BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of: Ordinance 23-04
An Ordinance Amending Section 17.2.3
(Definitions) and Section 17.8.5 (Downtown
commercial district—Use restrictions) of the
City’s Zoning Code to Update Rules
Applicable to Convenience Markets and Other
Ancillary Retail Uses at a Service Station
The City Council of the City of Orinda DOES ORDAIN as follows:
SECTION 1.
The City Council of the City of Orinda intends, by adopting this ordinance, to amend Section 17.2.3 (Definitions) and Section 17.8.5 (Downtown commercial district—Use restrictions) to update the City’s rules regarding convenience markets and other ancillary retail uses at service stations.
SECTION 2.
The following portions of the Zoning Code are amended as specified below and in Attachment A. Attachment A shows additions with double-underlined text and deletions with strike-out text.
Municipal Code Provision Action
§17.2.3 Text amended as shown in Attachment A.
§17.8.5 Text amended as shown in Attachment A.
SECTION 3 – PURPOSE AND INTENT.
A. The purpose of this ordinance is to allow additional and larger convenience markets, and other ancillary retail uses, at service stations in the City. The City’s usual commercial use permit process would continue to apply. In addition, approval of such uses would be based on findings of compliance with the performance criteria and requirements identified in Attachment A.
B. The intent of this ordinance is to promote the design and functionality of any new or expanded ancillary retail uses at service stations to be pedestrian-friendly, aesthetically pleasing, and to provide benefits to the community beyond the sales of gasoline and motor fuel, auto parts and supplies, and incidental auto repair. The requirement for a commercial use permit to allow ancillary retail sales will ensure that each application is considered on a case-by-case basis to find that the listed criteria and requirements are met.
G.1.a
Packet Pg. 151 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores)
C. The proposed text amendment would be consistent with the following goals/policies of the General Plan:
• 2.1.3 Downtown: Guiding Policies
(B) Favor retail services needed frequently by residents by limiting the amount of office space in predominantly retail areas. Office space in retail areas should serve Lamorinda uses and generally not exceed retail space on any one lot.
(E) Make downtown shopping more attractive by diverting through traffic off local streets in the business district, providing more convenient circulation for shopping traffic, managing the parking supply more efficiently, creating safe and pleasant pedestrian routes, and developing and maintaining sufficient landscaping.
• 2.1.4 Downtown: Implementing Policies
(E) Enact regulations that will ensure that the central business area will be predominantly retail and which permit only a limited amount of offices that favor local use needs.
• 2.1.4 Downtown: Implementing Policies Village Area Development (J) In cooperation with the merchants and property owners, develop a plan for Orinda Way that will consolidate driveways, include a street median if feasible, and enrich the street's landscape character.
(K) Encourage property owners to make more intensive use of the San Pablo Creek sides of their buildings by designating a “private street: with public access parallel to the creek that would ‘provide an alternative connection for shoppers who must now turn on Orinda Way and/or enhance and preserve San Pablo Creek with landscaping, pathways and other pedestrian amenities consistent with his primary purpose as flood control.
D. The proposed text amendment would expand the opportunity for fresh food within the City.
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.
This ordinance is consistent with the Orinda General Plan.
SECTION 6.
G.1.a
Packet Pg. 152 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores)
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 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.
SECTION 7.
This ordinance becomes effective thirty (30) days after adoption.
SECTION 8.
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.
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 _ ____ 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:
Sheri Marie Smith, City Clerk
1586475.1
Attachment A: Amendments to OMC Sections §17.2.3 and §17.8.5 G.1.a
Packet Pg. 153 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores)
ATTACHMENT A
The following text is amended in Orinda Municipal Code Section 17.2.3 Definitions:
"Liquor store" means an establishment primarily engaged in the sale of alcoholic beverages for off-site consumption and incidental sale of general merchandise. This classification includes wine tasting rooms as an incidental use to wine sales. The sale of nonalcoholic beverages and food items is incidental to a liquor store.
The following text is amended in Orinda Municipal Code Section 17.8.5 Downtown commercial district—Use restrictions:
In the downtown commercial district, certain uses are permitted, permitted with a use permit, or prohibited in certain locations as follows.
A. Classification of Interior Spaces. There are three classes of interior commercial space in the downtown commercial district:
1. Type I Space. Type I space is a retail floor in a building or a portion of a building which:
a. Faces or abuts a street or street segment listed below; or b. Faces a mall, plaza or parking lot which faces or abuts a street or street segment listed below.
Type I space excludes a retail floor in a building which meets the criteria listed in subsections A.1.a. or A.1.b. of this section, solely because of driveway access to such a street or street segment.
Type I spaces are located on the following streets and street segments within the downtown commercial zoning district: Orinda Way; Avenida De Orinda (both sides of the eastern half and the north side of the western half); Camino Sobrante; Santa Maria Way; Moraga Way; Bryant Way (between Moraga Way and Davis Road); Brookwood Road (between Moraga Way and Camino Pablo except for the unit near the garage entrance in the Theatre Square Complex); Camino Pablo (east side between Highway 24 and Moraga Way).
2. Type II Space. Type II space is a retail floor which is not in a building or a portion of a building which faces or abuts any of the streets and street segments listed in subsection A of this section or a building or portion of a building which faces or abuts a mall, plaza or unenclosed parking lot facing or abutting any of the streets and street segments listed above. Examples include but are not limited to the rear side of buildings along the west side of Orinda Way, Camino Pablo's west side south of Brookwood Road, and Brookwood Road west of Camino Pablo.
G.1.a
Packet Pg. 154 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores)
3. Type III Space. Type III space is any other space in the downtown commercial district.
B. Classification of Commercial Uses. There are three general classes of uses permitted in the downtown commercial district.
1. Retail sales and restaurants, restaurants with take-out* and restaurants with outdoor dinning* (Class A uses);
* Take-out restaurants and outdoor dining are subject to additional regulations set forth in subsection I of this section.
2. Personal care, personal development services (excluding health care), and business and automotive services, including service stations, if the use will tend to create substantial pedestrian interaction with surrounding businesses (including but not limited to beauty parlor, barber shop, fitness center, dry cleaners, travel agency, dance, music and martial arts studio) and retail financial institutions such as banks, savings and loans, credit unions and freestanding automatic teller machines (Class B uses); and
3. Office uses compatible with a village atmosphere such as medical and professional offices, real estate sales and financing (Class C uses).
C. Uses Not Requiring a Commercial Use Permit. Except as otherwise provided in subsection G of this section, in all spaces, Class A uses are allowed without a commercial use permit. Class B uses are allowed without a commercial permit in Type II and III spaces; and Class C uses are allowed without a commercial use permit in Type III spaces. Where a single space has multiple frontages which, considered separately, would be classed as more than one space type, the entire space is subject to the rules applicable to the higher type, e.g., Type I rather than Type II. Where a single space is proposed to be divided into more than one space, creating one or more new and less-restrictive spaces, a commercial use permit is required.
D. Commercial Use Permit Requirement.
1. Class B Uses. A use permit under Chapter 17.36 is required for a Type B use in a Type I ground floor space.
2. Class C Uses. A use permit under Chapter 17.36 is required for a Class C use in Type II spaces. A Class C use is prohibited in Type I space.
3. Other Uses. Certain uses described in subsection G of this section require a use permit under Chapter 17.36.
4. Extended Hours. A commercial use permit is required for any use which operates before five a.m. or after eleven p.m.
E. Use Prohibition. All uses not specifically permitted in this Chapter 17.8 are prohibited.
F. Space Utilization Chart. The following chart illustrates the provisions of Sections
17.8.5C. and D.
G.1.a
Packet Pg. 155 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores) Prime Ground Floor Secondary Ground
Floor
Other Than Ground
Floor Throughout the
DC District
"I" "II" "III"
"A"
Uses
allowed allowed allowed
"B"
Uses
allowed with use permit allowed allowed
"C"
Uses
not allowed allowed with use permit allowed
G. Supplemental Restrictions for Specific Uses. The following specific uses are also permitted in the downtown commercial district, subject to the contents of the chart above and subject to obtaining a commercial use permit under Chapter 17.36.
Those uses marked by an asterisk are subject to additional regulations set forth in Section 17.8.5H.:
1. Adult business;*
2. Animal sales and services;
3. Bar and tavern;
4. Commercial recreation and entertainment;
5. Convenience market;
6. Convenience market and other ancillary retail at a service station;*
7. Farmer's market;
8. Game center;*
9. Liquor store;
10. Live entertainment;*
11. Maintenance and repair services;
12. Outdoor sales;*
13. Service stations;*
14. Vehicle sales and services;
15. Visitor accommodations;
16. Ancillary retail uses.*
* Uses marked by an asterisk in subsection G. of this section are subject to additional regulations set forth in subsection H. of this section.
H. Supplemental Restrictions for Specific Uses. The following uses are permitted in the downtown commercial district subject to particular restrictions for such uses as described below and subject to obtaining a commercial use permit under Chapter
17.36. G.1.a
Packet Pg. 156 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores)
1. Adult Businesses.
a. Purpose.
i. In adopting these provisions, the City Council recognizes that certain types of adult businesses possess certain objectionable operational characteristics which, if such uses are allowed to concentrate, will have adverse effects upon the character of such areas and adjacent neighborhoods. The City Council further recognizes that locating adult businesses in close proximity to establishments frequented by minors will cause the exposure of minors to adult material that may adversely affect such minors due to their immaturity. Additionally, the City Council recognizes that, while certain adult entertainment enjoys limited protection under the First Amendment to the United States Constitution, substantial numbers of citizens of the city are offended by the public display of sexually-oriented material.
ii. Special and limited regulation of adult businesses, consistent with the First Amendment rights of such uses, is therefore necessary. This will ensure that the adverse effects of adult businesses will not contribute to the blighting or downgrading of the DC district in which they are permitted and the downgrading of surrounding neighborhoods; will not adversely affect minors; and will not offend those citizens of the city who do not wish to be exposed to sexually-oriented material. b. Location of Adult Businesses. No adult businesses, including adult bookstores, adult movie theaters, and massage establishments, shall be located:
i. Within four hundred (400) feet of any R district;
ii. Within three hundred (300) feet of the boundaries of a parcel of a real property site occupied by a public or private school, a religious assembly facility that conducts religious education classes for minors, or a park and recreation facility;
iii. Within six hundred (600) feet of any other adult business; or iv. On the ground level of a building.
c. Public Display of Certain Matter Prohibited. No business shall display or exhibit any material depicting private anatomical areas or sexual activities in such a way as to be visible by persons outside the building in which the adult business is located.
2. Convenience Markets and Other Ancillary Retail Uses at a Service Station.
Ancillary retail use, including a convenience market, may be permitted at a service station if a noticed hearing is held under Chapter 17.42 in conjunction with the application under Chapter 17.36 for a commercial use permit (or commercial use permit amendment) for a service station. The proposed use may be approved if findings of fact are made to support each of the listed G.1.a
Packet Pg. 157 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores) criteria and use permit conditions are imposed consistent with the listed requirements:
a. Criteria:
i. The existence of the proposed use will not significantly and adversely alter the impact and the character of the primary service station use;
ii. The proposed use will enhance the pedestrian environment in the vicinity of the service station;
iii. The proposed use will enhance the availability of food in the City; including fresh food
iv. The proposed use will not adversely impact any of the policies set forth in Section 17.8.1;
v. The proposed use will substantially further City goals for downtown Orinda as identified in adopted plans, including but not limited to the ConnectOrinda Streetscape Master Plan and the Downtown Precise Plan.
b. Requirements:
i. The proposed use shall occupy only ground floor space and not exceed 20 percent of the total lot area;
ii. The proposed use shall provide and maintain one or more seating areas (minimum of 8 aggregate seats) to accommodate food and/or beverage consumption;
iii. The building containing the proposed use shall include a pedestrian entrance from a sidewalk in the public right of way. This entrance shall be located:
1. No more than 35 feet from the public sidewalk;
2. On an exterior primary wall that runs roughly parallel to the public sidewalk for a distance of at least 25 feet.
iv. The proposed use must be at least 2,250 square feet and no larger than 3,000 square feet;
v. To the extent that outdoor seating is provided, it shall comply with all outdoor dining requirements contained in Section 17.8.5(I)(1) except for any outdoor dining permit requirement;
vi. To the extent the proposed use comes within the definition of takeout restaurant, it shall comply with all take out restaurant requirements contained in Section 17.8.5(I)(2).
a. The area for nonautomotive retail sales within a service station shall be completely enclosed and no larger than forty (40) square feet.
G.1.a
Packet Pg. 158 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores) b. A service station convenience market shall not be within the immediate vicinity of a church or hospital or within six hundred (600) feet or less of a school, public playground or nonprofit youth facility, as measured pursuant to the rules of the Department of Alcoholic Beverages.
c. No variance may be granted for the requirements in subsections (H)(2)(a) and (H)(2)(b) of this section.
3. Game Centers. The following supplemental regulations shall apply to the operation of game centers, including mechanical or electronic games or any other similar machine or device.
a. Purpose. The intent of these regulations is to control the location and hours of operation of game centers so as not to allow school children to play the games during school hours nor to encourage minors to congregate in areas close to commercial establishments that sell alcoholic beverages.
b. Permit Required. A commercial use permit shall be required to install, operate or maintain four or more mechanical or electronic games. The permit is valid only for the number of games specified; the installation or use of additional games requires a new or amended permit. The permit shall be permanently and conspicuously displayed.
c. Duration and Renewal of Permit. Initially, the permit shall be valid only for one year. Thereafter, the Community Development Director may renew the permit for periods of not more than two years. The procedure for renewal is the same as that for the initial application, and the same factors considered for the initial application shall be considered for the renewal. d. Adult Manager. At least one adult manager shall be on the premises during the time a game center is open to the public.
e. Hours of Operation for Minors Under Eighteen Years of Age. No game center owners, manager or employees shall allow a minor under eighteen (18) years of age to play a mechanical or electronic game machine during the hours of public schools in the district in which the center is located are in session, or after nine p.m. on nights preceding school days, or after ten p.m. on any night. It is the responsibility of the owner or manager of the game center to obtain a current schedule of school days and hours. f. Locational Criteria. A game center shall not be permitted within three hundred (300) feet of a public or private school site or the boundary of an R district, or within five hundred (500) feet of a liquor store, a cocktail lounge, tavern or bar. The distance shall be measured in a straight line from the main public entrance to the game center to the property line of the school site, the district boundary, or the main public entrance of the liquor store or cocktail lounge, as the case may be.
g. Restrictions. The Planning Commission may impose reasonable restrictions on the physical design, location, and operation of a game center in order to minimize the effects of noise, congregation, parking, and G.1.a
Packet Pg. 159 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores) other nuisance factors that may be detrimental to the public health, safety and welfare of the surrounding community.
4. Live Entertainment. The following regulations shall apply to any use offering scheduled live entertainment, as defined, more than three times per calendar year:
a. Exits not limited to emergency use only shall not be opposite an R district adjoining the site.
b. A use permit shall establish conditions ensuring that no litter problem will exist.
c. A use permit for live entertainment shall apply only to the type of entertainment approved, and a different type of entertainment shall require approval of a new use permit.
d. A noise analysis specifying areas affected and sound proofing or other mitigation that will be employed to eliminate excessive noise exposure on adjacent property shall be submitted with a use permit application.
5. Outdoor Sales. Outdoor sales specified in subsection (H)(5) of this section are allowed with a commercial use permit.
a. Permanent outdoor storage and display of merchandise, materials or equipment, including display of merchandise, materials and equipment for customer pick-up;
6. Service Station.
a. All repair work shall be conducted within a building. No outside storage of parts, equipment or vehicles which have been damaged or dismantled completely or partially, is permitted.
b. Activities permitted in a service station include tire sales, installation of mufflers, exhaust and suspension systems, electronic tune-ups, oil/lubrication and filter replacement, wheel alignment, tire rotation and balancing, battery installation or charging, hose replacement, belt replacement, carburetor adjustment, installation and repair of brakes, auto radio and electronics installation and service, alarm installation, or air conditioning or heater service.
c. Activities prohibited in a service station include other major repair activities such as engine overhauls involving body and fender work, painting and undercoating.
7. Ancillary Retail Use. An ancillary retail use is permitted in the downtown commercial district if a noticed hearing is held under Chapter 17.42 in conjunction with the application for a commercial use permit and findings of fact are made to support each of the following criteria:
a. The existence of the ancillary retail use will not significantly and adversely alter the impact and the character of the primary retail use, G.1.a
Packet Pg. 160 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores) b. The ancillary use will not adversely affect the use of more than twenty (20) percent of the existing floor area,
c. The ancillary use will not create a significant adverse impact on parking and pedestrian and vehicular traffic,
d. The ancillary use will not adversely impact any of the policies set forth in Section 17.8.1.
For special rules applicable to ancillary retail uses at service stations, see subsection 2, above.
I. Additional Regulation for Uses Not Requiring a Commercial Use Permit.
1. Outdoor Dining. Outdoor dining is allowed with an outdoor dining permit. a. The following regulations apply to all outdoor dining permit applications:
i. The operator shall furnish tables, chairs, umbrellas, and portable heaters (outdoor dining furniture) as necessary.
ii. Outdoor dining furniture shall not be secured to public streetlights, trees, or other furniture.
iii. No outdoor dining furniture may be located at a street intersection within a triangular area formed by the street curb lines and their projections and a line connecting them at points forty (40) feet from the intersection of the projected curb lines. In cases where curbs do not exist, the edge of street pavement shall be used for measuring purposes.
iv. Outdoor dining furniture shall meet the following standards:
(A) Tables and chairs shall be made of a safe, sturdy, durable material such as wrought iron, wood, steel, or cast
aluminum.
(B) No plastic tables or chairs and no vinyl tablecloths are permitted.
(C) All tables and chairs shall be commercial grade and manufactured for outdoor commercial use.
(D) Tables shall be square, rectangular or round to seat two to four people.
(E) All furniture shall be properly maintained and cleaned regularly.
v. No umbrella signage is permitted.
vi. At least seven feet ground clearance shall be provided under umbrellas.
vii. If portable heaters are used, they shall be located a minimum of two feet from the pedestrian zone.
G.1.a
Packet Pg. 161 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores) viii. The outdoor dining area shall be maintained in a clean and safe condition at all times.
ix. All Americans with Disabilities Act (ADA) requirements shall be met. b. The following regulations apply to applications for outdoor dining located in the public right-of-way:
i. All requirements of subsections I.1. of this section must be met; ii. Approval of a revocable encroachment permit per Chapter 12.08 must be obtained;
iii. Furniture must be located immediately in front of the business it serves or shall have the consent of the businesses in which the outdoor dining area is abutting;
iv. Tables shall be fastened to the ground, in a manner acceptable to the City Engineer;
v. Outdoor dining furniture, except for the tables, shall not be left in the public right-of-way during non-business hours;
vi. Outdoor dining areas shall remain on the same side of the pedestrian zone along public sidewalks not wide enough to accommodate outdoor dining areas on both sides of the pedestrian zone unless there is a ten-foot separation between dining areas;
vii. A two-foot vehicle buffer zone between the curb and the outdoor dining area or the pedestrian zone shall be maintained. viii. A minimum pedestrian zone of four feet and six inches shall be maintained.
ix. Outdoor dining areas shall not cause the pedestrian zone to encroach into the radius of a door swing.
x. Outdoor dining furniture shall not encroach into the vehicle buffer zone or the pedestrian zone.
2. Take-out restaurants are allowed with a take-out restaurant permit. a. The following regulations apply to all take-out restaurant permit applications.
i. Identifiable containers and napkins shall be used for all carry-out food, and all litter resulting shall be promptly removed.
ii. A trash receptacle shall be provided near each public restaurant exit unless there is an existing trash receptacle within twenty-five (25) feet of each exit. If in the public right-of-way, the type of trash receptacle shall be subject to approval by the Public Works Department. iii. The business owner shall keep the area in front of the restaurant clean and litter free and ensure that the trash receptacle does not overflow. In the event that receptacles in the public right-of-way G.1.a
Packet Pg. 162 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores) overflow and are emptied by the city, the applicant shall be charged the cost of emptying the receptacle.
iv. The applicant must provide documentation showing that the requirements for off-street parking in Section 17.16.4 of the Orinda Municipal Code are met.
v. Walk-up service is allowed, provided access is not directly to the public right-of-way.
vi. A restaurant which offers food and beverages, or either one, for sale to a customer in a motor vehicle for consumption off-site is prohibited.
J. Prohibition of Specified Uses.
1. Commercial Marijuana Land Uses. Commercial marijuana land uses are a prohibited use in the downtown commercial district.
2. Outdoor Marijuana Cultivation. The outdoor cultivation of marijuana is a prohibited use in the downtown commercial district.
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Packet Pg. 163 Attachment: Draft Ordinance 23-04 (3211 : City Council Report First Reading Zoning Text Amendment for Convenience Stores) G.1.b
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Packet Pg. 201 Attachment: Planning Commission Statement of Official Action 2023-014 (3211 : City Council Report First Reading Zoning Text Amendment for 22 ORINDA WAY, ORINDA, CA 94563
LATE CORRESPONDENCE
PLANNING DEPARTMENT
ALL CORRESPONDENCE – 11 ORINDA WAY
CHEVRON PROJECT
Name Page
Michael Bowen 2
Cinda MacKinnon 3
Katie Kabler 4-6
Affi Ansari 7
Leslie Ward 8
Jaime Peterson 9
Sandy Roadcap 10
Brent Austin 11
Nick Waranoff 12-13
Brad McCullough 14-15
Marc Evans 16-17
Laura Meyers 18
Nick Waranoff 19-29
Laura Abrams 30-52
Katherine Bernstein 53
Cathleen Daffer 54
Friends of Orinda Creeks 55-56
Nick Waranoff 57
Lark Hilliard 58
Susan Horrocks 59
Jack Zakarian & Marie Nakagaki 61
Cinda MacKinnon 63
Nicholas Kosla 64
Laura Abrams 65-69
Keith Horrocks 60
G.D. & S.K. Fryer 62
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Packet Pg. 202 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for TO: Orinda Planning Commission
RE: SUPPORT THE CHEVRON PROPOSAL
Dear Planning Commissioners:
I urge your support of the Chevron proposal for the obvious benefits it provides to the Orinda community; 1) Improved creek access and creek restoration potential; 2) Demonstration of landowner commitment to and investment in Village revitalization; 3) Much needed sales tax revenue; 4) EV Charging Station, the first of its kind in Orinda. It’s hard to get excited about a gas station, but Chevron has made it easy by offering Orinda much needed amenities in conjunction with the modest improvement of their property.
Staff has done an excellent job of outlining a path to reap these benefits.
Creek Restoration and Access Potential
Chevron has offered to gift the City an important part of its property along San Pablo Creek for use as a trail, park, restoration site or other public amenity. Although Contra Costa County recently provided Friends of Orinda Creeks with access to restore creek habitat, no other private property owner has ever done this in Orinda’s history. Chevron’s act would set an important precedent for future developers and property owners to help restore San Pablo Creek and establish a Creekside trail as recommended in the Downtown Precise Plan. As staff notes, this parcel provides the opportunity for a connection to the De Laveaga Trail. In addition Chevron has offered a creek overlook with seating, the first formal effort by a private property owner in the Orinda Village to develop property that encourages enjoyment of the creek setting.
Landowner Support
Poll after poll has shown that the majority of Orindans would like to see San Pablo Creek restored in the downtown. Thus, Friends of Orinda Creeks was able to fund (largely private donations) and recently complete the restoration of a pilot project downstream on a County parcel. However, progress is hampered by the unwillingness of property owners to participate in future restoration efforts. Only their participation and support will enable progress. The Chevron proposal breaks this deadlock, and provides the next opportunity to improve San Pablo Creek for the enjoyment of our community. That is an important precedent for the City.
Sales Tax Revenue
Every Orinda City Council decries its lack of revenue. Only commercial revitalization of the downtown will reverse this situation. Whether or not one likes Chevron’s proposal, the reality is that the vast majority of people will use it and generate needed income for the City in the process.
EV Charging Station
Anyone who has crept home on a low battery knows the dire need for a charging station in Orinda. With the anticipated growth of EV ownership in California, the California Energy Commission estimates that 1.2 million chargers will be needed by 2030 to support 7.5 million EVs. Let’s help Big Oil be part of the solution, and help Orinda EV owners in the process.
Staff has clearly demonstrated this proposal’s consistency with Orinda’s goals and objectives for the Village. I urge the Planning Commission to consider the advantages to this generous proposal and support it.
Respectfully submitted,
Michael Bowen
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Packet Pg. 203 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 11/20/2022
TO: Orinda Planning Commission
RE: SUPPORT FOR THE CHEVRON PROPOSAL
Dear Planning Commissioners:
Perhaps not many people will be excited about a new convenience store, but what Chevron is offering in exchange is enticing –not just added Sales Tax Revenue.
Chevron has offered the City, gratis, the land above San Pablo Creek for use as a trail, park or other public amenity. This would set a welcome precedent for developers and property owners to help restore San Pablo Creek and establish a Creekside trail. Only recently, our prior City Manager favored encouraging property owners in this vein. The City, the official floodplain manager, owns and is accountable for easements over the entire creek through downtown Orinda, so liability is a moot point. (If rejected, this would be the second time the City has recently turned down riparian land presented free of charge for creek restoration.)
A connection to the De Laveaga Trail, is feasible and enhances Orinda’s ability to apply for funding. In addition Chevron has offered a creek overlook with seating.
Poll after poll has shown that the majority of Orindans would like to see San Pablo Creek restored in the downtown. That’s how Friends of Orinda Creeks was able to fund (largely private donations) and recently complete the restoration of a pilot project.
Those opposed argue that we need a service bay, but the Chevron bay has been defunct for a long time; a spokesperson has stated emphatically it will never be reconstructed. An EV charging station is a better modern prospect. This would be a convenience to Orindans, an environmental plus for the City and something gasoline stations should be encouraged to do. Others are opposed to the possible sale of alcohol, but that seems irrelevant when it is convenient to buy alcohol at Safeway, Rite Aid and BevMo.
I don’t see Chevron’s proposal as pressuring Orinda but rather offering several public benefits quid pro quo. Do we want to preserve another ugly unused building (service bay) instead and miss these opportunities?
I urge the Planning Commission to consider the advantages to this generous proposal.
Respectfully submitted,
Cinda MacKinnon
20 Tara Rd, Orinda
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Packet Pg. 204 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 6001 Bollinger Canyon Road
San Ramon, CA 94583
Katie Kabler
Northwest District Sales Manager
November 21, 2022
By Email
City of Orinda
Planning Commission
22 Orinda Way
Orinda, CA 94563
Attn: Chairman Parnigoni and Members of the Planning Commission Drummond Buckley, Planning Director
Richard Smeaton, Project Planner
Re: Conditions of Approval for 11 Orinda Way Applications (ZTA-2022-001, CUP-2022-004, DRA-2022-014, EDP-2022-004, EXC-2022-006, SPP-2022-001, and TRP-2022-007)
Chevron U.S.A. Inc. (Chevron) is the owner of the Chevron branded retail motor fuel facility located at 11 Orinda Way (Site) in the City of Orinda (City), which is the subject of the above-referenced applications. Chevron submits this comment letter for consideration by the Planning Commission (Commission) at its November 22, 2022 regular hearing on the applications. Chevron proposes modifications to two proposed conditions of approval — Planning Conditions 2 and 4.
I. Project
As you are aware, Chevron proposes to remove the existing, approximately 275 square foot booth kiosk located between the fuel dispensers and convert the existing, vacant service bay area into a new 2,351 square foot Chevron ExtraMile convenience store (Project). The Project would also include the addition of an observation deck overlooking the adjacent Creek, installation of an electric vehicle charging station, bicycle racks, and other Site improvements.
As the Staff Report indicates, the Creek traverses an undeveloped approximately 10,057 square foot portion of the Project Site (Creek Area Land). Chevron has proposed two options to City staff relative to the Creek Area Land:
Option 1: In connection with the Project, Chevron is prepared to: (a) dedicate the Creek Area Land to the City in fee (subject to Chevron retaining an access easement for the inspection and maintenance of its adjacent land including the retaining wall located on the west side of the Property); and (b) grant an easement along the north side of the Property to allow public access to the Creek Area Land and Creek. In this way, the Project would help advance a vision of a trail and other public spaces in Orinda alongside a restored Creek, consistent with the goals of the City’s Draft Downtown Precise Plan and community members such as the Friends of Orinda Creek.
