amount would be $60,000. This 17 is essentially two-tenths of the “gap” between one market-rate unit and one subsidized 18 unit in the project. The cost is calculated by applying the unit cost of $25 per square foot 19 as follows:
20 21 0.2/4.2 x $25 x 50,400 = $60,000
22 (Fractional amount / Total requirement) x in-lieu fee x project area 23 24 Case Study: 66-unit apartment project (900 SF each, or total net area of 59,400 SF in the 25 entire project)
26 27 The applicant is obligated to provide 6.6 units affordable to lower income households (10 28 percent). The applicant could meet this obligation by rounding the 6.6 up to seven 29 affordable units or by providing six affordable units and paying an in-lieu fee equivalent 30 to 0.6 units. The affordable units would be rented to qualifying buyers at lower-income 31 rents (roughly $2,300) and the remaining units would rent at market rates. 32 33 Assuming the developer chose to pay the in-lieu fee, the amount would be $135,000. 34 This is essentially six-tenths of the “gap” between one market-rate unit and one 35 subsidized unit in the project. The cost is calculated by applying the unit cost of $25 per 36 square foot as follows:
37 38 0.6/6.6 x $25 x 59,400 = $135,000
39 (Fractional amount / Total requirement) x in-lieu fee x project area 40 41 Six to Nine Unit Projects
42 For projects with six (6) to nine (9) units either a full inclusionary unit is required or an in 43 lieu fee may be paid. Based on Table 1 in the KMA memorandum (see Attachment B, 44 page 2), the fees for rental units would range from $8.30 per square foot in a 6-unit project 45 to $22.20 per square foot in a 9-unit project. The fees for for-sale units would range from 46 $13.00 per square foot in a 6-unit project to $34.70 per square foot in a 9-unit project. 47 These requirements would primarily only be applied in the event small multi-family 48 projects or townhomes are proposed. It is expected that single family detached projects 49 of six to nine units will generally provide ADUs in lieu of meeting these requirements. The H.3.d
Packet Pg. 125 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 7 1 Town is not expecting many projects in this range to be submitted based on past 2 submittals.
3 4 Custom Lot / Single Family Subdivision
5 For a subdivision in a zoning district that is RR, R-1, R-2, R-3, or R-6, an alternate means 6 of compliance provision has been provided to applicants. This alternate is to include 7 ADUs in 25 percent of the units rather than dedicating deed-restricted affordable units. 8 Based on cost, the ADU option is expected to be more attractive than dedicating 9 moderate-income for-sale units within the subdivision. 10 11 In subdivisions affordable housing is applicable in two scenarios, by providing 25% ADUs 12 of residences in a custom lot subdivision or in a Very High Fire Severity Zone (VHFSZ). 13 Recent CAL FIRE maps have been updated for the State responsibility areas. Moraga 14 Orinda Fire District (MOFD) will use the existing maps until local maps are adopted. 15 16 The developer does have the option of paying a fractional in-lieu fee, should they choose 17 to dedicate affordable units within their project. In such instances, the fees are due at 18 Final Map. The method and amount of the fee calculation is the same as was described 19 in the examples above. The fee represents a reasonable portion of the gap between the 20 Affordable Sale Price at the corresponding income level and the Market-Rate sales price 21 of For-Sale Housing.
22 23 The fractional fee option is not available to developers meeting the requirement through 24 ADUs. In other words, a 21-lot subdivision would need to include ADUs in six of the 25 homes, even though the 25 percent requirement yields 5.25 units. 26 27 Comparison of Other Cities
28 Staff conducted an analysis of in lieu fees and fractional in lieu fees for 21 East Bay 29 jurisdictions. Each jurisdiction varies in how it applies fees and at the threshold of how it 30 applies fees. Due to the sixth cycle, Housing Element, many jurisdictions are either re31 visiting or establishing in-lieu policies and fees. Clayton, Orinda, Lafayette and Danville 32 are currently in the process of updating or establishing the in lieu fees. Antioch, Hercules, 33 Martinez, Oakley, Pinole and Pittsburg are still working on their Housing Elements so the 34 in lieu policy and fees are not known at this time. San Pablo does not have in lieu fees as 35 the City meets affordable housing goals and most projects that are submitted have 36 affordable housing included. The remaining Cities that have inclusionary in lieu fees 37 adopted as first generation of fees are now in the process of updating, and re-considering 38 the approach to affordable housing fees. The information is in the table below. 39 40
For Sale For Rent sq. ft.

