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In Person:
Orinda Library Auditorium
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Orinda, CA 94563
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CITY COUNCIL
AGENDA
Tuesday, October 3, 2023
7:00 PM - REGULAR MEETING
City Council
Agenda Page 1 10.03.23
How to follow and/or participate in the meeting:
IN PERSON SPEAKER CARDS: If you would like to speak during the public forum or on an item listed on the agenda, you are invited to submit a speaker card to the City Clerk. You will be permitted to speak even if you elect not to submit a speaker card or decline to provide information requested on the card. After the City Council has heard from everyone who submitted speaker cards, anyone electing not to submit a speaker card may form a line at the lectern. Public comment is generally limited to 3 minutes per speaker per agenda item.
REMOTE COMMENTS: Use the Zoom “raise hand” function on your computer screen, or the *9 function on your phone to comment remotely. Public comment is generally limited to 3 minutes per speaker per agenda item. The Zoom participation option is provided to the public as a courtesy in order to facilitate participation. The City cannot, however, guarantee the adequacy of the audio/video quality or that meeting participation will be uninterrupted via Zoom. If technical difficulties arise relating to the Zoom participation option, the meeting may continue with public attendance in person only.
WRITTEN COMMENTS: You may also submit a public comment in advance of the meeting by following instructions below:
Deliver to City Hall at 22 Orinda Way or send an e-mail to [email protected] by 3pm on the day of the meeting. Those comments will be forwarded to the City Council. They will also be made a part of the public record and be available to view in the public review binder at Orinda City Hall, 22 Orinda Way. In addition, they will be available electronically by 5pm on the day of the meeting by selecting the date of the meeting in this Box account link:
https://tinyurl.com/Orinda-Public-Comments
7:00 PM - REGULAR SESSION
A. CALL TO ORDER / ROLL CALL
City Council
Agenda Page 2 10.03.23
Councilmembers: Brandyn Iverson, Latika Malkani, Janet Riley Vice Mayor Darlene Gee, Mayor Inga Miller
B. PLEDGE OF ALLEGIANCE
C. ADOPTION OF AGENDA
The City Council may take action on any item listed on the agenda.
D. ITEMS FOR THE GOOD OF THE CITY
D.1. Proclamation in Honor of Dr. Carol Weyland Conner who founded White Pony Express
D.2. Solid Waste and Recycling Update – RecycleSmart
E. PUBLIC FORUM
The public forum provides an opportunity for members of the public to speak on any item within the jurisdiction of the City Council that is not on the agenda.
Additionally, a speaker has the option of addressing the Council on an item listed on the agenda, if the speaker will not be present when that agenda item is taken up. When an item is not listed on the agenda, State law prohibits Council discussion or action. Councilmembers may only “briefly respond” to statements made and questions posed. For example, State law allows Councilmembers to ask questions for clarification and provide a reference to staff or other resources for factual information. Additionally, consistent with the “Matters Initiated” rule contained in its Policies and Procedures Manual, the Council may also direct staff to report back and/or place a matter on a future agenda for discussion.
F. CONSENT CALENDAR
F.1. City Council Minutes
Recommendation:
Approve City Council Minutes:
1. September 19, 2023 Regular Meeting
F.2. Approve Parcel Map for Subdivision MS 2023-003 Urban Lot Split at 2 Stanton Court
Recommendation:
Staff recommends adoption of Resolution No. 55-23, approving Parcel Map for 2 Stanton Court (MS 2023-003 Urban Lot Split) owned by Orinda Properties LLC.
G. PUBLIC HEARING
H. POLICY MATTERS
H.1. Discussion Regarding Temporary Signs in Downtown Orinda City Council
Agenda Page 3 10.03.23
Recommendation:
Receive report, take public testimony, and provide feedback to staff.
H.2. Discussion of Accessible Parking in Theater District Recommendation:
Receive report, Discuss, and Provide Direction, if any
H.3. Follow-Up Report on Inclusionary Housing Ordinance Options Recommendation:
Receive Report regarding Inclusionary Housing Ordinances, Discuss Key Parameters, and Direct Staff to Prepare an Ordinance for Review and Consideration.
I. COUNCILMEMBERS' REPORTS
J. CITY MANAGER'S REPORT
K. MATTERS INITIATED
L. ADJOURNMENT
The next meeting of the Orinda City Council will be held on Tuesday, October 17, 2023 at 7:00 PM.
Please visit the City’s website at www.cityoforinda.org to view the City Council Calendar.
I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this special meeting agenda has been posted at least 24 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way.
Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org. At least 24 hours in advance of the meeting, this agenda was also delivered to and received by each member of the City Council as well as each local newspaper, radio station and television station requesting written notice of special meetings.
I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this regular meeting agenda has been posted at least 72 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way. Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org
~ Notices ~
There is a 90-day limit for the filing of a challenge in Court to certain City decisions that require a hearing by law, the receipt of evidence, and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6). Further, if you file a challenge in Court, you may be limited by California law, including but not limited to Government Code §65009, to those issues raised in connection with the public hearing. The City Council may be requested to reconsider a decision if the request is made prior to the next City Council meeting. For information on the next City Council meeting, please call 925.253.4221 or visit the City Council
Agenda Page 4 10.03.23
website at www.cityoforinda.org. Unless otherwise noted, City Council actions include a determination that the California Environmental Quality Act (CEQA) does not apply. ~ Accessible Public Meetings ~
The City of Orinda will provide special assistance for disabled citizens to participate in public meetings upon advance notice. If you need auxiliary hearing aid or sign language assistance at least two (2) working days advanced notice is necessary. Please contact the City Clerk’s Office, 22 Orinda Way, Orinda, Ca 94563 or 925.253.4221 or [email protected] with the following information: name, mailing address, phone number and type of assistance requested.
AGENDA TITLE: City Council Minutes
RECOMMENDATION:
Approve City Council Minutes:
1. September 19, 2023 Regular Meeting
ATTACHMENTS:
A. City Council Minutes of September 19, 2023
Respectfully Submitted by:
Sheri Smith
City Clerk
Prepared By: Sheri Smith, City Clerk
Approved by:
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SEPTEMBER 19, 2023
CITY OF ORINDA
CITY COUNCIL MINUTES
Note: Written communications received from the public prior to the start of this meeting can be viewed on the City’s website meeting calendar. They are also kept in the City Clerk’s Office as part of the public record and available upon request ([email protected]). 7:00 P.M. –REGULAR MEETING– GARDEN ROOM, ORINDA LIBRARY A. CALL TO ORDER / ROLL CALL:
Mayor Miller called the Regular Meeting to order at approximately 7:00 p.m COUNCILMEMBERS PRESENT: Brandyn Iverson, Latika Malkani, Janet Riley Mayor Inga Miller
COUNCILMEMBERS ABSENT: Vice Mayor Darlene Gee
B. PLEDGE OF ALLEGIANCE – Led by Mayor Miller.
C. ADOPTION OF AGENDA
Mayor Miller stated she did not believe the Council will need to meet in Closed Session and suggested they move the third item to the next City Council meeting, given the length of tonight’s meeting.
MOTION by Councilmember Malkani, and seconded by Councilmember Riley, to adopt the agenda, as amended. Said motion carried by unanimous (4-0) roll call vote.
D. ITEMS FOR THE GOOD OF THE CITY
D.1. Introduction of New Assistant Engineer, Jihawna Johnson Public Works Director Scott Christie introduced the City’s new Assistant Engineer, Jihawna Johnson, and provided an overview of her background, experience with city government, education, and qualifications.
Assistant Engineer Jihawna Johnson thanked the City Council and staff and she looks forward to working with the City of Orinda.
Mayor Miller and Councilmembers welcomed Ms. Johnson and gave her a City of Orinda pin.
E. PUBLIC FORUM
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John Stewart, Wilder resident, called attention to the fact that the master developer is misrepresenting the state of the EVA gates. He checked before this meeting and neither of the locks to the security gates at the top or bottom are securing the gates closed. He asked the City needs to hold the master developer to the terms of the agreement that they entered into, citing potential consequences to residents and the obligation of the City and Fire District to ensure the gates are secure.
City Manager Biggs stated the developer is planning to look at the gates this week and it is the developer’s responsibility to maintain the gates. He has engaged with the Fire Chief to see if there are any other alternatives, but nothing has been identified. Eventually, the City’s GHAD will have responsibility for maintenance of the gates but this will not occur for a while, so an interim solution should be identified.
F. CONSENT CALENDAR
Mayor Miller asked if there were requests for removal of items or public comments, and there were no requests for removal or public comments.
F.1. City Council Minutes
Recommendation:
Approve City Council Minutes:
1. September 5, 2023 Special Meeting
F.2. City Council Meeting Schedule for 2024
Recommendation:
Adopt City Council Meeting Schedule for 2024
F.3. Quarterly Report of Cash Disbursements for the Period April 1, 2023 through June 30, 2023 and Summary of Revenue, Expenditures, and Preliminary Fund Balances for July 1, 2022 through June 30, 2023 Recommendation:
Staff recommends that the City Council receive and file this report of cash disbursements, and preliminary fund balances for the period of April-June 2023.
F.4. Authorize Contract Amendment No. 3 with Schaaf & Wheeler Consulting Civil Engineers for On-call Civil Engineering Services for the San Pablo Creek Culvert Repair Project (#4187)
Recommendation:
Staff recommends that the City Council approve Contract Amendment No. 3 with Schaaf & Wheeler Consulting Civil Engineers to increase the contract value by $174,000 and extend the term of the agreement to June 30, 2026.
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MOTION by Councilmember Iverson, and seconded by Councilmember Riley, to approve Consent Calendar Items F.1.1, F.2, F.3, and F.4. Said motion carried by unanimous (4- 0) roll call vote.
G. PUBLIC HEARING
G.1. (a) Discussion of a proposed dedication of a portion of the parcel at 11 Orinda Way (Chevron Station) that was part of a convenience market project approved by the Planning Commission, contingent upon City Council adoption of Ordinance 23-04; and (b) Public Hearing regarding Ordinance 23-04 which would Amend 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 Service Stations (applicant: Chevron).
Recommendation:
Staff recommends that the City Council 1) consider the question of the dedication of the creek portion of 11 Orinda Way as fee or through an easement; 2) waive the full reading of the text and introduce Ordinance 23- 04, amending 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; 3) find 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.
Planning Director Drummond Buckley stated Assistant Planner Darren Hughes was planning on presenting this item, but he is delayed. He then asked and the City provided, an overview of the hearing process for the item.
Mayor Miller disclosed that she met with the applicant and had a brief conversation also with Councilmember Iverson about alternatives for an assessment district if they found accepting fee ownership of the parcel or easement was not acceptable. Mayor Miller said she sat next to Juliette Don, the applicant, at the SSTOC meeting last week who told her if she had any questions to contact her.
Councilmember Iverson disclosed she toured the site, was on the Planning Commission when this came through and she participated in the public hearings then. She has spoken with the applicant, Juliette Don, a few times during the intervening year while she has been on the Council not in the context of any active hearings. They held a conversation over the weekend about some of the procedural aspects of tonight’s choice set.
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Councilmember Malkani said she has had interactions with Ms. Don about the Orinda Chamber of Commerce but never discussed the public hearing item at all. She received statements and positions in support of the project from a couple of residents, the Waterman’s and Amelia Wilson.
Planning Director Drummond Buckley gave the staff report and overview of the proposed dedication of the creek portion of 11 Orinda Way as fee or through an easement, consider waiving the full reading of the text and introduce Ordinance 23-04, amending 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.
Staff would prefer an easement than the fee dedication. Since they had this legislative action coming up, he asked for feedback from the Council because even if the project were approved as is in the future, acceptance of the dedication would have to return as a stand-alone decision. Separately, there would have to be a lot line adjustment or subdivision of the property in order to allow for the conveyance, which is also not before the Council.
Mayor Miller said she would assume both parts of this must be approved at the same time, and Mr. Biggs stated the CUP already exists with no language about the dedication either being an easement or a fee dedication.
City Attorney Osa Wolff stated Chevron has offered, as part of their application, the fee option. That was approved at the PC meeting which is subject to this legislative change.
Councilmember Iverson said she thought that was removed based on the minutes she read from the meeting. Ms. Wolff said staff recommended a condition that would have required it only to be an easement, but that condition was removed by the PC. That leaves Chevron’s proposal which is to grant fee.
Councilmember Iverson asked if the City has a binding offer to grant the fee from them in what is currently approved. Ms. Wolff said it is shown on the approved plans.
Mr. Buckley said the City would either need to do a lot line adjustment or a subdivision on a different parcel in order for the offer of dedication to become formalized.
Mr. Biggs added that this is not unusual that a map or an approval would include an offer of dedication or an easement, but that would be documented in later steps. Regarding whether their offer is binding, if the legislation is not passed the entitlements fail because the zoning change will not have been made.
Councilmember Iverson said if it was passed, she asked if the City gets any of the land or she asked if it is a theoretical handshake for the future. Ms. Wolff said as a condition of getting their building permits, staff goes through all conditions and consistencies with the application. At that stage, if the Council decided it wanted fee, they would work together to draw up fee title transfer documents.
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Mayor Miller asked and confirmed there is one decision before the Council which is the decision on the legislative change, but staff would like input on the fee versus easement issue.
Councilmember Iverson said she does not want to be put in the position of being asked to give a “yes” or “no” to the legislative piece without great clarity on what exactly the land portion of the deal is and its terms. She still does not quite understand how they get clarity on the land portion if they were to proceed tonight on the legislative change.
Mr. Biggs explained that he discussed this and it is the nature of the fact that the CUP was not appealed. The condition would state that specifically Chevron provide the property either as an easement or dedication. This would be language to state they would provide an offer of dedication and an offer of a non-revocable easement. It still would not necessarily spell out all of the terms. If the Council is not comfortable with lack of clarity on this first question, they could defer the decision on the legislative change and ask staff to bring back that clarity where staff would work with Chevron to develop and present to the Council an offer of dedication, either a fee or easement. The actual decision to accept that would not occur until after the project were complete.
Councilmember Riley said that question is open now and it will remain open even after the Council decides the legislative matter.
Mr. Biggs said he thinks the intent was to share this and let Chevron hear the Council’s perspective on the matter because of the discretionary decision before them in regard to the zoning change. Even if the Council had agreed to a dedication of the property, the final acceptance comes back as a separate decision with the appropriate instruments.
He thinks the idea here is to proceed in good faith, recognize this is a legitimate policy question, and the Council has an opportunity to weigh in on that. If the Council is concerned and wants to accept the dedication offer, this would still return as a separate item where they would have to have indemnification language, etc. So, it is a bifurcated decision in any instance.
Councilmember Riley said tonight is their opportunity to negotiate or talk about all the possibilities, and Mr. Biggs confirmed. After the Council hears the presentation, hear public comments, and thereafter, staff recommends first taking the question of whether the Council has a preference for fee or easement, how to address concerns that this is binding, and then turn to the merits of the legislative case.
Mr. Buckley then described the legislative change. Currently, convenience markets are limited to no more than 40 square feet at service stations and this ordinance would remove that limitation. It also would remove a limitation regarding the minimum distance of a convenience market to schools, playgrounds, and youth facilities as well as a provision regarding the vicinity between the convenience market and churches and hospitals.
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It would also create some new standards. It would continue to require a commercial use permit for a convenience market and service station. It would require the pedestrian entrance to the market be within 35 feet of the public right-of-way, require at least 25 feet of frontage to the right-of-way along where the pedestrian entrance was located, require that the market offer fresh food, continue to enforce the definition of take-out restaurant if there was such a use, and would clarify between a liquor store and a convenience market so there was not confusion in the code as to whether a convenience market was a liquor store.
He presented the 4 existing service stations in Orinda where this could potentially apply to in the future: Chevron, the Shell station, 76 Station, and Mash Gas and Food. He cannot say whether all stations would be able to meet all development standards contained in the ordinance so it is possible that the size or configuration of the other parcels would make it difficult or easier to meet some of the standards. The project is categorically exempt from CEQA.
Staff has received public interest in the project and received 26 written comments before the last PC hearing. Some comments relate to the project and some relate to the proposed legislative change, which he described as support for the project because of the creek component, support due to economic revitalization issues, opposition relating to convenience stores attracting crime, alcohol sales, not enough parking specific to the Chevron proposal, increased traffic, and tonight, staff received 5 written comments in opposition with concerns regarding attracting crime, not amending the code to benefit a single project, no need for more liquor in town, concern about minors having access to liquor, concerns with traffic congestion, and the idea that there are other places where people could get the same items they would get from convenience markets.
Staff recommends the Council consider the dedication issue and are recommending the Council adopt the ordinance with the legislative changes outlined in the presentation.