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Packet Pg. 205 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for
Option 2: Alternatively, Chevron is prepared to retain the Creek Area Land and proceed with the Project as otherwise proposed, in which case Chevron would not grant an easement along the north side of the Property to allow public access to the Creek.
Contrary to the Staff Report, Chevron is not prepared to (i) retain the Creek Area Land and grant the City an easement over the Creek Area Land; or (ii) retain the Creek Area Land and grant an easement along the north side of the Property to allow public access to the Creek. With this in mind, Chevron proposes the following revisions to staff’s draft conditions of approval.
II. The Staff Report and Proposed Conditions of Approval Chevron proposes modifying Planning Conditions 2 and 4 in order to facilitate public access to the Creek and clarify the proposed service station’s food products. a. Planning Condition 2
First, if the City prefers Option 1 — in which the Creek Area Land is transferred to the City in fee — Chevron proposes modifying Planning Condition 2 as follows:
The grant of property rights offered by the applicant to the City shall be in a form acceptable to the City and accomplished via an irrevocable offer to dedicate easement(s) transfer the subject property in fee so that the City can accept in the future when it is ready to allow public access and/or proceed with creek restoration.
No land will transfer to the City in fee title.
This revision is necessary to effectuate this voluntary property transfer, in which Chevron conveys the Creek Area Land in fee and an easement is therefore unnecessary.
If the City prefer Option 2 — in which Chevron retains the Creek Area Land and does not grant an easement along the north side of the Property — Condition 2 should be removed in its entirety.
b. Planning Condition 4
Second, Chevron proposes eliminating Planning Condition 4 which would subject Chevron’s business in Orinda to a vague, perpetual review process by Planning staff over the food offered at the convenience market:
Prior to building permit issuance, the applicant shall demonstrate to Planning staff that the proposed convenience market will increase the availability of fresh and nutritious food in the City of Orinda; proof shall be in the form of a detailed floor plan of the proposed convenience market indicating all food types to be offered. The applicant shall adhere to this plan, but amendments may be approved by Planning staff from time to time, as long as the plans are consistent with OMC Section Section-17.8.5.H.2.a.iii (as G.1.e
Packet Pg. 206 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for
proposed by ZTA 2022-001, including staff-recommended
amendments).
This unnecessary condition of approval would create substantial business uncertainty regarding Chevron’s merchandising format. “Fresh” and “nutritious” are highly subjective standards, and Chevron cannot risk falling out of compliance with its conditions of approval based on an alleged failure, in the view of Planning staff, to meet these vague standards. Our ExtraMile convenience store format includes a “Recharge” gondola cooler with an assortment of food items such as salads, sandwiches, fruit, and wraps, and an upright deli cooler with additional food such as milk, eggs, and sandwich meats. In this way, the Project will increase the availability of food in Orinda. * * *
Thank you for your consideration of the Project and these important revisions to the proposed conditions of approval.
Very truly yours,
Katie Kabler
Katie Kabler
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Packet Pg. 207 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Affi Ansari
To: Orinda Planning
Subject: Chevron Convenience Store
Date: Monday, November 21, 2022 5:43:03 PM
This is a terrible idea. Do not let this happen in Orinda: right by the freeway and a block from BART will bring the criminals from Oakland here.
Affi Ansari
Sent from my iPad
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Packet Pg. 208 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for LWGA – Established 2005
Lamorinda Wine Growers Association
Board of Directors
Founded in 2005 with just 14 members, the Lamorinda Winegrowers Association has grown to over 85 members with more than 125 planted or planned vineyards in the Lamorinda AVA area.
Established to create a community of people who share a common interest and passion for wine, grape growing, and wine making, LWGA is dedicated to enriching the enjoyment and success of its members’ winegrowing experience.
To the City of Orinda Planning Commission:
We, the LWGA, would like to express our support for Chevron’s proposal to make improvements to their existing location in Orinda. We believe that the building improvements, the creek overlook deck and the upgrade to a true convenience market, will benefit all of Orinda.
We believe that the enhanced offering of fresh food, beverages, and snack items available 24/7 would be of great benefit to families with busy schedules. We understand that the proposal includes a vehicle charging station, so needed, with the push towards E Vehicles.
The opportunity for the City to have ownership of this creek property and then perform the creek restoration and walking trail will truly enhance the downtown area.
Sincerely,
Leslie Ward, Board Member, for the
LWGA Board of Directors
(510) 406-5680
http://www.lamorindawinegrowers.com
Proud members of the Lafayette, Moraga, and Orinda Chamber of Commerce’s.
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Packet Pg. 209 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Jamie Peterson
To: Orinda Planning
Subject: 11 Orinda Way - Chevron Application
Date: Tuesday, November 22, 2022 11:21:02 AM
To Members of the Planning Commission,
I write to state my support of the application by Chevron to convert their existing vacant service bays into a convenience market. There is no better location in Orinda for such a business - an existing gas station, adjacent to the freeway, and in a commercial part of town. The economics of retail gasoline operations is such that the service bays will never reopen and Chevron should be able to operate their business as they see fit given the lack of significant negative impacts of operating a convenience store at this location. To the contrary, the proposed elevated deck above the creek should be a positive addition to the community and consistent with creek restoration efforts.
Thanks,
Jamie Peterson
Orinda Resident (Crescent Dr)
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Packet Pg. 210 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: [email protected]
To: Orinda Planning
Subject: Orinda Chevron Station Upgrade
Date: Tuesday, November 22, 2022 12:42:22 PM
Honorable Planning Commission Members,
I’m writing in support of the key features of the planned Chevron station upgrade in Orinda, and related code amendment.
I attended a past Planning Commission meeting where the project’s design themes were discussed, and I’m thankful for the Commissioners’ expertise on such issues.
I firmly support these features:
1. Overlook and restoration help for our beautiful creek,
2. An electric vehicle charging portal and more inviting food offerings,
3. Business owner retention of property control.
The last item balances business and community perspectives, and would send a positive message to other local businesses who hope to help revitalize our downtown.
Thank you,
Sandy Roadcap
18 Edgewood Ct.
Orinda
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Packet Pg. 211 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Brent Austin
To: Orinda Planning
Subject: Orinda deserves a New/Updated Chevron Station
Date: Tuesday, November 22, 2022 1:39:57 PM
Dear Orinda Planning Commission,
My name is Brent Austin and I have lived in Orinda for 20 years. I raised my family here and I am a proud resident.
I very much support the Orinda Chevron station project. This project would offer:
1. Fresh food and a larger assortment of drinks and snack items available all day.
2. Building improvements with a creek overlook deck that is in line with the city’s Downtown Planning and Connect Orinda plans.
3. First electric vehicle charging station at a gas station in Orinda.
4. Opportunity for the City to have ownership of creek property and pursue plans for creek restoration, trail, etc. However, I don’t believe it’s necessary for Chevron to provide easements for the creek property and access to the creek from the adjacent driveway. I believe the offer by Chevron willing to donate the creek property and provide an easement from the adjacent driveway is a very generous offer and the city should jump at the chance of creek property ownership. It’s a Win/Win!
Thank you for your time!
Brent Austin
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Packet Pg. 212 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Nick Waranoff
To: Orinda Planning
Cc: Ann Parnigoni; Willy Mautner; Robert Hubner; Brandyn Iverson; Marian Jelinek; Lina Lee; John Smith Subject: Opposition to Chevron proposal to be heard tonight, Nov. 22, 2022 Date: Tuesday, November 22, 2022 3:28:00 PM
I oppose this proposal for the following reasons:
Beer and wine would be sold from 6 a.m. to 2 a.m. Less than the required parking will be included – note: there is no “right” to pay the in lieu fee rather than provide parking. That is discretionary.
Trees will be removed.
The convenience store’s proximity to the freeway will make it a likely target for shoplifting, endangering all of us. And sale of beer and wine at a freeway interchange is not a good idea.
The possible deck not yet approved due to the creek incursion.
Every aspect of this proposal violates some existing local ordinance. And in return we get what? A “convenience” we have lived without for 40 years or more? A phantom “easement” that already exists? An obligation to maintain some land that Chevron does not want to maintain? A reduction in property tax paid by Chevron? A deck which, if approved, encroaches on the creek, is 30 feet above the creek (effectively making the creek invisible from the deck), that won’t be used by locals - are any significant number of locals going to drive there, try to find parking, buy something to eat at the convenience store or pack a sandwich, and eat it on the deck?
Please reject the application. Let our laws mean something.
From A Man for All Seasons:
“William Roper: “So, now you give the Devil the benefit of law!” Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I'd cut down every law in England to do that!” G.1.e
Packet Pg. 213 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
Nick Waranoff
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Packet Pg. 214 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Brad McCullough
To: Orinda Planning
Subject: Comments on Agenda Item 7A
Date: Tuesday, November 22, 2022 7:08:21 PM
I have the following email that I would like to have presented to the meeting tonight. I sent this to Sheri Smith earlier today and she was going to forward it on.
Orinda Planning Commission Meeting
November 22, 2022
My name is Brad McCullough and I have been a resident of Orinda for 32 years. I am in favor of Chevron’s application.
Chevron’s service bays have been unused for many years. I used to take my car there. The Service Manager told me at that time that it wasn’t profitable because it wasn’t used enough. A few months ago, Laura Abrams told me that the reason that she and the council at the time issued the regulation to prevent it from being turned into a convenience store was that they didn’t want to lose those service bays for Orinda residents. Not only did that not work, but to make the ordinance that limited the convenience store size only apply to to the 4 service stations in town and not any other businesses seems a bit discriminatory.
I think a convenience store in Orinda would be a good thing. I have seen people on Nextdoor support a convenience store. A few complain about having a convenience store as well, however their complaints are very general and not applicable to this site or our city. Chevron’s plan for convenience items as well as fresh food items seems like a real plus to me. It is a good fit with the plans for the city to enable more pedestrian traffic downtown.
I support the work the city and Friends of Orinda Creeks are doing to transform the Creek from an eyesore to a usable area. Chevron’s proposal would be a large benefit to that. By giving the creek land to the city, the city would have full control over what it wanted to do with it. Why would the city be against owning the land that it wants to make improvements on? It is supporting the city’s Downtown Plan and Connect Orinda. In fact the plans call for retail backing up to the creek to provide access to the creek and connection with that area which is what the donation of the land, the driveway easement and the deck provides.
Plus the addition of the first electric charging station in Orinda! It feels like Chevron is suggesting something that would be good for the city and for Chevron, a win-win. We could use that right now.
I hope that the city approves Chevron’s application without restrictive modifications.
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Packet Pg. 215 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for Thank You,
Brad McCullough
7 Valley View Rd
Orinda
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Packet Pg. 216 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: [email protected]
To: Orinda Planning
Cc: [email protected]; Don, Juliet C
Subject: Strongly Support
Date: Wednesday, November 23, 2022 4:05:38 PM
Orinda Planning Commission,
I fully support the proposed improvement of the Chevron station in Orinda. As a citizen I believe this is an appropriate improvement with several benefits, and will increase sales tax revenue for the City of Orinda.
Marc Evans
60 Monte Vista Road
Orinda, CA
(925) 876-4820
From: Don, Juliet C
Sent: Tuesday, November 22, 2022 3:14 PM
To: [email protected]; [email protected]; [email protected] Subject: RE: [**EXTERNAL**] Chevron connection
Sandy, thanks for the introduction.
Marc and Tim, it is nice to virtually meet you. The Orinda Chevron Station Project is on tonight’s Orinda Planning Commission agenda at 7:00 p.m. The project will consider a zoning amendment change and proposed project concurrently. Our project includes the creek overlook, consideration of deeding a portion of the creek property, station renovation that includes converting the existing building to a convenience store, proposal to include electric vehicle charging at the station, etc. City staff is recommending approval of our project but it includes conditions that we be required to provide easements for the creek property and adjacent access. We are willing to convey the land in fee for the creek property and provide an easement for the adjacent access but are not willing to provide easements for both. I would appreciate if you would be willing to speak in support of our project and the following are some points to consider:
1. The project includes building improvements and a creek overlook deck that are in line with the city’s Downtown Planning and Connect Orinda plans.
2. Enhanced offering including fresh food and a larger assortment of drinks and snack items available all day.
3. First electric vehicle charging station at a gas station in Orinda.
4. Opportunity for the City to have ownership of creek property and pursue plans for creek restoration, trail, etc. The city is in the best position to own and maintain the creek property for public use. If the city does not want to accept the property, the project should still be approved without easements.
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Packet Pg. 217 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for Here is a link to the agenda and other meeting materials: 2022/11/22 07:00 PM Planning Commission (PC) Regular Meeting - Web Outline - Orinda, CA (iqm2.com) Here is the information for how to join the meeting:
https://tinyurl.com/y824sjz9
Meeting ID: 990-9696-5119
Phone: (669) 900 -9128
Written comments can be sent via to [email protected].
I appreciate your consideration. If you have any questions, let me know.
Happy Thanksgiving!
Juliet
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Packet Pg. 218 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: meyers1000
To: Orinda Planning
Subject: Opposition to expansion Chevron convenience Store Date: Friday, November 25, 2022 6:07:47 AM
I oppose this because traffic on that corner is already sometimes a nightmare and shouldn't be exacerbated. Also, typically those establishments sell unhealthy food which isn't good for young people. Finally, Chevron hasn't done our community any favors by charging consistently exorbitant high prices. LAURA MEYERS
Sent from my Verizon, Samsung Galaxy smartphone
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Packet Pg. 219 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 1 Julie Tamayo
From: Orinda Planning
To: Nick Waranoff
Subject: RE: Opposition to Chevron proposal to be heard Nov. 29, 2022 From: Nick Waranoff <[email protected]>
Sent: Saturday, November 26, 2022 1:44 PM
To: Orinda Planning <[email protected]>
Cc: Ann Parnigoni <[email protected]>; Willy Mautner <[email protected]>; Robert Hubner <[email protected]>; Brandyn Iverson <[email protected]>; Marian Jelinek <[email protected]>; Lina Lee <[email protected]>; John Smith <[email protected]> Subject: Opposition to Chevron proposal to be heard Nov. 29, 2022 Convenience stores attract crime. The convenience store’s proximity to the freeway will make it a likely target for shoplifting, endangering all of us.
There is ample evidence of the crime convenience stores attract. See https://www.cspdailynews.com/company-news/c-stores-are-4th-most-common-location-violentcrime There was just a tragic shooting at Chevron’s convenience store in Antioch. https://patch.com/california/lamorinda/s/ihmxg/chevron-clerk-killed-duringattempted-robbery-in-antioch-police?utm_source=alertbreakingnews&utm_medium=email&utm_campaign=alert Nick Waranoff
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Packet Pg. 220 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 11/28/22, 11:47 AM C-Stores Are 4th Most Common Location for Violent Crime https://www.cspdailynews.com/company-news/c-stores-are-4th-most-common-location-violent-crime 1/8
COMPANY NEWS (/COMPANY-NEWS)
C-Stores Are 4th Most
Common Location for
Violent Crime
Gas stations take 7th place in justreleased 2020 FBI crime statistics By Greg Lindenberg (/profile/greg-lindenberg) and Peter Romeo (/profile/peter-romeo) on Sep. 27, 2021
WASHINGTON — Convenience stores accounted for about 3% of violent crimes
(https://www.cspdailynews.com/technologyservices/changingwinds-convenience-store-crime) overall in 2020, and gas stations accounted for about 2%, according to new statistics released by Photograph: Shutterstock
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Packet Pg. 221 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 11/28/22, 11:47 AM C-Stores Are 4th Most Common Location for Violent Crime https://www.cspdailynews.com/company-news/c-stores-are-4th-most-common-location-violent-crime 2/8 the Federal Bureau of Investigation (FBI). Out of a total of 675,715 violent crimes represented by National Incident-Based Reporting System (NIBRS) data, 20,108 incidents occurred at c-stores in 2020, and 11,795 occurred at gas station, the data shows.
These statistics make c-stores and gas stations the fourth and seventh most common locations for violent crime, respectively.
Restaurants
(https://www.restaurantbusinessonline.com/operations/fbiranks-restaurants-8th-most-common-setting-violent-crime) are the eight most common locations.
The agency breaks down the statistics by reported instances of homicide, rape, robbery, aggravated assault and property crime, which includes arson, burglary, larceny-theft and motor vehicle theft at a variety of locations. It also provides data on age, gender, race, ethnicity, type of weapon used and other demographics.
Of the violent crimes that the FBI covers in the report, 157 or 2% of the 10,440 total crimes at convenience stores were homicides; 119 or 1% of the total crimes at gas stations were homicides.
The FBI reported 137,556 total robberies, 13,721 or 10% were at cstores, while 7,006 or 5% were at gas stations.
Top 10 Number of Location Types by Category
1. Residence home (346,399)
2. Highway/alley/street/sidewalk (130,331)
3. Parking garage/lot (45,107)
4. Convenience store (20,108)
5. Unknown (17,981)
6. Hotel/motel (16,588)
7. Gas station (11,795)
8. Restaurant (10,490)
9. Department/discount store (9,870)
10. Park/playground (7,323)
Other notable retail locations:
Specialty store (6,948)
Grocery store (5,917)
Bar/nightclub (5,839)
Drug store/doctor’s office/hospital (5,756)
Liquor store (1,512)
Shopping mall (1,133)
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By using our site you agree to our Privacy Policy (/privacy-policy#3ryw2etaetl1). We use cookies on our site. To learn more about the information we collect, how we use it and your choices, visit the cookies section of our Privacy Policy (/privacy-policy#3ryw2etaetl1).
G.1.e
Packet Pg. 222 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 11/28/22, 11:47 AM C-Stores Are 4th Most Common Location for Violent Crime https://www.cspdailynews.com/company-news/c-stores-are-4th-most-common-location-violent-crime 3/8 Campground (662)
Rest area (279)
ATM separate from bank (221)
Arena/stadium/fairgrounds (127)
The statistics show that most homicides are committed by acquaintances rather than strangers (17% vs. 13%). In contrast, strangers are more likely than familiar parties to commit a violent crime overall (22% vs. 13%).
Guns were overwhelmingly the most common weapons used for violent crimes in all locations last year, figuring into 60% of incidents.
Additional FBI statistics:
In 2020, there were an estimated 1,277,696 violent crimes.
When compared with the estimates from 2019, the
estimated number of robbery offenses fell 9.3% and the
estimated volume of rape offenses decreased 12.0%. The
estimated number of aggravated assault offenses rose
12.1%, and the volume of murder and nonnegligent
manslaughter offenses increased 29.4%.
Nationwide, there were an estimated 6,452,038 property
crimes. The estimated numbers for two of the three
property crimes showed declines when compared with the
previous year’s estimates. Burglaries dropped 7.4%, larcenythefts decreased 10.6%, while motor vehicle thefts rose
11.8%.
Collectively, victims of property crimes (excluding arson) suffered losses estimated at $17.5 billion in 2020.
The FBI estimated law enforcement agencies nationwide
made 7.6 million arrests, (excluding those for traffic
violations) in 2020.
The arrest rate for violent crime was 147.9 per 100,000 inhabitants, and the arrest rate for property crime was 267.3 per 100,000 inhabitants.
By violent crime offense, the arrest rate for murder and nonnegligent manslaughter was 3.8 per 100,000 inhabitants; rape (aggregate total using the revised and legacy
definition), 6.3; robbery, 21.0; and aggravated assault, 116.8 per 100,000 inhabitants.
Of the property crime offenses, the arrest rate for burglary was 45.7 per 100,000 inhabitants; larceny-theft, 193.1; and motor vehicle theft, 25.5. The arrest rate for arson was 3.0 per 100,000 inhabitants.
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Packet Pg. 223 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 11/28/22, 11:47 AM C-Stores Are 4th Most Common Location for Violent Crime https://www.cspdailynews.com/company-news/c-stores-are-4th-most-common-location-violent-crime 4/8 These statistics and additional data are presented in the 2020 edition of the FBI’s annual report Crime in the United States. Click here (https://crime-dataexplorer.app.cloud.gov/pages/explorer/crime/crime-trend) to view the FBI Crime Data Explorer.
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Packet Pg. 224 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 11/28/22, 11:53 AM Chevron Clerk Killed During Attempted Robbery In Antioch: Police | Lamorinda, CA Patch https://patch.com/california/lamorinda/s/ihmxg/chevron-clerk-killed-during-attempted-robbery-in-antioch-police?utm_source=alert-breakingnews&utm_… 1/9 Crime & Safety
Chevron Clerk Killed During Attempted Robbery In
Antioch: Police
The shooting happened at the Extra Mile convenience store on Contra Loma Boulevard shortly after 2 a.m. Saturday.
Megan VerHelst, Patch Staff
Posted Sat, Nov 26, 2022 at 1:06 pm PT
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Packet Pg. 225 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 11/28/22, 11:53 AM Chevron Clerk Killed During Attempted Robbery In Antioch: Police | Lamorinda, CA Patch https://patch.com/california/lamorinda/s/ihmxg/chevron-clerk-killed-during-attempted-robbery-in-antioch-police?utm_source=alert-breakingnews&utm_… 2/9 A convenience store cashier was killed Saturday during an attempted robbery of a Chevron station in Antioch. (Shutterstock)
ANTIOCH, CA — A convenience store cashier was killed Saturday during an attempted robbery of a Chevron station in Antioch, according to authorities.
Antioch police said officers were called to the Extra Mile convenience store at 2701 Contra Loma Blvd. shortly after 2 a.m. When officers arrived, they found a 36-year-old man inside the store with a gunshot wound to the head.
Officers attempted to provide life-saving aid, but the man was pronounced dead at the scene, police said.
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According to police, the man was shot during a "botched robbery" before the suspect fled on foot.
No suspects have been located, police said.
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Packet Pg. 226 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 11/28/22, 11:53 AM Chevron Clerk Killed During Attempted Robbery In Antioch: Police | Lamorinda, CA Patch https://patch.com/california/lamorinda/s/ihmxg/chevron-clerk-killed-during-attempted-robbery-in-antioch-police?utm_source=alert-breakingnews&utm_… 3/9 The Antioch Police Department’s Investigations Bureau responded to the scene and is assisting with the investigation.
Anyone with information about the shooting is asked to call the Antioch Police Department non-emergency line at 925-778-2441 or Detective Duffy at 925- 779-6890. Tips can also be texted to 274637 using the keyword ANTIOCH.
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Packet Pg. 227 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 1 Julie Tamayo
To: Nick Waranoff
Subject: RE: Opposition to Chevron proposal to be heard Nov. 29, 2022 - who owns the driveway -- what will easement look like? Will it be ADA accessible?
From: Nick Waranoff <[email protected]>
Sent: Monday, November 28, 2022 6:50 PM
To: Orinda Planning <[email protected]>
Cc: Ann Parnigoni <[email protected]>; Willy Mautner <[email protected]>; Robert Hubner <[email protected]>; Brandyn Iverson <[email protected]>; Marian Jelinek <[email protected]>; Lina Lee <[email protected]>; John Smith <[email protected]> Subject: RE: Opposition to Chevron proposal to be heard Nov. 29, 2022 ‐ who owns the driveway ‐‐ what will easement look like? Will it be ADA accessible?
Regarding the possible easement to the creek: it is unclear that Chevron owns the driveway between its building and Clean Cleaners. Its application implies that the easement will be on the driveway, but it isn’t clear that Chevron has the legal right to do that. See attached Chevron property aerial, showing property line (obtained from a title company). See also Picture of driveway and rear of Chevron existing building (IMG_1570).
What right does Chevron have to grant an easement? Where will it physically/actually be on the ground? Will it be ADA accessible for people?
Nick Waranoff
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Packet Pg. 228 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for G.1.e
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Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: [email protected]
To: Orinda Planning
Subject: Not in favor of Chevron convenience store
Date: Thursday, December 1, 2022 7:38:09 PM
Katherine Bernstein
• Orinda Oaks
I’m not in favor of this idea. My parents owned a convenience sore that got robbed several times. My bother worked at a convenience sore and was help up. Orinda is located right next to the freeway and the Dam Road, close to Oakland. I was at Safeway the other night and two young women were arresed for walking out with a full cart. We see this frequently.
There are other ways to improve Orinda. My opinion, we are asking for trouble. Mark my words. This is only my opinion, so please don’t hate me.
From, Katherine Bernstein
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Packet Pg. 254 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for To : Orinda residents and City Council,
RE; chevron mini mart
We do not need a 24 hour mini mart at a gas station that is located on a critical watershed area and also an easy freeway on - ramp for quick getaways for robberies.
Already, the Wilder off and on ramp has been a scene of several nefarious and unwanted crime scenes tying up the freeway lanes for hours in either direction due to police activity.
Chevron, with its billions of dollars in profit should be providing electric car charging stations anyway, without any additional building or need for a ‘ picnic area ‘ with a convenient dumping site into the creek area.
This is not a new business that would benefit existing Orinda residents. This is not ‘ enhanced Creek access ‘ that would benefit a walkable downtown’
either.
Nobody attending a class or event in the Orinda Community center is going to stop by the Chevron mini mart for an overheated hot dog or a syrupy soft drink in a non sustainable plastic cup for refreshment.
This is a recipe for disaster to further pollute the creek shed with unwanted garbage and food refuse . The ‘ observation deck ‘ overlooks the creek and is an easy target for windswept or otherwise unattended refuse to make its way into the environment . Approval from California Fish and Wildlife should not be approved and may not have even been notified at this point.
There are plenty of places to get better food within minutes of walking .
I am firmly opposed to this project.
This is a superfluous and unnecessary project created by the same gas company that has been price gouging you as a consumer for the last year at least in a more obvious way.
Do you really want to give Chevron more money to sell overpriced snacks and pollute the environment with more ‘ to go ‘ waste?
I think not .
Cathleen Daffer
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Packet Pg. 255 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for www.orindacreeks.org
Friends of Orinda Creeks
PO Box 883
Orinda, CA 94563
Orinda Planning Commission July 7, 2023
Re; 11 Orinda Way (Chevron) Application. APN 265-170-029 Honorable Commissioners:
Friends of Orinda Creeks urges your prompt approval of this long-delayed proposal and Resolution No. PC 2023-03. The application provides tangible benefits to the community, benefits that far outweigh the speculative objections raised by a vocal minority. The resolution ensures that future development proposals of this kind will be taken on a caseby-case basis, and approved only if and when they provide substantial public benefit to the Orinda community.
This proposal has come before the Commission many times. Each time it appeared, the Commission, and in once case a prior Council, made requests that, once honored by the applicant in subsequent filings, were summarily rejected due to public pressure. It is time to move forward in a way that will benefit our community in perpetuity.
The many benefits of the application include the following:
• To improve private property in the Village the applicant proposes to transform an empty eyesore to attractive and productive use. The Downtown Precise Plan (DPP), other planning efforts by the City and common sense promote this objective.
• To enhance San Pablo Creek and provide public access to a long-neglected natural amenity, the applicant proposes to donate in fee a substantial portion of its property to the City. This proposal is consistent with the DPP, with Friends of Orinda Creeks’s restoration vision, and, most importantly, it advances the community’s robust majority desire to support the restoration and enhancement of the creek corridor.
• To expand pedestrian-safe opportunities in the Village, the applicant offers a significant cash donation to the City. Friends of Orinda Creeks believes this is an unparalleled opportunity to advance the goal of a pedestrian crosswalk linking the Creek/Village Path with the regionally significant deLaVeaga Trailhead across Camino Pablo. This concept, first proposed by the Planning Department, provides an unparalleled opportunity to link the Village to our beautiful watershed lands with regionally significant trails.
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Packet Pg. 256 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for www.orindacreeks.org
• To facilitate the transition towards a clean energy future, the applicant proposes to install Orinda’s first EV charging station, an important asset in a community where many have invested in clean but limited range EVs.