Brentwood $22.88 sq. ft. $28.72
Concord $ 9.00 sq. ft. Only when 600 or more units
are built
Contra Costa
County
$6,600.06 per market rate
unit
$24,200.55 per market rate unit
El Cerrito $22.88 sq. ft. $28.72 sq. ft.

Fremont $44.00 sq. ft. $27.00
H.3.d
Packet Pg. 126 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 8 $27 sq. ft. for stacked flat
does not include additional
impact fees
$8.75 (up to 700 sq. ft.)
Pleasant Hill $271,350 for each unit
Note these have not been
updated for some time
Fractional is from the amount
listed,
Note these have not been
updated for some time
Richmond $12.00 sq. ft.

San Ramon 15% of units have to be
affordable. Don’t allow for
fees, only allow buildouts.

Most projects are 30 units
and more. Currently updating
fees with KMA and will adjust.

Most future projects
anticipated for MF, and will
ask for a higher fee.
15% of units have to be
affordable. Currently updating
fees
Walnut Creek $26.86 sq. ft.

Includes commercial linkage
fees
Needs to be updated
$26.86 sq. ft.

Includes commercial linkage
fees
Needs to be updated
1 2 Next Steps
3 4 Staff is requesting input and feedback at the February 22 meeting. Staff will continue to 5 reach out to developers for input. Once direction is provided, staff will bring the revised 6 report, recommendation and Resolution for Council adoption. 7 8 California Environmental Quality Act
9 10 The project is consistent with the previously certified Environmental Impact Report for the 11 Comprehensive Advanced Planning Initiative and is categorically exempt under the 12 California Environmental Quality Act Guidelines15061(b)(3) and is covered by the 13 common sense exemption.
14 15 Fiscal Impact
16 17 Adoption of affordable housing requirements will require the collection of fees for 18 fractional units and the adoption of an in-lieu fee. A dedicated Affordable Housing Fund 19 (Fund 791) would be created by the Town as a repository for these fees. As they accrue, 20 the fees would be used to support Housing Element programs and potentially provide a 21 supplemental funding source for non-profit affordable housing developers. There would 22 be additional costs associated with administering affordable housing requirements, 23 reviewing affordable housing plans and Agreements, and monitoring compliance with the 24 program. Some of these functions could be carried out by third parties, as the Town has 25 limited staff capacity.
26 27 Recommendations
H.3.d
Packet Pg. 127 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 9 1
2 Accept the informational report and provide guidance and feedback to staff. This feedback 3 will inform the proposed resolution, which is scheduled to be brought to the Council in 4 March/April timeframe.
5 6 Report reviewed by: Brian Dolan, Interim Town Manager 7 Karen Murphy, Assistant City Attorney
8 9 Attachments:
10 11 A. Keyser Marston Associates, Inc. (KMA) on an Inclusionary Housing Fee 12 Calculation memorandum
13 H.3.d
Packet Pg. 128 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options)

ATTACHMENT A
Keyser Marston Associates, Inc. (KMA) on an Inclusionary Housing Fee Calculation memorandum
H.3.d
Packet Pg. 129 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) 2040 BANCROFT WAY, SUITE 302  BERKELEY, CALIFORNIA 94704  PHONE: 415 398 3050  FAX: 415 397 5065 001-002.docx; jf
WWW.KEYSERMARSTON.COM 16034.002
ADVISORS IN:

REAL ESTATE

AFFORDABLE HOUSING

ECONOMIC DEVELOPMENT

BERKELEY
A. JERRY KEYSER
TIMOTHY C. KELLY
DEBBIE M. KERN

DAVID DOEZEMA

LOS ANGELES
KATHLEEN H. HEAD
JAMES A. RABE
GREGORY D. SOO-HOO
KEVIN E. ENGSTROM
JULIE L. ROMEY

TIM BRETZ

SAN DIEGO
PAUL C. MARRA

LINNIE GAVINO

MEMORANDUM
To: Cynthia Battenberg
Town of Moraga
From: Keyser Marston Associates, Inc.

Date: December 21, 2022
Subject: Inclusionary In-Lieu Fee Calculations
The following memorandum has been prepared for the Town of Moraga (Town) by Keyser Marston Associates, Inc. (KMA) to calculate an in-lieu fee pursuant to the Town’s proposed Affordable Housing Ordinance (AHO). Moraga Municipal Code (MMC) Section

8.180.050 D (proposed) provides for adoption of in-lieu fees for fractional inclusionary unit obligations. Projects with a fractional inclusionary unit requirement are eligible to either pay an in-lieu fee for the fractional unit or provide a whole inclusionary unit.

SUMMARY OF IN-LIEU FEE CALCULATION
In-lieu fees are calculated based on the gap between market-rate and affordable sales prices and rents pursuant to MMC 8.180.050 D. In-lieu fees are expressed per habitable square foot within the project. Applying in-lieu fees on a per square foot basis is permitted under the AHO, is a well-established approach used in many jurisdictions throughout the region and allows the amount of the fee to scale with unit size.

A. Projects from Six to Nine Units
Table 1 presents calculated in-lieu fees for projects from six to nine units in size. In-lieu fees reflect the gap between market and affordable prices and rents and the schedule of fractional inclusionary unit obligations for projects with six to nine units under MMC

8.180.040 (D), which phases in requirements for smaller projects.

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Table 1. In-Lieu Fees for Six to Nine-Unit Projects
Per Habitable Square Foot (1) in Project
For-Sale Units Rental Units
6-unit projects $13.00 /SF $8.30 /SF
7-unit projects $22.30 /SF $14.30 /SF
8-unit projects $29.30 /SF $18.80 /SF
9-unit projects $34.70 /SF $22.20 /SF
(1) Excludes garages, parking area, common areas and common amenities, and other non-livable space.

B. Fractional Inclusionary Unit In-Lieu Fees for Larger Projects.

For projects with more than ten units that choose to meet fractional unit inclusionary requirements by paying an in-lieu fee, the amount is determined based on a “gross per square foot in-lieu fee” multiplied by the share of the inclusionary unit requirement to be satisfied with in-lieu fee payment, as shown in Table 2. The gross in-lieu fee reflects the full affordability gap, assuming no inclusionary units are provided within the project, and was calculated at $39 per square foot for for-sale units and $25 per square foot for rental units. This gross amount must be reduced to reflect the share of the inclusionary requirement to be satisfied with in-lieu fee payment, as shown in Table 2.