Councilmember Iverson asked Mr. Buckley to provide the major liability as to the fee versus the easement and the mitigation for either party as to the risk they would keep or take on.
Mr. Biggs said this is outlined in the staff report under the bullet points. There are pros and cons. His experience is that cities are not generally offered the most prime portion of the property. From staff’s perspective, the goals relating to the creek will mostly be accomplished on private property. This was the reason for their preference for an easement. It has to do with issues to providing public access to the area. The easement is alongside the property which is how people would get down to the creek, and staff would recommend the easement. There can always be potential liability for the property owner or using an easement, but this keeps Chevron in the equation.
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Also, the maintenance of the property like fire fuels reduction would still be the obligation of the property owner. If the City had the easement they would have to indemnify and defend the developer based on the public use, but if there were things like a storm washing away the slope that supports the retaining wall, the City would be obligated for that because the City would be the property owner. It would stay on the tax rolls. The regulatory agencies would look to Chevron for compliance. Staff also has concerns this is a gas station site and there is the potential for hydrocarbon related contamination issues. Chevron has said they could develop language that addresses this, and in his discussions, there would be language in the easement that would have the City obligated to defend and indemnify and certain provisions, and this parcel would result in a smaller parcel being assessed for tax purposes.
Councilmember Riley asked if staff brainstormed other ways to solve this. She asked if the assessment was discussed. She has been thinking of whether or not they could do a land trust so ultimately the City has the entire strip owned by one land trust or assessment and they have a continuous easy way for all the matters being handled and beautiful access to the creek.
Mr. Biggs said they have had discussions about some alternatives but being mindful of Chevron’s particular entitlements, this is one of the few parcels along the creek with the other portion closer to Camino Pablo which was given to the City as surplus Caltrans right-of-way. So, the idea of someone else owning it or another non-profit or land trust, this did not come together in the context of this entitlement application. The property owners further along the creek would have to agree in some form to incorporate their property into that and this raises the question of takings potentially, especially outside of where they might be pursuing an entitlement. Other than this area, the Orinda Way property owners, except for some Contra Costa Sanitation District property, the property owners on the other side of the creek own all the way to Camino Pablo. The City has an easement for flood control purposes along there, but this is in the context of an easement.
So, it did not seem appropriate to explore those.
The City does have a section in its Downtown Precise Plan that looks at accomplishing the goal of restoring trails and access to the creek. That assumes some level of future participation of the private property owners, but this would come forward as properties redevelop.
Councilmember Malkani said other than the land trust, fee or easement, she asked what other options could there be in terms of how this property is decided upon. The assessment district was interesting to her.
Mr. Biggs said the assessment district is a financing mechanism. It does not necessarily result in public ownership of the property. This still requires all property owners to join in, so this might be a possibility if, for example, the property owner’s assessment district agreed to a plan and they were looking at ways to finance creek and trail improvements/installation outside of it being their project development. They would pay the assessments and fund those improvements.
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Mayor Miller said there might be an interim potential step of a Community Facilities District where if Chevron was to do the easement, the City would front the cost or see it as a City benefit the cost of forming a CFD for the purpose of doing everything a land owner must do in a creek area right now prior to the City being in a position of acquiring the creek parcel as one large parcel from the landowners. The City would help form a district before the subdivisions of each of these parcels. In order for Chevron to dedicate the land, there must be a map drawn of that parcel that would be dedicated. So, before that is all done and while there is just an easement, this CFD would allow for a collective funding mechanism by the owners of all the parcels on the creek to pay for their cost, ensuring they are in compliance with fire codes and making sure work is being done as property owners along there. At the point where all of them were ready to map a trail, the City might be willing to accept that dedication of property from all owners on the basis there was a true public benefit in that there could be a creek trail.
Right now, the Council does not know what that benefit would be, if there could ever be a creek trail along there, and what was known as the County owned parcel behind known as the Vintage House property as a part, and the part behind the Post Office, Bank of America, and to the Safeway part. If there could be a CFD, until everyone was ready to dedicate that to the City, that would help those property owners have some mechanism to collectively finance these on-going costs and that Chevron rightly sees an opportunity to dispense with by dedicating their property to the City.
Mr. Biggs said these types of mechanisms might be discussed in the Downtown Precise Plan as tools that might be available in the future. But, forming a single property CFD could be done and then properties could annex in as it becomes available, but the property owners are paying the assessments.
Mayor Miller asked if creating a CFD requires 100% or a majority of property owners. Mr.
Biggs said he believes it requires 50% of those who would be paying assessments. A CFD could be formed with one property owner voting yes with the potential to annex others in.
Mayor Miller said her idea is that the CFD would have to be all of the creek parcels, and Mr. Biggs said this would be difficult to achieve that anytime soon.
Mayor Miller called on the applicant for a presentation.
Juliette Don, Corporate Affairs Representative, Chevron, said she grew up in Orinda and is also a homeowner and resident, and cares about the community. They appreciate the PC’s approval of their proposed renovation project at their company-owned and operated station located at 11 Orinda Way and the recommended revisions to the City’s Municipal Code that are required for their project. They welcome the opportunity for the Council to review these changes and urge the Council to approve the revisions to the OMC to help bring this project and its many benefits to the community.
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She would like to see a more vibrant downtown and their project would transform the station’s unused auto service bays which have resulted in a vacant building for many years into a station with enhanced food, beverage offerings, and fresh aesthetics, along with the potential for pedestrian access to San Pablo Creek. They have worked closely with City staff and the PC on this latest iteration of this project for more than 4 years and have worked to ensure the project includes features like an overlook deck showcasing the creek, pedestrian-oriented design, access points, and seating. Those are all unique and will help advance the City’s intent and vision for downtown Orinda and the City’s guiding principles such as ConnectOrinda. She introduced Katie Cabler, Chevron’s District Sales Manager responsible for their Northern California, Oregon, and Washington stations.
Katie Cabler, District Sales Manager, said she wanted to remind everyone of the project benefits listed in the slide. In addition, they are offering to dedicate the property adjacent to the creek to the City in fee so the City can enhance the vision for accessibility to the creek. They will also provide an easement along the north property line along with the fee dedication to create pedestrian access from Orinda Way to the creek. They can be flexible on the timing of when the land transfers and easement occurs to help accommodate the City’s desired timing. Chevron will need an access easement for maintenance of the land adjacent to their building, including the retaining wall located on the west side of the property which they will maintain.
In the documentation associated with the fee transfer they will need appropriate liability protection, will provide their standard environmental indemnity to the City as part of the documentation for the fee transfer of the creek land; however, if the City does not want ownership of the land, Chevron is prepared to proceed with the project without the land donation and easement on the north side of the property. They are not trying to dispense of the land. The City would still receive many other benefits of the project, including the creek observation deck, bike parking, the first EV charging station in town, a remodeled convenience store with pedestrian-friendly access and pathways, multiple seating areas, increased availability of food and drinks and convenience items after other businesses in town have closed for the day.
She is confident they are offering the City a great project but the point she emphasized is that regardless of staff’s position, Chevron will not undertake the project with an easement grant to the City for the Creekside land. She has a responsibility to steward Chevron’s business at the site and the best interests of the business and will not authorize an easement over their creek area land. If Chevron donates the creek area land to the City it will be in fee, with ownership passing to the City at the time of the donation. The PC carefully reviewed the issue and supported Chevron’s proposal to donate the land despite staff’s objections.
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Regarding a few points of misalignment they have with the staff report regarding the creek area land transfer, contrary to staff’s report, a parcel split for the fee transfer is a simple over the counter approval. Chevron will pay for the application fee and staff time and prepare a land survey to generate the legal description of the new lot. The parcel split process is not burdensome for the City. Chevron has deep experience transferring current and previous station land. Parties that acquire land routinely accept standard environmental indemnity giving assurance that if in the future Chevron will handle hydrocarbon remediation that resulted in Chevron station’s operations.
She stated Chevron has no desire to remain on title for the land used by the public for recreation behind their retail station. They do not want any possible distractions from their core retail business whether in the form of any public complaints or any regulatory agency questions or approvals that are needed in the future with the City’s development of the parcel of land such as for a trail or park. Chevron will continue performing maintenance in the fire fuel reduction on the creek parcel until the transfer date. After dedication, it would be in the City’s interest to take over the work so it can operate and maintain the creek parcel as it sees fit.
She also stated the staff report did not reveal that Orinda already owns the land on the other side of the creek across from the Chevron creek area land so taking ownership of Chevron’s creek area land is not a major departure from the City’s current land profile.
Finally, any loss of property tax from the creek parcel sliver of land will be small and far offset by the additional sales tax revenue generated by the new convenience store for the City. In conclusion, she asked that the Council approve the ordinance text amendment and not defer the decision to progress the updating of their site and the offerings in their store. She said she was available for questions.
Councilmember Iverson referred to page 5 of the slide presentation, stating when she was on the PC when they heard the story about fresh food, when she read the minutes of the PC meeting, it felt like a significant retraction. She understands defining fresh food and making the Planning Department enforce it was almost impossible and she understands why it was taken out, but what Chevron offered in the minutes of the final approval was a few cartons of milk and butter and dairy in a back cabinet. The pictures where Chevron shows grab n’ go towards the front of the store feels deceptive if that is not what they are doing. If this is what Chevron is doing, that feels to her like a different and complementary offering to what there is at Safeway and Rite Aid because it is less grocery and more grab-n-go food. She therefore asks what will be there because they have heard various versions, with the public corresponding also on the question.
Ms. Cabler stated as the picture shows, they typically offer the same convenience items, food, and beverages, so this would be pretty representative of what one would see in a medium to large-sized store. When they met with the PC, they approved some language around providing fresh food “such as” and then listed some typical fresh food carried in their stores which can be seen in some of the pictures. For example, in the recharge station, there are fresh sandwiches, yogurt, milk, and eggs in the deli cooler, string cheese, and snack packs.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 11 of 32 09.19.23
Councilmember Iverson said every interstate gas station mart does not have a deli style take out with fresh sandwiches. The Council has received so many letters from people, and she wants to understand if this format at a “typical medium to large company store” is what Chevron is doing here or she asked if it is not what is proposed here.
Ms. Cabler stated they would rely on their standard merchandizing format for this store as they have in their other stores because they get a lot of synergies and cost reductions that come from a standard offering at their stores. To answer the question, the deli styled cooler which has the “recharge” sign above it, this is where the grab n’ go items will be offered. This would have sandwiches, string cheese, yogurt, and many people buy these often times.
Councilmember Iverson asked if they would have one of these recharge stations or not.
Ms. Cabler said yes, they would. She could not tell where the placement of it would be but it would be fairly close to the front of the door. The only caveat would be if the cooler is having temperature problems which would cause a food safety issue. While waiting for maintenance to fix it, they would move items out of that recharge station that are temperature sensitive, get it fixed, and then restock the station.
Mayor Miller stated there are also pictures of fruit, fruit juice, and other similar things, and asked if these were also in the recharge station for this store. Ms. Cabler said they will have 3 baskets of fresh fruit such as bananas, apples, and oranges they offer in every store. Sometimes they spoil and get thrown out, but this is an offering they put in the store, but they are not refrigerated and typically in a stand-alone basket close to the front of the store.
Mayor Miller asked if they have an Extra Mile for the Alamo store, and asked if this would be of the same format as this store. Ms. Don confirmed and said the Alamo companyowned station is off the exit of Stone Valley Road near the Safeway.
Mayor Miller asked if the Alamo store would be similar to what would be provided in the way of offerings at this Orinda store. Ms. Cabler said there are different layouts so things would be located in different areas because the Orinda station is longer and narrower than the Alamo station they have.
Councilmember Malkani said some of the public comments have focused on concerns about crime and whether or not other Extra Mile stores have seen crime including violent crimes. She asked if there is any data or information to be shared one way or the other.
Ms. Don said she has actually had conversations with their Police Chief regarding the convenience store in terms of a crime perspective. As police reiterated, crime could happen anywhere. It could happen in the store the way it is now and that they should not look to discriminate against businesses just because of crime. She also reiterated that Chevron has a global security team that works closely with stations to do everything they can to keep customers and employees safe at these stations. Many of them are former law enforcement. They also have relationships with the local law enforcement, as well.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 12 of 32 09.19.23
Mayor Miller referred to the standard indemnity language, and asked if this has been provided to the City. Ms. Cabler said they have not provided it to the City that she is aware of but should be able to provide it.
Councilmember Riley asked to go over what would happen if the Council did not want to agree to the fee dedication. She asked if this would mean Chevron goes on owning that parcel.
Ms. Cabler said one option would be that they would need to request an amendment to the zoning text amendment so they can move forward with their project, and then they could discuss the land when the Council is ready to discuss it.
Mayor Miller opened the public comment period.
Sandy Roadcap said she would like to speak in support of this project because it has had extensive PC and staff and public input and this is an optimal design that will enhance the gateway to the library, tree-lined civic center, and plaza. The second reason is they have talked for years about revitalizing Orinda’s downtown and a project like this with a minor change in the code and the Council’s approval sets an example for other businesses to upgrade. She understands some of the concerns around an easement.
There was talk of the risk of contamination, but at this level with legal and environmental experience on the Council and elsewhere, environmental liability is comprehensive. If Chevron or any business has contaminated, they are liable for it regardless of who owns the property in the future. What is above ground, that liability is like any park Orinda has responsibility for, so she urged the Council to listen to the applicant on that matter. Her third reason of support is that it will provide the first EV charging station in Orinda and access to the creeks. When her kids were little she would bring them to the library and afterwards she would bring them somewhere for a snack which would build fond memories. So, parents will be able to do this and read their books in the outdoors by the creek.
Maria Brandle said she recently joined the Board of the Friends of Orinda Creek. Her first point is about acquisition of the land that Chevron wants to give to Orinda as part of this proposal. She is passionate about the creek in Orinda, asked who would be crazy to dismiss the creek in town as a second thought and not make it a beautiful resource for the community. She urged the Council to accept the donation because if this stalls and Chevron keeps the land, this will fall back as a complicated idea and the City will miss the opportunity to take the whole part of the creek and make it a beautiful recreational and natural area for the community. When traveling the world, there are huge recreational areas that run along rivers, large and small, and it is the role of cities to make common open space available for residents.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 13 of 32 09.19.23
Marc Evans said he lives in North Orinda and is Chair of the Moraga-Orinda Firewise Network but is not representing them on this subject tonight. He is a strong supporter of this project for one reason—it will increase the sales tax revenue of the City which is needed for roads, infrastructure, and wildfire prevention. It is a convenience store and many people use them. He has used them for years when he does not want to go to Safeway, BevMo or other places. He spends his dollars here in Orinda and this will give people more opportunities to spend their money in town whether they live here or not to increase the City’s sales tax revenues.
Roy Hutchinson said he is speaking in support of the project in business environment terms because as noted, everything is getting more expensive. It is expensive to develop, expensive to remodel, and just to lease the space. Businesses cannot afford that. The solution for that kind of problem with the housing issue was to relax and expedite the process for approving auxiliary dwelling units. In the business space, the impetus is to reduce environmental impact and reduce costs by recycling, reusing, and enhancing the utility of existing infrastructure. This is exactly what Chevron is offering. The City no longer has Starbucks, Subway, a toy store in Theater Square. The City has approved developments at Vintage House and for the memory care center which cannot proceed because of it being cost prohibitive to construct. So, he asked to take advantage of a resource available and funding coming from a corporation that wants to provide retail services to the community, and do the right thing and make something happen for the citizens of Orinda.
Secondly, in the context of the property transfer issue, Chevron is a gigantic commercial property owner and is extremely experienced in how to develop properties, work with cities, and to provide best practices through their corporate governance measures for things that set precedent, such as how to handle the creek bank issue behind the station.
He would suggest independent of this project, there is wisdom in working closely with Chevron’s experts to understand how to set a best business practice precedent for the development of the creek properties within the town.
Brad McCullough said he is in favor of Chevron building a convenience store and encouraged the Council to approve the changes to make that happen. He likes the idea of having a full convenience store at this location where there are no other choices. The access to the south end of the creek will be a huge long-term benefit for the people of Orinda and linking these makes a lot of sense. In general, businesses within certain constraints ought to be able to run their business as it best suits them. He believes the ordinance that limits only the 4 gas stations to a small convenience area is wrong and should be nullified. If the cleaners next door wanted to convert to a convenience store, there is nothing in the ordinance that would stop them from doing that. So, he questioned why a gas station cannot.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 14 of 32 09.19.23
The ordinance reads there can be no variances given by the PC. He read through the ordinance and did not see that wording anywhere else. The whole wording around that section looks like it was done specific to the Chevron gas station and it does not make sense to have that kind of restriction in the ordinance. Therefore, he encouraged its repeal or alteration. As for the dedication to the City, he asked why not take control over it. Postponing it sounds like a good idea because he was not sure the Council will be able to get through all issues around that tonight. But, he is looking forward to having that southern access to the creek available and asked to move forward with the project, vote for approval of the ordinance and have the City take ownership of the property which Chevron is willing to give.