Chevron is the first commercial permit applicant in Orinda’s history to have actively supported creek restoration downtown. They go well beyond that support by now offering land of significant conservation and restoration value for free in support of that mission. Their offer is akin to helping establish a public park, and the Commission should embrace this offer in fee now, before the offer is retracted. Friends of Orinda Creeks has identified this parcel as the most probable site for our Phase II of San Pablo Creek Restoration, and has already raised funds for this purpose.
The City should not tinker with the applicant’s offer through misguided conditions, such as insisting on an easement instead of fee. The City already holds an easement over the channel portion of the creek, so this condition is a ruse. More importantly, fears of liability are misguided; CA Government Code §831 provides immunity against liability originating on public trails.
The precedent of a commercial property owner in Orinda offering to donate valuable real property in support of an important municipal goal is remarkable and unprecedented.
Purchase of a like parcel in the Village, particularly if a lot line adjustment were required, is inconceivable. We urge the Commission and the City to accept this offer before we lose the opportunity. Doing so will help Orindans enjoy an expanded municipal pathway/park along San Pablo Creek, as represented in the DPP and elsewhere. The DPP reflects that in survey after City survey, the community reiterates its desire for access to a restored San Pablo Creek. This applicant offers to advance this municipal goal in a substantial and tangible way.
The Commission’s approval and resolution will demonstrate both high expectations for proposed development downtown, and supportive and equitable treatment of a private property owner whose proposal advances a municipal goal while promoting economic growth in the Village.
Thank you for your consideration of this recommendation.
Sincerely,
Michael Bowen, President
Friends of Orinda Creeks
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Packet Pg. 257 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Nick Waranoff
To: Orinda Planning
Subject: Agenda July 12, 2023 - Chevron - OPPOSE
Date: Saturday, July 8, 2023 2:23:24 PM
I am opposed to this project.
1. Convenience stores are crime magnets.
2. Massive amendments to existing laws shouldn’t be made for one project.
They should be considered at a separate hearing.
3. The very fact that so many amendments are needed is evidence project should be denied. As Thomas More said, “If you chop down all the trees, what will stop the wind?” (paraphrase)
4. The lack of parking significantly reduces the public benefit of creek access, and deck. Where will users park?
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Packet Pg. 258 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Lark Hilliard
To: Orinda Planning
Cc: Darin Hughes
Subject: ZTA-2023-001, CUP-2023-001, DRA-2023-008, chevron Convenience Store Date: Sunday, July 9, 2023 10:35:59 AM
Attachments: image001.jpg
My family is against the convenience store proposed at the chevron station.
Convenience stores are crime magnets.
WASHINGTON — Convenience stores accounted for about 3%
of violent crimes overall in 2020, and gas stations accounted for about 2%, according to new statistics released by the Federal Bureau of Investigation (FBI). Out of a total of 675,715 violent crimes represented by National Incident-Based Reporting System (NIBRS) data, 20,108 incidents occurred at c-stores in 2020, and 11,795 occurred at gas station, the data shows.
Police presence is limited to two officers on duty per shift and sometimes they both leave Orinda as we discovered on Halloween a few years ago.
Please consider public safety and do not allow this.
Respectfully,
Lark Hilliard, President
Please:
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HILLIARD ARCHITECTS, Inc.
1330 Broadway, Ste.1111
Oakland, CA 94612
Direct: 415 989-3976 Main: 415 989-6400
[email protected]
Great projects built on great relationships.
hilliardarchitects.com
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Packet Pg. 259 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Susan Horrocks
To: Orinda Planning
Subject: Chevron"s Request
Date: Sunday, July 9, 2023 8:23:18 PM
TO WHOM IT MAY CONCERN:
Please approve Chevron’s request to expand their activities on their property. Orinda will benefit from creek restoration.
Thank you,
Susan
Susan Norwick Horrocks
[email protected]
30 Don Gabriel Way
Orinda, CA 94563
925-262-3404
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Packet Pg. 260 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: [email protected]
To: Orinda Planning
Subject: Chevron"s Request
Date: Sunday, July 9, 2023 8:27:03 PM
To Whom It May Concern:
Please approve Chevron’s request to expand their activities on their property. Orinda will benefit from creek restoration.
Thank you,
Keith
Keith Horrocks
30 Don Gabriel Way
Orinda, CA 94563
[email protected]
925-262-3403
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Packet Pg. 261 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: Jack Zakarian
To: Orinda Planning
Subject: Comments in Favor of Chevron Gas Station Upgrades Date: Monday, July 10, 2023 5:30:00 PM
Hello,
My wife and I are long-time Orinda residents (she has lived here for 39 years, I for 19) and we are frequent users of the Chevron gas station on Orinda Way. I have seen the plans for their proposed upgrade and we are 100% behind this project. I have heard that there are some citizens who want the station closed down, along with all fossil fuel facilities. This would be a huge mistake because our city, not to mention our state and country, is not prepared for an immediate transition away from fossil fuel. In fact, we ourselves are disappointed in the slow progress and lack of long-term plans to phase away from fossil fuels. We have a lot of transition issues to deal with and shutting down our gas station is not going to help our city in the absence of a coordinated phase-out strategy. For example, we need a huge investment in charging infrastructure, significant power grid upgrades, 100% renewable grid power, longer battery life and range (not to mention the environmental degradation caused by battery manufacture), lower vehicle cost and other issues resolved before we can stop using fossil fuel completely. In addition, Chevron -- along with many others -- is working on a number of projects to develop carbon-neutral, plant-based fuels which can be easily implemented with existing infrastructure. For these reasons, we urge the Planning Commission to approve the Chevron station upgrades.
Regards,
Jack Zakarian & Marie Nakagaki
25 El Castillo Way
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Packet Pg. 262 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: fryergd
To: Orinda Planning
Subject: Chevron Station Remodel
Date: Tuesday, July 11, 2023 2:07:52 PM
Dear Planning Staff:
We support the Chevron station remodel as proposed.
Regards,
G. D. Fryer/S. K. Fryer
140 Las Vegas Rd
Orinda, CA 94563-1921
Sent from AOL on Android
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Packet Pg. 263 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 7/11/23
TO: Orinda Planning Commission
RE: SUPPORT FOR THE CHEVRON PROPOSAL
Dear Planning Commissioners:
I am writing in support of the Chevron proposal. Perhaps not many people will be excited about a new convenience store, but Chevron is offering several valuable public benefits quid pro quo which include:
1. Improving private property in the Village by transforming an ugly commercial space.
2. Presenting the City, gratis, a portion of land for use as a trail, park or other public amenity. In addition, a creek overlook with seating is offered. This proposal is in harmony with the Downtown Precise Plan (DPP), the vision of creek corridor enhancement and the majority of Orindan’s supporting creek restoration (as seen by City polls).
3. Funding to help development of pedestrian-safe opportunities. This could move forward a pedestrian crosswalk linking the Creek/Village path with the EBMUD Trailhead across Camino Pablo. This was originally proposed by City staff and would increase their ability to apply for funding.
4. An EV charging station is a splendid modern prospect. This would be a convenience to Orindans, an environmental plus and something the City should be encouraging.
Friends of Orinda Creeks recently completed a portion (Phase I) of the downtown Creek Restoration (removing concrete and installing step pools) and the Chevron parcel represents the next logical site for Phase II; funds have already been raised to support this effort. This would set a welcome precedent for developers and property owners to help restore San Pablo Creek and establish a Creekside trail. Our prior City Manager favored encouraging property owners in this vein. The City, as official floodplain manager, owns and is accountable for easements over the entire creek through downtown so liability is a moot point. If denied, this would be the second time the City has turned down riparian land presented free of charge for creek restoration. (The first was land offered behind Vintage House.) Although largely in favor of the Paylun project at the BOA, I was taken aback when it was swiftly approved without a guarantee to preserve access to the much enjoyed downtown creek path or even a landscape plan. Contrast this with the multiple times Chevron submitted their proposal, been asked to revise and then rejected, although they met the Commission’s requests. This smacks of bias, at best, by the City. All property applicants should be treated by the same standards of fairness.
I urge the Planning Commission to consider the advantages of this generous proposal.
Respectfully submitted,
Cinda MacKinnon
30 yr.Orinda resident
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Packet Pg. 264 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for July 12, 2023
Dear Orinda Planning Commission,
I strongly support the Chevron proposal to bring much needed retail and many other community benefits to their current location at 11 Orinda Way. In addition to taking another look to ensure that the market signage is appropriate and properly lit (if necessary) from an external source, the Commission may want to relook at the windows and entry/side doors. Perhaps black trimming is more appropriate for the windows with added mullions and muttons. If mullions and muttons are added, I suggest that they are non-removable and built on each side of each window, not within the window, for a quality finish. The Commission may also want to ensure that the entry and side door materials are also of a high quality, setting off the entries, and adding to the overall high-end aesthetic of the market. On behalf of my children and their friends, I also encourage the applicant to consider a frozen yogurt offering in the market that is being proposed.
Thank you for all your efforts on behalf of the City of Orinda! Regards,
Nicholas S. Kosla
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Packet Pg. 269 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for Per Laura Abrams, the above photos depict:
Interior & exterior
18 parking spaces
8000 Danville access road leading
to parking and car wash (that Orinda lacks)
Milk at 8000 Danville
The only fresh food at 8000 Danville
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Packet Pg. 270 Attachment: Written Public Comments through July 12, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 22 ORINDA WAY, ORINDA, CA 94563
PUBLIC CORR E S PONDE NC E
PLANNING DEPARTMENT
WRITTEN CORRESPONDENCE – SEPTEMBER 19,
2023 – ZONING TEXT AMENDMENT FOR
CONVENIENCE MARKETS
Name Page
Cinda MacKinnon 2
Mike McGill 3
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Packet Pg. 271 Attachment: Written Public Comments for September 19, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 9/12/23
TO: Orinda City Council
RE: SUPPORT FOR THE CHEVRON PROPOSAL
Dear City Council:
I am writing in support of the Chevron proposal. Chevron is offering several valuable public benefits quid pro quo, beyond a new convenience store, which include:
1. Presenting the City, gratis, a portion of land for use as a trail, park or other public amenity. In addition, a creek overlook with seating is offered. This proposal is in harmony with the Downtown Precise Plan (DPP), the vision of creek corridor enhancement and the majority of Orindan’s supporting creek restoration (as seen by City polls).
2. Funding to help develop pedestrian-safe opportunities. This could move forward a crosswalk linking the Creek/Village path with the EBMUD Trailhead across Camino Pablo. This was originally proposed by City staff and would increase their ability to apply for funding.
3. Improving private property in the Village by transforming an empty commercial space.
4. An EV charging station is a splendid modern prospect. This will be a convenience to Orindans, an environmental plus and something our City should encourage.
The last three are perhaps not large issues at this point; it is land acquisition of significant value next to San Pablo Creek I would like to address.
Last year Friends of Orinda Creeks completed a portion (Phase I) of the downtown Creek Restoration, removing concrete and installing step pools. The Chevron parcel represents the next logical site for Phase II; funds have already been raised to support this effort. This would set a welcome precedent for developers and property owners to help restore San Pablo Creek and establish a Creekside trail. Our prior City Manager favored encouraging property owners in this vein. The Friends have offered to help landscape the Chevron parcel with native riparian plants.
The City, as official floodplain manager, owns and is accountable for easements over the entire creek through the downtown so liability is a moot point. Likewise, the unlikely event of hydrocarbon contamination (fuel tanks are now double lined and monitored) would not be the City’s responsibility, but is always legally the discharger i.e. the station. (Before retirement, I worked on dozens of these cases as a hydrogeologist.)
Congratulations to Staff and the Planning Commission for finally approving the Chevron proposal. It now falls to our City elected officials to accept the recommendation for the plan and I urge you to do so promptly. Do not allow this opportunity to languish for years or be forgotten.
Respectfully submitted,
Cinda MacKinnon
30 yr.Orinda resident
G.1.f
Packet Pg. 272 Attachment: Written Public Comments for September 19, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for From: mike mcgill <[email protected]>
Sent: Wednesday, September 13, 2023 10:44 AM
To: Sheri Smith <[email protected]>
Subject: Support for the Chevron Project
Honorable Council Members:
I'm writing this to voice my support for the Orinda Chevron Station Project (Chevron Project).
As many know, I am a Director of the Central Contra Costa Sanitary District (Central San) and am also an Orinda Chamber of Commerce Board Member. I am writing in my capacity as a Board Member of the Orinda Chamber.
I cannot attend the Council meeting since I will be participating that evening in the Sustainable Contra Costa Awards Gala where Central San presents our Pollution Prevention Awards.
I want you to know I strongly support the proposed Chevron Project.
I opened a Consulting Engineering, Land Planning and Surveying office in Orinda in the mid-1980s. I enjoyed working in the City, and now enjoy living in the City.
I believe the Chevron Project will add to the vitality of the Community and provide needed services and amenities; helping with Orinda's dynamic future.
I urge you vote to approve this project.
Michael McGill, P.E.
Orinda Chamber of Commerce Board Member
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Packet Pg. 273 Attachment: Written Public Comments for September 19, 2023 (3211 : City Council Report First Reading Zoning Text Amendment for 1 Date: July 12, 2023
City of Orinda
Planning Commission Minutes Summary
1. CALL TO ORDER/ROLL CALL:
COUNCILMEMBERS PRESENT: Commissioner Armstrong, Parnigoni, Jelinek, Fay, Hubner and Mautner in attendance.
COUNCILMEMBERS ABSENT: Commissioner Lee is excused
2. ADOPTION OF AGENDA: Motion granted to adopt the agenda
3. PUBLIC FORUM: None
4. CONSENT CALENDAR: Motion granted to approve the consent calendar
5. CONTINUED PUBLIC HEARINGS: None
6. NEW PUBLIC HEARINGS:
Item 6.A: 11 Orinda Way: Chevron Project: A zoning text amendment, commercial use permit, design review, elevated deck permit, exception permit, and tree removal permit to allow for the conversion of the existing service bay into a convenience market Site Visits or Ex Parte Communication Report: All commissioners visited the site and spoke to no one.
Darin Hughes, Assistant Planner, presented this staff report:
Project at 11 Orinda Way/ Chevron Project: 6 applications; a CUP, zoning text amendments, design review application, elevated deck permit, exception permit, tree removal permit. Project proposes to amend zoning code in relation to definitions to liquor store and definitions for convenience markets, convert service bay to a 24/hr. convenience market, modify fuel canopy, add observation deck, install additional fueling station with 2 positions, and install electric vehicle charging site.
Project Location: Village side of downtown commercial dist. Surrounded by office and public space across the street, San Pablo Creek.
Application with full description of what is being proposed.
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Packet Pg. 274 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 2 Zoning Text Amendment Modifying zoning regulations for convenience market at service stations within the Downtown Commercial zoning
district.
Commercial Use Permit CUP is required for conversion of the existing 2,351 sq. ft. 4 car service bay building to a convenience store use, and pursuant to OMC Section 17.8.5.D.4, to allow for the store to operate 24 hrs. a day within the DC zoning district.
Because the existing service station does not have a CUP, the use permit also applies to the primary service station use on the property.
Design Review Design review is required because there's going to be a remodel of the building exterior, addition of a fueling pump with two dispensers, and construction of an observation deck and other various site improvements.
Elevated Deck Permit The elevated deck permit is required for the construction of a detached 305 square foot observation deck with a height over six feet above finished grade.
Exception Permit An exception permit is specifically required for that deck because it is being proposed to be constructed within the 45 foot setbacks from San Pablo Creek's top of bank.
Tree Removal Permit There is the proposal for the removal of one protected tree that is located on the site with a trunk diameter of 12 inches.
And there are up to six other trees that would potentially qualify as protected trees being proposed for removal in the footprint of the deck. Those are bay trees.
PROJECT BACKGROUND: This was originally presented at a City Council and Planning Commission joint meeting on February 9th, 2021, in which the applicants were given a bit of guidance before making an official application.
November 29th, 2022, there was a Planning Commission hearing. During that Planning Commission hearing, the project was continued with direction for what the Planning Commission members would be looking for.
March 24, 2023, the applicant withdrew and resubmitted this project due to AB 2097 legislation which concerns automobile parking requirements in downtown and commercial areas for development within a half mile of significant transit stations. In conjunction with that withdrawal and resubmittal, the applicant did propose to donate what would have been approximately $24,000 of in-lieu parking fees that were originally assessed for the project and the lack of parking. Chevron’s proposal is to donate that to the City in order to pursue pedestrian improvements in the right of way.
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Packet Pg. 275 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 3 SUMMARY OF COMMENTS COMMISSION GAVE AT November 29, 2022 PC MEETING:
o hoped that Chevron would improve certain design elements. That includes the relationship between the design of the canopy columns and the convenience store, improve the design of the east façade and generally how that east façade was interfacing with the pedestrian access from Orinda Way, as well as the canopy and the awning that are located at the east façade
o accessible stall could be relocated to preserve two of the trees that were originally proposed for removal at that point.
o And the overall design of the convenience store should feel more friendly to a small-scale community
o The proposed zoning text amendments at that point, fresh and nutritious, had been proposed by staff as part of the language that would be included in the zoning text amendment; Draft Ordinance lacked precise definition of what “fresh and nutritious” would mean.
o verification of conformance with Fish and Wildlife rules was requested at that time. o Safety concerns of the 24/hr. mini-mart
DEDICATION PROPOSAL:
o Applicant is proposing to dedicate land between station & Camino Pablo o Proposed access easement from Orinda Way to San Pablo Creek o Staff recommends that the City not take the dedication in fee and obtain an easement over that portion of the property instead
o If the portion is dedicated in fee, it would need a lot line adjustment or a subdivision of the property
DESCRIPTION OF THE CHANGES IN PROJECT UPON RESUBMITTAL
o PARKING: The parking in-lieu variance was dropped based off of AB 2097 o ZONING TEXT AMENDMENT: The applicants proposed to adopt the majority of staff recommended changes that were provided at the November 29, 2022 Planning Commission hearing. There are a couple of additional pieces of language that they are proposing, such as there be a minimum of eight seats for dining at a convenience store and that the outdoor dining would be subject to the regulations of the outdoor dining permit but would not have to obtain an outdoor dining permit itself. o The applicant is also proposing instead of “fresh and nutritious” that the amendment include just the language “fresh” foods. So increase the availability of fresh foods in the City of Orinda, which staff feels is sufficient and reduces some of the confusion that was expressed at the earlier meeting and contention around the exact definition of nutritious. o DESIGN REVIEW: the applicant has provided multiple options for the building façade and the pump station canopy support column materials will show the elevations later that are rendered and the four options that have been provided. The proposed metal awning has been changed into a trellis structure that would match the observation decks materials and also extends out along the walkway to Orinda Way.
o ELEVATED DECK PERMIT: the applicant provided third-party analysis of the California Department of Fish and Wildlife regulations and site surveys in order to G.1.g
Packet Pg. 276 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 4 confirm that the proposed elevated deck would be located outside of California Department of Fish and Wildlife jurisdiction.
o TREE REMOVAL PERMIT: The site plan was modified to preserve those two trees close to the pedestrian pathway, which means that only one protected tree that is verified is now proposed for removal. There are six bay trees that are additionally proposed for removal that were discovered to potentially be qualified as protected trees. Those are in the footprint of the elevated deck, and we do have a condition of approval for verifying the exact diameter of those trees that we will show at the end of this report.
Darin Hughes continued by presenting additional slides and details relating to the proposed Zoning text amendment, project plans, land and easement dedications, parking, elevated deck, and tree removal.
Darin Hughes reviewed Public Correspondence received: 20 members of the public or organizations submitted public comments prior to the Nov. 29, 2022 hearing and July 12 hearing:
Summary of comments in support:
o enhance the offering of food and beverage in Orinda
o electric vehicle charging station is viewed as a net positive – first EV charging in City
o funding of city pedestrian connections in the right of way would be a net gain to the City
o City having ownership of the creek property, if it were to accept that property, would be positive for pursuing the downtown precise plan and creek restoration goals and connect Orinda goals
o creek trail restoration of the creek
o convenience store could be a good fit for downtown Orinda o proposed observation deck is a positive amenity
o strong demonstration of landowner commitments to the community and the community's values with this proposal
o increase sales tax revenue and the reuse of the existing bays would enhance the aesthetics of the area bringing into use a currently non-functioning building
o Comments in Opposition to the Proposal:
o comments was related to crime and the idea that convenience stores do attract crime and that there could potentially not be adequate security in conjunction with a convenience store
o elevated deck was seen as not necessarily a guarantee, particularly in light of earlier issue of possible non-conformance with California Department of Fish and Wildlife requirements
o not enough parking being proposed
o increase traffic in this particular area and hurt circulation o Alcohol sales
o Unhealthy food options; comparable existing extra mile stores do fall shy of offering meaningful, fresh, and healthy options
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Packet Pg. 277 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 5 o contention over the definition of other ancillary uses o combination of convenience store offerings and that elevated deck could induce litter; potential issues with maintaining the creek and the cleanliness of the creek.
Darin Hughes reviewed the Conditions of Approval that staff is proposing and noted that the sign permit would be a separate process; not being covered by this meetings’ approval.
Staff Recommendation: Staff recommended the Commission take the following actions: adopt the draft statement of official action approving the project as conditioned, contingent on City Council approval of the zoning text amendment, and adopt Planning Commission Resolution 2023-03, recommending that the City Council adopt an ordinance for zoning text amendment, ZTA 2023-001
Planning Commission questions:
Commissioner Parnigoni: Why is signage separate from this evening’s meeting? Drummond Buckley: Usually, signage comes back later because there's so many details that need to be worked out. You are not approving signage at this time.
Commissioner Hubner: Does staff propose any exterior design over the other? Darin Hughes: Staff likes A03C, which ties the building together most appropriately offers a little bit more definition to the building and kind of really puts that stone veneer on full display.
Drummond Buckley: Please specify when the Commission makes its motion, because it is not specified in our resolution.
Darin Hughes: There is a proposed condition of approval for the members of the Planning Commission to take on. There is a proposed condition of approval for the members of the Planning Commission to take on. See A03, “facade materials shall conform to the materials presented on sheet A03 and then A, B, or C as you prefer of the project plans dated 3, 24, 23.
Commissioner Hubner: You're recommending that this be modified to comply with the eight-seat requirement?
Darin Hughes: Correct. That is in there as a condition of approval that an additional two seats be provided
Commissioner Hubner: Has there been any consideration of the observation deck providing access to the creek?
Drummond Buckley: Discussed at one point or another. A question for the applicant.
Commissioner Armstrong: Can you further explain the rationale and recommendation regarding the dedication?
Drummond Buckley: The city does not want to take on the liability of owning that land; The City prefers that it be an easement.
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Packet Pg. 278 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 6 Commissioner Mautner: What happens if the elevated deck is not approved by Fish and Wildlife? Does this project get canceled?
Drummond Buckley: No, the project would not be canceled if not approved by Fish and Wildlife. Removal of the deck would be considered a major change, and that would go back to the planning commission to review.
Darin Hughes: That is currently a standard condition of approval.
Commissioner Mautner: The eight seats that are required, any consideration of the deck having seats and therefore mitigating the requirement?
Darin Hughes: Because the deck is not proposing any table in conjunction to any surface that someone could set food on to, we haven't considered that thus far as seats that would count towards dining.
Commissioner Fay: Is the planning staff that's going to be reviewing the food? Drummond Buckley: Yes, planning staff would need to confirm that the requirement that it's improving the availability of fresh food is being met.
APPLICANT PRESENTATION:
Presenter: Juliette Don, works for Chevron, homeowner and resident of Orinda most of her life.
Joined by Nancy Yost, who is Senior Development Manager with CBRE, with Gary Semling, who is a Senior Associate with Stantec Architecture, and with Katie Kabler, who is District Sales Manager for Chevron's company-owned and company-operated stations.
Chevron withdrew their initial application and resubmitted in response to a state code change.
This change no longer required a fee in lieu of parking. In response, Chevron has elected to donate the former parking fee to the city in support of pedestrian-friendly initiatives.
Chevron has owned this site for more than 60 years. This property is Chevron-owned and Chevron-operated.
The new store and site will be welcoming to vehicles, cyclists, and pedestrians. We've included bike racks and EV charging station. The blue water at the top of the plan shows the path of San Pablo Creek. Chevron is in support of the downtown precise plan that calls for improved creek accessibility to residents and visitors with access to trails and natural scenery. Chevron has offered a dedication in fee to the city for the property adjacent to the creek. As part of that dedication, we have offered an easement along our north property line to create a pedestrian access from Miranda Way to the proposed creek pathway.
Chevron's extra mile updated interior image will offer fresh salads, sandwiches, fruit, protein, boxes, refrigerated food, and other comparable items providing great convenience to the community. The convenience store contemplated mode of operation as described in our application is not considered by the city as coming within the definition of a takeout restaurant.
Chevron architect, Gary Semling, reviews the proposed design:
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Packet Pg. 279 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 7 Chevron revised the finishes to include more durable materials for the wainscot of the building and the fuel canopy columns.
We propose the overlook observation deck with bench seating and interpretive signage for the community and the visitors to enjoy a moment with a view of San Pablo Creek and nature.
The observation deck would have a wood fence with high tension metal tension cables for the handrails and a trellis would be covering the entry to the observation deck similar to the one coming from the street.
Included a direct safe pedestrian access from a Orinda Way to the store incorporating a longer trellis structure with vegetation which is similar to the observation deck.
New landscaping and seating to enhance the experience. Chevron is proposing to increase the landscaping and upgrade the landscaping on both streets.
Katie Kavler with Chevron.
1. Condition 2: the property rights for the creek area land on the west side of the property. o Chevron can offer the City two options. The first option is we are prepared to donate the Creek Area land to the City in fee and grant an easement along the north side of the property to allow public access to the Creek Area land and the Creek when the City is ready to receive it.
o Flexible on timing of the donation of land, would work with City on the timing of the transfer.
o If the city does not want the donation of the land on the north side of the property in fee, as a second option, we will retain the creek area land and not grant an easement on the north side of the property, which would allow public access to our private land by the creek, and we would proceed with the project as planned otherwise.
o Staff report didn't reference the second option and didn't provide a reason for recommending Condition 2 as the requirement of approval o Chevron will not undertake the project with the inclusion of Condition 2.
2. Condition 4: condition of approval includes two problematic elements. o The first is an initial requirement that the planning staff approve the Chevron food plan for the C-Store to ensure sufficient fresh food with fresh being undefined o The second, a future open-ended requirement that planning staff approve all modifications to the C-Store food merchandising plan.
o Chevron has over 300 company-owned and company-operated convenience stores, and I manage about 150 of those, including the Orinda site. We run a successful network by making timely merchandising decisions, for example, making adjustments when we have supply chain challenges and then we rapidly execute these business decisions in the field across our network.
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Packet Pg. 280 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 8 o The condition of approval significantly undermines these business processes. In addition, there are no limits to the types of changes that would require staff approval and no time limit established for how quickly staff would need to respond to a Chevron request to make a merchandising change o The term fresh is undefined in the condition of approval. When I think of fresh in my stores, I’m thinking of the deli cooler, which has items like salads, sandwiches, eggs, yogurt, milk, and I'm not sure if the staff considers those fresh. o We don't see the need for the planning staff to use its limited resources to control the merchandising decisions of Chevron, especially when those requirements aren't imposed on any other retailers in Orinda.
Public Comments:
1. Tom McKinnon: I used to work for Chevron and now I'm a member of Friends of Orinda Creeks. I also am a former planning commissioner. Speaking in favor of the proposal.
Chevron is offering to give the land next to the creek to the city, but the city refuses to accept.
Basically, the city is insisting on an easement where Chevron wants a full title land transfer.
Chevron's position on this is if the city does not want the donation, it will retain the property and not grant the easement and proceed with the project as is, as was stated earlier. This is the last thing that the Friends want. We want to get access to that land. And it seems that there's a standoff here. It seems like a catch-22. There's already a creek trail from the Bank of America to the Chevron station. as an access trail for the city-supported creek cleanups that have been going on for many years. Eventually, we'd like to see the trail continue through the Chevron from the Bank of America on past the Vintage House through the Chevron Trail onto the intersection above the Chevron property and then linked to an East Bay Mud Trail when Drummond here gets the crosswalk approved over to the East Bay Mud Trail.