Table 2. Fractional Unit In-Lieu Fees, Projects with More Than Ten Units ForSale
Units
$39 𝑃𝑃𝑃𝑃𝑃𝑃 𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺 𝑓𝑓𝑓𝑓𝑓𝑓 ×
𝐹𝐹𝐹𝐹𝐹𝐹𝐹𝐹 𝐹𝐹𝐹𝐹𝐹𝐹 𝐼𝐼 𝐼𝐼 𝐼𝐼 𝑈𝑈 𝑂𝑂𝑂𝑂 𝑂𝑂
𝑇𝑇 𝐼𝐼 𝐼𝐼 𝐼𝐼 𝑈𝑈 𝑅𝑅 𝑅𝑅
× 𝐻𝐻 𝐻𝐻 𝐻𝐻 𝐹𝐹 = 𝑇𝑇 𝐷𝐷
Rental
Units $25 𝑃𝑃𝑃𝑃𝑃𝑃 𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺 𝑓𝑓𝑓𝑓𝑓𝑓 ×
𝐹𝐹𝐹𝐹𝐹𝐹𝐹𝐹 𝐹𝐹𝐹𝐹𝐹𝐹 𝐼𝐼 𝐼𝐼 𝐼𝐼 𝑈𝑈 𝑂𝑂𝑂𝑂 𝑂𝑂
𝑇𝑇 𝐼𝐼 𝑈𝑈 𝑅𝑅 𝑅𝑅
× 𝐻𝐻 𝐻𝐻 𝐻𝐻 𝐹𝐹 = 𝑇𝑇 𝐷𝐷
Appendix Table 1 provides an example calculation.

C. Custom Lot Subdivisions
For custom lot subdivisions, in-lieu fees are due at Final Map, while homes are built later. In this case, the in-lieu fee must be calculated based on an assumed habitable square footage. KMA recommends use of an estimated or assumed average square footage, as described in Table 3.

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Table 3. Custom Lot Subdivisions
If the total habitable square footage in the development can reasonably be estimated at the time of Final Map, such reasonable estimate shall be used for the in-lieu fee calculation. Otherwise, the total habitable square footage shall be calculated based on the average unit size used for purposes of establishing the in-lieu fee multiplied by the number of buildable lots. Average unit sizes, based on the supporting market data used for establishing in-lieu fees, are:

For-Sale: 3,040 sq ft
Rental: 1,028 sq ft

SUPPORTING ANALYSIS
The following sections walk through the calculation of in-lieu fees.

Gross In-Lieu Fee Calculation for For-Sale Projects
The AHO specifies that the in-lieu fee for for-sale units “…should represent a reasonable portion of the gap between the Affordable Sales Price at the corresponding income level and the Market-Rate sales price of For-Sale housing….” KMA calculated this gap based on a review of market rate sales and an estimate of the affordable sales prices for comparable units. The analysis is summarized below.

To estimate the market rate sales price of a new unit in Moraga, KMA calculated the average sales price of units built since 2010 and sold since January 2019, using data from CoreLogic. There were 72 units that fit these criteria in Moraga, representing a mix of single family detached and attached or duplex units. The average number of bedrooms, unit size and sales prices are shown in Table 4.

Table 4. Average Price of Newer Units in Moraga Built Since 2010, Sold Last 4 Years (1/2019 - 11/2022)
Average Sales Price, Newer Units in Moraga $1,798,000
Average Number of Bedrooms, Newer Units in Moraga 3.96
Average Net Square Footage, Newer Units in Moraga 3,040 sq ft Source: CoreLogic
Average market rate sales prices for for-sale housing in Moraga is the first component of the for-sale affordability gap calculation.

KMA estimated the affordable sales price for a comparable unit based on AHO requirements. The pricing is set to be affordable to households earning the Moderate H.3.d
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Income Limit for Contra Costa County with 35% of income set aside for housing costs including mortgage payments, property taxes, insurance, HOA dues, and utilities. Table 5 presents the affordable sales prices. Appendix Table 4 provides the supporting calculation.

Table 5. Moderate Income Affordable Sales Price
3 Bedroom
Aff Price
4 Bedroom
Aff Price
Weighted
Average (1)
Affordable Price $571,300 $613,400 $612,000
(1) Weighted to reflect the average of 3.96 bedrooms in the market rate unit sales data summarized in Table 4.

The for-sale affordability gap is the difference between the market rate sales price (Table 4) and the weighted average affordable sales prices (Table 5). The affordability gap represents the forgone revenue to the developer from setting aside a unit as affordable.

The calculation is shown in Table 6.