Michael Bowen said for the first time, perhaps ever, a private business owner is “all in” on downtown revitalization and creek restoration. Supporters have provided an extensive list of tangible municipal benefits that this project offers as has the applicant and opponents have offered a rather short list of abstract fears about possible future things that might happen sometime in the future mostly having to do with crime. Some of the commentary does not bear repeating and he thinks the City can do better than that. It is hard to improve upon the many comments in support of the project including extensive written submittals, but he would like to turn to staff’s role in this discussion.
The Friends of Orinda Creeks has spent quite a bit of time to communicate and educate the City Manager about a variety of things and they are struck by the repeated omission of a number of very important principles in this discussion and are concerned the Council has not been fully informed. For some reason, it is never mentioned that the City already has an existing easement in the creek; that the City is the existing flood plain manager in the creek and has an assortment of liabilities associated with that role; that California Government Code 831 provides recreational immunity for liability for public parks, trails, etc. and as to the tax roll, they will have to conduct some research about how much taking the slice of the parcel will really impact the City’s budget. In conclusion, he echoed earlier comments that this creates an incredibly important precedent for the City for a private property owner to gift a portion of their land in fee for municipal benefit, for creek restoration, for public access and enjoyment, and all the things that cities exist to do.
Sandy Pearson said she is new to this issue, but it reminds her something that happened in her neighborhood in 1993 when there was a large subdivision going in of 20 homes on 60 acres in a very winding portion of Miner Road that is a bit dangerous for pedestrians.
They requested the developer allow a trail up on the dirt bank next to Miner Road so there would be a safe place for people walking their dogs. To their surprise, the developers were fine with the concept but they do not want the HOA to bear the burden of the maintenance and liability forever. So, the developers donated the strip of land for a rural sidewalk for the neighborhood to use if the City will accept the donation. The City approved it and neighbors are eternally grateful. They have used it for 30 years and people love it. They do the maintenance themselves and it has not cost the City a penny and there has never been a problem. It was all thanks to Bobbie Landers and other Councilmembers in 1993. They took a chance and it paid off handsomely for all neighbors.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 15 of 32 09.19.23
Mayor Miller commented that former Mayor Eve Phillips found that trail about 6 months ago and took her for a walk on it.
Jennifer Edminster said she is a mother and retired attorney and now works for a charity.
She has attended these proceedings from the start and it seems the issue before the Council is whether or not to make changes to the code. For all the reasons set forth by most of the speakers, she encouraged the Council to make those changes to the code and to effectively “greenlight” this project.
The Council does not need to tackle the easement issue tonight to make those changes and move forward, but she thinks it is worth saying on the issue of the easement that she strongly encourages the Council to accept the parcel in fee simple. She knows from her experience as an attorney, there are laws in place to protect the City regarding liability.
Chain of title is what it is and there are protections in place. She does not want to let this issue of the easement allow the City to forego a golden opportunity to own one of the brightest assets in the community. She asked not to condition this incredible piece of good fortune for Orinda on an unnecessary easement, asked to make the code changes and not worry about the easement issue, and asked to accept it in fee simple.
Alex Evans voiced support of the project, said he spoke before the PC and at that meeting, he reminded the PC that a similar proposal had been floated over 25 years ago for this site. At that time, there was a strong push against it in the sense that maybe if Chevron was told “no” those service bays would be put back in use as service bays. This has clearly not happened. Today, he is again reminding the Council that if they do not allow Chevron to move forward with this project, the service bays will remain empty. He echoed the good reasons put forward to approve this and urged the Council to approve something that the proponent will do.
Rebuttal - Applicant
Ms. Don said she thinks the Council has heard many compelling reasons in support of the project as well as in terms of also accepting the property, as well. In terms of the answer to Councilmember Riley’s question, they are prepared to proceed with the project and leave the land off the table if that is what is decided and cannot reach agreement, although their position is that they think it would be a benefit from a community perspective. There is a lot of passion around the creeks as well as the vibrancy of downtown and the opportunity to revitalize and see a building that is essentially vacant turned to a beneficial use.
In addressing a couple of points, in terms of the matter of public comment it was stated in staff’s presentation that there were only 5 comments and they were all against. There were actually a total of 4 comments that were made and 2 were submitted and included as an attachment to the staff report. Also, Bill and Marie Waterman had submitted a lengthy letter that she believes was part of that and she spoke with City Clerk Smith about this, and they will have that updated as well. There was also 1 more email from a supporter as well, so she wanted that reflected.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 16 of 32 09.19.23
In terms of the concerns that had been raised in the written comments have been addressed regarding crime, issues around some of the access and indemnity, and she thinks Ms. Cabler explained well the reasons why Chevron is not prepared to offer an easement and why the dedication and fee is what they have set forth from that perspective. Again, she encouraged the Council to approve the changes to the OMC.
Lastly, where they had actually decided to resubmit their application because some of the state laws applicable to their project had changed, the impact there would have been on the parking in-lieu fee, yet Chevron has decided even though they are no longer required to pay the parking in-lieu fee, they will donate those funds to the City for pedestrianfriendly projects. She would close with the request of the Council to take the recommendation of the PC and make the revisions to the OMC so this project can proceed and accept Chevron’s position on the land.
Mayor Miller referred to the wording that the proposed use will enhance the pedestrian environment in the vicinity of the service station, and asked Ms. Don to explain this more.
Ms. Don said when looking at the design, they worked closely with City staff and the PC.
When thinking of the walkability of the downtown there are 2 entrances so the idea is that people who are at the station, 1 will be facing the dispensers and there is also the access on the side facing Orinda Way. As people are walking down Orinda Way as it relates to ConnectOrinda and the walkability, there would be that pedestrian access. She then displayed a graphic showing the double entrances and described those at the gas station and the additional entrance on Orinda Way for pedestrians to connect.
Mayor Miller said there is no access to the neighboring parcel, and she asked and confirmed access would be from the sidewalk. She asked if Ms. Don to display the deck.
Ms. Don displayed the graphic and pointed to the deck in the back area. The idea is when looking from a pedestrian-friendly perspective, pedestrians could safely walk to the seating and bike parking as well as the deck.
Mr. Biggs asked to highlight the second door facing Orinda Way and Ms. Don pointed to the second door and the main door, as well.
Councilmember Malkani asked, and Ms. Don pointed out the location of the EV charging station. Councilmember Riley confirmed restrooms were inside the building.
Councilmember Riley asked if there will be an easement or access down the driveway next to the cleaners. She asked who owns the driveway right now.
Ms. Don said Chevron owns 5-6 feet of the driveway and that is where the easement would be where people could walk down the path and access the creek property. Right now, it is a driveway and people drive and walk down there to see the back of the property and creek. It would be a dual path for vehicles and people as a way to get behind the station to the creek, with striping for a 5-foot wide path down. Chevron also owns the wall.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 17 of 32 09.19.23
Mayor Miller closed the public comment period, and returned discussion to the Council.
She is having a lot of trouble separating the issue of the dedication of the property, whether easement or the fee dedication from the policy changes the Council would be making, namely it is tied to the criteria under H-2-A on packet page 150. To her, the dedication of the property is quintessential to that, including that “the proposed use will enhance the pedestrian environment in the vicinity of the service station” and in some of the other ones with adverse impacts. She does not see the ability to simply approve a legislative change here without wrapping up what that dedication is and whether the City is accepting something. She would not feel comfortable accepting land without seeing the agreement.
Councilmember Iverson said in building on Mayor Miller’s premise, everything the Council heard tonight was in support of the project, but there were voices heard throughout the process and in writing that were concerned about getting rid of the original legislation about the 40 foot limit. There were 2 real concerns that drove that. First, drinking and driving. It was the emphasis of liquor sales in gas station convenient stores is very correlated with drinking and driving. They heard from many former City Councilmembers and former Mayors justifying how meaningful that law was when they made it and defending it.
The other thing they heard in the downtown planning process is the City is long on banks and gas stations in the downtown and they do not need more gas stations, but the justification was that they do like the service aspect and the fact you can get your car serviced in Orinda which is something they really wanted to encourage. By making it too easy to have convenience marts relative to service stations, service bays, EV chargers, there was an economic incentive to just do the easy thing of having convenience marts.
So, those are the reasons justifying a “no” answer. She supports the project, but she only was able to overcome those very good arguments against because it was a good quality project and design. She likes everything being proposed, and she really wants the creek land. To her, it was the first presentation which was the offer and when she heard Chevron was threatening that if the City did not give the land, they would not offer the easement and they wanted the convenience store and the City gets an observation deck.
To her, this is a hard “no”. She only supports the change in the zoning ordinance if they get the creek easement or fee. She can support fee and she can talk more about that later, but she feels as strongly that the Council and Chevron can figure out the terms of the land, but she is not supportive of the zoning ordinance without certainty on the other portion.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 18 of 32 09.19.23
Councilmember Malkani said she is getting to the same result as Councilmember Iverson but with different reasoning. She supports the project for various reasons including that they are looking at the transformation of vacant space. One commenter said the vacant service bays have been so for a while so she is excited about the project. She likes the design, aesthetics, thinks it is an advanced Orinda-friendly design, is very excited about finally having one EV charging station available to residents, and she thinks it will offer convenience to residents. Overall, while it is not the market type style with produce, etc. the City has wanted for a while, it is filling a vacant space by something that will get used.
It will also increase tax base revenue, and she likes it independently for all those other reasons. She is also excited about the possibility of taking the creek land and having access to the creek. One resident said, “The job of cities is to make beautiful spaces for their residents.” She agrees with this and everyone is excited about the possibility of the creek land becoming one of those beautiful spaces.
She supports a fee over an easement with the information she has available now, but she would like to see more discussions played out while that is finalized and this would be her feedback. She is very interested in whether they can explore something like a land trust with an assessment district. There were many great ideas, but more work and research is needed on all those issues to figure out how that is accepted, but she is willing to move forward on the ordinance with the notion that accepting this land in fee is a result they want to get to in some format and, if not immediately, in the short term.
Councilmember Riley said she is concerned about the unknown of what would happen if the City owned this in fee. She would like to know more about how the City is protected.
She thinks the Council should not agree to fee until they know more about the protections that may be there for the City. Otherwise, she supports the concept.
Mayor Miller said she agrees with everything that has been said. She knows the Friends of the Creek have been working on the creek trail for so long, wonders how a land trust would work and John Muir Land Trust very much wanted to be involved but made clear that in order to do so, they needed to have the financial resources or an environmental protection indemnity from the City because it was there to ensure the environment was protected but it was not there to pay for it. So, the City would have to be the paying arm.
This might add a layer of bureaucracy and so the City would have to determine whether it wants to take on that liability.
Chevron has been a wonderful partner in this community and is active. Regarding the legislative change, she wants to be sure that for the benefit of everyone that they make the change intended here. She wants to be sure that the legislative change carries forward to the other properties, as well, so the Council is not making a decision for something to be applied in other ways they do not intend, which she described, and emphasized the creek portion is important as well as the EV charging stations. She thinks more needs to return regarding the environmental liabilities involved and the indemnities against those.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 19 of 32 09.19.23
Councilmember Iverson said in the spirit of clarifying what the Council is doing tonight, she supports taking the fee title of the land. She has asked a number of different ways what that liability is and she has gotten comfortable it is absolutely appropriate for the City to own the land as one of several building blocks. They already own the land next to it and across the creek, and she wants to get started on the creek implementation. So, personally she would be comfortable with taking the offer of dedication of the land and passing the ordinance if, between now and when it comes back, it could have the indemnify figured out in some sort of MOU.
She does not know if Chevron’s standard indemnity is going to work and she did not want to agree to their standard because large companies tend to not be the most favorable.
So, she would want the actual form of indemnity to be agreed to as an exhibit, and it is fine if it takes years for the City to accept the land. She would agree with Chevron it is not as hard as it is being made out to be, but she did not think there was any urgency as long as they have a binding offer of dedication, the indemnity figured out, and she likes that Chevron is responsible for the retaining wall. So, she thinks the Council can proceed with adopting the zoning ordinance. She did not feel the need for any changes to it, but was open to suggestions and that they take the offer of dedication of the land.
Mayor Miller said there was a parking in lieu dedication to pedestrian access as well. Ms.
Wolff stated she has heard that Chevron is offering that as a charitable donation to the City as part of its proposed project, but it is not currently a condition of approval. She suggested having Chevron confirm this and reopen the public comment period.
Mayor Miller re-opened the public comment period.
Ms. Don stated Chevron can confirm the donation she mentioned. What they are taking are the funds they would have had to pay in parking-in lieu fees and providing a donation of these funds to the City for pedestrian-friendly projects when they reach agreement in terms of the project and land. It is approximately $26,000.
Mayor Miller said what she is concerned about is circulation, as there have been concerns raised in the past about some of these other site where it would be concerning to add more infrastructure without parking and traffic controls.
Mr. Buckley stated there are other standards that apply regarding circulation. There are minimum driveway widths and minimum parking space dimensions, etc. This will be handled through other means.
Mayor Miller said there have been some circulation issues at the Mash Gas Station with Casa Orinda relating to on-coming traffic as people are coming onto Hwy 24 and voiced concerns with harming pedestrians and children. Mr. Buckley said he believes Mash Gas Station circulation issues has to do with how much business they do and not with the internal design of the gas station itself. He thinks this is a function of their success. He did not know there is a way to create a regulation that would prevent that or somehow mitigate it if there was a convenience market at that location.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 20 of 32 09.19.23
Mayor Miller said she is worried about removing parking spaces and the requirement to have parking.
Councilmember Iverson said Mayor Miller may recall that the reason they revoked their application, took away the parking and came back was because of a State law where cities cannot require parking one-half mile from a BART station. It has nothing to do with the convenience store 40 foot requirement, and a different project application would be evaluated by Planning.
Councilmember Riley asked if Mash has enough space to add a convenience store, and Mr. Buckley said they have a very small convenience store already, two service bays one of which is used as a smog check.
Councilmember Malkani said if another gas station wanted to convert to a convenience store if the revised ordinance passed, it would still have to go through a conditional use permit where staff would be looking at parking and all conditions.
Mr. Buckley said the planning review is the typical use permit process which is discretionary and required for convenience markets for gas stations currently and with the ordinance.
Mayor Miller referred to Section D on page 147 and asked if this is the commercial use permit requirement. Mr. Biggs clarified that is the ordinance revision that sets forward the goals. The conditional use permit process addresses many additional factors so this is saying that this ordinance change in the code is criteria staff would look at with regard to convenience stores.
Ms. Wolff stated on page 147, she is seeing the Orinda downtown district intent. She asked if Mayor Miller was looking at the attachment to the ordinance. She is seeing the criteria on packet page 158. The attachment contains the language. The first criteria is, “The existence of the proposed use will not significantly and adversely….” Mayor Miller said she is told by staff that those are not the criteria for a CUP and that is a separate process. She had assumed these were the conditions an applicant for a convenience store needed to meet.
Mr. Biggs confirmed and said there are other factors that go into the CUP analysis beyond these and additional standards in the use permit section, as well. Mr. Buckley said it is part of the OMC called commercial use permit. They went through that process for the Chevron project, so those standards were found to be met for that project by the PC.
Mayor Miller said if they remove the parking requirement or not requiring parking and the Council approves these changes that there will be no undoing of these conditions that are meant to provide a project that has good pedestrian access and safety. Mr. Buckley said the use permit is discretionary and is made by the PC or the Council on appeal. It is based upon discretionary standards, so these standards will be reviewed and determine if it can meet those standards.
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) Orinda City Council Minutes Page 21 of 32 09.19.23
Mr. Biggs said though not directly related to Chevron, if another applicant came in like the 76 station wanted to add a convenience space, they would have to meet these criteria.
Staff would also look at traffic, pedestrian circulation, and all other items the City looks at with every CUP for every commercial use. This section of the ordinance only outlines the special conditions that relate to a convenience store.
Mayor Miller said therefore, expansion of the convenience store would not only have to go through this code but also the CUP. Mr. Biggs said arguable, even the Chevron project is replacement of an existing convenience store on site with a larger one in the standalone building.
Mr. Buckley added that there are also objective standards that apply. The code has minimum aisle widths and the Public Works Department also reviews these projects early on and provides feedback regarding circulation and whether it is safe.
Mayor Miller said she is very supportive of Councilmember Iverson’s proposal. She does not think working out indemnity language would take long, but hours or days and she would want that irrevocable offer of dedication that the City could exercise at any point when it was ready to proceed. She thinks that would have to go with the rest of the application to make sense from the pedestrian aspects proposed.