At present, the County owns the land behind the Vintage House, and that's where our creek restoration that we completed a couple months ago, that's the property that we did that restoration on. Everywhere else, the trail is on private property. So to further our goal, we need to obtain ownership or an easement or whatever on all the land along the creek. And here we have this opportunity to do so, and I just can't imagine rejecting that.
2. Alex Evans: Orinda resident in favor of the Chevron proposal. What will happen again if you either say no to this proposal or you include conditions that the applicant won’t accept? Specifically, the easement and a requirement of what exact type of food will be available at the facility. Nothing will happen, similar to 25 years ago when Chevron considered a similar project but was not able to agree with the City about what it would look like. Let’s not repeat history.
3.Sandy Roadcap: Supports the renovation proposal for 3 reasons: 1) the design has been extensively reviewed by the public, by the staff, experts, and I think it will make a very pleasing gateway to the center of our city; 2) The project will revitalize downtown Orinda businesses; 3) this is a practical local way of meeting environmental goals by giving Orinda first EV charger and donates Creek property land.
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Packet Pg. 281 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 9 4. Jennifer Edmister: former lawyer, resident of Orinda. In favor of Chevron project. Lives 600 yards from service station. She looks forward to the convenience of the EV charger and mini mart. The project would be a trade up from the eyesore there now. I am not concerned about accepting a gift of this property from Chevron. The city does own a lot of property. The city does have a lot of liability. I do not think it's unreasonable given the benefits we'd get in the context of this project. And I actually am not at all concerned about the caliber of the food that may go on offer
5. Brad McCullough: In favor of Chevron’s application. I think that businesses within certain constraints ought to be able to do business as best suits them. I think the ordinance that is currently in place is very constrictive. And an ordinance that limits gas stations to a small convenience area, 40 square feet, is wrong and it should be modified. We want that space to be a benefit to the city. And so let's make that happen. And in past submissions to the Planning Commission, people have complained about the proposed look of the convenience store. I think the Chevron's been working with the Planning Commission, and I think they've come up with a good solution and that should work for both parties. I especially like the fact that the Southern End of the Creek will have access it sorely needs to make it an asset for the city I think it ought to be deeded to the city so the city takes ownership of it because why should, if it's public space, why should Chevron have the liability for a public space, why shouldn't the city have that?
I don't think that the city should govern that to that level of detail on food.
6. Amelia Wilson: In favor of proposal. Concern that this opportunity to extend the restoration of the creek will be lost if the city and Chevron cannot find a way to accept that property and allow further development of a trail. The creek restoration will bring people to the city and therefore will be a benefit.
7. Dave Samson: Retiree of Chevron, strongly in support of project. It would benefit the city by giving ownership of creek property and creek restoration, providing EV charging, provide pedestrian-friendly initiatives. Having worked at Chevron for almost two decades, it's a company of integrity so I would strongly encourage you to continue to work with Chevron to bring it to fruition.
8. Laura Abrams: This is not the model, I understand, where there was interest at the joint City Council Planning Commission meeting for a small grocery store. Photos that I took today of the extra mile in Danville: a rotting banana, apples from last season, and citrus. The sandwiches were pre-packaged glum and there was almost no dairy. There wasn't anything I saw there today that I wanted to eat outside or anywhere. We have four gas stations currently. The Shell Station has a mechanic and a functional service bay. I know the 76 Station has asked about a market years ago when I was still on the council. The Mash Station also has service bays and is a consistent traffic issue for that intersection with folks wanting to access the station. And those can all be developed as convenience stores. I am a Creek supporter. I admire the work of Cinda G.1.g
Packet Pg. 282 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 10 and the organization, but the trade-off for the community is not one I can support. And I can't imagine that you're not going to have traffic flow issues.
9. Bill Waterman: Speaking in favor of the proposal. I grew up in Orinda. I've lived here 38 years and I grew up here as a kid. We had more businesses in Orinda in the 60s. Those service bays have been empty for over 20 years. The Phairs property has been a ghost shell for more than 25 years. We have a ghost town in Orinda. If you want fresh food, you can go to Lafayette. There are four markets over there. So whatever Chevron would offer is better than nothing, with all due respect. I think it's an overall fit with the benefits like the EV charging station. Having a second store open 24 hours in Orinda is worth it. I think in the overall scheme of things, the benefit to the city far outweighs this concern about fresh food.
I am a retired trial attorney, and I suggest that the city look at the recreational use immunity in the government code. I think the recreational use immunity applies here.
10. Roy Hodgkinson: President of the Orinda Chamber of Commerce. Observed citizens complaining of empty storefronts in Theater Square. When you set an example to other commercial landlords, they feel the need to compete. This is an example of creating an improvement on the north side, the city side, the unnamed side of Orinda if you like, and this will help propagate the idea of improving those commercial properties. We have a lot of people who want to do pedestrian and bicycle access to trails and the nice parts of Orinda such as the Country Club area and Lake Cascade and on up to Bear Creek Road. When they come off BART, now they're going to be able to get their energy bars and energy drinks right there at Chevron. People in Orindawoods who have EV can now charge in Orinda.
11. Maria Brandl: Resident for over 25 years. Supports the Chevron project because it will help revitalize this area of the town, the gateway to this part of Orinda. The design is nice with the deck and so on. It brings an electric vehicle charging station. I have friends who own electric vehicles. I recently joined the board of the Friends of Orinda Creek. The creek is an incredible asset for our city. I strongly encourage the city to be courageous. Accept that there is liability with owning land. We already own land. We own community park. There's liability there. If we manage to get a link to the De La Villaga Trailhead, we can have people coming and hiking into Orinda and support our businesses.
12. Mark Evans: Chair of the Orinda Firewise Council. We are an organization that represents 25 neighborhoods throughout Orinda, representing 2,800 homes. We are a volunteer organization that works with the City of Orinda and the Moraga Orinda Fire District that helps prepare the city for wildfire. The residents of Orinda passed Measure R in 2020 and that measure funds our excellent chipper service as well as other activities that prevent wildfire. This improvement project is very compelling and will increase sales tax revenue in this city of Orinda.
13. Brent Austin: Resident 20+ years. A lot of businesses are leaving. It's sad. I think this is a great opportunity for the city of Orinda and I think we should really take advantage of it.
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Packet Pg. 283 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 11 Applicant Rebuttal : We believe that it's a great project and we encourage you to recommend the project for approval. We do ask for the removal of conditions 2 and 4 for the reasons that we previously stated.
Commissioner’s Question of the architect:
Commissioner Mautner: I have a critique: The South elevation is really plain. If you could create a trellis that sort of wraps around the building, that would soften that elevation dramatically.
Chevron: We’ll work with staff on that.
Commissioner Mautner: The blue on the canopy is not reflected onto the building. One thought would be the red sign that says Extra, if that could have that blue color just to tie the building together. Two comments on the food. It’s an issue to try and mitigate junk food for patrons, including a lot of younger people. How do we get the community something that we really want and that's just not junk food?
Commissioner Armstrong: How many units are proposed for the electronic vehicles? Chevron: 1 unit
Commissioner Mautner: The seating under the trellis is a great improvement. If there could be some lighting to continue the design around the building, that would help in my opinion if again, the staff can find a way to fit that in.
Public Comments Closed. Open to Commission for Discussion Drummond Buckley: To answer Commissioner Jelinek’s question, Safeway is open from 5:00 AM to 2:00 AM.
Commissioner Jelinek : To staff as well, I know in the 2021 hearing we discussed the option of having the Chevron station match the hours of Safeway of being potentially closed I think midnight to 4 or whatever their updated hours are. Was that something discussed with the applicant as part of this process?
Darin Hughes: No, Commissioner, I don't believe that that was brought up at the last hearing as something for direction. So staff did not discuss any possibility.
Commissioner Hubner: Am I correct in understanding the convenience store operation would be 24-7, but liquor sales are mandated by state to stop at 2 in the morning? Drummond Buckley: That's correct, 2 a.m. to 6 a.m.
Commissioner Fay: Is it an ordinance or was it the city council who decided that they did not want to take ownership of the trail area and have an easement instead? G.1.g
Packet Pg. 284 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 12 Drummond Buckley, Planning Director: This has not been considered by the City Council yet. If it's appealed, if let's say the Commission goes with staff recommendation and the decision is appealed, then the Council will consider that issue because it's part of the project. If not, the Council will just be considering the ordinance. So, the recommendation regarding that issue and the reason that we put it in the statement of official action as a condition of approval is that this is staff's position. If the applicant does not like what the commission decides tonight, they can appeal the decision to the City Council.
Commissioner Fay: And the reason for this is just the fear of liability, it’s a cost issue? So it's not just liability from the trail. It's liability of the creek itself, of the improvements that are in the creek goes underneath the freeway and BART station, so there's a huge culvert that comes out right on this parcel, as well as concern about liability for contaminants from the station itself leaking onto the property. So that it's not just the trail issue.
Commissioner Fay: Who is responsible for it now?
Drummond Buckley: Chevron.
Commissioner Mautner: Is the property behind Vintage House is owned by the city? Drummond Buckley: There's one segment of the creek which is owned by the county, not by the city. It's a rectangular parcel that somehow ended up in the county's hands. The rest of San Pablo Creek in this area is all owned by the adjacent property owners or part of it is owned by the city on the other embankment as part of the City right of way for Camino Pablo.
Commissioner Hubner: In lieu of handing fee simple there was some delayed process that was being proposed. What was that option?
Commissioner Jelinek: The public would not have access. Chevron would not include that as part of the project. The second option was that the project would proceed, but they would maintain their land. It would not be given as a right of way and the public would not have access, but they would still have an overlook.
Commissioner Armstrong: Was there any legal analysis or review regarding the liability determination for the recommendation that you're proposing? Drummond Buckley, Planning Director: The city attorney has been very involved in this process from day one. Staff fully is supportive of the creek component of this project. We don't think it's too much to ask that it be handled as an easement instead of a dedication. If you go with staff's position and the applicant disagrees, they can appeal that to the City Council and the City Council can make that determination. So there's the entitlements for the project, that's the Planning Commission. There's the law, which you are making a recommendation on, that's the resolution that you have, but the law is decided by the City Council. There’s a high likelihood that the project could be appealed no matter what.
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Packet Pg. 285 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 13 Commissioner Fay: I wanted to ask you about this food issue. Did you put that condition in as kind of a compromise that the staff would decide whether or not the food was fresh? Drummond Buckley, Planning Director: The code would have a requirement that new convenience stores increase the availability of fresh food in the city. It's not our intent to be incredibly onerous about that, but if it's found to not be in compliance with that rule, then we would be in a position of either doing code enforcement or deciding not to do code enforcement.
And we don't want to be making that determination every day or every six months or every year.
Hopefully we are able to sign off on it and it feels like it meets that criteria and we both can coexist peacefully.
Commissioner Parnigoni: I think it's impractical to think that you're going to be able to monitor that. You're going to have to take their word for it. And tonight, there was a difference in what was presented by Chevron and what was presented through the correspondence on today, what is at the same facility in Danville. And so, there's, to me, there's a disconnect there.
Drummond Buckley: Orinda does not have dedicated code enforcement staff. So virtually all of our code enforcement is by complaint. If we get a complaint, we have to sort of look into it and see if there's anything there and see if it's something that we feel is actionable or not. And by actionable, it could just mean providing a couple of more fresh food items, for instance. If we don't have that fresh food word in there, we have absolutely no way of making sure that they sell nothing other than corn chips and Cheetos. This is not going to be a produce bodega, right, obviously. It's a convenience market. But we have an opportunity to at least ensure that there's a little bit of fresh food that's available there.
Commissioner Jelinek: It's similar to any building sign off, is that a way to think about it? This is a condition of availability of fresh food, similar to a building sign off when the building turns over, you see there's a banana, great check mark, similar to fire sprinklers, yes you have them all there, the applicant can remove 10 fire sprinklers the next day, no one's going to come and check.
Drummond Buckley, Planning Director: Yes, it is similar to that.
Commissioner Armstrong: There's some vagueness with the term and is there a way to possibly put a definition in there of that term or phrase?
Drummond Buckley, Planning Director: We did bring a slide which has a kind of fresh definition that you guys can look at if you want. This was actually, I think, originally written to kind of define fresh and nutritious. So we would probably look at this, something like this and replace fresh with whole and cut fruits and vegetables, prepared foods. You have to assume that staff will try to apply a reasonable standard and hopefully the applicant is sincere in its stated goal to provide a mix of both packaged and fresh foods in this store.
Darin Hughes: We can disregard the first portion of this describing “10 percent” [net floor area].
We could use the second portion of this to define fresh.
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Packet Pg. 286 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 14 Commissioner Parnigoni: Did the applicant agree to this definition? Do they have a different definition?
Drummond Buckley: No. They do not have a different definition. We just have the word, we just have the statement that if you have a convenience, that one of the criteria for a convenience market is that it, and is the word enhance. To enhance the availability of fresh food in the city of Orinda.
You are not the decision makers on the code, you are the recommenders. So it's your role to recommend what you think is best for this issue. And again, the applicant will have time when it goes to Council to make their best case about what they agree with or don’t agree with.
Comment by Commissioners:
Commissioner Parnigoni: Back to the easement issue. Environmental contaminants from Chevron is a major concern.
Drummond Buckley, Planning Director: The city attorney advises the city manager and the planning director, who are the ones that make the recommendation. So it's not, I want to clarify, we have consulted with the city attorney, broadly speaking, and we've spoken about this issue….
Commissioner Mautner: Chevron contaminants, even if it went off their property, they still are responsible for it. So I don't think the city's picking up any liability if there's a contaminant that Chevron dumped onto that property. I think that's pretty clear.
Commissioner Parnigoni: Exposure to environmental contaminants for me would be a big issue.
And so, you know, that's a big concern of mine. I'm glad that you clarified that earlier on all of the liability. It's not just someone tripping and hurting themselves going there. There's a bigger discussion around that that I don't think we've had.
Commissioner Parnigoni: We hired outside consultants to advise us on the downtown, both sides of town. There was a lot of discussion about the history of food in town and the four grocery stores that we used to have and I think we had one gas station and four grocery stores and now we have one grocery store and four gas stations. To me, convenience food is not food. It's not another grocery store. It doesn't add to that value of food to me. They felt very strongly about it I recall it, I remember sitting through it during COVID how strongly they felt about the City not having access to food that you could make at home. I didn’t know, I’ve lived here at the time, but I didn’t realize we had four grocery stores in the past. I don't think that a mini-mart is what they had in mind with that.
Commisisoner Parnigoni: I was moved also by Councilwoman Abrams' correspondence that she had about the intent when they expanded this area. And I remember when that was done, the city hall and this whole kind of corridor, I think that it wasn't intended. It's why they specifically put in some of those requirements about how close a mini-mart could specifically, how close it could be to schools, to churches, and they were intentional about that.
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Packet Pg. 287 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 15 Commissioner Fay: I would like to see this project go forward because I feel that you find something wrong with everything. And we've been trying to get a downtown, we're trying to get things going. North of the freeway, it is, I mean, it's like there's nothing there. We have to start somewhere. And this project may not be perfect, it may not be everything that everybody wants, but it's a nicer looking building and at least we're starting somewhere because if we keep saying no to everything because it doesn't quite fit our ideal ideals of what we'd want to see, I don't see how we're ever going to get anywhere in Orinda.
Commissioner Jelinek: I want to applaud Chevron on the design and all the work you’ve done. I like the aesthetics, the observation deck, the trellis. My concern is the hours of operations. This being so close to the highway and being open 24/7, what that would potentially bring in for crime. I'm not sure if the applicant is amenable to altering those hours of operation, just similar to Safeway.
Commissioner Jelinek: Regarding the easement, I understand that it is something the public really wants, and so I'm okay with Chevron's recommendation of giving the land in fee to the city and would be supportive of that.
Commissioner Armstrong: I am also in support of the dedication. I am also in support of the dedication, I think it’s a good opportunity for the city of Orinda to own that land. I think that there's always incumbent risk and liability, but I think that that, you know, some of it is speculative, and I think that the benefits of the ownership of that property far outweigh losing or the whole deal being scuttled and the public not having access to that land or the city having the ability to improve it and do what they need to do with it. In terms of the recommendations on the code, I think that there should be some more specific language if we're going to get into this determination of food and freshness, maybe the definition that was proposed. I think that the planners should work with Chevron to come up with some specific definition of the terms or term that can be put into the code. I think it would definitely greatly improve the text here. And with those changes, I would support this.
Commissioner Hubner: I'm wavering on the issue of fee dedication versus lease, and I understand the city's or the staff's concern, but I certainly don't want to cut off our nose despite our face on this. So I'm a little more comfortable with leaving the food definition just the way it is in the condition, but I am willing to listen to the rest of the commission here on possibly amending that condition of approval to, per the Chevron recommendation.
Commissioner Mautner: I've thought a whole bunch about this project since we first started looking at it. And the more I think about it, the more interested I am and I think it's a great benefit to our community. It's going to bring, one of the things it does, it brings people into our area and hopefully they will spread out and keep going north to some of our other facilities. One thing to think about, the concern about the liquor store, well right now you get off the freeway and right, you're head on into BevMo. So I don't think we're adding more liquor to everybody's availability. The project is going to add nice sales tax to the city, so I think there's a great advantage.
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Packet Pg. 288 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 16 The dedication, I'm given that the city owns the property that's west of the creek anyway, I'm not sure we're adding that much more liability. So, overall, I think it's a great project. I really would like it to be built. I think it's having an empty shell there does no one any good.
Commissioner Jelinek: With the fresh issue, would it be something that the applicant and staff are amenable to working through the language so it still has a condition that there's fresh food available but does not specify what type or quantity?
Drummond Buckley, Planning Director: Given that the how challenging it was to get Chevron to the point of agreeing to the word fresh, I don't feel comfortable with the commission punting and requesting that we work with that.
If Chevron doesn't agree with it, they have a right to appeal it to city council. I think that the condition four kind of says that. It basically says the convenience will increase the availability of fresh food in the city of Orinda. The validation or proof is the word here, shall be in the form of a detailed floor plan showing the contents of the market.
Commissioner Mautner: I had asked Chevron to try to figure out something they could live with.
So I guess I'm going to ask it again. What can you live with that we could agree to that you can see the dynamics of what we're doing?
Katie Kavler with Chevron: So, what we were talking about is fresh food is available, such as the things that I mentioned that we stock, like, so fresh food is available like those items that I mentioned is what I'd propose. Which is basically banana, eggs, milk. We don't want a management plan or any kind of ongoing oversight or approval process.
Drummond Buckley: Ongoing oversight, there is, again, we are responsible for enforcing the municipal code in Orinda. That is the planning department's responsibility. That's what we do. So when you say ongoing management plan, we're not going to be asking you for a floor plan every month. But if there is a complaint and we go in there and there's not a single fresh anything in the whole store, then we have a responsibility to enforce the municipal code.
Katie Kavler with Chevron: I’m good with that. The condition would be fresh food is available such as milk, eggs, bananas, apples.
Commissioner Mautner confirmed there were no further comments.
Commissioner Hubner made a motion to approve the application number ZTA 2023-001, CUP 2023-2013 and adopt the draft statement of official action approving the project as conditioned with the following adjustments: removal of condition number 2 and revising condition number 4 to state that fresh food is available such as eggs, bananas and apples and etc. The motion also included approval of resolution recommending Council approval of the ordinance for the zoning text amendment.
Darin Hughes clarified that the motion includes this condition: Prior to issuance of a building permit, applicant shall resubmit a design that adds lighting to the east façade and extends the G.1.g
Packet Pg. 289 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text 17 trellis located at the area in front of the east elevation to wrap around the west elevation. The extent of this shall be subject to staff discretion.
Commissioner Fay seconded the motion. The motion was approved with the following votes:
Commissioner Armstrong: Aye
Commissioner Fay: Aye
Commissioner Jelinek: Aye
Commissioner Parnigoni: No
Commissioner Hubner: Aye
Commissioner Mautner: Aye
The motion is carried.
Chair Commissioner Mautner made this announcement:
The decision by the Planning Commission is final unless a written notice of appeal specifying the grounds for appeal is submitted to the Planning Department during normal business hours within 10 calendar days and with the appropriate fees. The appeal will be considered by the City Council. If you challenge any actions on the agenda in the Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the Planning Commission at or prior to the public hearing.
The time to file action to challenge the decision is governed by the Code of Civil Procedures, Section 1094.6.
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Packet Pg. 290 Attachment: Draft Action Minutes for July 12, 2023 Planning Commission (Item 6A) (3211 : City Council Report First Reading Zoning Text City Council
Staff Report
Agenda Item: G.2
Date: September 19, 2023
Department: Planning Department
AGENDA TITLE: Annual Development Agreement Compliance Review for the Wilder Project
RECOMMENDATION:
Conduct a public hearing to determine whether OG Property Owners, LLC (“OGLLC”) is in compliance with the terms of the Second Amendment and Restatement of the Development and Pre-Annexation Agreement for Gateway Valley (“DA”) and related approvals. Although OGLLC has made progress recently towards curing the Events of Default identified in 2022, Staff recommends that the City Council adopt Resolution No. 54- 23, which (1) finds that OGLLC remains out of compliance with certain requirements of the DA and related approvals; and (2) directs OGLLC to appear at a continued public hearing. To address noncompliance with certain DA requirements, Staff recommends the City Council direct City Staff to negotiate with OGLLC regarding potential DA amendments, including changes related to: the Red-Tailed Hawk Staging Area; a BART/downtown shuttle (8th DA Amendment); and the liability insurance OGLLC is required to maintain (DA § 5.2).
BACKGROUND:
Gateway Development Agreement
On November 15, 1994, the City Council entered into a development agreement with Pacific New Wave Corporation (“PNW”) setting forth terms related to the development of Gateway Valley, located south of SR 24 and Gateway Boulevard. OGLLC, which acquired the Gateway Property in November 1996 as the successor to PNW, is bound by the terms of the 1994 Development Agreement, as amended.
On March 15, 2005, the City Council approved the Second Amendment to the Development Agreement which provides for development of up to 245 detached single family residences, and contains provisions for five on-site City playfields, parks, open space, trails, and a community Art and Garden Center (“A&G Center”). The DA also provides the City with substantial financial contributions toward the A&G Center and other community amenities.
Since 2005, there have been six additional amendments to the DA. The Seventh DA Amendment, approved in 2016, and the Eighth DA Amendment, approved in 2018, made significant changes to the Wilder Project. The Seventh DA Amendment approved the Wilder Residential Development Standards and Design Review Process that govern the design, the development, and the process for reviewing plans for new homes in the Wilder Project. This Amendment also specified the components of the Art & Garden Center facility and relocated it to Wilder Park. In addition, OG committed to developing a G.2
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trailhead area at the former Art & Garden Center location, the Red-tailed Hawk Staging Area. The Eighth DA Amendment, among other changes, included the adoption of the “Wilder 2018 Circulation Plan,” which depicts the system of trails, paths, roads, meanders and neighborhood connections throughout the Wilder Project. The Wilder 2018 Circulation Plan replaced and superseded the text and figures in the Development Agreement, Final Development Plan, the four Final Maps, and the Final Landscape Master Plan.
Annual Review Process
Annual Review of the DA is mandated by Government Code section 65865.1. Article 6 of the DA sets forth detailed procedures for this annual review, beginning with OGLLC’s submittal of a report setting forth its “good faith compliance with the [DA’s] terms and conditions.” OGLLC’s Annual review report shall be accompanied by documents and other information reasonably necessary to enable the City Manager to prepare his staff report to the City Council on OGLLC's good faith compliance with the terms of the DA.
DA § 6.2. DA section 6.3 provides that the City Manager shall review the annual review report “to ascertain whether Orinda Gateway LLC has complied in good faith with the terms of this Agreement, and shall prepare a staff report to the City Council on the City Manager’s conclusions and recommendations.”
The City Council is required to conduct a public hearing at which OGLLC and any other interested persons may submit evidence, written or oral, and may address all of the issues that are raised in this staff report or that are relevant to the issue of OGLLC’s good faith compliance with the DA. DA § 6.4. After considering all of the evidence at the public hearing, the City Council shall determine, on the basis of substantial evidence, whether OGLLC has complied in good faith with the terms and conditions of the DA and related approvals and agreements. The meaning of the term “good faith” varies somewhat with the context in which it is used. However, courts often apply rules of contract interpretation in interpreting development agreements. “Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving ‘bad faith’ because they violate community standards of decency, fairness or reasonableness.” Restatement (Second) of Contracts § 205, Comment a (1979). See also definition of “good faith” in Black’s Law Dictionary:
“A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.”
OGLLC is responsible for all costs that the City reasonably incurs for the annual review process. DA § 6.6.1.
City staff and a representative of OGLLC will be available during the September 19, 2023 public hearing to answer questions regarding OGLLC’s Annual Review Report and its compliance with the DA.
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City Determination OGLLC Not in Compliance with the Development Agreement In July 2022, the City received a letter from an attorney for OGLLC stating that OGLLC had “no remaining resources or funds” and that it was forced “to halt further activities and initiate exiting the property.” At that time, OGLLC had failed to comply with the DA by not providing its Annual Review Report to the City Manager for the August 16, 2022 public hearing on OGLLC’s compliance with the DA. OGLLC submitted its Annual Review Report to the City on August 15, 2022.
The City Council adopted Resolution No, 43-22 (Attachment B) at the conclusion of its August 16, 2022 public hearing, finding that OGLLC had not complied in good faith with the DA and related approvals by, in part, failing to: (a) comply with the 2009 Reimbursement Agreement by restoring its $60,000 deposit within 15 days of receiving the City’s billing statements for the Project; (b) maintain the required liability insurance; (c) provide required documentation for its alleged transfer to an affiliate of OGLLC; and (d) indicate when and whether it would satisfy its remaining DA obligations. Resolution No. 43-22 directed OGLLC to bring its performance into good faith compliance with the DA by October 11, 2022 and to appear before the City Council at a continued public hearing on September 27, 2022. In compliance with DA Section 8.1, Resolution No. 43- 22 served as the City’s notice of Event of Default.
At the conclusion of the September 27, 2022 continued public hearing on OGLLC’s compliance with the DA, the City Council adopted Resolution No. 46-22 (Attachment C), finding that OGLLC “still has not complied in good faith with the DA and related approvals” by, in part, failing to: complete several required improvements in the Wilder Project; make payments required to renew the City’s Subdivision Improvement bonds and the renewal premium for the California Department of Fish and Wildlife (CDFW) bond; restore the $60,000 deposit under the Reimbursement Agreement; provide updated Improvement Plans as required by the Eighth DA Amendment; complete construction items and satisfy mitigation requirements in the Wilder Preserve Areas; prepare facilities and properties for transfer to the Orinda Geologic Hazard Abatement District (GHAD). The Council directed OGLLC to appear at a continued public hearing on October 11, 2022.
At the conclusion of the October 11, 2022 public hearing, the Council adopted Resolution No. 54-22 (Attachment D) finding that OGLLC had not cured the Events of Default identified in its prior resolutions nor made substantial progress to cure the Events of Default. The Council continued the public hearing to November 15, 2022.
At the conclusion of the November 15, 2022 public hearing, the City Council adopted Resolution No. 58-22 (Attachment E) declaring that its annual review of OGLLC’s compliance with the DA and related approvals was complete and that: OGLLC: had not brought its performance into good faith compliance with the DA and related approvals; OGLLC had not cured or commenced substantial efforts to cure the Events of Default; OGLLC remained obligated to fully comply with the DA and related approvals; and the City was entitled to pursue all available legal remedies under the DA and related approvals.
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DISCUSSION:
OGLLC’s 2023 Annual Review Report
City staff has been in regular contact with representatives of OGLLC throughout the past several months regarding its compliance with the DA and related approvals. During this time, OGLLC has made progress toward satisfying its remaining obligations.
However, as described below, OGLLC has not brought its performance into compliance with the DA and related approvals and has not cured all of the Events of Default identified during the City Council’s 2022 Annual Review process.