Table 6. For-Sale Affordability Gap
Market Price $1,798,000
Less: Affordable Price ($612,000)
Affordability Gap $1,186,000
Using the affordability gap, KMA calculated a per-square-foot in-lieu fee. The fee is calculated based on the onsite requirement (10% of units) and the average size of the market rate units (3,040 square feet). The calculation is shown in Table 7.

Table 7. Calculation of Gross For-Sale In-Lieu Fee, Before Phase-In Affordability
Gap
Inclusionary
Percentage
Average Unit
Square Feet
Gross In-Lieu
Fee before
phase-in
Gross For-Sale In-Lieu
Fee Before Phase-In
$1,186,000 x 10% ÷ 3,040 sq ft = $39 /SF
In-lieu fees for projects from six to nine units in size presented in Table 1 are based on the gross in-lieu fee per square foot in Table 7, adjusted for the phase in of the inclusionary unit requirement pursuant to MMC 8.180.040 (D). The supporting calculation of this phase in is provided in Appendix Table 1.

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Gross In-Lieu Fee Calculation for Rental Projects
The AHO specifies that the in-lieu fee for rental units “should represent a reasonable portion of the gap between the Affordable Rent at the corresponding income level and the market-rate rent for a similar product type over the lifetime of the affordability term.” KMA calculated this gap based on a review of market rate rents and an estimate of the affordable rents for comparable units. Appendix Table 3 presents the calculations. The analysis is summarized below.

KMA reviewed current market rate rents in Moraga. Costar data indicate that nearly all Moraga apartment units were built in the 1960s and 1970s. The in-lieu fee analysis should be based on the estimated rental rates of newly built units that would be subject to the inclusionary requirement. To estimate the rent premium for new units with modern finishes and amenities, KMA compared market rents for new and old apartments in Walnut Creek, where this data is available. KMA calculated the percentage difference in rents between new and old units from the 1960s and 1970s and estimated that new units rent for approximately 50% more than the older units. KMA estimated rents for new market rate units in Moraga based on applying this 50% premium to existing rents for older units, as shown in Table 8.

Table 8. Estimated Market Rate Rents for New Units in Moraga Avg Number
of BRs
Avg
Unit SF
Avg Effective
Rent Per Month
Averages for Rental Unit in Moraga (older units) 1.83 1,028 $2,110 Estimated Rent Premium for New Construction 50%
Estimated Market Rent for New Rental Units in Moraga 1.83 1,028 $3,165 Source: CoStar
The estimated market rate rents for new apartments in Moraga presented in Table 8 is the first component of the rental affordability gap calculation.

KMA calculated the affordable rent for a comparable unit using the average number of bedrooms from the market data and the requirements of the AHO. The rent is set to be affordable to households earning the maximum income limit for Low Income households in Contra Costa County, with 30% of income set aside for housing costs including rent and utilities. The results are summarized in Table 9.

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Table 9. Affordable Monthly Rent
1 BR/
2-p HH
2 BR/
3-p HH
Weighted
Average (1)
Contra Costa County Low Income Limit, 2022 $87,700 $98,650 Affordable Housing Cost per Month $2,193 $2,466 $2,420
Less: Utilities (2) ($95) ($125) ($120)
Affordable Rent $2,098 $2,341 $2,300
(1) Weighted to reflect the average of 1.83 bedrooms in the market rate rental units. (2) Assumes gas heat, hot water and cooking, air conditioning, electricity and water.

The difference between market rate rents (Table 8) and the affordable rents (Table 9) is shown in Table 10.

Table 10. Net Difference: Market vs. Affordable Rents
Market
Rent
Affordable
Rent
Rent Difference
Per Month
Rent Difference
Per Year
Net Difference:

Market and Affordable Rents $3,165 $2,300 $865 $10,382

The rental affordability gap is calculated based on annual difference between market rate and affordable rents in Table 10, divided by a capitalization rate of 4%, to identify forgone project value associated with setting aside a unit as affordable. The cap rate is based on the average for 2022 year-to-date for the Walnut Creek submarket, according to CoStar. The calculation is shown in Table 11.