Councilmember Iverson asked if there was anything else to be added before she proposes a motion. Councilmember Riley said she was not comfortable in her understanding of the liability issues. Mayor Miller suggested adding that when the proposal comes back that it include the analysis from staff.
Ms. Wolff stated because this is an ordinance, 2 readings are required. The Council could introduce the ordinance tonight and then direct staff to work with Chevron to develop all documents described, which include an irrevocable offer to dedicate fee title to the City at the time of its choosing, there is a retaining wall easement that must be retained by Chevron, indemnity language to work out, the timing flexibility language. Staff would take whatever time is needed to work with Chevron and bring it back to the Council with adoption of the ordinance. Mr. Biggs said this timing does not have to be set tonight, but staff would have that direction.
Mayor Miller suggested a confidential memo developed on this topic that Councilmember Riley raises in analyzing the liability. Councilmember Iverson proposed saving legal dollars before a memo is done and proposed it being part of the presentation when it is brought back for adoption.
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MOTION by Councilmember Iverson, and seconded by Councilmember Riley, to waive the full reading of the text and introduce Ordinance 23-04, amending 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; 3) find 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; and provide direction to staff that the ordinance return with a binding legal agreement, for staff to determine the form that takes for a fee dedication of the land with the timing at the City’s discretion; that the specific indemnity terms are worked out so the Council knows and is comfortable relative to Chevron’s standard form so they have the indemnity for environmental hazards and for any specific items such as the retaining wall to be detailed out at the time the Council adopts the ordinance. Said motion carried by unanimous (4-0) roll call vote.
G.2. 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).
City Attorney Wolff provided the item’s hearing protocols.
Councilmember Iverson commented that the Wilder Subcommittee held a meeting within the last 2 weeks in which a number of these items were discussed. Mayor Miller echoed these comments and her participation.
City Manager Biggs gave an introduction of the item and overview of the staff report. He spoke about default items of the developer, the need to complete City related subdivision improvements and other matters before the end of the year. Recently, the GHAD accepted conveyance of the central detention basin parcels. Staff will bring a F.1.a
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development agreement amendment to the Council to address a couple of open items which will complete obligations under the development agreement, which is also articulated in the staff report. At the Wilder Subcommittee meeting, many neighborhood questions were answered and the staff report had been shared.
Councilmember Riley asked if both gates were listed on the list of City improvements, noting only one was listed. Mr. Biggs said staff will have to update this. Those are on future open space parcels that will go to the GHAD. Until the property is conveyed to the GHAD, it is the obligation of the developer to maintain those in operating order.
Michael Muller, Brook Street and agent for OGLLC, thanked the City Manager for summarizing the item and thanked the subcommittee members of the Council.
Tomorrow, he will be on site and tackling the Fiddleneck problem. There is a swale which has been a long negotiated item. The contractors and engineers will be on site and will have that finished in several weeks. The refinishing of the staging area and ADA will be done in 1 ½ weeks, subject to City inspection and recommendation for acceptance of the parcels. He knows there was some conversation about insurance. They have no employees at OGLLC and they expect to have all contractors off the site within 2 weeks.
The last item he wanted to petition the City for some consideration is there are 6 sidewalks that are not built on site. The reason is because the homes have not been built on site, and he wondered if a development agreement amendment could shift the onus for that onto those building the homes. It would require the developer of those homes to install the sidewalks as part of the building permit and site plan process.
Lastly, regarding the gates, they installed new mechanisms on those gates in July and the neighbors broke them within one week. So, every time they install the gates they get broken by the neighbors. The last time, they did not activate after they were installed so they are open for any solution the City or Fire Department can come up with, but absent the GHAD taking the property, they are installing and throwing $5,000 to $10,000 every time they install the gates. So, he would ask the City help them with a solution that would be acceptable to all parties until such time the City or GHAD takes over.
He thanked the City for their patience this last year. He started with concern of issuing the letter through their attorney, but he thinks the process has been productive and it is his intention to be done with all physical work within the next 2 weeks.
Mayor Miller opened the public comment period.
Sandy Roadcap said it was nice to meet the subcommittee and said she has lived at the edge of Wilder for 30 years and has been to many Council meetings. Regarding gates, she realizes the problems at Brookside’s end, but next to the Red Tailed Hawk Staging Area, this is on the agenda as part of fixing the swale. People think putting some rock out will prevent teenagers and jeeps from bypassing the gate. She asked to include that as part of the swale repair. It should be very large rocks that 2 men cannot roll out of the way. It is a simple solution and hopefully inexpensive.
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Mary Jo Ashby, Wilder resident, referred to the EV access gates on Brookside and Wilder and said in the developer’s annual review report dated August 18th, page 3 under City List – Improvements #3, Brookside EVA gates, OGG comments “Complete”. New gates were installed in July 2023. Also, the City representative comments “EVA-E to Brookside on parcel JJ, swing gates installed on both ends secure. Did not check if they work electronically.
She believes this report to be inaccurate. OGG did some minor repairs to the manual locking arms on the lower Brookside gate in July. The electronics to both gates are not and have not been operational for over 2 years. The upper gate currently has a broken right arm as the result of being hit by a drunk driver on April 22, 2023 and has not been repaired since. New gates were not installed in July. The 2 EVA gates are not operational and not secured. OGG’s non-compliance is putting the Wilder community at risk in the event of a wildfire as well as increased criminal activity and commuter short-cuts between Hwy 24 and Moraga. She asked the Council to address this issue with the developer and get these 2 gates repaired and electronically operational. MOFD will not accept any manual locking of these gates.
Mayor Miller closed the public comment period.
Rebuttal – Applicant
Mr. Muller said he understands the frustration on the EVA, but he could bring the receipts tomorrow for the gates they did install. While he understands the problem, someone broken one of the arms and there are reasons why everyone is frustrated. He is hoping they can solve the situation in some way where they do not have to go out every week and spend thousands of dollars by arms broken off by neighbors. He appreciates the residents’ concerns. Otherwise, he thinks the report is well-written, hopes they did a better job this year with communicating on the City on the DA report and he stands ready to be on site tomorrow walking through the punch list, holding a tour with CDFG and some of the resource areas regarding the larger open space issues, and continuing to completing and getting off the bonds on the City’s subdivision work and moving immediately into solutions for the open space.
Councilmember Iverson said she thinks they should let the record stand that the gate is completed given it is not. She asked what they can do about this. They all understand the problem, but she asked if the Fire Department can give direction on what can be acceptable.
Mr. Biggs said he will be speaking with the Fire Chief tomorrow, but the condition of approval for the gates is the Fire Department’s and they want them to be working electronic gates. At this point, the Fire Department will not even accept an interim locking of the gates using a key.
They will be keeping the developer in default and this can continue to be an item of default, but again, other than this, they cannot force the developer to go out every week to address it.
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Councilmember Malkani asked and confirmed the reason the gates are not operational is because someone in the neighborhood breaks them as fast as they are repaired. The Fire Department states a bollard or a padlock cannot be used because they want it electronic and not manual, so they appear to be stuck on a solution.
Councilmember Riley suggested the use of surveillance cameras. Mr. Biggs said separately they are looking at those things, and he and the Chief have discussed this. It may not always be the same people, but they are talking about what can be done.
Councilmember Malkani said this has been going on for more than 2 years, and Mr. Biggs said ultimately when the property goes to the GHAD they have a resource where they can repair the gates that will still meet the Fire District’s condition of approval, but this cannot be done until the property is conveyed to the GHAD which is about one year away.
Mayor Miller suggested the best thing they can do is work with the Fire Chief and developer to work out a solution.
Councilmember Malkani requested a separate meeting be called with the individuals involved to focus on brainstorming solutions for this gate because it has gone on for a long time.
Councilmember Iverson stated the Wilder Subcommittee is meeting more frequently, and the City Manager is also working on solutions, so she suggested asking that he keep the Council apprised. The subcommittee can then communicate to the community when he is ready.
Mr. Biggs said he has a standing Fire Chief meeting, and he needs to speak with Mr.
Muller regarding information addressing concerns the Chief had and he will circle back.
His hope is he can get the Fire District agree to an interim measure where they can go to a traditional lock. This does not mean people will still not cut the locks and access the area, but he will be working on this.
Ms. Wolff said staff’s recommendation is that the Council adopt Resolution 54-23 which finds that OGLLC remains out of compliance with the development agreement and related approvals. They are not recommending continuance of this hearing and thinks it can be resolved this evening. She did not hear any disagreement with staff’s recommendation from Mr. Muller. She also asked that Council direct staff to negotiate with OGLLC regarding the various development agreement amendments described in the staff report and to address non-compliance with certain DA requirements.
MOTION by Councilmember Iverson, and seconded by Councilmember Malkani, to adopt Resolution 54-23 which finds that OGLLC remains out of compliance with the development agreement and related approvals, and to direct staff to negotiate with OGLLC regarding the various development agreement amendments described in the staff report and to address non-compliance with certain DA requirements.
Said motion carried by unanimous (4-0) roll call vote.
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H. POLICY MATTERS
H.1. Moraga Orinda Fire District Ordinance 23-08
Recommendation:
Receive Report, Discuss, and Provide Direction, if any.
Mayor Miller stated this is an item agendized in case there were any further developments MOFD has on its calendar for tomorrow evening to make the second reading on this ordinance. The Council received materials from the Chief today from the Diablo Fire Safe Council, the comments of EBMUD on the ordinance, and she asked for any other updates.
City Manager Biggs said staff drafted and sent a letter based upon the Council’s direction from the last meeting that expressed a variety of concerns to the Fire District Board. They met on September 6th and the Fire Board introduced Ordinance 23-08 with two modifications; one related to immature trees not required to be limbed up 6 feet if they are less than 15 feet, and also an additional provision. The Fire Chief talks about a number of things they were going to do to help people understand the ordinance. Of those items, they are still working on additional local guidance but shared an existing document from the Diablo Fire Safe Council that talks about how to implement fire requirements in the context of environmental considerations.
The Fire Board is scheduled to hold a second reading of the ordinance as introduced, so this is an opportunity for the Council to submit any other comments beyond those in the letter.
Mayor Miller then recapped the EBMUD comment letter, noting EBMUD shares concern about the potential impact of Ordinance 23-08 on respective operations. They have requested an exemption from certain provisions of the ordinance which they endorse and support, and if necessary, they plan to apply for a modification exemption to continue their vital work in protecting their lands, and they remain open to participating in future forums or discussions regarding wildfire protection and land management.
EXTEND MEETING
MOTION by Councilmember Iverson, and seconded by Councilmember Malkani, to extend the City Council meeting until 10:30 p.m. Said motion carried by unanimous (4-0) roll call vote.
Mayor Miller opened the public comment period.
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Mark Evans said he supports the efforts of the Fire District, has read the comments, and said when this issue came up, it came to the Council. He is the Moraga Orinda Firewise Network Chairperson. His predecessor and mentor, Melanie Light and they both represent many people. They also contacts, including Diablo Fire Safe and Marin Fire Safe and others. Their issue is the word still is not out to residents. They are still being surprised that they need to comply with these ordinances. They have less than 20% penetration in the community about understanding wildfire and why it is important to clean up properties by June 1st. The City helped get funding so Firewise has resources now, but people do not pay attention until it affects them personally. So, he and Ms. Light are here to educate residents and help them make properties safer.
Sandy Pearson agreed with the last speaker that education is something Orinda needs more of. While they are waiting to see what the District’s decision is at their meeting tomorrow, she spent time researching what resources are available from the Fire District for residents. She presented a brochure recommended to her by the Fire Chief yesterday and she printed out a copy. This was developed in 2007 in Butte County so it has inappropriate recommendations about what to do when welding, selling wood products, and things that have no relevance to Orindans. She is amazed that the City cannot have a brochure more specific to residents’ situation. She is therefore hopeful the Fire District will take up the City’s offer to work together. She thanked the City Manager for his letter, is disappointed that the Fire District has not followed through with the public meeting they suggested, and said they simply made some videos to post on their website.
Michael Bowen said the last conversation about this was a great dialogue and brainstorming session. The outcome of that was the Mayor’s thoughtful letter urging moderation and proposing a variety of cooperative efforts. He too was disappointed with the response which struck him as “go pound sand” or “you can turn your trees into lollipops”, but basically they will do what they will do. It was not a great communityminded, engaged response and he proposed that whether or not MOFD opts to engage in a constructive dialogue, the Fire Safe Council does and hold a balanced conversation about the things they value and make the community safe. He is hoping some of their Marin partners could also share some of their thoughts.
Councilmember Iverson asked Mr. Duff to repeat what he wrote in his email on what the definition of a fuel break is and how it is different from a fire break.
James Duff, Education and Outreach Coordinator, said the difference between a fuel break and fire break is firefighter jargon. The difference is a fire break is completely cleared ground, a bulldozer trail, a road, or a natural landscape like a stream where fire cannot exist on. A fuel break is landscaping for fire safety. So, it is not removal of everything.
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Councilmember Malkani thanked her fellow Councilmembers and public members for the thoughtful conversation at the last meeting. There was frustration as well as collaborative ideas expressed. She observed that there is clearly a need for more communication with residents about what they need to do and confusion around the existing fire code. She thinks they need to think forward about how to be involved in fire adaptability in way that also looks at climate change and acknowledging the impacts of climate change which lead to lower use of water in irrigation, native plants, mudslides, and also mitigating further effects of climate change.
She questioned if they should have an ad-hoc community-based committee, as there is a desire to discuss these issues with a focus on addressing climate change as well.
Mayor Miller seconded this idea. She thinks there is a need and the ad-hoc committee could work with the MOFD Board, where they could be approached during discussions tomorrow night in appointing 2 of their members.
Mr. Biggs said they did suggest in the letter the idea of a joint meeting with the Fire Board and Fire District. However, there cannot be an ad-hoc committee that consists of members from multiple agencies. It would have to be a noticed Brown Act body.
Councilmember Malkani said her concern is the many people who are frustrated with compliance and noted they have a 2x2 committee meeting soon. Mayor Miller suggested also working with the Firewise and Fire Safe Council and work with public speakers.
Councilmember Iverson said she thinks the better task is to focus on groups of insiders who are making things happen and that they try to reach people who are not involved and uneducated on the matter.
Mayor Miller said EBMUD is asking the 5 agencies get together, and possibly this could happen.
Councilmember Iverson suggested meeting with those who may not be in compliance before they receive a citation. Councilmember Malkani said both are needed and suggested holding public forums and get leaders to talk on communication gaps and how to fill those with revised materials.
Mayor Miller said she thinks there are gaps that need to be fixed to address this ordinance. She is amenable to public forums and bring groups together, but she is not keen on spending Measure R dollars on advertising or telling people how to do this without the Council even not understanding how to do it.
Mr. Biggs said they have self-reported and have been deemed in compliance. He cannot explain why their map does not show that, but they are in compliance with their fire obligations. It may be they are focused on inspections of private versus public parcels.
There is also an underlying dispute between EBMUD and EBRPD. It sounds like the EBRPD has moved on but they have shared this is one of their jurisdictional issues.
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As far as a forum, the Fire Chief told him they were going to hold a forum tonight at 7PM about how to implement the revised ordinance. He thinks starting with discussion by the 2x2 committee, they can use publications the Fire District has signed off on, and they will engage more in a more proactive effort.
EXTEND MEETING
MOTION by Councilmember Iverson, and seconded by Councilmember Riley, to extend the City Council meeting until 10:45 p.m. Said motion carried by unanimous (4-0) roll call vote.
Councilmember Riley said she wondered if they should deliver another letter even if it is revising what was sent last week, based upon this discussion tonight.
Councilmember Malkani said she is glad the last letter was sent, but she did not know it would be effective to send another letter tomorrow. She suggested a collaborative relationship, thinks folks with critiques need to be engaged, the 2x2 committee is meeting in November and it was productive when meeting more frequently.
Mayor Miller suggested bringing up the map that shows parcels that are not in compliance, and she suggested engaging with the Fire District in follow-up as to why they are not in compliance and ask when can they see the templates and get together.
Councilmember Iverson cited map compliance, voicing of frustrations with their conversation last week went nowhere, but the City is not and does not control MOFD and has no power. She cited the hour and the lack of jurisdiction over the ordinance. Mayor Miller said as SSTOC liaison she is having a hard time about spending City money advertising something. She wants to be sure that the City is in compliance, said the creek is in red and Orinda Oaks Park is in red. Councilmember Iverson said EBRPD got a waiver and this is why they are green, but it was a huge process.
Mayor Miller suggested indicating via another letter that the City supports EBMUD’s letter, suggest they all work together, and indicate that if the Board adopts the ordinance despite the City’s concerns, that they will work collaboratively with the group.