On June 1, 2023, the City Manager sent a letter to OGLLC advising that its Annual Review Report need only address “the areas of noncompliance identified in the City Council’s Resolutions and City Council staff reports for the 2022 Annual Review.” In addition, the letter directed OGLLC to provide “evidence that OGLLC has paid the required premiums for the financial security (bonds) required under the Subdivision Improvement Agreement and for the bond held by the California Department of Fish and Wildlife guaranteeing completion of all of the Resource Management Plan” and also “provide the City with all insurance certificates required under DA Sections 5.2 and 5.3.” On August 31, 2023 OGLLC submitted its Annual Review Report (Attachment F) describing its progress toward satisfying many of its DA obligations and the obligations that remain unsatisfied. The Report also provides the following summary of home development, based on information from the HOA:
All 245 Lots in the Wilder Project have been sold. 230 Homes have been constructed with nine homes under construction. 229 Homes are occupied with 26 pending Landscape Design Review Applications and three pending Architectural Design Review Applications.
Remaining Obligations Under the DA and Related Approvals Physical Improvements
The City has been working closely with the developer for the past few months to confirm the completion of several outstanding improvements. Staff has been visiting the Project site and providing punch list status updates to OGLLC on a weekly basis.
Per the Subdivision Improvement Agreement (which expired in December 2022), OGLLC submitted performance and payment bonds for improvements identified for construction in the 2008 Civil and Grading Improvement Plans prepared by PA Design; including subsequent plan revisions. In general, over 95% of the planned improvements have been constructed. The City is still retaining performance bonds for approximately 25% of the original estimated construction cost.
OGLLC recently provided the updated improvement plans for the 2018 Circulation Plan required by the 8th DA Amendment (including widened sidewalks) and additional plan revisions for the improvements identified below.
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As of September 8, 2023, the following improvements still need to be completed:
1. Four foot wide sidewalks fronting the following parcels:
a. 27 Bigleaf Rd (Lot 45) – vacant
b. 35 Bigleaf Rd (Lot 49) – home in progress
c. 50 Boeger Ranch Rd (Lot 72) – home in progress
d. 7 Paintbrush Ln (Lot 115) – vacant
e. 9 Paintbrush Ln (Lot 116) – vacant
f. 81 Dairy Creek Ln (Lot 234) – vacant, sidewalk damaged, to be replaced g. 85 Dairy Creek Ln (Lot 236) – partial home/no current progress, sidewalk damaged, to be replaced
2. Install approximately 700 feet of four foot wide grassy swale on the northside (uphill) of Fiddleneck Way with six down drain bubbler connections.
3. At former Art & Garden Center site/Soil Disposal Area:
a. Install additional drainage improvements (upsized plastic pipe) along the perimeter of the parcel.
b. Regrade/eliminate the access road to the top of the soil disposal area and add some more natural looking slope to the proposed parking lot area. c. Regrade eroded tributary ditch leading into drainage pipe and add erosion control fabric with rock slope protection at inlet pipe. d. Dispose of temporarily stockpiled cattail vegetation removed from detention ponds after debris has dried out.
Install 12” inch diameter PVC culvert pipe under emergency vehicle access road to Edgewood Rd. where erosion occurred in January 2023 storms. The location is approximately 300 feet west of the gate to Edgewood Rd. Improvements will convey runoff under the EVA to avoid future erosion and outfall onto rock riprap on the side slope leading to the tributary channel. The portion of the road where the erosion occurred will also be reinforced with geogrid filled with gravel.
Financial Obligations
2009 Reimbursement Agreement requires OGLLC to restore its $60,000 deposit within 15 days of receiving the City’s billing statements for the Project. Currently OGLLC has an outstanding balance of $43,498.59 for various services rendered. OGLLC has not made any payments towards this obligation since June 27, 2023 when a $10,000 partial payment was received. A payment of $103,498.59 would be required to bring OGLLC into compliance with the 2009 Reimbursement Agreement.
OGLLC’s Annual Review Report acknowledges that its bond renewal premiums for the CDFW $5.8 million bond and for the City’s Subdivision Improvement bonds “remain overdue” but it states that “the bonds will not be cancelled’ and the City and CDFW’s “interest is protected.”
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The City and, as we understand it, OGLLC, have been in contact with the bonding entity regarding release of the “approximately $300,000 cash collateral into an encumbered account to be used to reimburse City and contractor costs, if needed.
Insurance
DA section 5.2 requires OGLLC to maintain liability insurance insuring against bodily injury, property damage and personal injury liability arising out of OGLLC’s activities under the DA, with a combined single liability limit of not less than $7,600,000.00 (subject to the CPI) per occurrence. OGLLC’s Annual Review Report (at 11) states that it “maintained the initially required liability insurance through July 2022 but has reduced the coverage to respond to the completion of improvements.” OGLLC’s Report (at 12) sets forth its rationale for limiting the DA’s insurance requirement “to an aggregate limit of $2 Million . . . .” If the City Council is amenable to reducing the DA’s insurance requirement, it would require a DA Amendment.
Further, DA section 5.3 requires that OGLLC provide Workers’ Compensation insurance covering OGLLC’s employees and employees of any contractor, subcontractor, agent or representative of OGLLC. OGLLC has not provided the City with the required Insurance Certificates documenting Commercial General Liability, Automobile and Worker’s Compensation Insurance policies covering activities on the Wilder property by OGLLC and its remaining subcontractors.
BART Shuttle
The 8th DA Amendment provides, in relevant part: “A BART/downtown shuttle shall be implemented concurrent with the time that the 200th home in the Project is ready for occupancy. After the BART/downtown shuttle has been in operation a minimum of eighteen months, OGLLC or the Wilder Homeowners Association (“HOA”) may file an application to the City Council to discontinue the shuttle. The City Council may discontinue the BART/downtown shuttle only upon finding that shuttle ridership levels are too low to warrant continued shuttle operation. This eighteen-month period may be shortened, and the BART/downtown shuttle may be eliminated, if the City Council finds that an alternative transportation demand management measure is more effective than a BART/downtown shuttle. . . . The BART/downtown shuttle shall operate between Gateway Valley and downtown Orinda, including the BART station. The shuttle shall operate during morning and evening peak periods, providing scheduled and/or on demand service (similar to a taxi). The HOA and the Planning Director shall consult and determine the location of the stops for the BART/downtown shuttle. The frequency, timing, and location of shuttle service shall be subject to the approval of the Planning Director.”
229 homes in Wilder are occupied at present. However, the BART parking lot has not been full since April 2020, which may indicate that a BART/downtown shuttle is not currently needed. However, from a practical perspective, the obligation has been transferred to the HOA via the CC&R’s and that due to lack of demand, the City has not required compliance given the impact of the pandemic, etc. In the future, the City may wish to discuss implementation with the HOA, and a DA amendment would G.2
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acknowledge the obligation has been transferred to the HOA. Moreover, if the Wilder residents prefer to have an on-demand service, rather than a BART shuttle, that can be considered at that time.
Completion of Obligations Prior to Transfer of Preserve Areas The Project’s 2006 Resource Management Plan (“RMP”), approved by the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, San Francisco Regional Water Quality Control Board, and the California Department of Fish and Wildlife (“CDFW”), sets forth OGLLC’s obligations before the Wilder Preserve Areas can be transferred to the Long Term Landowners – the Orinda Geologic Hazard Abatement District (“GHAD”), the East Bay Regional Park District (“EBRPD”), and the East Bay Municipal Utilities District (“EBMUD”). The City had several meetings with CDFW, EBMUD and EBRPD to discuss OGLLC’s outstanding RMP obligations, including satisfying riparian and wetland mitigation requirements and providing required Grazing Plan infrastructure in the Wilder Preserve Areas. Thereafter, CDFW met with OGLLC to discuss its outstanding obligations and to determine whether it can complete them in a timely manner before CDFW calls the $5.8 million bond guaranteeing that OGLLC complete its RMP requirements. (It should be noted that OGLLC’s obligation to fund four of its five unmet mitigation obligations in the three GHAD Preserve Areas (Development Buffer Area, Eastern Hills Open Space, and Quarry Hill Open Space) depends, in large part, on whether CDFW approves the GHAD’s proposed Grazing Plan revisions. OGLLC has stated that its goal is to transfer the Wilder Preserve Areas to the Long Term Landowners in 2023 (Annual Review Report at 8).
Transfer of Properties to GHAD (Maintenance and/or Ownership) The GHAD Board authorized fee title acceptance of the Project’s Central Detention Basins on September 5, 2023 and authorized fee title acceptance of the Project’s smaller detention basins on September 27, 2022 . Formal completion of fee title transfer for those properties is anticipated soon, pending resolution of title insurance, HOA landscape maintenance agreements, and other matters.
With respect to the transfer of certain maintenance responsibilities to the GHAD, two parcels within the development area remain the responsibility of OGLLC. As noted above, GHAD-maintained improvements remain to be completed on Fiddleneck Way and the former Art and Garden Center site (Parcel II) before the GHAD can consider transfer of Plan of Control responsibilities. On Fiddleneck Way, a segment of grassy swale remains to be constructed and on Parcel II grading and storm drain improvements remain to be completed. In addition, the GHAD has not yet accepted the Development Buffer Area, Eastern Hills Open Space, and Quarry Hill Open Space for transfer of Plan of Control responsibilities from OGLLC to the GHAD as described above.
Red-Tailed Hawk Staging Area
OGLLC has partially completed the Red-Tailed Hawk Staging Area improvements which were approved by the City and EBRPD, The City and OGLLC have had preliminary G.2
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discussions regarding the possibility of eliminating OGLLC’s obligation to complete development of the Staging Area. The City Council should discuss whether it wishes City staff to pursue deleting this requirement from the DA, which would require a DA Amendment.
NEXT STEPS:
If the City Council adopts Resolution No. xx- 23 and directs staff to negotiate with OGLLC regarding potential DA amendments, this matter would come back at a future meeting.
FISCALIMPACT:
OGLLC is responsible for reimbursing the City for the cost of preparing the Annual Review.
ATTACHMENTS:
A. Resolution 54-23 Wilder Annual Review
B. Resolution 43-22 Determination that OG Property Owners LLC is not in good faith compliance
C. Resolution 46-22 Determination that OG Property Owners, LLC has not yet brought its actions into good faith compliance
D. Resolution 54-22 Wilder Hearing Annual Review
E. Resolution 58-22 Determination that OG Property Owners LLC (OGLLC) remains out of Compliance with the terms of the development agreement for Gateway Valley and related approvals
F. OGLLC DA Annual Review Report - 2023
Respectfully Submitted by:
Drummond Buckley
Director of Planning
Prepared By: Sheri Smith, City Clerk
Approved by:
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1 BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
IN THE MATTER OF:
Determination that OG Property
Owners, LLC (“OGLLC”) is not in
compliance with the terms of the
Second Amendment and
Restatement of the Development
and Pre-Annexation Agreement
for Gateway Valley as amended
RESOLUTION NO. 54-23
WHEREAS, the City of Orinda (“City”) and OGLLC entered into the Second Amendment and Restatement of the Development and Pre-Annexation Agreement for Gateway Valley (“DA”) on March 15, 2005; and
WHEREAS, Article 6 of the DA sets forth detailed procedures for the Annual Review of the DA; and
WHEREAS, in 2022 the City Council held public hearings on August 16, September 27, October 11, and November 15 regarding OGLLC’s compliance with the DA and adopted Resolution Nos. 43-22, 46-22, 54-22, and 58-22 (collectively “2022 Resolutions”); and
WHEREAS, the 2022 Resolutions detailed the failure of OGLLC to comply with requirements of the DA and related approvals (“Events of Default”), including, but not limited to, the 2009 Reimbursement Agreement, the 2008 Subdivision Improvement Agreement, the Orinda Geologic Hazard Abatement District (“GHAD”) Plan of Control, and the Resource Management Plan for the Wilder Preserve Areas; and WHEREAS, the City Council on November 15, 2022 found that OGLLC had not complied in good faith with the DA and related approvals, had not commenced substantial efforts to cure the Events of Default, and that OGLLC remained obligated to fully comply with the DA and related approvals; and
WHEREAS, City staff has been in regular contact with OGLLC representatives throughout the past several months regarding OGLLC’s compliance with the DA and related approvals; and
WHEREAS, OGLLC has made progress toward satisfying its remaining obligations; and
WHEREAS, on August 31, 2023, OGLLC submitted its Annual Review Report to the City describing the actions that it has taken and will take to address the Events of Default identified in the 2022 Resolutions, acknowledging that it remains out of compliance with various provisions of the DA and related approvals, and proposing that City staff and OGLLC discuss potential DA amendments; and G.2.a
Packet Pg. 299 Attachment: Resolution 54-23 Wilder Annual Review (3214 : Wilder Annual Review 2023) 2 WHEREAS, the City Manager’s staff report to the City Council finds that although OGLLC has made progress towards curing the Events of Default identified in 2022, OGLLC remains in noncompliance with several requirements of the DA and related approvals, including, but not limited to:
• Complying with the 2009 Reimbursement Agreement by restoring its $60,000 deposit within 15 days of receiving the City’s billing statements for the Project;
• Providing the required insurance certificates to the City as required by Section 5.3 of the DA;
• Failing to complete all Project improvements, including, but not limited to:
the construction of all required sidewalks and the closure of the soil disposal area; • Failing to make bond renewal payments for the City’s Subdivision Improvement bonds and the California Department of Fish and Wildlife $5.8 million bond; and
• Failing to comply with its obligations under the 2006 Resource Management Plan before the Wilder Preserve Areas can be transferred to the Long Term Landowners, including satisfying riparian and wetland mitigation requirements and providing required Grazing Plan infrastructure.
WHEREAS, the City Manager’s staff report recommends that City Staff negotiate with OGLLC regarding potential amendments to the DA to address noncompliance with DA requirements related to construction of the Red-Tailed Hawk Staging Area, the implementation of a BART/downtown shuttle (8th DA Amendment), and the amount of liability insurance that OGLLC is required to maintain (DA § 5.2); and
WHEREAS, the City Manager’s staff report was provided to the City Council, OGLLC, the Wilder Homeowners Association, federal, state and local agencies that have an interest in the Wilder Project, and all other Persons requesting the same, and the staff report was posted on the City’s website; and WHEREAS, the City Council conducted a noticed public hearing on September 19, 2023 to determine whether OGLLC remains out of compliance with the requirements of the DA and related approvals, as set forth in the written materials prepared for the public hearing;
NOW THEREFORE BE IT RESOLVED that the City Council of the City of Orinda does hereby find, determine and direct as follows:
1. OGLLC has not brought its performance into compliance with the DA and related approvals and has not cured all of the Events of Default identified during the City Council’s 2022 Annual Review process.
G.2.a
Packet Pg. 300 Attachment: Resolution 54-23 Wilder Annual Review (3214 : Wilder Annual Review 2023) 3 2. OGLLC remains obligated to immediately and fully comply with the DA and related approvals.
3. City Staff are authorized and directed to negotiate with OGLLC regarding potential DA amendments related to: the Red-Tailed Hawk Staging Area; a BART/downtown shuttle; and the liability insurance that OGLLC is required to maintain.
Adopted by the City Council of the City of Orinda at a regular meeting on September 19, 2023 by the following vote:
AYES: COUNCILMEMBERS
NOES: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS
ABSTAIN: COUNCILMEMBERS
______________________________
Inga Miller, Mayor
ATTEST:
______________________________
Sheri M. Smith, City Clerk
1690646.1
G.2.a
Packet Pg. 301 Attachment: Resolution 54-23 Wilder Annual Review (3214 : Wilder Annual Review 2023) G.2.b
Packet Pg. 302 Attachment: Resolution 43-22 Determination that OG Property Owners LLC is not in good faith compliance (3214 : Wilder Annual Review 2023) G.2.b
Packet Pg. 303 Attachment: Resolution 43-22 Determination that OG Property Owners LLC is not in good faith compliance (3214 : Wilder Annual Review 2023) G.2.b
Packet Pg. 304 Attachment: Resolution 43-22 Determination that OG Property Owners LLC is not in good faith compliance (3214 : Wilder Annual Review 2023) G.2.b
Packet Pg. 305 Attachment: Resolution 43-22 Determination that OG Property Owners LLC is not in good faith compliance (3214 : Wilder Annual Review 2023) G.2.c
Packet Pg. 306 Attachment: Resolution 46-22 Determination that OG Property Owners, LLC has not yet brought its actions into good faith compliance (3214 :
G.2.c
Packet Pg. 307 Attachment: Resolution 46-22 Determination that OG Property Owners, LLC has not yet brought its actions into good faith compliance (3214 :
G.2.c
Packet Pg. 308 Attachment: Resolution 46-22 Determination that OG Property Owners, LLC has not yet brought its actions into good faith compliance (3214 :
G.2.c
Packet Pg. 309 Attachment: Resolution 46-22 Determination that OG Property Owners, LLC has not yet brought its actions into good faith compliance (3214 :
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Packet Pg. 310 Attachment: Resolution 46-22 Determination that OG Property Owners, LLC has not yet brought its actions into good faith compliance (3214 :
G.2.d
Packet Pg. 311 Attachment: Resolution 54-22 Wilder Hearing Annual Review (3214 : Wilder Annual Review 2023) G.2.d
Packet Pg. 312 Attachment: Resolution 54-22 Wilder Hearing Annual Review (3214 : Wilder Annual Review 2023) G.2.e
Packet Pg. 313 Attachment: Resolution 58-22 Determination that OG Property Owners LLC (OGLLC) remains out of Compliance with the terms of the G.2.e
Packet Pg. 314 Attachment: Resolution 58-22 Determination that OG Property Owners LLC (OGLLC) remains out of Compliance with the terms of the Orinda Gateway LLC
2894 S. Coast Highway, Unit 11, Laguna Beach, CA 92651
To: David Biggs, City Manager
City of Orinda (“City”)
Cc: Drummond Buckley, Planning Director
Osa Wolff City Attorney
Members, Orinda City Council
From: OGLLC Property Owner, LLC ("OGLLC"), as successor in interest to Orinda Gateway, LLC
Date: August 18, 2023
Re: Annual Review of Wilder Project (August 10, 2022 through August 18. 2023) Introduction
This Annual Review has been prepared pursuant to the Second Amendment and Restatement of the Development and Pre-Annexation Agreement for Gateway Valley (“DA”) recorded as Instrument No. 2005-0221295-00 on June 17, 2005 in the Official Records of Contra Costa County ("Official Records"), as amended by the Third Amendment recorded as Document No. 2006- 0343058-00 in the Official Records on October 26, 2006, the Fourth Amendment recorded as Document No. 2007-0089517-00 in the Official Records on March 28, 2007, the First Administrative Changes recorded as Document No. 2008- 0162761-00 on July 22, 2008, the Fifth Amendment recorded as Document No. 2010-120374-00 on June 17, 2010, the Sixth Amendment recorded as Document No. 2013-0160932-00 on June 25, 2013, the Seventh Amendment recorded as Document No. 2016- 0147103-00 on July 25, 2016, the Second Administrative Change recorded as Document No. 2014-0210432-00 on November 26, 2014, and the Eighth Amendment recorded as Document No. 2018-0119744-00 on July 26, 2018 (collectively, "DA"). The DA sections and conditions below reflect all prior amendments, including the Seventh and Eighth DA Amendments.
Organization of Annual Review
On June 1, 2023, the City informed OGLLC that it had most of the information that it needed to prepare the Staff Report for the City Council's 2023 Annual Review of the DA. Therefore, in lieu of addressing each of the provisions of the DA and related approvals that remain unsatisfied, OGLLC's annual review report may instead state that the areas of noncompliance identified in the City Council's Resolutions and City Council staff reports for the 2022 Annual Review remain.
While certain provisions of the DA may be construed as unsatisfied as of this date pending ongoing discussions, much progress has occurred in the past year. Therefore, in this summary report, OGLLC will highlight the progress as well as describe remaining tasks. An updated “traditional review” of the various provisions of the DA and related approvals will be attached as Exhibit 1.
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Packet Pg. 315 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) Annual Review of Wilder Project
(August 10, 2022 through August 18. 2023)
2 | Page
Efforts Since August 10, 2022
In August 2022, the City determined that OGLLC was out of compliance with its DA. A series of resolutions were passed by the City in support of their determination. The City’s articulated noncompliance concerns which included:
• 2022 Annual Review Report not fully addressing City concerns expressed in August 2022; • Restoring deposit to City for its costs;
• OGLLC providing Insurance Certificates with limits below initially required amounts expressed in the DA, without contacting the City in advance; • Questions related to a Transfer of Interest to an Affiliate; • Concerns related to non-payment of bond premiums;
• Concerns related to the Soils Stockpile and Staging Area; and • Progress on the RMP.
OGLLC immediately established communications with the City Manager and City Staff, and is grateful for the City’s efforts in that continuing endeavor. With respect to the concerns listed above:
• OGLLC has endeavored to respond to all City concerns. • OGLLC has worked out a monthly payment program to ensure City costs are reimbursed. • OGLLC had maintained the initially required liability insurance through July 2022 but has reduced the coverage to respond to the completion of improvements. OGLLC respectfully requests City consider the following:
OGLLC has significantly de-risked the project by installation of some $200 Million of improvements; The insurance requirement should be limited to an aggregate limit of $2 Million for the following reasons:
The $7.6M was established when we were just starting all construction with approximately round $200Million in costs. At present we are just working on punch work items;
OGLLC has no staff or operations onsite;
No major heavy equipment is being used (i.e., no graders, massive dump trucks, etc.);
OGLLC only uses two contractors (Talini and McCall) and both have very limited staff onsite;
In the 18+ years of development activities, OGLLC has not had any claims other than some repairs at the Quarry House.
• OGLLC has supplied the City with salient information related to the Transfer of Interest to an Affiliate.
• OGLLC notes that with respect to the bond premiums: the bond renewal premiums remain overdue, but please note the bonds will not be cancelled. Your interest is protected as the obligee until the contract is satisfied and you release the bond. Further, as the improvements near completion, both the City and OGLLC have been in contact with the bonding entity to discuss releasing the approximately $300,000 cash collateral into an encumbered account that would be used to reimburse both City and contractor costs.
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Packet Pg. 316 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) Annual Review of Wilder Project
(August 10, 2022 through August 18. 2023)
3 | Page
• OGLLC installed site protection measures over the wet winter. We have just received new plans for finalization of the drainage and, as noted in the table below, are initiating that upgrade by 8/31/23.
• OGLLC has initiated discussions with all stakeholders related to the RMP and is currently awaiting a response to our input to a large matrix generated by CDFW. • Additionally, OGLLC continues to work with the City to resolve conservation easement legal descriptions that could impede certain future GHAD maintenance efforts of the central detention facilities.
City List Improvements
As a part of OGLLC returning to DA compliance, on August 17, 2023, and again on August28, 2023, the City prepared a list of improvements that either were completed, not fully completed or required maintenance/other prior to acceptance by the City or GHAD. The following table describes the matter, the City’s third-party engineer’s determination, and OGLLC comment on each of the matters:
City-Identified
Matter by Number
City Representative Comment OGLLC Comment
SUB 9074
1. Bridge #2 – Joint
Sealant
Met with Javier Gutierrez (Talini) – they
completed resealing on Bridges #3 and #4;
not #2 – he plans to complete Bridge #2
and call me to re-inspect for
completion with a week
Completed on August 26, 2023.
2. Sidewalks 27 Bigleaf Rd (Lot 45) Vacant Lot – no
sidewalk
31 Bigleaf Rd (Lot
47) Home built –
sidewalk
COMPLETE
35 Bigleaf Rd (Lot
49) Home in
progress – no
sidewalk.
50 Boeger Ranch Rd (Lot 72) Home in
progress – no sidewalk
7 Paintbrush Ln (Lot 115) Vacant Lot – no
sidewalk
9 Paintbrush Ln (Lot 116) Vacant Lot – no
sidewalk
These six sidewalks are related to custom
lots where the owner/building will be
responsible for construction as part of the
building permit process.
3. Brookside EVA Gates EVAE to Brookside (on Parcel JJ) – swing gates installed on both ends – secure.
Did not check if they work electronically
Complete. New gates were installed in
July 2023.
4. Paintbrush & Big Leaf
EVA Bollards
Paintbrush Ln to Windy Creek Way
(Parcel GGG - EVA 4) – bollard base plate
near Windy Creek end
Bigleaf Rd to Rabble Rd (Parcel CC –
EVA 6) – no bollards, base plate or gates
Complete.
G.2.f
Packet Pg. 317 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) Annual Review of Wilder Project
(August 10, 2022 through August 18. 2023)
4 | Page
5. Grassy Swale -
Paintbrush
ENGEO confirmed by Greg
Hudson/Eric Harrell via email
8-1-23 Missing swale (only
rough graded) on front side of
vacant Lot 131 (18
Paintbrush Ln)
OGLLC understands that P/A
Engineering has revised plans and is
sending to City.
6. Revised Improvement
Plans
Reviewed-OK; awaiting final
stamped/signed PDF copies of the plans
Plan sent to City representative.
7. EVA Repair on
Edgewood connection
Reviewed proposed plan revision –
redlines returned 8-2-23.
2nd submittal 8-15-23; reviewed – OK;
awaiting final stamped/signed PDF
copies of the plans
Plans sent to City representative.
Assuming City approval of plans -
OGLLC will commence work on EVA
repair by first week of September 2023.
8. Subdrain locations at
ballfields
PA Design (via email 8-1-23 from Mark
Woods) provided map and cut sheets.
(prepared 7-3-23) of staking of subdrain
outfall locations for maintenance –
forwarded to ENGEO/GHAD for their
maintenance, also P&R
Complete.
9. Ponds and Erosion
General
Repair of erosion at
Maintenance Road
across from Field #1.
Install erosion mat and
hydroseed.
Cutting and removal of
Cattails and cattail
stalks from 3 detention
ponds on East side of
Wilder Road.
Backfill and compact
depression / ponded
area on the SW side of
the fill site area at top of
the Haul Road.
Red Tail Hawk Staging
Area
Cut drainage swale
starting from approx.
40 lf south of Haul
Road. to the first
existing Drain Inlet
(“D. I”).on the West
side of Wilder Rd.
approx. 300 lf North of
the Haul Rd.
PENDING REVIEW
IN PROGRESS – working with
ENGEO/GHAD - Near completion of all
cattail removal on east bank of ponds
Stockpiled at Staging area – large group of
piles.
PENDING REVIEW
PA Design will be preparing
plan revision for drainage of the
site. Need bigger inlet/pipes;
capture tributary.
Complete. City/GHAD have accepted.
Removal Complete. Hydroseeding
scheduled by 8/31/23.
Bidding cattail removal.
Complete.
Pipe ordered. Contractor on job. Will be
completed by first week in September.
G.2.f
Packet Pg. 318 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) Annual Review of Wilder Project
(August 10, 2022 through August 18. 2023)
5 | Page
Remove and regrade
Haul Road, add soil and
compact, as necessary.
Add D.I.s where
necessary at various
locations at or about
areas by Haul Road.
Establish final grades
at former site for
Restroom Building
and related parking
area. Cut, cap and
bury subs outs.
Regrade the dirt access road to top –
to make it unusable by 4W Drive
Add boulders to restrict offroad
access from Wilder Rd
Cattails/vegetation removed from ponds
may be stockpiled to dry out; off- hauled –
NO burying onsite – Triple (8-14-23)
amount of stockpiled cattails since
7/27/23
Will be initiated by first week in
September.
Will be initiated by first week in
September.
Cleanup and establish
grades where necessary
at existing slope areas on
South side of old
Restroom area. Furnish
and install D.I.s at ends
of 2 existing concrete VDitches that were never
completed and D.I.s in
existing erosion scar,
with 1 D.I. at bottom of
the erosion scar,
connecting to existing
Drain Inlet at center+/-
of the deleted parking /
restroom area.
Furnish and install
drainage system, including
all labor, equipment, and
materials, from top of Fill
site, as determined in field
for the D.I. locationsin
Haul Rd. area. existing Haul
Rd.
Completed.
Under re-construction. Will be
completed by first week in September.
SUB 9074
10. Sidewalk 81 Dairy Creek Ln (Lot 234) No home,
sidewalk damaged
85 Dairy Creek Ln (Lot 236) Partial Home,
sidewalk damaged
Sidewalks were poured and accepted.
Damage caused by home construction.
11. EVA Bollards Windy Creek Way – Wilder Road (Parcel
SSS-EVA #5)
Bollards on both ends
Complete.