Table 11. Rental Affordability Gap (Capitalized value of rent difference) Rent Difference
Per Year
Capitalization
Rate (1)
Capitalized Value
of Rent Difference
Affordability Gap $10,382 ÷ 4.00% = $260,000
(1) Costar Walnut Creek area submarket cap rate for 2022YTD.

Using the affordability gap, KMA calculated the gross in-lieu fee. The fee is calculated based on the affordability gap, the onsite requirement (10% of units), and the average size of the market rate units (1,028 square feet). The calculation is shown in Table 12.

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Table 12. Calculation of Gross Rental In-Lieu Fee, Before Phase-In Affordability
Gap
Inclusionary
Percentage
Average Unit
Square Feet
Gross In-Lieu
Fee Before
Phase-In
Gross Rental In-Lieu
Fee Before Phase-In $260,000 x 10% ÷ 1,028 sq ft = $25.00 /SF In-lieu fees for projects from six to nine units in size are based on the gross in-lieu fee per square foot in Table 12 plus an adjustment for the phase in of the inclusionary unit requirement pursuant to MMC 8.180.040 (D). The supporting calculation is provided in Appendix Table 1.

See also, Appendix Tables 1 through 4, attached, for supporting calculations.

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Packet Pg. 136 Attachment: Attachment D - Moraga Inclusionary Zoning In-Lieu Fee (3098 : Inclusionary Housing Ordinance Options) Appendix Table 1
In-Lieu Fee Calculations
In Lieu Fee Analysis
Town of Moraga, CA
A. B. C. D. E.

Project Size Rental For-Sale
per Ordinance = 10% x No. units = A. / B.

Gross In-Lieu Fee Before Phase-In $25 /SF $39 /SF
Appendix Table 3ppendix Table 2
=C x gross fee =C x gross fee
6-unit projects 0.2 0.6 33% $8.30 /SF $13.00 /SF
7-unit projects 0.4 0.7 57% $14.30 /SF $22.30 /SF
8-unit projects 0.6 0.8 75% $18.80 /SF $29.30 /SF
9-unit projects 0.8 0.9 89% $22.20 /SF $34.70 /SF
(1) Excludes garages, parking area, common areas and common amenities, and other non-livable space.

Example Fractional Unit In-Lieu Fee Calculation (For Sale Project) 1) Habitable Square Footage in Project 92,400
2) Total Units in Project 42
3) Inclusionary Units Required = 10% X Total Units 4.20 4) Whole Inclusionary Units Due 4.00
5) Fractional Inclusionary Units Due 0.20
6) Gross In-Lieu Fee Before Phase In $39 /SF Appendix Table 2 7) Fractional Unit In-Lieu Fee $171,600
B. Fractional Unit In-Lieu Fees for Projects of Eleven or More Units Formula for Fractional Unit In-lieu Fees
= Fractional Units Owed / Total Inclusionary Unit Requirement x Gross Per Square Foot In-Lieu Fee x Total Habitable Square Footage in the Project.
= 0.2 fractional units /

4.2 inclusionary units x
$39/SF x 92,400 SF
In-Lieu Fee
Per Habitable
Square Foot (1)
A. In-Lieu Fees for Six to Nine-Unit Projects
Phase-in of
Inclusionary
Requirement
per Ordinance

8.180.040 (D)
Inclusionary
Units With Full
10%
Requirement
In-Lieu Fee
Phase In
Percentage
(project either pays this amount or
rounds up to five whole inclusionary
units)
_________________________________________________
Prepared by: Keyser Marston Associates, Inc.

Filename: \\SF-FS2\wp\16\16034\002\In-Lieu Fee Analysis Town of Moraga 12-21-22.xlsx; Summary

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