Mr. Biggs suggested, and the Council concurred with the direction that the City Manager draft a follow-up letter for the Mayor’s signature that states what the Council identified in their last letter remains, that they think there are additional steps that need to be taken, they would like to see their points ultimately addressed, they are looking forward to seeing how the items are implemented, that they would like to be part of that information that comes out and still believes there are needs for public forums or meetings with the 2 Town Councils, and also cite the additional correspondence received from EBMUD and hope this is also being considered because they would also like to be part of future collaboration to meet requirements of a fire safe community. The Council can direct staff for the Mayor’s signature, and submit it to the Board tomorrow night.
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Mayor Miller suggested adding climate change and adaptability into the letter per comments from Councilmember Malkani, and Councilmembers concurred.
EXTEND MEETING
MOTION by Councilmember Malkani, and seconded by Councilmember Iverson, to extend the City Council meeting until 10:50 p.m. Said motion carried by unanimous (4-0) roll call vote.
H.2. 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.
Mayor Miller stated this item was a Matters Initiated, and she suggested that if the Council is supportive, they could let any applicant know this is returning to the next Council meeting.
Planning Director Buckley said he has a presentation, and Councilmember Iverson said she had only suggested a limited proposal that the City suspend parking in-lieu fees until the next fee review period which would be 9 to 12 months for use permit changes of vacant spaces downtown and not new developments, not looking at the broader issue of State laws, but just for those vacant or new spaces that come in for a change in use and use permit and where there is an increase in the parking requirement and the property is under parked.
Mayor Miller asked if this would apply to the Chevron project. Mr. Biggs said this would only be certain types of uses of professional services, retail, but it would not apply to gas stations.
Mr. Biggs clarified that the Council would authorize staff to spend some time developing this and bringing back the parameters and then deciding if the Council wished to proceed.
MOTION by Councilmember Malkani, and seconded by Councilmember Riley, to authorize staff to develop this item more thoroughly and bring back the item for Council consideration. Said motion carried by unanimous (4-0) roll call vote.
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I. COUNCILMEMBERS’ REPORTS – Mayor Miller reported the Police Chief did a great presentation at the Gun Safety Forum and school representatives and Councilmembers were present.
J. CITY MANAGER’S REPORT – City Manager Biggs reported Movie Night for Fridays in October and the last concert of the season will be this Thursday night.
K. MATTERS INITIATED – None.
L. CLOSED SESSION
Mayor Miller announced that the Closed Session had been canceled. She also confirmed there were no members of the public present and no public comments.
1. OPEN SESSION IDENTIFICATION of Closed Session Matters
2. PUBLIC COMMENTS of Closed Session Matters – None.
3. CLOSED SESSION
4. REPORT OUT OF CLOSED SESSION
A. CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION. Pursuant to Government Code Section 54956.9(d)(1), conference with Legal Counsel regarding existing litigation: ORINDANS FOR SAFE EMERGENCY EVACUATION v. City of Orinda, Contra Costa County Superior Court Case No. N23-0579.
B. CONFERENCE WITH LEGAL COUNSEL -- ANTICIPATED LITIGATION.
Pursuant to Government Code Section 54956.9(d)(2) conference with legal counsel regarding significant exposure to litigation related to an urban lot split proposed for 6 Patrick Lane in Orinda pursuant to state law known as SB 9. Ellis Raskin, an attorney representing the existing residents of Patrick Lane, submitted a letter to the City Attorney dated September 7, 2023, threatening litigation if the urban lot split is approved. Linda Klein, an attorney representing the applicant, submitted an email to the City Attorney dated September 13, 2023, threatening litigation if the urban lot split is not approved. This correspondence will be made available for public inspection pursuant to Government Code Section 54957.5.
C. CITY MANAGER PERFORMANCE EVALUATION
Pursuant to Government Code Section 54957, annual performance evaluation of City Manager David Biggs.
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.
M. ADJOURNMENT
The Regular Meeting was adjourned at approximately 10:50 p.m. to the next Regular Council Meeting on Tuesday, October 03, 2023, at 7:00 p.m. ______________________________________
Sheri Marie Smith, City Clerk
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Attachment: City Council Minutes of September 19, 2023 (3220 : City Council Minutes) City Council
Staff Report
Agenda Item: F.2
Date: October 3, 2023
Department:
Public Works and
Engineering Services
AGENDA TITLE: Approve Parcel Map for Subdivision MS 2023-003 Urban Lot Split at 2 Stanton Court
RECOMMENDATION:
Staff recommends adoption of Resolution No. 55-23, approving Parcel Map for 2 Stanton Court (MS 2023-003 Urban Lot Split) owned by Orinda Properties LLC.
BACKGROUND:
Under SB9 legislation which was effective January 1, 2022, the subject property owners submitted an application for a lot split. After determining the application was complete and reviewing submittals, the Planning Director approved the Tentative Parcel Map on July 26, 2023; no discretionary approvals are required under SB9.
DISCUSSION:
The owner has submitted the final Parcel Map (Attachment B) for MS 2023-003 with all supplementary documents and fees, to the Planning Department and the Public Works and Engineering Services Department for filing in accordance with the Subdivision Map Act, Title 16 of the City of Orinda Municipal Code (OMC), and the Conditions of Approval. The required signatures are in process of being acquired.
Public Works and Engineering Services Department has reviewed the Parcel Map for the 2 Stanton Court Minor Subdivision (MS 2023-003 Urban Lot Split) and found it to be in conformance with the Tentative Parcel Map and Conditions of Approval.
Planning Department has determined that all applicable requirements, including the Conditions of Approval, have been satisfied for the 2 Stanton Court Minor Subdivision (MS 2023-003 Urban Lot Split).
According to the Subdivision Map Act section 66458(a), and the provisions of Chapter 16 of the OMC, the City Council must approve the Parcel Map for 2 Stanton Court Minor Subdivision (MS 2023-003 Urban Lot Split) if it substantially conforms to all of the requirements. Resolution No. 55-23 (Attachment A) formalizes the City Council’s action with related findings, including approving the Parcel Map.
NEXT STEPS:
The Parcel Map will be fully executed by the city, subject to non-substantive corrections if so required by city attorney, and then processed for recordation with the County Clerk Recorder.
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FISCAL IMPACT:
The owners of 2 Stanton Court (MS 2023-003 Urban Lot Split) have paid required fees and reimbursed city for staff and consultant review costs.
ATTACHMENTS:
A. Resolution 55-23 Approval of Final Map 2 Stanton Ct
B. Parcel Map signed by owner and surveyor 9-28-23
Respectfully Submitted by:
Scott Christie
Public Works Director
Prepared By: Ryan Okane,
Approved by:
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Resolution 55-23
BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of:
Approving Parcel Map ) Resolution No. 55-23
for Subdivision MS 2023-003 )
Urban Lot Split )
at 2 Stanton Ct., Orinda, CA )
)
WHEREAS, the request of Orinda Properties LLC for a SB9 Urban Lot Split subdivision Tentative Map of property at 2 Stanton Ct., Orinda California was approved with conditions by the Orinda Planning Director on July 26, 2023; and WHEREAS, the applicant submitted the Final Map for Subdivision MS 2023-003 and in is process of being signed by all parties required to execute the certificates on the map (owner and surveyor), together with all supplementary documents and fees, to the Public Works Department for filing in accordance with the Subdivision Map Act and Title 16 of the Orinda Municipal Code and the tentative map conditions of approval; and WHEREAS, the Public Works Department has determined that the Parcel Map, all associated documents and fees are satisfactory in accordance with the Subdivision Map Act and Title 16 of the Orinda Municipal Code and the tentative map conditions of approval; and
WHEREAS, the City Council of the City of Orinda finds that:
1. The Final Parcel Map for Subdivision MS 2023-003, together with all supplementary documents, is in accordance with the Subdivision Map Act and Title 16 of the Orinda Municipal Code and the tentative map conditions of approval, and is consistent with the City of Orinda General Plan;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Orinda approves the Parcel Map for Subdivision MS 2023-003 with all supplementary documents.
Approved and adopted by the City Council of the City of Orinda at a regular meeting on October 3, 2023.
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Attachment: Resolution 55-23 Approval of Final Map 2 Stanton Ct (3222 : Approving 2 Stanton Ct. Urban Lot Split Parcel Map) Resolution 55-23
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
_________________________________
Inga Miller, Mayor
ATTEST:
_________________________________
Sheri Marie Smith, City Clerk
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Attachment: Resolution 55-23 Approval of Final Map 2 Stanton Ct (3222 : Approving 2 Stanton Ct. Urban Lot Split Parcel Map) F.2.b
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Attachment: Parcel Map signed by owner and surveyor 9-28-23 (3222 : Approving 2 Stanton Ct. Urban Lot Split Parcel Map)
PARCEL MAP
SUBDIVISION MS-2023-003
BAY AREA LAND
SURVEYING INC
3065 RICHMOND PARKWAY, SUITE 101
RICHMOND, CA 94806
(510) 223-5167
BA
LS
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Attachment: Parcel Map signed by owner and surveyor 9-28-23 (3222 : Approving 2 Stanton Ct. Urban Lot Split Parcel Map) City Council
Staff Report
Agenda Item: H.1
Date: October 3, 2023
Department: Planning Department
AGENDA TITLE: Discussion Regarding Temporary Signs in Downtown Orinda RECOMMENDATION:
Receive report, take public testimony, and provide feedback to staff.
BACKGROUND:
Matter Initiated. On July 18, 2023, Vice Mayor Gee raised a matter initiated regarding signage in the downtown area of Orinda. Per the adopted minutes:
K. MATTERS INITIATED – Vice Mayor Gee asked if staff is returning with an item regarding the sandwich board signs all over town. Mr. Biggs said staff was to do direct contact to businesses reminding them of requirements. Depending on response, staff will report back.
MOTION by Vice Mayor Gee, and seconded by Councilmember Iverson, to direct staff to bring back an item regarding a “Discussion of the Proliferation of Sandwich Board Signs.’ Said motion carried by unanimous (5-0) roll call vote.
Portable Sign Census. In response to the Council’s matter initiated, Planning Department staff conducted a “census” of temporary signs in the downtown area on July 28 and July 31, 2023. A total of 62 temporary signs, for a total of 42 different businesses, were observed.
Eighty-one percent of the observed signs were the A-Frame (sandwich board) type:
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Approximately one-third of the signs were on private property with the remainder in the public right-of-way (ROW); of the signs in the ROW, 5 were obstructing the sidewalk with less than 4’ of clearance. Overall, nearly a quarter (15) of the signs were locked to something like a tree or a post.
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DISCUSSION:
Signage in Orinda is governed by OMC Chapter 17.18, Signs, which was adopted by the City Council pursuant to Ordinance 12-01 in March, 2012. Per Ordinance 12-01 OMC Section 17.18.2, the objectives of Orinda’s sign regulations are to:
A. Reduce traffic and safety hazards through proper location and design of signs; B. Conveniently direct persons to various activities and enterprises in the City; C. Prevent uncontrolled sign competition which is costly to business and visually unattractive to the community;
D. Enhance the appearance and economic value of the community by regulating the quantity, size, type, location, design and maintenance of signs; E. Encourage signs that are compatible with adjacent land uses and that preserve the semi-rural character of the City;
F. Encourage high-quality design with a minimum of clutter; G. Encourage signs that are well designed and pleasing in appearance; and H. Provide a reasonable and constitutional system of sign control.
Ordinance 12-01 was the subject of intense interest and debate at the time of adoption.
The public and local businesses were especially interested in the regulations pertaining to the following types of signs:
• Portable and nonportable temporary signs in the public right-of-way; and • Portable and nonportable, temporary signs on private property.
In conjunction with Ordinance 12-01, the City Council also adopted Resolution 01-12 which establishes “major intersections” where temporary signs can remain up to 70 days at a time. In the downtown area, Resolution 01-12 identifies the following major intersections:
• Camino Pablo/Camino Sobrante
• Moraga Way/Overhill Road
Concerns regarding the proliferation of sandwich board signs in the downtown area is directly related to the rules governing portable and nonportable, temporary signs enacted with Ordinance 12-01.
Relevant OMC Definitions
• Temporary Sign: “A sign that is intended and constructed to be used for a limited period of time. These signs include but are not limited to, banners, flags, portable signs, and wall signs displayed for a temporary period of time. • Portable Sign: “A sign that is easily erected and moved by hand without the use of a shovel or other tool, and is capable of standing on its own frame without being affixed to a structure.”
• Non-portable Sign: (Any sign that is not a portable sign.) H.1
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Rules Regulating Sandwich Boards Temporary Signs in the Right of Way The following chart describes all temporary sign criteria either in the ROW or on private property. The rules relevant to Sandwich Board signs in the downtown area, which is the area of concern identified in the Matter Initiated, are highlighted. In downtown, the standards pertaining to “major intersections” are only applicable to the Camino Pablo/Camino Sobrante and Moraga Way/Overhill Road intersections.
Enforcement
Without a code enforcement division or department, most zoning-related code enforcement in Orinda is complaint-based. Over the years staff has received occasional complaints regarding specific downtown portable signs and some nonconforming portable signs were removed as the result of related enforcement measures.
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The time-related standards are quite difficult to enforce. For instance, sandwich boards that otherwise comply with the applicable standards can be located in the public ROW year-round as long as they are not placed in the ROW for more than 12 hours per day.
The 70-day limitation at major intersections, which can be consecutive, is similarly difficult to enforce.
There are other proactive enforcement measures that can be taken to reduce the number of temporary signs downtown. For instance, after performing the sign census, staff sent warning letters to all businesses with sandwich board signs affixed to “streetlights, trees, pavement, fences, rocks, mechanical equipment, utility poles or street furniture” as well as all signs “located within 3 feet of a bus stop, fire hydrant or pedestrian push button for a traffic signal.” A total of 9 businesses with cumulative total of 14 signs were warned that the City would remove the non-compliant signs if they were not brought into conformance by October 2. If removed, the signs will be kept at the City’s maintenance yard for pick-up by the businesses.
NEXT STEPS:
Staff seeks feedback from the Council regarding next steps, if any, pertaining to temporary signs in the downtown area. Options include aggressive enforcement regarding sandwich board signs, or possibly amending Chapter 17.18 (Signs) at some future date.
FISCAL IMPACT: A limited portion of Planning staff time funded from the General Fund is available to dedicate to these efforts. Depending upon the response to the City’s compliance efforts, it is possible that some fine revenue could be received if businesses do not come into compliance and Administrative Citations are issued.
ATTACHMENTS:
A. January 18, 2012 Lamorinda Weekly Article: "Orinda Weighs Blight vs First Amendment"
B. February 7, 2012 Staff Report re Ordinance 12-01 (Sign Ordinance) C. February 7, 2012 City Council Minutes
D. February 21, 2012 Staff Report re Ordinance 12-01 (Sign Ordinance) E. February 21, 2012 City Council Minutes
F. ORD 12-01 (Revisions to Sign Regulations)
G. Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW H. Temporary Sign Regulations handout
Respectfully Submitted by:
Drummond Buckley
Director of Planning
Prepared By: Drummond Buckley, Director of Planning
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Approved by:
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9/27/23, 10:10 AM LAMORINDA WEEKLY | Orinda Weighs Blight vs First Amendment | Orinda https://lamorindaweekly.com/archive/issue0523/print/Orinda-Weighs-Blight-vs-First-Amendment.html 1/1 Print this page
Published January 18th, 2012
Orinda Weighs Blight vs First Amendment
Laurie Snyder
Signs - visual clutter or free speech? This question was on the minds of the Orinda Planning Commission recently as it discussed amending the City's Sign Code to ensure that area signage will not diminish the community's character - an issue made thornier since the American Civil Liberties Union of Northern California (ACLU) advised City leaders in 2010 that their efforts to avert the proliferation of temporary signs were unconstitutional.
"To prevent visual clutter, the Ordinance No. 10-05 only permits one temporary sign on a residential property without a permit," according to the detail-rich staff report available on the City's web site:
www.ci.orinda.ca.us. This ordinance also "restricted the placement of temporary signs in the public right-ofway to Tuesday, Saturday and Sunday between the hours of 8:00 am and 6:00 pm and only in residential districts."
Those regulatory specifics, among others, did not sit well with several Orindans during the 2010 campaign season, prompting the ACLU to advise the City:
"This severe limitation on Orinda residents' right to engage in political speech violates the First Amendment.
Speech through residential signs is a 'venerable means of communication ... the Supreme Court has accordingly afforded it a high level of First Amendment protection." The ACLU also noted that "the court invalidated [a Virginia] ordinance that was in fact more permissive than Ordinance 10-5." In response, the City Council directed staff to draft new regulations. Those were presented to the Planning Commission on January 10. The proposed ordinance would create a new one-day sign category and place temporary signs in a separate category including sandwich boards and other signs for political campaigns, garage sales, and real estate.