G.2.f
Packet Pg. 319 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) Annual Review of Wilder Project
(August 10, 2022 through August 18. 2023)
6 | Page
SUB 9223
12. Swale – Big Rock Verified on the uphill side of Big Rock Rd – depression for collection of runoff
exists; weed covered – no landscape OK
Complete.
13. Grassy Swale -
Fiddleneck
Reviewed proposed plan revision –
redlines returned 8-2-23
2nd submittal 8-15-23; reviewed – OK;
awaiting final stamped/signed PDF
copies of the plans
OGLLC understands PA Civil Engineer
is updating plans. OGLLC will make any
revisions once City has accepted the
plans.
14. Landslide at
EBMUD Road
COMPLETE per 7-28-23 City meeting Complete.
SUB 9224
15. EVA Bollards Coffee Berry Ln to
West Hill Way
(Parcel RRR - EVA
#1) Bollard on
Coffee Berry Ln end
Grassy Hill Way to Twig Ln (EVAE – EVA #2)
Bollard base plate
Tom Cat Way to Monkeyflower Ln (Parcel K
– EVA #3) Bollard base plate
Complete.
As the reader can see, OGLLC is striving to complete all matters by mid- September 2023.
Other Matters of Importance
• Central Retention Ponds
A concerted effort has been ongoing for the past three months to bring the central detention ponds up to a level of functionality that would allow the GHAD to accept the ponds for future ownership and maintenance. OGLLC was informed on 8/17/23 that the cattail and silt removals were complete and acceptable to GHAD representatives and the City’s thirdpart reviewer. OGLLC, in reliance on these representations, will perform erosion control hydroseeding by the first week of September 2023.
The following was received from GHAD consultants on 8/10/23:
“We understand that contractor is wrapping up work within the central detention basins; however, it appears that it is unlikely to be completed prior to the 72-hour noticing period required for the August 15th public board meeting. Additionally, we will need to reinspect the site with the third-party reviewer and complete acceptance letters to include in the staff report to the GHAD Board. The next available meeting the GHAD Board can meet is September 5th, and we would be able to schedule an inspection with the thirdparty reviewer and prepare the acceptance letter in time for posting for the September meeting. Below is an outline of the ideal schedule for the September meeting.
G.2.f
Packet Pg. 320 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) Annual Review of Wilder Project
(August 10, 2022 through August 18. 2023)
7 | Page
August 18th- Preferred deadline for completion of work.
August 21st- Site visit with third-party reviewer sometime during this week verifying completion of work.
August 31st- Deadline for publishing the GHAD agenda for this item with relevant supporting documents.
September 5th- GHAD Board meeting accepting transfer and ownership of the central detention basins (Parcel S).
OGLLC appreciates the opportunity to submit this DA Annual Review Report and looks forward to being deemed back in compliance..
Attachments:
Exhibit 1
G.2.f
Packet Pg. 321 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 8 The DA sections and conditions below reflect all prior DA amendments, including the Seventh and Eighth DA Amendments.
DA Requirements and Actions Reported During 2022-2023 Annual Review Period The timeframe covered in this memo is the period between August 10, 2022 through August 18,2023. The relevant text for each requirement is excerpted (in italics) below. Each section is followed by a report regarding the relevant actions taken by OGLLC during this Annual Review period.
3.8.3 Other Governmental Approvals.
“… Orinda Gateway, LLC shall be solely responsible for complying with all Responsible Agency Regulations and Laws in connection with the development of, or provisions of services to, the Project on OGLLC Lands. Orinda Gateway, LLC shall be solely responsible for applying for and obtaining all Responsible Agency Approvals as may be required from Responsible Agencies necessary for, and paying all Fees of Responsible Agencies in connection with, the development of, or provision of services to, the Project on OGLLC Lands… The City shall be solely responsible for applying for and obtaining all Responsible Agency Approvals as may be required from Responsible Agencies necessary for the Project on EBMUD Lands in accordance with Section 4.3.
OGLLC shall cooperate with the City in such endeavors upon reasonable request made by the City for such cooperation.”
Action Taken 2022-2023:
• The 10-year “Initial Monitoring Period” under the Resource Management Plan (“RMP”) ended in July 2016 (10 years after the commencement of grading operations in July 2006). OGLLC completed its monitoring obligations and provided all final reports to the Responsible Agencies, including those for endangered and threatened species, habitat areas, riparian planting areas, and wetlands areas as well as Wildlife Heritage Foundation’s annual monitoring reports. OGLLC is actively involved with the Responsible Agencies related to OG’s final report and completion of the RMP. • Long Term Landowners of open space preserve areas include East Bay Regional Park District (“EBRPD”), East Bay Municipal Utility District (“EBMUD”), and the Geological Hazards Abatement District (“GHAD”), and the conservation easement for these areas is held by Wildlife Heritage Foundation (“WHF”). OGLLC is working with these groups and various regulatory agencies with the goal of transferring open space preserve areas to the Long-Term Landowners in 2023
• In 2022-2023, OGLLC completed minor improvements and repairs and initiated further work with the Long-Term Landowners on the Grazing Plan, Long Term Management Plan, and financial analyses related to endowments funded into an escrow established in 2006 and formally transferred in full to the National Fish & Wildlife Foundation (“NFWF”) in April 2011. OGLLC has presented its analyses that concluded that the endowments are sufficient and will work with the Responsible Agencies to secure their approvals.
G.2.f
Packet Pg. 322 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 9 • Remaining construction items in the DA related to open space parcels the include following: installing Grazing Plan infrastructure in open space areas (barbed wire fencing, vehicle and pedestrian gates, livestock corrals, watering troughs, etc.), and determining the need for a culvert bridge crossing in the Indian Valley parcel. • WHF conducted an annual inspection of open space parcels on October 7, 2021, and OG received WHF’s observation notes on May 3, 2022. WHF’s noted the following issues:
bull thatch accumulation, unauthorized pedestrian activity, wood chippings from PG&E tree trimming, and unauthorized activity by others (illegal dumping of some trash and debris, unauthorized bike trails, several small holes dug in Indian Valley, and unauthorized locks added to several vehicular gates). OGLLC was unable to identify the persons responsible for the unauthorized activities and continues to remedy the unauthorized activity by removing debris, replacing locks, etc. OGLLC will work with Long Term Landowners to determine appropriate measures to mitigate the issues identified by WHF.
• Throughout the 2022-2023 winter season, OGLLC effectively maintained its erosion control measures for SWPPP compliance and observed the stormwater system performing per specifications.
4.4.3(c) (1-4) Development and Dedication of Community Facilities and Certain Other Benefits and Project Components--EVAs, Fire Roads, Trails and Trailheads “(1) Orinda Gateway, LLC shall dedicate a permanent public easement for public access over all trails, EVAs, paths and trailheads on OGLLC Lands that are identified on Figure A.1, the Conceptual Land Use Plan, and that are not otherwise Dedicated to the City as part of the Community Playfields or the Art & Garden Center. The City retains the discretion to accept such Dedications as set forth in Section 4.4.1.
(2) Obligation to Design and Construct. Orinda Gateway, LLC shall design and construct all trails, EVAs, paths and trailheads and all related improvements and facilities that are identified on Figure A.1, the Conceptual Land Use Plan. The standards of design and construction shall be those stated both in the Infrastructure and Utilities Plan, attached as Appendix D to this Agreement, and in the Development Standards and Criteria attached as Appendix B to this Agreement, assuch trails, paths, trailheads and related improvements and facilities may be modified (including the location) from time to time by the Director of Parks & Recreation in consultation with the City Manager and City Attorney and any affected Long Term Land Owner without requiring modification of this Development Agreement. The trails located within any “Montanera Preserve Areas”(which shall now be referred to as the “Wilder Preserve Areas”) shall be completed by OGLLC prior to the transfer of title to such Wilder Preserve Area to the applicable Long-Term Land Owner.”
8th DA Amendment Section 2.6 Wilder Project Circulation Plan. “Wilder Project Circulation Plan. This Eighth Amendment identifies changes to the Wilder Project’s Circulation Plan that have been implemented since the approval of the Development G.2.f
Packet Pg. 323 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 10 Agreement, the Final Development Plan, the Revised Landscape Master Plan, and Final Maps for the Project as well as other proposed changes to the Project’s circulation system. The Parties agree that, notwithstanding anything to the contrary in the Development Agreement, the Final Development Plan, the Revised Landscape Master Plan, and any other Project Approval, as of the Effective Date of this Eighth Amendment, the document entitled “Wilder 2018 Circulation Plan” (Attachment 1 to this Eighth Amendment) shall govern the location, dimensions, and composition of the Wilder Project’s Circulation Plan. The Parties intend that Attachment 1 replace and supersede all of the provisions of the following documents that identify the components of the Wilder Project’s circulation system: (1) the text, figures, and Appendices of the Development Agreement, (2) the text and figures of the Final Development Plan, and (3) the text and figures of the Master Landscape Plan, approved by the Planning Commission on February 10, 2015, and (4) Tentative Map 9074 and related Final Maps.
The Wilder Project’s Improvement Plans shall be modified to be consistent with Attachment 1 and shall be subject to review and approval of the Public Works Director.
In addition, the Wilder Project’s Signage and Lighting Plan shall be modified to be consistent with Attachment 1 and to ensure pedestrian, bicycle and vehicular safety and wayfinding. The updated Signage and Lighting Plan shall be subject to the review and approval of the Planning Director, in consultation with the Public Works Director, the Director of Parks and Recreation, and East Bay Regional Park District.”
Action Taken 2022-2023: The status of the installation of the sidewalks is discussed below under Section 4.5 (Public Improvements) and the status of the revised Signage and Lighting Plan is discussed below under Condition No. 28. Regarding the T-28 trail, OGLLC will work with EBRPD to determine an appropriate way to address the requirement.
4.5 Public Improvements.
“Orinda Gateway, LLC and the City shall undertake the design, development and installation of, and Orinda Gateway shall Dedicate….the Public Improvements in accordance with the provisions of this Section 4.5.”
Action Taken 2022-2023: As of the date of this report, public improvements required under the Subdivision Improvement Agreement (“SIA”) are complete as follows: Final Maps 9074, 9222, 9223 and 9224 are complete except for the sidewalks adjacent to the lots noted below. OGLCC has completed all in-tract infrastructure, including the joint trench (electrical and cable/fiber optic systems), storm drain, water, and sanitary sewer systems.
EBMUD has accepted the water system, and OGLLC has offered the storm drain system to the GHAD for its acceptance. Central Contra Costa Sanitary Sewer District has indicated they will accept the sanitary sewer system after the City accepts the entirety of Wilder Road. On December 15, 2020, the Council approved extending the SIA through December 31, 2021, to provide sufficient time for OGLLC to complete project closeout tasks (including any punch list items identified by the City, the GHAD or other agencies, closure of the soils disposal site, implementation of the Grazing Plan, etc.) and for builders and individual lot owners to complete the remaining sidewalks that front their homes. As of G.2.f
Packet Pg. 324 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 11 August 18, 2023, 6 custom lot sidewalks remain to be completed. Individual lot owners are all responsible for completing sidewalks, which the City can enforce through the building permit process.
4.9.1 Master CC&Rs.
“Concurrent with submitting an application for City Approval of the first Tentative Map on the Project Site, Orinda Gateway, LLC shall submit a set of Master CC&Rs to apply to the entire Project Site. The Master CC&Rs shall be reviewed and approved prior to City Approval of the Tentative Map. The Master CC&Rs shall include any conditions, covenants or restrictions determined by the City to be reasonably necessary to implement the Conceptual Development Plan and the provisions of this Agreement (provided, however, that the Master CC&Rs shall not be required by City, to include any provision that is inconsistent with the requirements of the California Department of Real Estate in connection with a public report, the Subdivided Lands Act, or the Regulations promulgated thereunder), as well as such other matters Orinda Gateway, LLC may wish to include in the Master CC&Rs which the City determines will not interfere with implementation of the Conceptual Development Plan and the provisions of this Agreement or the Master CC&Rs. Once approved, the Master CC&Rs shall be filed of record by Orinda Gateway, LLC concurrently with recordation of the first Final Map approved for the Project Site that includes the first residential lots. Prior to their recordation, the Master CC&Rs shall be reviewed and approved by the City Manager and the City Attorney, whose signatures shall be affixed to the Master CC&Rs. Compliance with the Master CC&Rs shall be addressed by Orinda Gateway, LLC and reviewed by the City in its annual review of this Agreement pursuant to Article VI hereunder.” Action Taken 2022-2023: OGLLC is in frequent contact with the HOA. To the best of OGLCC’s knowledge, OGLLC is in compliance with all material provisions of the Master CC&Rs, and no amendments have been made during the reporting period. The terms for all OGLLC’s HOA Board seats concluded in December 2019, and the current HOA Board consists solely of Wilder residents.
5.2 Indemnity; Insurance-Liability Insurance.
“Orinda Gateway, LLC shall, at all times during the Term, maintain, or cause to be maintained, liability insurance insuring against bodily injury, property damage and personal injury liability arising out of Orinda Gateway, LLC's activities under this Agreement, with a combined single liability limit of not less than $7,600,000.00 (subject to the CPI) per occurrence, such insurance to be in a Commercial General Liability form with at least the following coverages: (i) deleting any employee exclusion on personal injury coverage; (ii) including employees as additional insureds; (iii) providing for blanket contractual liability coverage, broad form property damage coverage, products completed operations, and owner's protective coverage; (iv) deleting any liquor liability exclusions; and (v) providing for coverage of employers automobile non-ownership liability…. “
Action Taken 2022-2023: OGLLC had maintained the initially required liability insurance through July 2022 but has reduced the coverage to respond to the completion of improvements. OGLLC respectfully requests City consider the following:
G.2.f
Packet Pg. 325 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 12 OGLLC has significantly de-risked the project by installation of some $200 Million of improvements; The insurance requirement should be limited to an aggregate limit of $2 Million for the following reasons:
The $7.6M was established when we were just starting all construction with approximately round $200Million in costs. At present we are just working on punch work items;
OGLLC has no staff or operations onsite;
No major heavy equipment is being used (i.e., no graders, massive dump trucks, etc.); OGLLC only uses two contractors (Talini and McCall) and both have very limited staff onsite;
In the 18+ year of development activities, OGLLC has not had any claims other than some repairs at the Quarry House.
:
5.3 Indemnity; Insurance--Workers' Compensation Insurance.
Orinda Gateway, LLC shall provide, or cause to be provided, Workers' Compensation insurance as required by Laws, together with a contingent employer's liability endorsement in favor of the City, covering employees of Orinda Gateway, LLC and employees of any contractor, subcontractor, agent or representative of Orinda Gateway, LLC.
Action Taken 2021-2022: OGLLC will continue to require all contractors and subcontractors to provide appropriate worker's compensation insurance in favor of the City. Copies of current insurance certificates will be provided to the City.
6.1 Annual Review.
“The City and Orinda Gateway, LLC shall annually review this Agreement, and all actions taken pursuant to the terms of this Agreement with respect to the Project. Such annual review shall be undertaken in accordance with the provisions of this Article VI.” Action Taken 2022-2023: This Report has been prepared in accordance with the provisions of Article VI for the period August 10, 2022, to August 18, 2023.
10.3 Conditions on Orinda Gateway, LLC Right to Transfer. “Subject to the provisions of Section 10.2 above, Orinda Gateway, LLC shall have the right to effect a Transfer, subject to and only upon fulfillment of [certain] terms and conditions…” Action Taken 2022-2023: There has been a Transfer to an Affiliate (as those terms are defined in the DA) because of which Brookside Land Company, LLC is the sole member of OGLLC.
13.1.3 Title to OGLLC Lands.
G.2.f
Packet Pg. 326 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 13 “Orinda Gateway, LLC owns the OGLLC Lands in fee simple absolute, subject to no conditions, covenants, easements, liens, restrictions or other exceptions to title (other than Mortgages) which would make title to the OGLLC Lands unmarketable, or which would otherwise prevent or materially interfere with the performance by the Parties of their rights, duties, and obligations under this Agreement.”
Action Taken 2021-2022: None. No "Transfers" were affected, and OGLLC’s wholly owned subsidiary, OG Property Owner, LLC, remains the current owner. The property remains free from any mechanic's liens and complies with the obligations in this Section.
15.15 Orinda Gateway, LLC Reimbursement Obligations.
“Whenever, under this Agreement, Orinda Gateway, LLC is required to reimburse the City for costs and expenses, Orinda Gateway, LLC shall effect such reimbursement within thirty (30) days after receiving an invoice or demand from the City for the amount of such reimbursement with appropriate substantiation therefore….”
Action Taken 2021-2022: OGLLC has continued to reimburse the City, as required by Section 15.15.
2.3 Trailhead Respite Area. “Notwithstanding anything to the contrary in the Development Agreement, including all Appendices and Project Approvals, the following applies exclusively to the design and construction of a “Trailhead Respite Area” on a portion of the approximately 4.5- acre area that was formerly the site of the Art & Garden Center…” Action 2019-2020: City staff, EBRPD, and OGLLC have finalized the details for the Trailhead Staging Area, which is now named the Red-tailed Hawk Staging Area. EBRPD has approved all design elements for the Staging Area, and OGLLC has building permits necessary for construction. OGLLC will work with City staff and EBRPD on an acceptable resolution to this requirement.
2.4 Soil Disposal Area. “OGLLC shall have the right to place soil, generated solely from grading activities within the Wilder site, on the area depicted on Attachment 4 (“Soil Disposal Area”), which was formerly the site of the Art & Garden Center Action Taken 2022-2023: Soils disposal has been terminated. OGLLC continues to comply with all grading permit requirements for the Soil Disposal Area, including those related to SWPPP compliance. OGLLC continues to work with the constituent parties towards a resolution of remaining issues including grading and ownership of the parcels.
2.14 Lot Development Tracking Tool.
Table B.3 of Appendix B to the Development Agreement, entitled “Lot Database and FAR Analysis,” is hereby deleted and shall have no further force or effect. Section 6.2 of the Development Agreement is hereby amended to add the following requirement: “As part of the Annual Review submission, OGLLC shall submit a summary table identifying the current status of all 245 lots in Wilder, including, to the extent that the information is reasonably available to G.2.f
Packet Pg. 327 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 14 OGLLC, the following: (a) Lot Number (b) Lot Type (A-D), (c) current owner, (d) status of design review, (d) status of development, (e) if construction has commenced, the adjusted floor area of the home, (f) the use of any open space bonus, and (g) the use of any approved floor area transfer to/from the home.”
Action Taken 2022-2023: Since approval of the Seventh DA Amendment, OGLLC and City staff have maintained and regularly updated the Lot Tracking Tool as a jointly accessible Google Sheet. This information sharing between City staff and OGLLC has proven valuable. A summary of lot closings, home construction, and occupancies is provided in the Project Summary section below. OGLLC and City staff have also continued their meetings, and recently retained a third-party engineer to ensure timely and effective communications.
DA Appendix D, Section E.7
Trailheads at the Community Playfields and the Art & Garden Center shall be provided with a domestic water supply. The location and type of water supply shall be integrated with the design of the parking areas.
Action Taken 2021-2022: Domestic water has been provided and accepted for the Community Playfields and Art & Garden Center.
DA Condition of Approval Compliance
On March 15, 2005, the City Council imposed certain conditions of approval on the DA. The following excerpts each relevant condition and reports on the action taken in compliance with that condition. Only the remaining COAs are addressed below:
7. “ OGLLC shall provide the City with copies of all permits and/or approvals issued by other public agencies, or amendments to any such permits or approvals, as they apply to development of the Project site, including permits or approvals issued by the following agencies:
A. East Bay Municipal Utility District;
B. Pacific Gas and Electric Company;
C. California Public Utilities Commission;
D. Central Contra Costa Sanitary District;
E. Contra Costa County;
F. United States Army Corps of Engineers;
G. United States Fish and Wildlife Service;
H. United States Environmental Protection Agency;
I. San Francisco Bay Area Regional Water Quality Control Board; J. California Department of Fish and Game; and
K. California Department of Transportation.
OGLLC shall furnish the aforementioned copies of permits and/or approvals to the City within 30 days of issuance.”
G.2.f
Packet Pg. 328 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 15 Action Taken 2022-2023: None to report.
28. “OGLLC shall provide appropriate signage and lighting to guide Project residents and the public from the private roads and driveways to the recreational trails within the Project. Details of signage and lighting shall be included in the FDP(s) and Tentative Map(s), subject to Planning Commission review and approval.”
Action Taken 2022-2023: The City and OGLLC, with input and cooperation from EBRPD, will review and update the Signage and Lighting Plan for the project to ensure the signage and lighting ensure clear wayfinding and pedestrian/bicycle and driver convenience and safety. EBRPD has agreed to the conceptual designs, and OGLLC will work with the City and EBRPD on its final implementation.
29. “OGLLC shall provide adequate landscaping, emphasizing native plants and irrigation, in all open spaces including the community playfields, pocket parks, rosewalks, landscaped open space areas and the area inside the cul-de-sac turnarounds. All landscaping and irrigation details shall be submitted to the City for review and approval and the appropriate stage in the development process, as determined by the Planning Director. “
Action Taken 2022-2023: OGLLC completed all landscaping plans and installed landscaping to comply with Landscape Master Plan (“LMP”) guidelines. In May 2020, OGLLC entered into an agreement with the HOA to enhance landscaped areas throughout Wilder, and the HOA Board has acknowledged that OGLLC is in full compliance with the LMP given that OGLLC has completed all the enhancements. In 2023, OGLLC has responded to certain HOA requests to fortify landscape and/or enhance drainage.
36. “On or before the times set forth below, OGLLC shall install trees and/or landscaping and a temporary irrigation system permanent irrigation system in the rear transition area along the rosewalks and other improved open space areas (“Transition Landscaping” ), after grading and prior to the construction of the adjacent homes, to the extent that such installation does not conflict with proposed construction activities in the surrounding areas. For any location where a permanent irrigation system is required under the approved landscaping plans and cannot be installed at the time that Transition Landscaping is installed, OGLLC shall install a temporary irrigation system or other appropriate option to maximize survival in drought conditions. The Planning Director may approve an extension of the dates by which the Transition Landscaping shall be installed in the areas encompassed by the following Final Maps…” Action Taken 2022-2023: Transition Landscaping is complete in all Final Map areas, and OGLLC installed additional trees and groundcover in all HOA-maintained areas as requested by the HOA’s Board of Directors. The HOA Board has acknowledged that OGLLC is in full compliance with the LMP given that OGLLC has completed all the enhancement work. In 2023, OGLLC has responded to certain HOA requests to fortify landscape and/or enhance drainage.
G.2.f
Packet Pg. 329 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) EXHIBIT 1 TO ORINDA GATEWAY ANNUAL DEVELOPMENT AGREEMENT REVIEW 16 Compliance with Applicable Final Development Plan (FDP), Vesting Tentative Map (VTM) November 2005 Conditions of Approval
Action Taken 2022-2023: None in 2023. Pursuant to the Seventh DA Amendment, all FDP/VTM conditions are no longer applicable to the construction of new homes. OGLLC is in substantial compliance with all FDP and VTM Conditions of Approval.
Compliance with 2005 SSMMRP
Note: Based on a comprehensive review of the 2005 SSMRMP, all SSMRMP measures have been fully satisfied to the best of OGLLC’s knowledge or fully incorporated into other enforceable permits and approvals such that this separate review will no longer be necessary going forward. An annotated copy of the SSMRMP has been provided to City staff for file and future reference.
Other Actions & General Compliance with Standards of DA OGLLC has continued to work cooperatively with the City, the Resource Agencies, and EBMUD to complete the requirements of the DA and its Appendices as well as compliance with applicable regulations from other agencies.
Historical Information from previous Annual Review Periods:
The information in the 2022 annual report is included by reference.
The following is a summary of the information in the draft Lot Development Tracking Tool that is on file with City staff as of August 10, 2022:
Project Summary
Total Lots: 245
Lots Closed: 245
Home Status (as reported by HOA
Completed Homes: 230
Homes Under Construction: 9
Empty lots: 6
Occupied Homes: 229
New Home Design Review Applications:
Landscape design: 26
Architectural design: 3
G.2.f
Packet Pg. 330 Attachment: OGLLC DA Annual Review Report - 2023 (3214 : Wilder Annual Review 2023) City Council
Staff Report
Agenda Item: H.1
Date: September 19, 2023
Department: Administration
AGENDA TITLE: Moraga Orinda Fire District Ordinance 23-08 RECOMMENDATION:
Receive Report, Discuss, and Provide Direction, if any.
BACKGROUND: On September 5, 2023, the City Council reviewed MOFD proposed Ordinance 28-08, staff report, and attachments (Attachment A). The Council opted to provide a comment letter to the MOFD Board, which is attached as Attachment B. That letter was provided to the Fire Board for their Special Meeting on September 6th.
The Fire Board considered written and oral comments and introduced Ordinance 23-8 at that meeting including a number of minor modifications including clarifying trees less than fifteen (15) feet would require limbing up one-third of their height and allowing maintenance of clusters of non-irrigated brush with separation. In addition, the Fire Chief indicated they would continue to address the concerns raised including:
• Developing a list of best management practices with templates/model drawings on the North Orinda Shaded Fuel Break to share with the community; • Making Fire District contractors/consultants like biologists/geologists available for a fee to assist residents;
• Will develop and provide a list of firms/consultants familiar with the requirements and area to assist residents;
• Will develop a Modification Guide with templates, including information of how multi-year efforts can be approved; and,
• They will host a community forum to better explain the requirements in Ordinance 23-08 (Since that time Chief Winnacker has shared that they will initially be providing a recorded on demand workshop soon and will host a community forum later in the year given scheduling concerns).
The MOFD Board will be considering the adoption of Ordinance 23-08 at their regular meeting of September 20, 2023. This item is being presented to update the City Council and to provide another opportunity for Council comments to be shared, if any, with the Fire Board prior to adoption.
NEXT STEPS: Should the Council have any additional comments to share with the Fire Board, those will be forwarded to them prior to their September 20th meeting.
FISCAL IMPACT: None as a result of this item.
H.1
Packet Pg. 331
ATTACHMENTS:
A. Staff Report for City Council Meeting of September 5, 2023 B. City of Orinda's Comments to MOFD Proposed Ordinance 23-08 Respectfully Submitted by:
David Biggs
City Manager
Prepared By: Sheri Smith, City Clerk
Approved by:
H.1
Packet Pg. 332
City Council
Staff Report
Agenda Item: H.1
Date: September 5, 2023
Department: Administration
AGENDA TITLE: Moraga Orinda Fire District Proposed Ordinance 23-08 Regarding Fuel Break Requirements on Certain Parcels in Both the State Responsibility and Local Responsibility Areas within the Fire District
RECOMMENDATION:
Receive Report, Discuss, and Provide Direction, if any.
BACKGROUND:
The Moraga Orinda Fire District Board will be considering introduction of proposed Ordinance 23-08 at a special meeting noticed for Wednesday, September 6th to replace Ordinance 23-04, which was adopted by the Fire Board on February 15, 2023. As the District’s special meeting notice became available on Thursday, August 31, 2023, and it invites comment, Mayor Miller requested that the Council be provided with the information to determine if the City has any comments.
MOFD Ordinance 23-04, and companion Ordinance 23-03 placed existing MOFD fire fuel mitigation and fuel break provisions into stand-alone Ordinances, separate from local amendments to the State Fire Code contained in MOFD Ordinance 23-01. This was a matter brought to the attention of the City Council during their consideration at the time the Council ratified the MOFD’s local Fire Code amendments on March 7, 2023.
The City did not comment at that time as the then presented Ordinances substantially conformed to what was previously ratified by the Council in 2020. It should be noted that these MOFD Ordinances do not require ratification by the City Council as local amendments to the Fire Code do.
A quick review by Staff of the Proposed MOFD Ordinance 23-08 identified that there are some changes to the operative sections of Definitions; Fuel Breaks to Protect Against Uncontrolled Wildfire Spread; and an expanded section on Modifications. Other changes could be considered as being additional findings in support of the Ordinance and clarifications.
NEXT STEPS:
Any feedback from the City Council because of this item will be shared with the Fire Board.
FISCAL IMPACT: None as a result of this item.
ATTACHMENTS:
H.1.a
Packet Pg. 333 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) A. Proposed MOFD Ordinance 23-08
B. MOFD Ordinance 23-04
C. MOFD Ordinance 23-03 (weblink to MOFD website)
D. MOFD Ordinance 23-01 (weblink to MOFD website)
E. March 7, 2023 Orinda City Council Meeting Minutes (weblink) F. March 7, 2023 Orinda City Council Agenda Packet (weblink) Respectfully Submitted by:
David Biggs
City Manager
Prepared By: Sheri Smith, City Clerk
Approved by:
H.1.a
Packet Pg. 334 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 1 ORDINANCE NO. 23-08
AN ORDINANCE OF THE MORAGA-ORINDA FIRE DISTRICT OF CONTRA COSTA
COUNTY, CALIFORNIA, ADOPTING REQUIREMENTS FOR FUEL BREAKS ON
CERTAIN PARCELS IN BOTH THE STATE RESPONSIBILITY AND LOCAL
RESPONSIBILITY AREAS WITHIN THE FIRE DISTRICT, ADOPTING FINDINGS OF
FACT REGARDING FIRE HAZARDS IN THE FIRE DISTRICT, ADOPTING FINDINGS OF
EXEMPTION UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, AND REPEALING ORDINANCE 23-04.
The Board of Directors, as the governing body of the Moraga-Orinda Fire District (“Fire District”), does ordain as follows:
SECTION 1. AUTHORITY
This Ordinance is authorized by state statutes and regulations, including but not limited to Public Resources Code Sections 4117 and 4290, Health and Safety Code Sections 13801, 13804, 13861, 13862, and 13870, Government Code Section 51175, and Title 14, California Code of Regulations, Section 1270.05.
SECTION 2. FINDINGS OF FACT
(a) The California Legislature has declared the following, at Government Code section 8654.2(a):
Catastrophic threats exist to lives, property, and resources in California, including wildfire. Climate change, an epidemic of dead and dying trees, and the proliferation of new homes in the wildland urban interface magnify this threat and place substantially more people and property at risk than in preceding decades. More than 25 million acres of California wildlands are classified as under very high or extreme fire threat, extending that risk to over one-half of the state. (b) The California Legislature has further declared the following, at Government Code section 51175(a):
Wildfires are extremely costly, not only to property owners and residents, but also to local agencies. Wildfires pose a serious threat to the preservation of the public peace, health, or safety. The wildfire front is not the only source of risk since embers, or firebrands, travel far beyond the area impacted by the front and pose a risk of ignition to a structure or fuel on a site for a longer time. Since fires ignore civil boundaries, it is necessary that cities, counties, special districts, state agencies, and federal agencies work together to bring raging fires under control. Preventive measures are therefore needed to ensure the preservation of the public peace, health, or safety.
H.1.a
Packet Pg. 335 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 2 (c) In adopting AB 3074 in 2020, the California Legislature made, among others, the following findings:
i. Catastrophic wildfires pose an urgent threat to lives, properties, and resources in California. The state experienced the deadliest and most destructive wildfires in its history in 2017 and 2018. Fueled by five years of drought, unprecedented buildup of dry vegetation, and extreme winds, the size and intensity of recent wildfires caused the loss of more than 100 lives, the destruction of tens of thousands of homes and businesses, and the exposure of millions of urban and rural Californians to unhealthy air. Compared with fire activities in 1986, recent wildfires in the western United States have occurred nearly four times more often, burned more than six times the land area, and lasted almost five times as long.
ii. Climate change, an epidemic of dead and dying trees, a century of fire exclusion, and the proliferation of new homes in the wildland-urban interface magnify this threat and place substantially more people and property at risk than in preceding decades.
More than 25,000,000 acres of California wildlands are classified as under very high or extreme fire threat, extending that risk over one-half of the state. More than 2,000,000 California households and approximately one in four residential structures in California are located within or near “high” or “very high” fire hazard severity zones identified on maps drawn by the Department of Forestry and Fire Protection. iii. Certain populations in the state are particularly vulnerable to wildfire. These Californians live in communities that face near-term public safety threats given their location and geography. Some residents in these areas are made further vulnerable due to factors such as age and lack of mobility. The tragic loss of life and property in the Town of Paradise during the 2018 Camp Fire demonstrates that vulnerability. (d) Public Resources Code Section 4290, adopted in 1987, requires the Board of Forestry and Fire Prevention (“the Board of Forestry”) to adopt regulations implementing minimum fire safety standards in State Responsibility Areas, including regulations requiring fuel breaks, green belts, and signs for identifying streets, roads, and buildings. In 2018 the Legislature amended Section 4290 to require that the regulations also apply to areas within Local Responsibility Areas classified as very high fire hazard severity zones. Section 4290(c) provides that such regulations will not supersede more restrictive local regulations that equal or exceed the state regulations.
(e) In accordance with Public Resources Code Section 4290, the Board of Forestry has adopted regulations implementing such minimum fire safety standards. These regulations, established in the California Code of Regulations, Title 14, Sections 1270.00-1276.05 (“the Fire Safe Regulations”), include standards for fuel breaks as specifically mandated by Public Resources Code Section 4290(b), which states that the Board of Forestry shall, on and after July 21, 2021:
Periodically update regulations for fuel breaks and greenbelts near communities to provide greater fire safety for the perimeters to all residential, commercial, and industrial building construction within state responsibility areas and lands classified and designated as very high fire hazard severity zones, as defined in subdivision (i) of Section 51177 of the Government Code, after July 1, 2021.
H.1.a
Packet Pg. 336 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 3 (f) In adopting the minimum fire safety standards, the Fire Safe Regulations provide the following:
i. The Fire Safe Regulations define “Defensible Space” as the area within the perimeter of a parcel, Development, neighborhood or community where basic wildland fire protection practices and measures are implemented, providing the key point of defense from an approaching Wildfire or defense against encroaching Wildfires or escaping Structure fires. The perimeter as used in this regulation is the area encompassing the parcel or parcels proposed for construction and/or Development, excluding the physical Structure itself. The area is characterized by the establishment and maintenance of emergency vehicle access, emergency water reserves, Road names and Building identification, and fuel modification measures.
Cal. Code of Regulations, title 14, section 1270.01(f). ii. The Fire Safe Regulations define “Fuel Break” as a strategically located area where the volume and arrangement of vegetation has been managed to limit fire intensity, fire severity, rate of spread, crown fire potential, and/or ember production. Cal. Code of Regulations, title 14, section 1270.01(n). iii. The Fire Safe Regulations define “Greenbelts” as open space, parks, wildlands, other areas, or a combination thereof, as designated by Local Jurisdictions, which are in, surround, or are adjacent to a city or urbanized area, that may function as Fuel Breaks and where Building construction is restricted or prohibited. Cal. Code of Regulations, title 14, section 1270.01(o). iv. The Fire Safe Regulations provide a procedure whereby persons impacted by the Fire Safe Regulations may request an Exception from the Fire Safe Regulations requirements. Cal. Code of Regulations, title 14, section 1270.07. An Exception is defined as an alternative to the specified standard requested by the applicant that may be necessary due to health, safety, environmental conditions, physical site limitations or other limiting conditions, such as recorded historical sites, that provides mitigation of the problem. Cal. Code of Regulations, title 14, section 1270.01.
(g) Pursuant to a Notice of Exemption filed on August 19, 2022, the California Board of Forestry and Fire Protection determined, among other things, that the Fire Safe Regulations setting standards for fuel breaks and greenbelts near communities were categorically exempt from the California Environmental Quality Act (CEQA) as actions by regulatory agencies to protect natural resources and the environment. The Notice of Exemption stated, in pertinent part:
The proposed regulatory amendments are intended to minimize structure fires and wildfire that lead to environmental and natural resources impacts, including loss of vegetation and biodiversity; erosion, landslides, and debris flows; adverse air quality, climate change, and water quality impacts; and contaminated and hazardous material disposal challenges. These environmental and natural resources effects can also lead to public health impacts.
H.1.a
Packet Pg. 337 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 4 (h) The California Department of Forestry and Fire Protection has also declared that the regulation of hazardous fire areas in accordance with Public Resources Code section 4290 is categorically exempt from CEQA as actions by regulatory agencies for protection of natural resources or protection of the environment. Cal. Code of Regulations, title 14, section 1153(c).
(i) Fuel breaks are a critical tool intended to reduce fire spread rates and intensity to allow the timely containment of wildfire. By interrupting the continuity of the fuel beds through which fire spreads, their presence decreases the potential for small fires spreading to the lands of another and slows the rate at which large fires travel, buying time for orderly evacuations and the aggregation of an effective firefighting response for the protection of lives and structures.
(j) On October 27, 2021, the California Department of Forestry and Fire Protection (“CAL FIRE”) delegated to the Moraga-Orinda Fire District the authority to inspect and enforce the Fire Safe Regulations promulgated under Section 4290. The standards for fuel breaks in this Ordinance are consistent with that delegation and with the provisions of Public Resources Code Sections 4117 and 4290(c). The standards for construction of fuel breaks in this Ordinance are also consistent with the standards for construction of fuel breaks as outlined in the Fire Safe Regulations, which are as follows:
i. The volume and arrangement of vegetation in a Fuel Break shall be managed to limit fire intensity, fire severity, rate of spread, crown fire potential, and/or ember production. Cal. Code of Regulations, title 14, section 1270.01(n). ii. Fuel Breaks shall be constructed using the most ecologically and site appropriate treatment option, such as, but not limited to, prescribed burning, manual treatment, mechanical treatment, prescribed herbivory, and targeted ground application of herbicides. Cal. Code of Regulations, title 14, section 1276.03(f). (k) Pursuant to Section 4117 of the Public Resources Code, which provides that fire prevention districts may adopt ordinances providing fire prevention regulations that are necessary “to meet local conditions of weather, vegetation, or other fire hazards,” the Board of Directors of the Fire District finds that the fuel break standards in this Ordinance are necessary in light of the wildfire hazards created by the following local conditions and environmental concerns.
i. Weather/Climactic Conditions
A. Discussion
The Fire District is the gateway to central Contra Costa County. It is located amongst rolling hills and valleys created by the Berkeley/Oakland hills to the west and open plains of central Contra Costa County to the east. Due to its location, the Fire District’s climate is more varied than that of its neighbors. The Fire District receives slightly more rainfall than areas further inland and often, during the summer months, portions of the Fire District are enveloped in fog as the heat in the Central Valley draws cool air in from the San Francisco Bay. However, the Fire District also experiences the hot, dry summer weather that is characteristic of central Contra Costa County’s H.1.a
Packet Pg. 338 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 5 Mediterranean Climate. This climate is suited to native grasslands, chaparral, oaks and other indigenous plant species for the area. The milder climate encouraged early development in the Fire District, resulting in the construction of primarily residential areas surrounded by large numbers of non-native plant species. Due to the systematic exclusion of naturally occurring fire for over 100 years and a reduction in historical grazing activity as pasture has been developed, these native and non-native plant species have created significant fuel loads throughout the Fire District. Due to the location of the Fire District Hills, in the fall, the hot dry summer weather with maritime influence cooling in the evenings, gives way to Diablo Wind events characterized by high winds from the northeast and very low relative humidity. These conditions have contributed to major fire loss in the region and throughout the state with 17 of the 20 most destructive fires in California history occurring in the fall. Due to climate change caused disruptions to historical weather patterns, the Fire District is exposed to more of these wind events as a result of delayed onset of seasonal rains, thus increasing the risk of major fires.
In September 1923, during critical climatic fire conditions characterized by hot, dry Diablo winds out of the northeast a fire started in the wilderness lands of the Fire District’s northern area. This fire spread into the city of Berkeley and within two hours was consuming houses within the City limits. A total of 130 acres in the built environment burned causing the destruction of 584 buildings with roughly 30 others seriously damaged.
At this time, this was the most destructive fire in California history.
In September 1970, during critical climatic fire conditions characterized by hot, dry Diablo winds out of the northeast, a fire started along Fish Ranch Road and Grizzly Peak on the District’s western boundary. This fire rapidly spread into the surrounding neighborhoods of Oakland burning 400 acres and destroying 37 homes. An additional 18 homes were badly damaged before the fire was brought under control.
In August 1988, during maritime influence winds out of the west, a small fire started near Crestview in Lost Valley and within minutes destroyed 5 homes. This fire’s spread rate was increased by the prevalence of light flashy fuels, and steep slopes in alignment with strong winds.
In October 1991, during a Diablo wind event a disastrous firestorm burned through the Oakland hills from an ignition point just west of the Fire District’s border. Within the first few hours, thousands of people were evacuated. Ultimately over 3,000 dwelling units were destroyed in what replaced the 1923 fire as the most destructive fire in California history.
On October 27th, 2019, sustained single digit relative humidity and 30+ mph winds created explosive fire conditions throughout the region. On the same day that the Kincaide fire burned in Sonoma County, five major fires broke out in Contra Costa County. Three of these fires burned in proximity to the Fire District in Lafayette, Crockett, and Martinez and resulted in the depletion of available mutual aid resources as available firefighting units were committed to each new fire. Each of these fires included rapid spotting ahead of the main body of fire, allowing progression across significant features such as State Highway 24 and State Highway 4.
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Packet Pg. 339 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 6 Throughout the Fire District, homes are surrounded by heavy vegetation with interspersed open areas, creating a semi-rural character. The resulting exposure to wildfire risk is increased by the desiccating effects of low humidity, high wind conditions during the fire season. During May to October, critical climatic fire conditions regularly occur when the temperature exceeds 80F, wind speed is greater than 15 mph, fuel moisture is less than or equal to 10 percent, wind direction is from north to the east-southeast and the ignition component is 65 or greater. These conditions occur more frequently during the fire season but this does not preclude the possibility that a serious fire could occur during other months of the year.
The critical climate fire conditions create a situation conducive to fast moving wind driven fires that may overwhelm firefighting resources due to their speed. Fires starting in the wildland areas along the northern border of the district are likely to move rapidly southward into the populated areas creating the potential for significant property loss and a very challenging evacuation problem.
B. Summary.
Local climatic conditions of limited rainfall, low humidity, high temperatures and high winds during the fall months, combined with existing building construction and high fuel load landscaping create extremely hazardous fire conditions that adversely affect the potential fire line intensity, spread rates, and size of fires in the Fire District. The same climatic conditions may result in the concurrent occurrence of multiple fires in the Fire District or throughout the region resulting in inadequate fire department personnel to protect against and control these fires.
ii. Vegetative Conditions
A. Discussion.
The Fire District is situated in a fire dependent landscape with a natural fire return interval of three to five years. Due to the exclusion of fire and the planting or establishment of of non-native species, many of which are not fire resistant, significant vegetative fuel loading is present in both the developed areas of Moraga, Orinda, Canyon, and Bollinger Canyon and the watershed and parklands surrounding the community.
Many of these areas also border the developed areas of surrounding communities. Prior to the exclusion of fire and development of residential subdivisions, the natural landscape was characterized by a varied fuel mosaic, with multi-age class vegetation. The current landscape is dominated by overgrown mature vegetation with high dead fuel levels.
This vegetation can be characterized in the following fuel types:
Fuel Model 1: Short Grass. The fine, very porous, and continuous herbaceous fuels that have cured or are nearly cured govern fire spread. These are surface fires that move rapidly through the cured grass and associated material. Very little shrub or timber overstory is present, generally less than 1/3 of the area. Both annual and perennial grasses are included; grasslands and savannas are represented along with grass-shrub combinations that meet the above area constraint.
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Packet Pg. 340 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 7 Fuel Model Values for Estimating Fire Behavior
Total Fuel Load, < 3-inch dead & live 0.74 tons/acre
Dead Fuel Load, 0 - ¼-inch 0.74 tons/acre
Live fuel Load, foliage 0 tons/acre
Fuel Bed Depth 1.0 feet
Fuel Model 2: Grass with Timber/Shrub Overstory. Fire spread is primarily through the fine herbaceous fuels, either curing or dead. These are surface fires where the herbaceous material, in addition to the litter and dead/down stem and branch wood from the open shrub and/or timber overstory, contribute to the fire intensity. Open shrub lands or pine/oak/dry Douglas-fir stands that cover 1/3 to 2/3 of the area may generally fit this model; such stands may include clumps of fuels that generate higher intensities and that may produce firebrands.
Fuel Model Values for Estimating Fire Behavior
Total Fuel Load, < 3-inch dead & live 4.0 tons/acre
Dead Fuel Load, 0 - ¼-inch 2.0 tons/acre
Live fuel Load, foliage 0.5 tons/acre
Fuel Bed Depth 1.0 feet
Fuel Model 4: Mature Brush. Fire intensity and fast-spreading fires involve the foliage and live and dead fine woody material in the crowns of a nearly continuous secondary overstory. Stands of mature shrubs, 6 or more feet tall, such as California and Oregon mixed chaparral with flammable (volatile) foliage and a significant dead component fit this model. A deep litter layer may also be present.
Fuel Model Values for Estimating Fire
Total Fuel Load, < 3-inch dead & live 13.0 tons/acre
Dead Fuel Load, 0 - ¼-inch 5.0 tons/acre
Live fuel Load, foliage 5.0 tons/acre
Fuel Bed Depth 6.0+ feet
Fuel Model 10: Mature/Overmature Timber and Understory. Fires will burn in the surface and ground fuels with greater intensity than the other timber litter models.
Dead-down fuels include greater quantities of 3-inch or larger limb wood resulting from over maturity or natural events that create a large load of dead material on the forest floor. Crowning out, spotting, and torching of individual trees is more frequent in this fuel model. Any forest type may be considered if heavy down material is present.
Fuel Model Values for Estimating Fire Behavior
Total Fuel Load, < 3-inch dead & live 12.0 tons/acre
Dead Fuel Load, 0 - ¼-inch 3.0 tons/acre
Live fuel Load, foliage 2.0 tons/acre
Fuel Bed Depth 1.0 feet
Lighter grass fuel models support fast moving fires due to the availability of fine fuels, while heavier brush and timber fuel models support slower spread rates with higher fire line intensity and increased spotting. The mix of these fuel models in and around the Fire District, make it likely that a fire will be both fast moving through light fuels with H.1.a
Packet Pg. 341 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 8 high intensity, ember producing pockets of heavy fuels. Once fire enters the built environment, older structures may provide the fuel capable of carrying the fire through both ground component structure to structure spread supported by radiant heat and wind driven ember cast. In these cases, the presence of fuels with horizontal and vertical continuity is needed to sustain rapid fire spread. Disrupting the continuity of these fuels through fuel management can mimic the natural state of a varied fuel mosaic, resulting in lower spread rates and additional time for the evacuation of residents and the aggregation of an effective fire fighting force from throughout the region. With additional time and additional resources, wildfire outcomes can be managed to reduce the risk to lives, property, and the environment.
B. Summary.
Vegetation has developed and dead vegetation has accumulated in a manner that supports rapid wildfire spread. Vegetation management practices can mimic the natural state and reduce the potential for destructive wildfire. iii. Other Fire Hazards
A. Geological Conditions
1. Discussion.
The Fire District is in a region of high seismic activity with the Hayward fault running just west of its border. The San Andreas fault is farther to the west and the Calaveras fault to the east. All three faults are known to be active as evidenced by the damaging earthquakes they have produced in the last 100 years and can, therefore, be expected to do the same in the future. Of primary concern to the Fire District is the Hayward Fault, which has been estimated to be capable of earthquakes exceeding a magnitude of 7.0 on the Richter scale. A large number of underground utilities cross the fault, including major water supply lines. Intensified damage during an earthquake may be expected in slide areas, as well as residential hillside areas located within or near the fault zone; some areas are steep and have previously been subjected to slides.
Additional potential events following an earthquake include broken natural gas mains and ensuing fires in the streets; building fires, as the result of broken service connections; trapped occupants in collapsed structures; and requirements to render first aid and other medical attention to a large number of residents.
2. Summary
Local geological conditions include high potential for seismic activity. The Fire District is made up of built up suburban areas having buildings and structures constructed near three major fault systems capable of producing major earthquakes, the modifications cited herein are intended to better limit life safety hazards and property damage in the aftermath of seismic activity.
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Packet Pg. 342 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 9 B. Topographical Conditions
1. Discussion.
The Fire District has many homes that are reached by narrow and winding paved streets which hamper access for firefighting resources and provide limited evacuation capacity for residents. In addition, many of the hillside homes are in outlying areas that require longer response times for the total required firefighting force. El Toyonal, Sleepy Hollow, the Downs and other areas with limited access via narrow and winding streets may face the problem of isolation from the rest of the Fire District and will suffer from the need for two-way traffic as evacuation and suppression response travel in opposite directions over limited roadways.
Effective road widths are further reduced by encroaching vegetation and midslope roads built without shoulders. This is particularly pronounced in older neighborhoods of North Orinda, some of which were laid out in the 1920s when vehicles were smaller, codes less stringent, and the areas total development potential was not considered.
Due to steep slopes that characterize many areas of the Fire District, the establishment of additional infrastructure to support adequate fire protection needs is not feasible. It is difficult to widen existing streets to meet present standards for emergency operations. Older areas of the fire district have also been identified as having inadequate firefighting water supply due to less stringent codes in effect when they were developed.
Portions of the Fire District have limited roadways that delay the response of emergency equipment to carry out the extinguishment of a fire. This delay will allow a fire to increase in area and build momentum until firefighting resources can access the area.
2. Summary.
Local topographical conditions include hillside housing with many narrow and winding streets with slide potential for blockage and limited firefighting water supply.
These conditions create the potential for delays in responding when a major fire or earthquake occurs. Many situations will result in limiting or total blockage of fire department emergency vehicular traffic, overtaxed fire department personnel and a lack of resources for the suppression of fire in both structures and vegetated areas in the Fire District.
C. Communities at Risk
The California Department of Forestry and Fire Protection, Fire and Resource Assessment Program, has produced a publication entitled, “Communities at Risk from Wild Fires,” pursuant to the National Fire Plan, federal Fiscal Year 2001 Department of the Interior and Related Agencies Appropriations Act (Public Law 106-291). https://osfm.fire.ca.gov/divisions/community-wildfire-preparedness-and-mitigation/fireH.1.a Packet Pg. 343 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 10 plan/communities-at-risk/. This publication identifies communities within the State of California that are at high risk of damage from wildfire.
The publication identifies communities at risk that lie within the District’s boundaries, and communities at risk that are adjacent to the District’s boundaries. (j) Environmental Damage
i. Uncontrolled wildfire causes significant environmental impacts in the Fire District.
These impacts include loss of vegetation and biodiversity; the potential for post fire erosion, landslides, and debris flows; adverse air quality, increased greenhouse gases (GHGs), climate change, and water quality impacts; and contaminated and hazardous material disposal challenges. These impacts in turn can damage and sometimes destroy local natural resources.
ii. Wildfires are inevitable in a fire dependent ecosystem such as California. They often occur and spread unexpectedly and with surprising speed. They cause immense damage every year, putting lives and property in clear and imminent danger. In the absence of measures to manage outcomes, wildfire is likely to lead to structure loss and damage to the environment as a result of uncontrolled fast moving and high intensity fires. As stated under Sections 2(a), 2(b) and 2(c) of this Ordinance, the California Legislature has found that “Catastrophic wildfires pose an urgent threat to lives, properties, and resources in California.” Since October 30, 2015, the State has been under a Governor’s State of Emergency Proclamation due to the increased risk of wildfires related to vast tree mortality.
In addition, according to the California Office of Emergency’s website, the State is currently under twenty-four separate State of Emergency Proclamations issued by the Governor related to wildfires. https://www.caloes.ca.gov/office-of-the-director/policyadministration/legal-affairs/emergency-proclamations/ iii. The need for immediate action to prevent wildfire and its associated damage to life, health, property, and essential public services is also well-documented. In recent years the Governor has repeatedly issued emergency proclamations related to fire – five in 2022, seven in 2021, and six in 2020. These both evidence and acknowledge the need for immediate action to address wildfire hazards, particularly in fire-prone areas within the state.
iv. Uncontrolled wildfires are emergencies, involving clear and imminent dangers which demand immediate action to prevent or mitigate loss of, or damage, to life, health, property, and essential public services. This Ordinance establishes actions necessary to reduce the probability and severity of such emergencies. v. Establishment of fuel breaks to create a varied fuel mosaic, mimicking the natural environment through zones of vegetation removal and ongoing maintenance, passively interrupts the path of a fire or slows its progress. This work also aids fire suppression by H.1.a
Packet Pg. 344 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 11 providing responders with anchor points from which to carry out fire control actions.
Modeling efforts have indicated that this approach can reduce total area burned, structure destruction, and fire intensity. Because this Ordinance would bolster firefighting capabilities that would enhance fire response the Ordinance will unequivocally support protection of the environment and natural resources.
vi. When designed as a fuel break, greenbelts that are part of community design within neighborhoods and subdivisions can increase wildfire resilience by slowing or stopping wildfires. Additionally, existing parks, open spaces, and preserves near communities are often used for firefighting. These undeveloped lands with pre-established passive fire control measures in place provide locations from which firefighters carry out offensive and defensive fire control actions before densely populated areas are impacted. This is a critical element to efforts to reduce the probability of urban conflagration characterized by structure-to-structure fire transmission.
vii. The Ordinance is intended to minimize structure fires and wildfire that lead to environmental and natural resources impacts, including loss of vegetation and biodiversity; erosion, landslides, and debris flows; adverse air quality, climate change, and water quality impacts; and contaminated and hazardous material disposal challenges. These environmental and natural resources effects can also lead to public health impacts. viii. Furthermore, fires that occur in the built environment (i.e., structure fires) contribute to air contamination from the fire plume (whose deposition is likely to subsequently include land and water contamination), contamination from water runoff containing toxic products, and other environmental discharges or releases from burned materials.
ix. By reducing the severity of wildfire, studies have shown that low intensity, controlled fire, enhances biodiversity, by controlling invasive and noxious weed species, thereby allowing native plants to compete more effectively, as well as opening overgrown understory to allow for wildlife to move more freely across the landscape. Additionally, several of the endemic species of the region require fire to germinate. With low-intensity fire, the chaparral habitat would become more stratified in life stages, and thereby increasing its fire resiliency.
x. Reducing the severity of wildfire through this Ordinance would reduce the significant environmental impacts caused by uncontrolled wildfire and assure the maintenance, restoration, enhancement, and protection of the Fire District’s natural resources and environment.
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Packet Pg. 345 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 12 SECTION 3. DEFINITIONS
Combustible Material. Rubbish, litter, or material of any kind, other than Hazardous Vegetation, that is combustible and endangers the public safety by creating a Fire Hazard as determined by the Fire Code Official.
Defensible Space. This term shall have the same definition as “Defensible Space” in the Fire Safe Regulations, California Code of Regulations, title 14, section 1270.01(f).
Fire Code Official. The Fire Chief or their duly authorized representatives.
Fuel Break. This term shall have the same definition as “Fuel Break” in the Fire Safe Regulations, California Code of Regulations, title 14, section 1270.01(n).
Fire Hazard. Any condition, arrangement, or act that will increase, or may cause an increase of, the hazard or menace of fire to a greater degree than customarily recognized as normal by persons in the public service of preventing, suppressing, or extinguishing fire, or that may obstruct, delay, or hinder, or may become the cause of obstruction, delay, or hindrance, to the prevention, suppression, or extinguishment of fire.
Hazardous Vegetation. Vegetation that is combustible and endangers the public safety by creating a Fire Hazard, including but not limited to bark, mulch, seasonal and recurrent grasses, weeds, stubble, dry leaves, dry needles, or any other vegetation identified by the Fire Code Official.
Hazardous Vegetation shall not include healthy, mature, scenic, trees.
Ladder Fuel. Fuel that provides vertical continuity between surface fuel and canopy fuel strata, increasing the likelihood that fire will carry from surface fuel into the crowns of shrubs and trees.
Modification. An alternative to the specified standard requested by a person that owns, leases, or controls one or more of the Affected Parcels that may be necessary due to health, safety, environmental conditions, physical site limitations or other limiting conditions, such as recorded historical sites, that provides mitigation of the problem.
Parcel. A portion of real property of any size, which may be identified by an Assessor’s Parcel Number, the area of which is determined by the legal lot of record.
Person. Includes any agency of the state, a county, city, district, or other local public agency, and any individual, firm, association, partnership, business trust, corporation, limited liability company, or company.