For temporary signs in the public right-of-way, reads the proposed ordinance, "any number of portable temporary signs can be posted at the eight key intersection [sic] designated by the City" - as long as those signs comply with 13 general restrictions relating to the signs' size, construction and design, and location.
Content would not be regulated for non-commercial signs.
Planners were mindful of the need for businesses to advertise and expressed support for the free speech process, but were also concerned about the possible implications of Council's decision to allow the unlimited placement of signs in designated areas, citing not only the potential visual impact to public and private property but also the possibility that backers of a single political candidate or ballot initiative could actually hinder freedom of speech because they would be permitted to take over a public right-of-way to exclusively promote one candidate or issue.
The City Council will formally review the draft ordinance at its February 7 meeting.
Reach the reporter at: [email protected]
back
Copyright Lamorinda Weekly, Moraga CA
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Attachment: January 18, 2012 Lamorinda Weekly Article: "Orinda Weighs Blight vs First Amendment" (3217 : Portable Signs Downtown) H.1.b
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Attachment: February 7, 2012 Staff Report re Ordinance 12-01 (Sign Ordinance) (3217 : Portable Signs Downtown) H.1.b
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Packet Pg. 155 Attachment: February 21, 2012 Staff Report re Ordinance 12-01 (Sign Ordinance) (3217 : Portable Signs Downtown) FEBRUARY 21, 2012
CITY OF ORINDA
CITY COUNCIL MINUTES
6:15 P.M. – SPECIAL SESSION – LIBRARY GARDEN ROOM
A. CALL TO ORDER/ ROLL CALL
Mayor Glazer called the special meeting to order at approximately 6:15 p.m.
COUNCILMEMBERS PRESENT: Dean Orr, Victoria Smith, Sue Severson, Vice Mayor Amy Worth, Mayor Steve Glazer,
COUNCILMEMBERS ABSENT: None
B. ADOPTION OF AGENDA
MOTION was made, seconded and carried unanimously to approve the special session agenda as posted.
C. AGENDA ITEMS
C-1 Interview Candidates for Open County Liaison (Library Commission, County Connection Citizen Advisory Committee, and Contra Costa County Area on Aging Committee ) Positions
The Council interviewed candidates for each of the County Liaison positions.
MOTION by Councilmember Orr and seconded by Councilmember Worth to approve the following appointments:
Contra Costa County Advisory Council on Aging Representative Sue Littlehale: Term ending February 28, 2014
Representative on the Contra Costa County Library Commission Barbara Burkhalter (Rep) Term ending February 28, 2014
Ben Bonham (Alt) Term ending February 28, 2014
County Connection Citizens Advisory Committee
David Libby: Term ending February 28, 2014
Said motion carried by a 5-0 voice vote
C-2 Provide City Clerk Input Regarding Logistics and Scheduling for Future City Commission Interviews
Orinda City Council Minutes Page 1 of 8 02.21.12
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Packet Pg. 156 Attachment: February 21, 2012 City Council Minutes (3217 : Portable Signs Downtown) The Council discussed the upcoming City Commission interviews. There was a consensus that all candidates be interviewed on March 22, 2012. 7:00 P.M. – REGULAR MEETING - LIBRARY AUDITORIUM
A. CALL TO ORDER / ROLL CALL:
Mayor Glazer called the regular meeting to order at approximately 7:00 p.m.
COUNCILMEMBERS PRESENT: Dean Orr, Victoria Smith, Sue Severson, Vice Mayor Amy Worth, Mayor Steve Glazer,
COUNCILMEMBERS ABSENT: None
B. PLEDGE OF ALLEGIANCE: Led by Mayor Glazer
C. CLOSED SESSION REPORT: No Report
D. ADOPTION OF AGENDA
City Manager Keeter recommended that Item I-1 be considered prior to Item H-1 due to the number of individuals in attendance for Item I-1.
MOTION by Vice Mayor Worth and seconded by Councilmember Smith to approve the agenda with the amendment that Item I-1 be considered prior to Item H-1. Said motion carried by a unanimous voice vote.
E. ITEMS FOR THE GOOD OF THE CITY
Announcement by the Orinda Chamber of Commerce -“Live at the Orinda” Comedy Event on March 2, 2012 at the Orinda Theatre.
Keith Miller, Orinda Chamber of Commerce President, announced the upcoming Chamber comedy event featuring headliner Will Durst. Rick Kattenburg also announced the upcoming Chamber meeting on Friday, February 24th, at the Orinda Country Club.
F. PUBLIC FORUM
Richard Colman addressed the Council stating his objection to the City proposing a sales tax increase to fund fixing of Orinda roads but he would support a low level parcel tax.
G. CONSENT CALENDAR
Orinda City Council Minutes Page 2 of 8 02.21.12
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Packet Pg. 157 Attachment: February 21, 2012 City Council Minutes (3217 : Portable Signs Downtown) MOTION by Vice Mayor Worth and seconded by Councilmember Smith to approve Item G-1. Said motion carried by a unanimous voice vote.
MOTION by Vice Mayor Worth and seconded by Councilmember Orr to approve Item G-2(a). Said motion carried by a 4-0-1 voice vote with Councilmember Severson abstaining.
MOTION by Vice Mayor Worth and seconded by Councilmember Orr to approve Item G-2(b) as amended. Said motion carried by a unanimous voice vote.
MOTION by Vice Mayor Worth and seconded by Councilmember Orr to approve Item G-2(c). Said motion carried by a 4-0-1 voice vote with Mayor Glazer abstaining.
MOTION by Vice Mayor Worth and seconded by Councilmember Smith to approve Item G-3. Said motion carried by a 4-0-1 voice vote with Councilmember Severson abstaining because she lived within the assessment district area.
G-1 Approval of Regular Warrants #41126 - #41323, Payroll Checks #6767 - #6790, and Payroll Vouchers #41486 - #41520
Action: Approved list of warrants through February 8, 2012 G-2 City Council Minutes:
(a) January 31, 2012
(b) February 7, 2012 (as amended)
(c) February 9, 2012
Action: Approved Minutes
G-3 Ordering the Preparation and Filing of a Report for the Fiscal Year Ending 2013 Assessments for the Orinda Street Lighting and Landscaping Assessment District No. 1986-1
Action: Adopted Resolution No. 07-12, Ordering the Preparation and Filing of Report for Levy of Annual Assessments for Fiscal Year Ending 2013 for Orinda Street Lighting and Landscaping Assessment District No. 1986-1.
I. POLICY MATTERS
I-1 Development, Disposition and Loan Agreement ("DDLA") Between the City of Orinda and Eden Housing, Inc. Regarding the Vacant Property (the Old Library Site) at 2 Irwin Way ("Property") and Community Parking Lot Lease Between the City of Orinda and Orinda Community Church
Planning Director Ursu, Special Counsel Lynn Hutchins, and City Attorney Wolff introduced the details of the agenda matter.
Woody Karp, representing Eden Housing, presented correspondence and updated information which indicates that the Contra Costa County Conservation and Orinda City Council Minutes Page 3 of 8 02.21.12
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Packet Pg. 158 Attachment: February 21, 2012 City Council Minutes (3217 : Portable Signs Downtown) Development Department staff will be recommending to the Board of Supervisors an increase of $1.940 million to the contribution for Orinda’s senior affordable housing project bringing the total contribution to just over $4 million. He clarified that the Board action will be in time to allow submission of a tax credit application by the deadline date of March 22nd. He also provided further clarifications about how the DDLA is structured so that Community Development Block Grant funds can be used for acquisition of the site. In response to questions, Mr. Karp detailed the steps and timing for submitting an application to the California Tax Credit Allocation Committee.
Council questions and staff responses followed to clarify various provisions in the agreements including the protections provided to the City and the status and timing for actions relating to the current restricted $2.5 million which the City received through the Wilder Development Agreement.
Public Comments:
Richard Colman addressed the Council reiterating his opposition to the project based on its location in the downtown area and stating there has been no real town meetings or interactions with residents about the Eden project.
Valerie Sloven stated it has taken years for the project to get to this point and she felt the entire process has been open and transparent with a lot of paper work provided and numerous public meetings conducted. She stated the project is a wonderful one in a great downtown location across from a super market, bank and park and not isolated in the hill area.
Eartha Newsong thanked the Council for the years of hard work that has gone into the project. She stated her support for Ms. Sloven’s comments and urged that the Council support the agreement. She noted she was a low income resident living in the Orinda Senior Village and there is a three-year waiting list for that facility. She stated the typical Orinda Senior Village resident is the parent of a Lamorinda resident and she noted the volunteer work that she has done in the community.
Marty Buxton recalled that the senior housing concept started a long time ago and she felt the project was a good thing and would be wonderful.
Public Comments Concluded
Mayor Glazer thanked Council Subcommittee members, Vice Mayor Worth and Councilmember Smith, as well as City staff and Mr. Karp for working through all of the issues and he thanked the members of the community for sharing their opinions. He also referenced the numerous public meetings on the subject over the years which were indicative of the process being an inclusive one.
Vice Mayor Worth stated it was her honor to make the motion on the matter as the project was a reflection of a long-standing goal to provide housing for all segments of Orinda City Council Minutes Page 4 of 8 02.21.12
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Packet Pg. 159 Attachment: February 21, 2012 City Council Minutes (3217 : Portable Signs Downtown) the community and she felt the location was perfect for seniors. She expressed her appreciation to the Council for spending the time to study all of the documents, to the County for their commitment to the project, and to the Orinda Community Church for their participation and for establishing the first Orinda Senior Village. Councilmember Smith stated her concurrence.
MOTION by Vice Mayor Worth and seconded by Councilmember Smith to approve Resolution No. 08-12 approving and authorizing the execution of a Development, Disposition and Loan Agreement with Eden Housing, Inc., and the Community Parking Lot Lease with the Orinda Community Church. Said motion carried by a unanimous (5-0) voice vote.
H. PUBLIC HEARING
H-1 Continued Public Hearing Regarding Ordinance No. 12-01 Amending the City’s Sign Regulations and Consideration of Resolution No. 01-12 Designating Locations in the Public Right-of-Way for the Temporary Display of Portable Signs Without Commercial Advertising Planning Director Ursu introduced the matter summarizing the changes made to the proposed ordinance as a result of the Council’s direction at the last Council meeting.
He highlighted the map and list of locations in the public right-of-way where noncommercial signs could be posted for 70 days in a calendar year. He noted the list was developed to include intersections where major and minor arterials and collectors intersect with the exception of downtown locations and one intersection which was close to another intersection (i.e., El Nido Ranch and Charles Hill).
In response to questions, staff reviewed the size limitation for signs. City Manager Keeter also confirmed that the City Clerk, Planning and Public Works staff have reviewed the ordinance provisions as they will be involved in enforcing the ordinance on a complaint basis.
Councilmember Severson stated she has given the issue further consideration since the last Council meeting and she now preferred that there be a limit on the non-commercial signs throughout the entire downtown area. As such, she recommended not including two locations on the list developed by staff, specifically location (4) at Camino Pablo and Camino Sobrante and (8) at Orinda Way and Camino Sobrante. Councilmember Severson also questioned including locations where the intersections include all private property such as locations (13) Moraga Way and Ivy Drive (north) and (16) Overhill Road and Tara Road.
Councilmembers questioned and City Attorney Wolff and Director Ursu clarified the provisions of Section 17.18.7 (F) and (G) relating to non-portable temporary signs displayed for less than one year.
Public Hearing Comments:
Orinda City Council Minutes Page 5 of 8 02.21.12
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Packet Pg. 160 Attachment: February 21, 2012 City Council Minutes (3217 : Portable Signs Downtown) Laura Abrams addressed the Council regarding limiting the locations in the public-rightof way where non-commercial signs could be posted for 70 days in a calendar year.
She felt that limiting the locations would add a level of enforcement which would be impossible to maintain; this would place pressure on the City Clerk and Police staff; and it would be difficult for candidates and their volunteers to understand (especially for new candidates who don’t have name recognition).
Public Hearing Concluded
Council discussion continued regarding the need for further clarity to the revised ordinance language relating to the non-portable temporary signs displayed for no more than one (1) year. With the concurrence of the Council, the public hearing was reopened.
Heather Schiffman addressed the Council stating that additional signs on private roads should be for directional purposes (i.e., real estate signs in private drive easement areas) otherwise people end up going to the wrong home.
Following discussion, there was a consensus of the Council that the ordinance language (Section 17.18.7 (F) and (G)) be rewritten to clarify that there would be a limit of one sign per building frontage except in areas where a private driveway serves multiple home sites and, in such cases, one sign per easement holder should be permitted.
Discussion continued focusing on the locations in the public right-of-way where noncommercial signs could be posted for 70 days in a calendar year. Mayor Glazer noted that there were 6500 (private property) locations for such signs and plenty of chances were available for free speech.
Councilmember Smith stated she felt the 18 identified locations was a compromise and she continued to have concerns about impacts on free speech. Regarding the 6500 residential parcels, she felt these parcels were available if one had a well-funded campaign but it was not as easy for new candidates. She favored unlimited signs with regular boundaries for health and safety for drivers and pedestrians; the identified locations were based on a logical approach as arterial and collector roads were already identified; and she would not support further restrictions.
Councilmember Orr reiterated his preference was that no signs were allowed in the public rights-of-way but, if signs were allowed, he would prefer that locations be clearly defined by zoning regulations such as the proposal to identify intersections of arterials and collector streets where a clear map could be provided to candidates of where signs were permitted.
Vice Mayor Worth stated her concurrence with the previous two Councilmembers’ comments noting the proposal was a compromise. Additionally, she stated her Orinda City Council Minutes Page 6 of 8 02.21.12
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Packet Pg. 161 Attachment: February 21, 2012 City Council Minutes (3217 : Portable Signs Downtown) appreciation that the Public Works, City Clerk and Planning staff have been consulted about the management of the ordinance.
Mayor Glazer reviewed each of the 19 locations which could be included in Resolution No. 01-12 that will come back at a future Council meeting (with the 19th location added back to the list for El Nido Ranch Road and Charles Hill Road). During the review of each of the locations, Mayor Glazer expressed his opposition to each of the intersections. Per her earlier comments, Councilmember Severson expressed her opposition to locations 4 (Camino Pablo and Camino Sobrante), 8 (Orinda Way and Camino Sobrante), 13 (Moraga Way and Ivy Drive North), and 16 (Overhill Road and Tara Road).
There was a consensus of the Council to table the matter to allow time for City Attorney Wolff to develop amended ordinance language to reflect the Council’s consensus for changes to the ordinance.
J. COUNCILMEMBERS’ REPORTS
Councilmember Severson reported that she met with representatives of the Traffic Safety Advisory Committee and a representative of the Orinda Union School District Board and the Acalanes Union School District Board to continue discussions about the potential for school bell schedule changes to alleviate traffic in south Orinda. She stated the meeting concluded with a willingness expressed to give further consideration to having an open exchange of ideas and facts on the matter.
Councilmember Severson reported on her recent attendance at a Moraga Orinda Fire District Board meeting while serving as one of the City’s liaisons to the District.
Mayor Glazer reported that he welcomed actress Margaret O’Brien to the City of Orinda as she was attending the recent Independent Film Festival held at the Orinda Theater.
Councilmember Severson reported and invited all to attend the upcoming Orinda Community Foundation’s second birthday party to be held on February 29th and she noted the Foundation would be dispersing $38,000 in grants back to community organizations.
K. CITY MANAGER’S REPORT
City Manager Keeter reminded the Council that the Farmers Market would start on March 3rd and City Clerk Olsen would be contacting Councilmembers to schedule City representation at the market. She also reported that on the next Council agenda there would be an item to receive input about the topics to be included on the March 27th joint Council/Planning Commission meeting agenda.
L. MATTERS INITIATED
Orinda City Council Minutes Page 7 of 8 02.21.12
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Packet Pg. 162 Attachment: February 21, 2012 City Council Minutes (3217 : Portable Signs Downtown) H-1 Continued Public Hearing Regarding Ordinance No. 12-01 Amending the City’s Sign Regulations and Consideration of Resolution No. 01-12 Designating Locations in the Public Right-of-Way for the Temporary Display of Portable Signs Without Commercial Advertising City Attorney Wolff read the following proposed changes to Section 17.18.7 of the sign ordinance. Councilmembers expressed their concurrence with amending Ordinance No. 12-01 to include the changes.
F. In any zoning district, one (1) non-portable temporary sign per building frontage displayed for no more than one (1) year. Any such sign referencing a specific event (e.g., election, garage sale, property sale/lease) shall be removed as soon as possible, but no more than ten (10) days, after the event.