Same Practical Effect. This term shall have the same definition as “Same Practical Effect” in the Fire Safe Regulations, California Code of Regulations, title 14, section 1270.01(a)(a).
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Packet Pg. 346 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 13 SECTION 4. FUEL BREAKS TO PROTECT AGAINST UNCONTROLLED WILDFIRE SPREAD
(a) Fuel Break Standards.
(1) For the purpose of this Ordinance, a Fuel Break requires the removal or modification of fuel, maintained on an annual basis by June 1 of each year, or on a recurring basis as determined by the Fire Code Official, in a manner that will prevent the transmission of fire.
Specifically:
(A)Grasses cut to less than 3”.
(B) Removal of all Hazardous Vegetation.
(C) Non-irrigated brush removed such that the minimum space between shrubs is as follows:
a. On flat or mild slopes (less than 20%): Two times the height of the shrub
b. On mild to moderate slopes (20-40%): Four times the height of the shrub
c. On moderate to steep slopes (greater than 40%): Six times the height of the shrub.
(D)Removal of all Combustible Material.
(E) Removal of dead, diseased, or dying trees.
(F) Maintain trees to remove Ladder Fuels so that foliage, twigs, or branches are greater than 6 feet above the ground.
(2) The standards for construction of Fuel Breaks in this Ordinance shall comply with the standards for construction of fuel breaks as outlined in the Fire Safe Regulations, which are as follows:
(A) The volume and arrangement of vegetation in a Fuel Break shall be managed to limit fire intensity, fire severity, rate of spread, crown fire potential, and/or ember production. Cal. Code of Regulations, title 14, section 1270.01(n).
(B) Fuel Breaks shall be constructed using the most ecologically and site appropriate treatment option, such as, but not limited to, prescribed burning, manual treatment, mechanical treatment, prescribed herbivory, and targeted ground application of herbicides. Cal. Code of Regulations, title 14, section 1276.03(f).
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Packet Pg. 347 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 14 (b) Fuel Break Affected Parcels. To reduce the risk of uncontrolled wildfire, Fuel Breaks are required on the following Parcels in the Fire District, identified as the “Affected Parcels.”
(1) All Parcels within the District located within a “Community at Risk” as identified in the publication entitled, “Communities at Risk from Wild Fires,” produced by the California Department of Forestry and Fire Protection, Fire and Resource Assessment Program pursuant to the National Fire Plan, federal Fiscal Year 2001 Department of the Interior and Related Agencies Appropriations Act (Public Law 106-291).
https://osfm.fire.ca.gov/divisions/community-wildfire-preparedness-andmitigation/fire-plan/communities-at-risk/ (2) All Parcels within the District that are immediately adjoining to a “Community at Risk” within the District, or are immediately adjoining to a “Community at Risk” outside the District’s boundaries.
(c) Fuel Break Requirements.
(1) A person who owns, leases, or controls one or more Affected Parcels within the Fire District shall comply with following fuel break standards:
(A) Parcels of One Acre or Less. The entire Parcel shall be maintained in accordance with Section 4(a)’s requirements for a Fuel Break. (B) Parcels Greater Than One Acre. A Fuel Break of 100 feet shall be created and maintained around the entire perimeter of the Parcel in accordance with Section 4(a)’s requirements for a Fuel Break.
(C) Multiple contiguous Affected Parcels owned by the same Person may be treated as a single Parcel, upon request of the Person that owns, leases, or controls one or more of the Affected Parcels and with the approval of the Fire Code Official, if a Fuel Break of 100 feet around the perimeter of the area considered to be a single Parcel is provided. Such requests shall be processed as Modifications under Section 5 of this Ordinance.
(d) Environmental Concerns.
(1) The Fuel Break requirements of this Ordinance shall not impact any environmental resources of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies. Such areas include, but are not limited to, sites included on any list compiled pursuant to Government Code section 65962.5, and designated historical resources.
(2) The Fuel Break requirements of this Ordinance shall be interpreted and applied to avoid the taking of endangered, rare, or threatened plant or animal H.1.a
Packet Pg. 348 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 15 species, significant erosion and sedimentation of surface waters, and the removal of healthy, mature, scenic trees.
(3) When the conditions stated in this Section 4(d) exist, persons who own, lease or control the Affected Parcel or Parcels at issue shall request a Modification of the fuel mitigation requirements and the Fire Code Official shall issue Modifications consistent with the requirements of this subsection.
SECTION 5. MODIFICATIONS
(a) Where there are practical difficulties involved in carrying out the provisions of this Ordinance, the Fire Code Official shall have the authority to grant Modifications for individual cases, provided that the Fire Code Official shall first find that either (1) a modification is necessary to address an environmental concern as required by the provisions of this Ordinance, or (2) special individual reasons make the strict letter of this Ordinance impractical, and the Modification is in compliance with the intent and purpose of this Ordinance. The details of actions granting a Modification shall be recorded and entered in the files of the Fire District. Any such Modification shall be consistent with the following standards:
(1) The modification will not lessen health, life and fire safety requirements. (2) The modification will provide for the Same Practical Effect in addressing fire hazards as stated in this Ordinance.
(3) The modification will comply with Section 4(d) (Environmental Concerns) of this Ordinance.
(b) A person requesting a Modification may also submit an individualized fire protection plan designed to address concerns due to health, safety, environmental conditions, physical site limitations or other limiting conditions, such as recorded historical sites, that provides mitigation of the problem. Submitted fire protection plans shall be consistent with the standards for fire protection plans provided in Section 4903 of Chapter 49 of the State Fire Code.
(c) Where a Modification is not granted, the person requesting the Modification may appeal such denial to the Board of Directors.
(1) Within ten calendar days from service of the Fire Code Official’s decision denying the requested Modification, the person seeking the Modification may H.1.a
Packet Pg. 349 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 16 appeal the decision to the Board of Directors. Such appeal must be in writing and filed with the Fire Code Official.
(2) At a regular or special meeting of the Board of Directors not less than five days or more than thirty days after receipt of an appeal, the Board of Directors shall hear the appeal.
(3) The Board of Directors may continue the hearing.
(4) Upon conclusion of the hearing, the Board shall issue a decision granting, modifying, or denying the requested Modification.
(5) The decision of the Board of Directors is final.
(d) Additional procedures for the conduct of appeals may be established by resolution of the Board of Directors.
SECTION 6. PENALTIES.
Every violation of any regulatory or prohibitory provision of this Ordinance is expressly declared to be a public nuisance. Failure to comply with the Fuel Break requirements of this Ordinance may result in the issuance of an Administrative Citation under Ordinance 21-01 or its successor ordinance, or otherwise ordered by the Fire Code Official to be abated in accordance with law, and nothing in this Section 6 shall limit the Fire District from pursuing other available legal remedies for violations of this Ordinance, including but not limited to civil penalties. In addition, any Person who violates any provision of this Ordinance shall be guilty of an infraction or misdemeanor in accordance with Health and Safety Code Section 13871.
SECTION 7. REPEAL OF ORDINANCE 23-04.
Ordinance 23-04, which adopted requirements for fuel breaks on all parcels in the Fire District, is hereby repealed and is not subject to the savings clause in Section 8(b) of this Ordinance.
SECTION 8. SEVERABILITY.
(a) If any section, subsection, paragraph, sentence, or clause of this Ordinance is determined in a final ruling by a court of competent jurisdiction to be invalid or unenforceable, such finding shall not invalidate any remaining portions of the Ordinance. The Board of Directors hereby declares that it would have adopted this Ordinance, and each section, subsection, sentence, or clause thereof, irrespective of the fact that any portion of the Ordinance be declared invalid.
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Packet Pg. 350 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 17 (b) All former ordinances and resolutions, or parts thereof, conflicting with the provisions of this ordinance are hereby superseded by this Ordinance. The adoption of this ordinance shall not in any manner affect any action or prosecution for violation of ordinances, which violations were committed prior to the effective date hereof, be construed as a waiver of any license, fee, or penalty required by or resulting from any such ordinance, or affect the validity of any bond (or cash deposit in lieu thereof) required to be posted, filed, or deposited pursuant to such ordinance.
SECTION 9. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. (a) The District finds that this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to the following categorical exemptions in the CEQA Guidelines: Section 15307 (actions taken as authorized by law to assure protection of natural resources), and Section 15308 (actions taken as authorized by law to assure protection of the environment). Reducing the severity of wildfire through this Ordinance would reduce the significant environmental impacts caused by uncontrolled wildfire and assure the maintenance, restoration, enhancement, and protection of the Fire District’s natural resources and environment.
There are no significant or potentially significant negative environmental impacts from this Ordinance.
• The Ordinance is a regulatory change that would not directly cause any reasonably foreseeable physical change, nor would it determine or cause any future development.
• Indirect physical changes would require removal of flammable materials in areas with heightened risk to cause and spread wildfires. This would reduce environmental threats caused by wildfires and their spread and would be beneficial to the environment. The benefits of making wildfires less likely to start and spread include but are not limited to, benefits in the areas of air quality, biological resources, cultural and historical resources, hazards, greenhouse gas emissions, recreation, and tribal cultural resources.
• The Ordinance does not impact environmental resources of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies. Such areas include, but are not limited to, sites included on any list compiled pursuant to Government Code section 65962.5, and designated historical resources • The Ordinance also is required to be interpreted and applied to avoid the taking of any special status species, significant erosion and sedimentation of surface waters, and the removal of healthy, mature, scenic trees.
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Packet Pg. 351 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 18 • If compliance with the Ordinance could cause adverse environmental consequences, property owners are directed to request a modification of the fuel break requirements from the District.
No exception identified in CEQA Guideline Section 15300.2 applies to this Ordinance.
(b) The District also finds that this Ordinance is statutorily exempt from CEQA pursuant to CEQA Guidelines Section 15269 and Public Resources Code section 21080(a)(4) as specific actions necessary to prevent or mitigate an emergency. (c) The District further finds that it can be seen with certainty that there is no possibility that the Ordinance may have a significant impact on the environment pursuant to CEQA Guidelines section 15601(b)(3). The Ordinance is proposed for the protection of the environment, including human health and property. The regulatory enactment would require affected properties to remove combustible materials as fuel breaks.
These requirements will be beneficial to the environment by preventing the emergence and spread of wildfires, which can cause immense environmental harm. Further, the Ordinance contains provisions requiring it to be interpreted and implemented in a manner that avoids environmental impacts, and directs property owners to seek modification of the applicable requirements if compliance would cause any such impacts. Due to these requirements, there is no possibility that it will cause significant environmental effects.
(d) Each exemption stands as a separate and independent basis for determining that this Ordinance is not subject to CEQA.
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Packet Pg. 352 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) 19 SECTION 10. DATE OF EFFECT.
This Ordinance shall become effective on , and within fifteen (15) days of passage shall be published once, with the names of the Directors voting for and against, in the Contra Costa Times, a newspaper of general circulation in the District.
PASSED, APPROVED, and ADOPTED this ___ day of ___ at the regular meeting of the District Board of Directors, held virtually on ___, on a motion made by Director ___ and seconded by Director ___ and duly carried with the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ORDINANCE 23-XX
ATTEST:
____________________________
John Jex, President
Board of Directors
I certify that this is a full, true, and correct copy of the original document, which is on file in my office, was passed and adopted by the Moraga-Orinda Fire District on the date shown.
ATTEST:
____________________________
Marcia Holbrook
District Secretary/District Clerk
APPROVED AS TO FORM:
_____________________________
Jonathan V. Holtzman
District Counsel
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Packet Pg. 353 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) H.1.a
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Packet Pg. 363 Attachment: Staff Report for City Council Meeting of September 5, 2023 (3209 : Moraga Orinda Fire District Ordinance 23-08) City of Orinda
22 Orinda Way Orinda California 94563
September 6, 2023
Honorable President and Directors
Moraga-Orinda Fire Protec�on District
1280 Moraga Way
Moraga, CA 94556
RE: Proposed Ordinance 23-08
Dear Hon. President Jex and Directors Jorgens, Danzinger, Roemer, and Hasler, We appreciate our working rela�onship between our elected leaders and staff, which we recognize to be of paramount importance to our residents as we work to make our community more resilient to wildfire.
The Orinda City Council considered the District’s proposed Ordinance 23-08 at our mee�ng of Tuesday, September 5, 2023, and are providing the following comments for your considera�on at your Special Mee�ng to introduce Ordinance 23-08 to be held this evening, September 6th. As the informa�on regarding proposed Ordinance 23-08, which is to replace Ordinance 23-04, was not available un�l Thursday, August 31st and the staff report was not available un�l a�er 4 p.m. on Friday, September 1st, the City was not able to undertake a comprehensive review. We received writen comments from community members which are atached for reference. In addi�on, residents addressed the Council on the mater, and we encouraged them to all provide their input directly to the Fire Board. If �me permits, the video of last night’s mee�ng is also available to you via this link (this item began at minute 41:45 of the mee�ng):
htp://orindaca.iqm2.com/Ci�zens/SplitView.aspx?Mode=Video&Mee�ngID=2389&MinutesID=1769&Fil eFormat=pdf&Format=Minutes&MediaFileFormat=mp4
The City Council is very invested in the efforts of the District to make our community safer from wildfire and recognizes that the District’s primary focus is on fire suppression and preven�on. The City offers its broader perspec�ve that takes into account other factors and aspects of life in Orinda including hardening against landslides and preserving the natural environment in a balanced approach for which Orinda is known.
We see our roles as suppor�ve of one another and respec�ully request that you consider our comments which arise from the public input that we received together with the Council’s considera�on of Proposed Ordinance no. 23-08. We understand that as of today, the defini�on of the parcels to which this Ordinance applies, Communi�es at Risk, include all parcels in the district. Owners of Parcels of One Acre or Less must maintain the en�re parcel in compliance with the code and those with larger parcels must comply as to 100 feet. We also understand that as between the ordinance most members of the public are more familiar with today, MOFD Ordinance 23-03 (Sec�on 4(f) of MOFD Ordinance 23-08), the more restric�ve requirement applies in the case of overlap with the proposed Ordinance 23-08. Given that these H.1.b
Packet Pg. 364 Attachment: City of Orinda's Comments to MOFD Proposed Ordinance 23-08 (3209 : Moraga Orinda Fire District Ordinance 23-08) ordinances will apply to our cons�tuents in common and to our City-owned parcels, we hope you will consider our comments:
• The exis�ng Ordinance and the proposed Ordinance are confusing and lack easy-to-understand guidance for those wishing to comply, and both lack objec�ve criteria that concerns the Council as it has led to the percep�on of unequal applica�on of the Ordinance. • We understand a threat of li�ga�on may have ini�ated the need to bolster what was set forth in Ordinance 23-04, and that has created a sense of urgency, hence proposed Ordinance 23-08.
However, given the concerns that we heard and share, in order to avoid the con�nua�on of the current legal challenges, or a new lawsuit, it is advisable for the District to slow down and engage in a community consulta�on to ensure a shared understanding of alterna�ves which were considered, including how other communi�es have approached the mater and how to best communicate to property owners how they can comply with the District’s requirements. • It is unclear if the ra�onale from which the new requirements were drawn contemplated applica�on to already developed and established communi�es. If not, these requirements may be more onerous than understood and have the unintended consequences of not being accompanied by landscape plans, geological hazard abatement district considera�ons, and habitat protec�on plans that would be designed to mi�gate the environmental effects of the Ordinance.
• The lack of templates and/or models that illustrate what is being required and how to meet the objec�ves of the Fuel Break requirements and the some�mes-compe�ng obliga�ons to protect sensi�ve areas and other environmental considera�ons, is contribu�ng to the community concerns and lack of understanding. Providing templates and/or models is essen�al. • Such templates are also necessary to illustrate to a homeowner how to apply for a Modifica�on. • The lack of clear and objec�ve criteria raises concerns about how the Ordinance can be applied evenly and equally to all property owners. The Fire District should ensure consistency in how these Ordinance provisions are implemented.
• On-the-ground experience shows that compliance in and of itself is not necessarily bringing the totality of considera�ons into play. For example, one property owner takes the level of clearance to such a degree as to impact creek banks poten�ally causing landslides and water quality issues whereas a measured approach would have met the goals of the Ordinance without causing environmental harm had the homeowner known the rules were different for a creek area. • Providing more resources to assist residents to understand and meet their obliga�ons is necessary, as in many situa�ons, property owners are unable to do so without such assistance.
As there is a cost to comply, and some view this as an unfunded mandate, the District providing access to a biologist, Geotech resources, or other services, when a property owner seeks a modifica�on, for example, could mi�gate these concerns. This would also contribute to an increased level of consistency in implementa�on.
We were gra�fied by your proposal yesterday to Mayor Miller and City Manager Biggs to include language pursuant to which trees less than Fi�een (15) feet would require limbing up one-third of their height to augment the currently proposed language, which states that trees be maintained to remove Ladder Fuels so that foliage, twig or branches are greater than 6 feet above the ground (Sec�on 4 (a)(F)).
It is clear from what we heard and from our own understanding that addi�onal investment of �me and in public engagement is necessary. The City stands ready to assist the District in whatever ways we can to navigate this important issue. We would be happy to co-host with the District and engage in possible H.1.b
Packet Pg. 365 Attachment: City of Orinda's Comments to MOFD Proposed Ordinance 23-08 (3209 : Moraga Orinda Fire District Ordinance 23-08) forums or town halls to foster that community consulta�on. In addi�on, while we could use the exis�ng Fire Board/City Council 2 X 2 Commitee as a sounding board as well, given the fact that the fuel break requirements impact Moraga as well, a joint mee�ng of the Orinda City Council, Moraga Town Council, and Fire Board may be desirable.
We look forward to ongoing posi�ve engagement with the Fire District on these many maters of shared concern and hope that our comments are helpful as you consider your next steps.
Sincerely yours,
Inga Miller
Mayor
Atachments: Writen Public Comment – Orinda City Council Mee�ng September 5, 2023 cc: City Council
City Manager
City Atorney
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Packet Pg. 366 Attachment: City of Orinda's Comments to MOFD Proposed Ordinance 23-08 (3209 : Moraga Orinda Fire District Ordinance 23-08) H.1.b
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Packet Pg. 418 Attachment: City of Orinda's Comments to MOFD Proposed Ordinance 23-08 (3209 : Moraga Orinda Fire District Ordinance 23-08) City Council
Staff Report
Agenda Item: H.2
Date: September 19, 2023
Department: Planning Department
AGENDA TITLE: Policy Discussion regarding Downtown Parking Requirements, related State Legislation, and Proposed Adjustments to the Master Fee Schedule to Lower Certain Parking Variance In-Lieu Fees
RECOMMENDATION:
Staff recommends that the City Council receive the presentation, take public testimony, and provide feedback regarding potential adjustments to the Master Fee Schedule.
BACKGROUND:
At the September 5, 2023 City Council meeting Councilmember Iverson proposed, and the Council agreed to in a 4-0 vote, a “matter initiated” to consider reducing certain Parking Variance In-lieu Fees on a limited-term basis (12-18 months) to support economic revitalization of downtown businesses. See attached excerpt of the 9/5/23 draft minutes regarding this item. The proposed action be accomplished by amending the City’s Master Fee Schedule, which is periodically adjusted by resolution of the City Council.
Downtown Parking Requirements
To understand how the Parking Variance In-Lieu Fee works, it’s important to understand the parking requirements that apply to nonresidential uses downtown, and when they need to be considered.
Grandfathered Parking. The base parking standard for most ground floor uses downtown is general retail, which requires one space per 250 square feet. If a general retail use vacates a ground floor space, even if the property has no onsite parking, the vacant space remains “grandfathered” for parking at this rate, so there is no need to provide parking for a new general retail use that occupies a vacant general retail space.
Similarly, a more intensive use that is replaced with a similar use would be grandfathered. The more restrictive parking requirements typically come into play as an obstacle when a new use with a higher parking requirement is proposed in a formerlygeneral-retail space at a building that is under-parked.
Changes in Use. Although OMC Schedule 17.16.4A, “Off-street Parking and Loading Spaces Required,” contains parking requirements for a wide variety of uses (attached), there are generally two uses that repeatedly come up as a barrier to occupying a vacant retail space:
• Proposed “personal services (barber, beauty shop)” which require two parking spaces per chair; and
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• Proposed restaurant uses that require one space per three chairs.
When presented with a proposed salon or restaurant within an existing or vacant retail space at an under-parked property, the first planning task is to calculate the number of spaces that would be required for general retail and work backwards to see how many chairs the business may have without triggering the need for a variance. For instance, if a former retail space has 1,500 square feet in a building that is under-parked, any change of use that requires 6 or fewer spaces would be allowed without a variance.
Under this scenario, based on the parking requirement of two spaces per chair, a salon with up to three chairs would be allowed without a variance; for each chair above 3, a variance for two spaces would be required.
New Development Projects. Parking requirements can also be triggered by new development projects that expand existing uses with additional square footage or other expansion. The parking requirement is based on the new square footage and mix of uses. However, AB 2097 precludes parking requirements for “development projects” within a half-mile of the Orinda BART station, which applies to most of downtown (see attached map). The legislation does not define “development project;” in Orinda, up to now, staff has interpreted this to mean projects that involve some expansion of use such as the recently- approved Bank of America site and Chevron projects. Under this interpretation, simple changes in use such as retail to salon do not qualify for parking relief under AB 2097. It has recently come to staff’s attention that some communities, including Lafayette, Santa Barbara, and Los Angeles are interpreting development projects to apply to changes in use that require a ministerial or discretionary permit (see attached information regarding Los Angeles and Santa Barbara).
Parking Variance In-Lieu Fee (Ordinance 20-01)
After considering introduction the proposal at public hearings on December 3 and 17, 2019 and January 7, 2020, the Council adopted Ordinance 20-01 amending Chapter
17.16 of the Orinda Municipal Code (OMC) on January 21, 2020. The ordinance applies only to nonresidential land uses within downtown Orinda.
Prior to adoption of Ordinance 20-01, proposed changes in use or development projects that could not meet applicable parking requirements would be required to obtain an Exception Permit from either the Zoning Administrator (change in use) or Planning Commission. Exception and Variance permits are based on discretionary findings subject to public hearing and comment. Before Ordinance 20-01, they were granted on a fairly routine basis for restaurant and personal care uses. The fee for an Exception or Variance permit is based on the staff time and other costs needed to process the application.
Within downtown, Ordinance 20-01 replaced the aforementioned discretionary, findingsbased variance process with a parking space in-lieu fee that, if paid, entitles applicants to a parking relief. The proposed retail/office building at 25A Orinda Way is the largest approved example of a project that utilized Ordinance 20-01 for parking relief.
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Parking Variance In-Lieu Fee Amounts
Like other City fees, Parking Variance In-Lieu fees are established by resolution and incorporated into the Master Fee Schedule. The parking in-lieu fee is based on a study prepared by Harris & Associates in January, 2019 which estimates the cost of a new parking space in Orinda, factoring land costs, construction and other considerations:
When the City Council considered Ordinance 20-01 on January 7, 2020, it directed staff to use the following formula when, on February 4, it returned for Council approval of the Master Fee Resolution modifications:
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As shown above, the formula for change of use (“Existing Buildings” in the above chart) allows for a much lower fee per parking space than that for new buildings. The lower fee was recommended to reduce the hardship on small businesses that might not be able to meet the parking requirements.
Including minor adjustments since it was first added, the 2023-24 Master Fee Schedule currently has the following in-lieu parking fees:
Even with the in-lieu fee reduced to between 2.5 and 10 percent of the cost of a new parking space, the fee can still be prohibitively expensive for new businesses. If we return back to the hypothetical salon use moving into a vacant 1,500 sf retail space in a building with no parking, the numbers speak for themselves. A 1,500 sf space could comfortably fit 10 salon chairs but is only grandfathered for 3 chairs. As illustrated in the table below, if the hypothetical business needed between 4 and 10 salon chairs to be viable, the cost would be between $4,144 and $69,098.
Hypothetical Example:
3 to 10 Chair Salon in a Vacant 1,500 sf Retail Space with no Existing Parking Spaces
Number of
Proposed Salon
Chairs
Total Number of
additional required
spaces
Required In-Lieu Fee
3 None (grandfathered
for 6 spaces) None
4 2 $4,144.00
5 4 $13,818.00
6 6 $24,874.00
7 8 $35,930.00
8 10 $46,986.00
9 12 $58,042.00
10 14 $69,098.00
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DISCUSSION:
If the Council wishes staff to return with draft amendments to the Master Fee Schedule to reduce the Parking Variance In Lieu fees in support of business revitalization, it would be helpful to get feedback regarding the magnitude of the reduction. For instance, if the Council would like a nominal fee for changes in use, it could reduce the in-lieu fee to between $50 and $200 for existing buildings. To keep the fee to a set period, the Council could consider increasing the fee at a future date such as the Master Fee Schedule update that will be made in July 2024 or 2025.
FISCAL IMPACT:
No fiscal impact will result from this initial discussion. It is of interest to note that the City of Orinda has not collected any Parking In Lieu Fees since this fee was established.
ATTACHMENTS:
A. Matter Initiated- Excerpt from Draft September 5, 2023 Minutes B. Schedlue 17.16.4 of OMC re Off Street Parking
C. December 3, 2019 City Council Staff Report re Parking Variance In-Lieu Fee Ordinance (WEBLINK)
D. December 17 City Council Staff Report re Parking In-Lieu Fee (WEBLINK) E. January 7, 2020 City Council Staff Report re Ordinance 20-01 F. February 4, 2020 City Council Staff Report re Amendments to Master Fee Schedule G. Half Mile Radius Map from Orinda BART Station
H. Memo and Fact Sheet re AB 2097 Implementation in Los Angeles and Santa Barbara
I. City Council Minutes December 3 2019
J. City Council Minutes February 4 2020
K. City Council Minutes January 7 2020
Respectfully Submitted by:
Drummond Buckley
Director of Planning
Prepared By: Drummond Buckley, Director of Planning
Approved by:
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From: Sheri Smith
To: Drummond Buckley
Subject: Excerpt from 9/5 Minutes that you requested
Date: Wednesday, September 13, 2023 8:52:32 AM
Councilmember Iverson said economic development and downtown revitalization is something they talk about a lot and is one of their high strategic priorities. She has heard about one space in the downtown on the Theater Square side has had several potential tenants and, because of the City’s parking regulations, the tenants wound up not being able to make a deal moving along.
The rules are that if it is a nail or hair salon, 2 parking spaces are needed for every station and when they are told to either buy it out with an in-lieu fee or to provide those spaces such as for 6-8 stations, this is going to be 12 to 16 parking spaces of street parking right downtown. If those tenants or landlords cannot provide that they cannot have those businesses. What they have been told is just to have fewer stations which feels tone deaf about fixing problems downtown.
She has asked questions about what can be done about it and has been told that because they have the choice of going before the Planning Commission to get a variance on the parking requirement, the only alternative with this is to pay the in-lieu fee which can be very expensive. These businesses have to choose between either scaling down to where it is not feasible or paying a parking fee that is infeasible or finding parking that is infeasible.
She would like the Council to consider a period of time where the City might waive or significantly reduce the in-lieu parking fee in the downtown core for change of use of existing businesses. If there are vacant spaces downtown and they want to get a different use in there, if it is within the next 12-18 months the City gives them a break on the parking fee so they can go before the Planning Commission, get that change of use, and get the variance in a way that will not be a deal-killer for these types of small businesses. It should also apply to retail and restaurants as well. This can be an incentive to recruit and attract some businesses into some of the long-term vacant spaces.
Mayor Miller asked if Councilmember Iverson wanted staff to look at the handicapped spaces as well as part of the parking analysis. Councilmember Iverson said yes, and this should also be agendized.
MOTION by Councilmember Iverson, and seconded by Councilmember Riley, to schedule a Matters Initiated regarding the ability to waive or reduce in-lieu parking fees in the downtown core for change of use of existing businesses and review of handicapped spaces to be included in the parking analysis. Said motion carried by unanimous (4-0) roll call vote.
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Packet Pg. 424 Attachment: Matter Initiated- Excerpt from Draft September 5, 2023 Minutes (3212 : policy discussion regarding reduction of parking variance in Created: 2022-12-30 09:14:46 [EST]
(Supp. No. 21)