G. On private roadway easements in any zoning district, a number of non-portable temporary signs equal to the number of parcels accessed by that easement displayed for no more than one (1) year. Any such sign referencing a specific event (e.g., election, garage sale, property sale/lease) shall be removed as soon as possible, but no more than ten (10) days, after the event.
MOTION by Vice Mayor Worth and seconded by Councilmember Smith that Ordinance No. 12-01 as amended titled “An Ordinance revising the sign regulations in Title
17.18 ‘Signs’ of the Orinda Municipal Code” be considered by title only waiving the reading of the full text by the City Clerk. Said motion carried by a unanimous (5- 0) voice vote.
MOTION by Vice Mayor Worth and seconded by Councilmember Smith to introduce Ordinance No. 12-01 as amended. Said motion carried by a unanimous (5-0) roll call vote.
Mayor Glazer announced that Ordinance No. 12-01 has been introduced and will appear on the Council’s next agenda for consideration of adoption. Councilmember Smith noted she would be absent at the next regular Council meeting. Following discussion and with the Council’s concurrence Mayor Glazer amended the announcement to reflect that on the Council’s March 20th agenda the Council would consider adoption of Ordinance No. 12-01 and consider adoption of Resolution No. 01- 12 designating locations in the public right-of-way for the temporary display of portable signs without commercial advertising.
M. ADJOURNMENT
The meeting was adjourned at approximately 9:10 p.m. to the next Regular meeting of the Orinda City Council to be held on Tuesday, March 6, 2012, at 7:00 P.M. in the Orinda Library Auditorium.
______________________________________
Michele L. Olsen, City Clerk
Orinda City Council Minutes Page 8 of 8 02.21.12
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Packet Pg. 163 Attachment: February 21, 2012 City Council Minutes (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 164 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 165 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 166 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 167 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 168 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 169 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 170 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 171 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 172 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 173 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 174 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 175 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 176 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 177 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 178 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.f
Packet Pg. 179 Attachment: ORD 12-01 (Revisions to Sign Regulations) (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 180 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 181 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 182 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 183 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 184 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 185 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 186 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 187 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 188 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 189 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 190 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 191 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 192 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 193 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 194 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 195 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 196 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) H.1.g
Packet Pg. 197 Attachment: Resolution 01-12 Resolution on Portable Temporary Signs in Public ROW (3217 : Portable Signs Downtown) Temporary Sign Regulations: 09/2023 Page 1 of 2
CITY OFORINDA
Temporary Sign Regulations
22 Orinda Way, Orinda, CA 94563
(925)253-4210 [email protected]
TEMPORARY SIGN CRITERIA
Public Right-of-Way Private Property
Anywhere in
Orinda
At Major
Intersections*
All Private
Property
Private Property
Downtown
Maximum Days 1 day
(12 hours max) 70 days 70 days (Portable)
1 year (Non-Portable)
30 days per
calendar year
Maximum Sign
Size 6 square-feet 6 square-feet 6 square-feet 15 square-feet Maximum
Number of Signs Unlimited Unlimited
Unlimited
(Portable)
1 per frontage
(Non-Portable)
1 sign per tenant;
no more than 1
sign per 25sf of
building frontage
Off-Site
Advertising Allowed Not Allowed Not Allowed Not Allowed Portable or NonPortable Portable Portable Portable or
Non-Portable
Portable or
Non-Portable
Permit Required? No No No Yes, Type I Permit
Per Orinda Municipal Code Section §17.18.12(D) and §17.18.13(A), all temporary signs shall not:
1. Have more than 2 faces
2. Exceed 3 feet in height if they are portable
3. Exceed 6 feet in height if they are non-portable
4. Be illuminated
5. Be made of materials not resistant to moisture
6. Be secured to streetlights, trees, pavement, fences, rocks, mechanical equipment, utility poles or street furniture
7. Be located in a City-maintained landscape area
8. Be located within 3 feet of a bus stop, fire hydrant or pedestrian push button for a traffic signal
9. Be oriented to Highway 24
10. Be equipped with rotating or moving parts
11. Interfere with, obstruct, or misdirect traffic, impede pedestrian movement, or create a pedestrian or vehicular safety hazard
Orinda Municipal Code §17.18 regulates signs. A temporary sign is a sign that is intended and constructed to be used for a limited period of time. These signs include but are not limited to, banners, flags, portable signs, and wall signs displayed for a temporary period of time. Generally, the sign code regulates temporary signs based on:
1. Whether the sign is in the public right-of-way or on private property,
2. Whether the sign is located in a residential or non-residential zoning district, and
3. Whether or not the sign contains off-site advertising.
H.1.h
Packet Pg. 198 Attachment: Temporary Sign Regulations handout (3217 : Portable Signs Downtown) Temporary Sign Regulations: 09/2023 Page 2 of 2
KEY DEFINITIONS
o Temporary sign - a sign that is intended and constructed to be used for a limited period of time.
These signs include but are not limited to, banners, flags, portable signs, and wall signs displayed for a temporary period of time.
o Off-site advertising sign - a sign that directs attention to a business, profession, commodity, service or entertainment that is conducted, sold, or offered elsewhere than the lot or parcel where the sign is located.
o One-day sign - a portable temporary sign that is erected and removed on the same calendar day and is displayed for no more than 12 consecutive hours during that day. This definition includes signs displayed on consecutive calendar days, provided they are erected and removed each day.
This definition excludes signs displayed continuously over consecutive calendar days. o Portable sign - a sign that is easily erected and moved by hand without the use of a shovel orother tool, and is capable of standing on its own frame without being affixed to a structure. o Public right-of-way - a strip of land owned or controlled by a governmental entity over which the public has right of passage, such as streets, parkways, medians, sidewalks, easements, and driveways.
TEMPORARY SIGNS IN THE PUBLIC RIGHT-OF-WAY
Portable signs without off-street advertising are permitted for up to 70 days at the major intersections listed in Resolution 24-12 - Approved Locations for Temporary Signs in the Public Right of Way. Unless documented otherwise, signs within 4 feet of the edge of the roadway pavement will be considered within the public right-of-way. Major intersections are defined as:
Temporary signs in the public right-of-way in violation of the Orinda Municipal Code will be removed by the City and may be discarded. At the City’s discretion, the City will make a reasonable effort to reach the sign owners to inform them that their signs were removed and where they may retrieve their signs. If your sign was removed by the City, contact the Public Works & Engineering Department at (925) 253-4231 to inquiry about the status of your sign.
TEMPORARY SIGNS FOR A SPECIFIC EVENT
Any temporary sign referencing a specific event (e.g., election, garage sale, property sales/lease) shall be removed as soon as possible, but no more than ten (10) days after the event.
P:\Templates and Forms\Forms, Handouts, Letters to the Public\Temporary Sign Regulations.docx H.1.h
Packet Pg. 199 Attachment: Temporary Sign Regulations handout (3217 : Portable Signs Downtown) City Council
Staff Report
Agenda Item: H.2
Date: October 3, 2023
Department:
Public Works and
Engineering Services
AGENDA TITLE: Discussion of Accessible Parking in Theater District RECOMMENDATION:
Receive report, Discuss, and Provide Direction, if any
BACKGROUND:
As a Matters Initiated at the September 5, 2023 City Council meeting, staff was asked to review the status of disabled (accessible) parking in the Theater District. In response, staff has made field observations, reviewed distribution of the accessible parking spaces and reviewed applicable requirements and guidelines and provides this overview.
DISCUSSION:
Attachment A is an aerial view of the Theater District, with quantities of parking shown for both on-street and off-street parking. Accessible parking spaces are also denoted.
For off street (private land) parking, accessible parking requirements (and locations) are prescribed in general as a percent of the total available parking. Refer to Attachment B, which shows California Building Code (CBC) requirements for accessible parking (off-street in parking lots or facilities) which would apply to new construction. In general, on-street accessible parking spaces may not be used to meet private parking facility minimum required accessible spaces. There are not specific requirements for the quantity of on-street accessible parking, however one approach is to utilize the same ratio as provided in the CBC for a specific location or street. The layout, striping and signage requirements for on-street accessible parking are equivalent to those for off-street.
The breakdown of on-street and off-street parking is as follows:
Off-Street: Total Spaces: 584 Accessible Spaces: 20 Approx. Percentage: 3% Required minimum, 2%, equals 12 spaces
On-Street: Total Spaces: 97 Accessible Spaces: 3 Approx. Percentage: 3% Prescribed minimum for 100 spaces, if we assume
CBC rules, is 4 accessible spaces
As shown above, the minimum accessible space requirements are met for the Theater District in terms of Off-street parking. For on-street, using a conservative approach, one additional accessible space would be needed. Adding one accessible space would require the loss of two regular spaces. In addition, the path of travel from any H.2
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proposed accessible space would also have to meet the established criteria for such.
There used to be two additional on-street parking spaces, one located near Peet’s Coffee and one at 39 Moraga which were removed as they did not fully meet the standards for an accessible space, and at one location where there was a claim made as result.
Note: the above quantities include underground parking at Theater Square, consisting of 331 spaces (including 8 accessible spaces). The above quantities exclude Bryant Way and Northwood Dr.
ATTACHMENTS:
A. Theater District Parking Spaces
B. CBC Accessible Parking Reqts.
Respectfully Submitted by:
Scott Christie
Public Works Director
Prepared By: Scott Christie, Public Works Director
Approved by:
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7 9
6 6 5
2 2
7+1
161+2
10+1
3 MORAGA WAY
BROOKWOOD
ROAD
BRYANT
WAY
NORTHWOOD
DRIVE
THEATER
SQUARE
PARKING
(323+8)
2004 Study
13 +
Loading
Zone
PARKING SPACES - THEATER DISTRICT (E) ACCESSIBLE PARKING SPACE (E) ON-STREET PARKING (E) OFF-STREET PARKING
24+1
18+1
8 25+2
16+1
16+2
3+1
161+2
24+1
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Attachment: Theater District Parking Spaces (3219 : Accessilbe Parking - Theater District) May 20, 2020 – CCDA Checklist Committee – Supporting Document Page 3 of 22 11B-206.4.2 Parking structure entrances. Where direct access is provided for pedestrians from a parking structure to a building or facility entrance, each direct access to the building or facility entrance shall comply with Section 11B-404. 11B-208 Parking spaces
11B-208.1 General. Where parking spaces are provided, parking spaces shall be provided in accordance with Section 11B-208. For the purposes of this section, electric vehicle charging stations are not parking spaces; see Section 11B-228.
Exception: Parking spaces used exclusively for buses, trucks, other delivery vehicles, or vehicular impound shall not be required to comply with Section 11B-208 provided that lots accessed by the public are provided with a passenger drop-off and loading zone complying with Section 11B-503.
11B-208.2 Minimum number. Parking spaces complying with Section 11B-502 shall be provided in accordance with Table 11B-208.2 except as required by Sections 11B208.2.1, 11B-208.2.2, and 11B-208.2.3. Where more than one parking facility is provided on a site, the number of accessible spaces provided on the site shall be calculated according to the number of spaces required for each parking facility.
Table 11B-208.2 Parking Spaces
Total Number of Parking Spaces
Provided in Parking Facility
Minimum Number of Required
Accessible Parking Spaces
1 to 25 1
26 to 50 2
51 to 75 3
76 to 100 4
101 to 150 5
151 to 200 6
201 to 300 7
301 to 400 8
401 to 500 9
501 to 1000 2 percent of total
1001 and over 20, plus 1 for each 100, or fraction
thereof, over 1000
H.2.b
Packet Pg. 203 Attachment: CBC Accessible Parking Reqts. (3219 : Accessilbe Parking - Theater District) City Council
Staff Report
Agenda Item: H.3
Date: October 3, 2023
Department: Administration
AGENDA TITLE: Follow-Up Report on Inclusionary Housing Ordinance Options RECOMMENDATION:
Receive Report regarding Inclusionary Housing Ordinances, Discuss Key Parameters, and Direct Staff to Prepare an Ordinance for Review and Consideration.
BACKGROUND:
On May 2, 2023, the City Council received a report from staff on the possibility of the development of an inclusionary housing ordinance for future consideration and the parameters of such a draft ordinance. The staff report from that meeting and attachments are included in Attachment A. At that meeting, the City Council asked staff to provide more information on the range of existing inclusionary housing programs in Contra Costa County and to return with information.
Since that time, a Planning Technical Assistance Committee of Contra Costa County Planning staff, operating under the auspices of ABAG called C4, has completed a summary of all existing Contra Costa County inclusionary housing programs. That information is provided in Attachment B.
DISCUSSION:
Following Council review of the additional information provided, if the Council wishes to proceed with the development of a draft inclusionary housing ordinance, staff would be seeking, as with the prior agenda item, guidance as to the key parameters identified in the May 2, 2023, staff report, which are set forth here again for ease of reference:
Parameters for Consideration
1. Size of development to which the inclusionary housing ordinance would apply.
A high-level review of inclusionary ordinances indicates that 10 units or more is an often-used threshold. The Moraga ordinance exempts projects of 5 units or less from the on-site requirement, though a fractional in-lieu fee is established.
Given the densities contemplated on the opportunity sites in the Downtown and other areas, the 10-unit threshold is what staff would be proposing.
2. Percentage of units required to be set aside as affordable and at what target levels of affordability.
A 10% to 15% level of inclusionary seems to be most common. As an initial target, City staff suggest that 10% would be the desirable target level given we H.3
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have numerous housing opportunity sites that are slated for affordable housing development. The City is looking to facilitate or encourage the development of housing affordable to three categories – Very Low, Low, and Moderate income.
Having projects producing inclusionary units at a mix of 50% Very/Low and 50% Moderate would be recommended. It is anticipated that some sites developed in conjunction with an affordable housing developer would be 100% affordable to the Very Low/Low categories.
3. Should the mix of on-site affordable units be proportionate to the unit mix for the market rate components?
While staff anticipates that the affordable units can vary in size and amenity levels from the market rate units, any on-site units should be proportionate to the overall mix of the market rate units. For example, if there are 80 market rates units in a mix of 10 studio, 20 one-bedroom and 10 two-bedroom, the affordable units should match that mix with 2 studios, 4 one-bedroom, and 2 two-bedroom units for a total of 8 units at a 10% requirement. Some flexibility may be desirable, so a factor like a 10% variation could be allowed or some other goal established or required.
4. Should an in-lieu fee be considered for projects below the on-site requirement minimum?
An in-lieu fee should be established to ensure all development is contributing to the production of affordable units. There are some broader policy questions such as should the in-lieu fee apply to projects under threshold requiring on-site production of housing like in Moraga where a fractional fee is levied, or are their situations where a developer could “buy” their way out of on-site production by perhaps paying the in-lieu at a higher level, say 150% of the standard in-lieu fee.
This may on occasion also be desirable if the City is working to facilitate housing at the lower income levels with the fees collected being able to help assist in that effort.
5. What, if any, development incentives should be considered? As noted, while many developments are anticipated to utilize the State’s density bonus law for additional density in exchange for providing a level of affordability, they are also entitled under State law to additional concessions and waivers.
While we don’t expect that the City’s inclusionary housing ordinance would be applicable to the projects already taking advantage of the State’s density bonus law, should market rate projects subject to the inclusionary housing ordinance also be afforded some incentives to off-set the cost for providing the affordable units?
NEXT STEPS: If so desired, Staff will develop a draft inclusionary ordinance to present to the Planning Commission as the next step in the consideration process.
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FISCAL IMPACT: None because of this item. There will be costs both direct and staff time to develop an inclusionary housing ordinance and after adoption to further implement and administer the program on an ongoing basis.
ATTACHMENTS:
A. May 2, 2023 Staff Report with Attachments
B. C4 Summary of Contra Costa County Inclusionary Ordinances Respectfully Submitted by:
David Biggs
City Manager
Prepared By: Sheri Smith, City Clerk
Approved by:
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City Council
Staff Report
Agenda Item: H.3
Date: May 2, 2023
Department: Administration
AGENDA TITLE: Inclusionary Housing Ordinance
RECOMMENDATION:
Receive Report regarding Inclusionary Housing Ordinances, Discuss Key Parameters, and Direct Staff to Prepare an Ordinance for Review and Consideration.
BACKGROUND: On January 31, 2023, the City Council approved an updated Housing Element for the City’s General Plan. Since that time, the State Department of Housing and Community Development has deemed the City’s Housing Element to be in substantial compliance with State law and our attention has turned to implementation activities. As discussed during the consideration of the Housing Element, one of the first action items which the City Manager and staff committed to bring back for consideration is a possible inclusionary housing ordinance. This report is the first step in that process.
An Action Item on page 222 of the adopted Housing Element regarding an inclusionary ordinance provides:
“Action 3.G: Inclusionary Housing Ordinance. The City will research an inclusionary housing ordinance. This ordinance will identify acceptable methods to provide affordable housing such as: a) construction of housing on- site, b) construction of housing off-site, c) dedication of land for housing, and d) payment of an in-lieu fee. Development of this ordinance requires an analysis of the following variables:
● Limiting the application of the ordinance to developments exceeding a certain size.
● Percentage of housing units required to be set aside as affordable. ● Design and building requirements.
● Timing of affordable unit construction.
● Determination of a fee in lieu of developing affordable units. ● Developer incentives, such as fee deferrals and waivers. ● Administration of affordability control.
Responsible Agency: Planning Department
Timeframe: Determine the appropriateness of an inclusionary ordinance within two years after adoption of the Housing Element. If determined appropriate, adopt an inclusionary ordinance within one year of making the determination.
Funding Source: General Fund
Quantified Objective: 145 lower income units in high opportunity areas to promote access to resources and mobility for target households.” H.3
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Packet Pg. 207 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) DISCUSSION: Any consideration of an inclusionary ordinance in Orinda should reflect the goals in the recently approved Housing Element and diverse range of tools and programs to be put in place to encourage the development of housing, especially affordable housing including the higher densities to be implemented in parts of the community. It is anticipated that many market-rate developments will take advantage of the bonus density laws which provide for additional density and waivers/concessions in exchange for including affordable housing in new development. As such, the staff has approached the development of an inclusionary ordinance as mainly being the tool to ensure what would otherwise be 100% market projects also do their fair share and contribute towards the provision of affordable units.
Inclusionary housing ordinances have been utilized in many communities across the State for many years. They became more important after the elimination of Redevelopment Agencies in 2011-12 as redevelopment project areas had a mandate that 15% of all housing be affordable, plus 20% of any property tax increment received by a Redevelopment Agency was set aside for affordable housing. It should be noted that Orinda did not have a Redevelopment Agency.
Attached is publication of the Local Government Commission and others from 2018 entitled: Meeting California’s Housing Needs: Best Practices for Inclusionary Housing (Attachment A). While this is slightly dated, it does provide a good overview on inclusionary housing and the main approaches and considerations.
Another resource is the California Coalition for Rural Housing website on which inclusionary housing programs from many jurisdictions across the State are catalogued.
The link below provides access to that website as an additional resource:
https://experience.arcgis.com/experience/ccee391adbe9461cbe32c6b3423939be?org= ucdavis
Welcome to the California Inclusionary Housing Programs Searchable Database, created by the California Coalition for Rural Housing in June 2021. This database includes all of California’s Inclusionary Housing programs and allows stakeholders to filter programs by various characteristics, see where the programs are located within California, and discover and download more detailed information.
Click on the information icon on the Filter Inclusionary Housing label for brief instructions on how to use the database, and see the Inclusionary Housing User Manual for more detailed information.
An additional resource is a publication on from the Western Center on Law and Poverty which is attached: Inclusionary Housing in California – The Legal Landscape (Attachment B). This publication explains some of the legal constraints regarding inclusionary housing and its evolution due to legislation and case law. As discussed in this publication, a few years after we have an inclusionary ordinance in place, the State Department of Housing and Community Development (HCD) will require an economic H.3
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Packet Pg. 208 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) study demonstrating that the ordinance is not an impediment to new housing construction. In addition, we should be mindful that the legal landscape can change, and a current example is a bill which has been introduced in the State Legislature this year. SB 423 would make, if passed, inclusionary ordinances unenforceable if their income limits don’t match those in SB 35, an existing piece of housing legislation.
Finally, two neighboring communities have local inclusionary ordinance. the Town of Moraga considered and adopted an inclusionary housing ordinance in December of 2022, a very recent local example. The staff report and final adopted ordinance is provided as an additional touchstone (Attachment C). Plus, in conjunction with their new inclusionary housing ordinance, the Town of Moraga has embarked on the establishment of an in-lieu fee for inclusionary units, or fractional units. That staff report and study may also be of interest (Attachment D). The Council may also consider the City of Lafayette’s inclusionary Ordinance which was originally adopted in 2016 and which has been amended since. A summary of the Lafayette Ordinance is excerpted from their Housing Element is provided as Attachment D and the text of the Ordinance is provided as Attachment E. These communities’ inclusionary ordinances can inform the Orinda City Council discussion of options.
Parameters for Consideration
As staff begins work on a draft inclusionary housing ordinance, it would be helpful to get some initial feedback from the City Council on a number of parameters.
1. Size of development to which the inclusionary housing ordinance would apply.
A high-level review of inclusionary ordinances indicates that 10 units or more is a often used threshold. The Moraga ordinance exempts projects of 5 units or less from the on-site requirement, though a fractional in-lieu fee is established. Given the densities contemplated on the opportunity sites in the Downtown and other areas, the 10-unit threshold is what staff would be proposing.
2. Percentage of units required to be set aside as affordable and at what target levels of affordability.
A 10% to 15% level of inclusionary seems to be most common. As an initial target, City staff suggest that 10% would be the desirable target level given we have numerous housing opportunity sites which are slated for affordable housing development. The City is looking to facilitate or encourage the development of housing affordable in three categories – Very Low, Low, and Moderate income.
Having projects producing inclusionary units at a mix of 50% Very Low/Low and 50% Moderate would be recommended. It is anticipated that some sites developed in conjunction with an affordable housing developer would be 100% affordable to the Very Low/Low categories.
3. Should the mix of on-site affordable units be proportionate to the unit mix for the market rate components?
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Packet Pg. 209 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) While staff anticipates that the affordable units can vary in size and amenity levels from the market rate units, any on-site units should be proportionate to the overall mix of the market rate units. For example, if there are 80 market rates units in a mix of 10 studio, 20 one-bedroom and 10 two-bedroom, the affordable units should match that mix with 2 studios, 4 one-bedroom, and 2 two-bedroom units for a total of 8 units at a 10% requirement. Some flexibility may be desirable, so a factor like a 10% variation could be allowed or some other goal established or required.
4. Should an in-lieu fee be considered for projects below the on-site requirement minimum?
An in-lieu fee should be established to ensure all development is contributing to the production of affordable units. There are some broader policy questions such as should the in-lieu fee apply to projects under threshold requiring on-site production of housing like in Moraga where a fractional fee is levied or are their situations where a developer could “buy” their way out of on-site production by perhaps paying the in-lieu at a higher level, say 150% of the standard in-lieu fee.
This may on occasion also be desirable if the City is working to facilitate housing at the lower income levels with the fees collected being able to help assist in that effort.
5. What, if any, development incentives should be considered? As noted, while many developments are anticipated to utilize the State’s density bonus law for additional density in exchange for providing a level of affordability, they are also entitled under State law to additional concessions and waivers.
While we don’t expect that the City’s inclusionary housing ordinance would be applicable to the projects already taking advantage of the State’s density bonus law, should market rate projects subject to the inclusionary housing ordinance also be afforded some incentives to off-set the cost for providing the affordable units?
NEXT STEPS: Staff will utilize the initial feedback received as part of this agenda item to develop a draft inclusionary ordinance to present to the Planning Commission as the next step in the consideration process. If additional feedback is desirable prior to that step, staff could work with the City Council’s Downtown Planning & Housing Element Subcommittee to refine the proposed components.
FISCAL IMPACT: None because of this item. There will be costs both direct and staff time to develop an inclusionary housing ordinance, and after adoption to further implement and administer the program on an on-going basis.
ATTACHMENTS:
A. Attachment A - Inclusionary Factsheet
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Packet Pg. 210 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) B. Attachment B - Inclusionary Housing in California - The Legal Landscape C. Attachment C - Moraga Affordable Housing Ord
D. Attachment D - Moraga Inclusionary Zoning In-Lieu Fee E. Attachment E -Lafayette Inclusionary Program Summary - Excerpt from Housing Element Contraints Analysis
F. Attachment f - Lafayette Inclusionary Ordinance
Respectfully Submitted by:
David Biggs
City Manager
Prepared By: Sheri Smith, City Clerk
Approved by:
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Packet Pg. 211 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) I
nclusionary housing is used in hundreds of communities across the country tocreate units that are affordable to lower-income households in new market-rate residential developments. More than 170 cities and counties in California have used inclusionary-housing policies to help address affordable-housing needs while advancing equitable-development goals.
Inclusionary policies capture some of the value of rising real-estate prices to provide community benefits byusing local land-use controls to ensure that muchneeded affordable-housing units are produced along with market-rate units and that the limited supply of developable land is put to work in a way that serves households atall income levels.
Inclusionary housing – also referred to as “inclusionary zoning”– is a flexible tool that can be tailored to local circumstances. There is no one “model” inclusionary-housing policy, but rather a number of best practices to consider when adopting or amending an ordinance.
This factsheet explores the range of policy options to consider when designing a local inclusionary ordinance and highlights best practices that maximize community benefits and fulfill policy goals.
An inclusionary-housing ordinance is one part of an equitable-development strategy, and should not be viewed as the sole way to address affordable-housing needs. In most communities, building the needed amount of housing for lower-income families will still require public subsidies and must be integrated with other strategies.
Following a period of legal
uncertainty around inclusionary
ordinances, a 2015 Supreme
Court decision affirmed city
and county authority to impose
inclusionary requirements
based on local government’s
broad police powers.
And passage of Assembly Bill
1505 in 2017 reinstated the
authority to apply inclusionary
policies for rental housing.
Meeting California’s Housing Needs:
Best Practices for Inclusionary Housing
■ November 2018
Produced by Local Government Commission,
Western Center on Law and Poverty and
California Rural Legal Assistance Foundation,
with funding from the Climate, Land Use,
and Transportation program of
the Resources Legacy Fund.
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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) Packet Pg. 212 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 2 MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING Awell-designed ordinance can generate numerous benefits for communities seeking to increase housing affordability and develop diverse, inclusive neighborhoods. These include:
✦ More choices for lower-income households about where to live. ✦ Reduced opposition to affordable housing by producing affordable units within communities as they develop, not after.
✦ Support for compact infill development, reduced sprawl and achievement of local Regional Housing Needs Assessment
(RHNA) targets for all income levels.
✦ Reduced vehicle miles traveled (VMT) and greenhouse gas emissions byproviding people at all income levels more opportunities to live closer to work and in transit-rich areas.
✦ Ensuring that the entire community benefits from a growing economy.
Public and private investments help create economic growth that raises property values. Inclusionary housing helps capture some of the value created by these investments to ensure that the benefits do not accrue solely to property owners and helps buffer against displacement pressures byensuring that lower-income residents can remain in the community. ✦ Reduced segregation and concentration of poverty.
Benefits of an Inclusionary Housing Ordinance
Keys to a Successful Ordinance
Adopting a detailed inclusionary ordinance with input from a wide range of community stakeholders is the best method for implementing effective and legally defensible inclusionary requirements.
The ordinance’s language should provide clarity and certainty for the development community, and be structured to realistically achieve its goals. It should be backed by data and research that establishes both the need for the policy and the feasibility of the requirement.
The key elements of a well-crafted inclusionary ordinance include:
1. State the need.
Local governments have broad discretion under the police powergranted by the state constitution to regulate the use of land within their borders, so long as the regulation is reasonably related to advancing the general welfare.
A local inclusionary ordinance, then, should start with a statement of findings related to the need for the policy to improve the community’s well-being.
Most California jurisdictions have a severe shortage of housing units affordable to low- and very low-income households.The need to address that shortage provides a strong basis for inclusionary zoning, as does the need to meet the jurisdiction’s share of the region’s ongoing housing need at the lower-income levels (which is nearly impossible to do with subsidy alone).
Jurisdictions also frequently point to the need to address past patterns of racial and economic segregation in their community,ensure the preservation and development of diverse neighborhoods, meet fair-housing mandates, and make the best use of a limited supply of developable land.
The ordinance should be directly tied to the findings establishing the need for the policy. For example, if the findings cite the shortage of low- and very low-income housing units in the community, then one of the policy’s goals should be to ensure that those units get produced. A well-crafted ordinance will start with findings that support the policy choices reflected in the design of the ordinance.
“Lower-income” households refers to those making 80% or less of area median income (AMI). The term encompasses households that are “low-income” (those making 50-80% of AMI) and “very low-income” (those making less than 50% of AMI).
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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) Packet Pg. 213 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing)
2. Get the numbers right: how many, where,
when and for how long?
How many affordable units should be required
and to whom should they be affordable?
An inclusionary ordinance should clearly define how many affordable units must be included in a project and at which income levels. The vast majority of ordinances set the requirement as a percentage of the total number of units in the project, while a few communities use a square-footage metric.
LOW AND VERY-LOW: The requirement will typically be split between lowand very low-income households (for example, 15% of the total are affordable units, with 10% low and 5% very low). Some laws also include a target for extremely low-income households.
MODERATE: Some communities also require moderate-income units, but this should be based on a careful analysis of the market and its ability to serve moderate-income households. If the market is producing moderate-income units on its own, there would be no rationale for having a inclusionary requirement for moderate-income units.
Whatpercentage a community establishes will be dependent on its affordable housing needs, local market conditions, the financial incentives available to developers, and the mix of affordability levels required.
FIXED: Some communities require fixed percentages at each designated income level, whereas others may provide some flexibility (for example, allowing for a lower percentage of inclusionary units overall when the units are provided at a deeper affordability level).
FLEXIBLE: Some jurisdictions structure their inclusionary policies to involve a sliding scale, so that projects that include higher percentages of affordable units also qualify for more incentives, such as greater density increases.
While there may be reasons to build flexibility for the required number of affordable units into an ordinance,too much flexibility can undermine the creation of new housing at the income levels needed most and cannot be produced by the market alone.
Which projects should have to comply with
the inclusionary requirement?
While it may be tempting to carve out various exceptions to an inclusionary requirement, the best practice is to apply the requirement to all housingdevelopment projects throughout a community or the geographic area covered by the policy. This is the best way to ensure that the policy is In California, the requirements in most inclusionary policies adopted so far have fallen within the 10-20% range –
15% being the most common.
MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING 3 implemented equitably and serves the overall goal of ensuring that all neighborhoods – single-family and multi-family, lower-density and higherdensity – incorporate housing options at a range of income levels.
SMALL PROJECTS: Many jurisdictions choose to exempt small projects from complying with an inclusionary requirement. The rationale is often to ensure that smaller development projects are financially feasible. While a smallproject exemption may be well-intended, it can be difficult to reconcile an exemption with the ordinance’s overall goals and create potential legal issues.
It can also be a challenge to settle on a definition of “small”that doesn’t simply encourage projects that come in just under the threshold, thus frustrating the goal of ensuring that all new housing development contributes to meeting the community’s affordable-housing needs.
Rather exempting these projects altogether,a better practice is to provide small projects with the option to pay an in-lieu fee as an alternative tocompliance with on-site production requirements. This is particularly true in areas where a high proportion of development activity occurs on smaller projects.
Should inclusionary requirements be different for
for-sale projects and rental projects?
In most jurisdictions, the most defensible ordinance will be one that imposes an inclusionary requirement equally on rental and for-sale housing. Requirements that treat the two differently may have fairhousing implications and, much like exemptions for small projects, can be challenging to reconcile with the ordinance’s goals.
For example, an ordinance that requires the inclusion of low- and very lowincome units in rental developments, but only moderate-income units in for-sale developments, could run counter to the goal of ensuring that all neighborhoods have a mix of housing at all income levels in cities where rental and for-sale development generally happen in different neighborhoods.
Furthermore,depending on local demographics, such policies may lead to disparate impacts on certain protected classes,potentially violating legal requirements. In weighing whether to impose the same or different requirements on rental and for-sale housing, it’s crucial to consult with an attorney with expertise in fair-housing laws.
RENTAL/FOR-SALE MIX: One way to maximize the production of affordable units and increase flexibility is to allow developers of single-family projects the option of meeting the inclusionary requirement by including affordable multi-family rental units within the development rather than affordable for-sale, single-family homes.
However, this option should be crafted carefully to ensure consistency with the ordinance’s overall goals and fair-housing obligations. Rental units can generally be produced more cost-effectively than for-sale units, so this option should reflect that by requiring that a higher percentage of rental units be produced.
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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) Packet Pg. 214 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 4 MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING Under California law, if the inclusionary requirement is adopted through a program in the jurisdiction’s housing element, the program must provide developers with this option. However, nothing requires a jurisdiction to adopt an inclusionary requirement through its housing element, and this approach is not ideal.
Should inclusionary requirements be structured
differently in different neighborhoods?
Inclusionary requirements most typically apply jurisdiction-wide. While different neighborhoods within a city may have differing development markets, a well-designed policy already adjusts for those differences.
For example, in a neighborhood where the development market is especially hot and land costs are high, the value of an increase in allowable density is also much higher, making a higher inclusionary requirement feasible.
SPECIFIC PLANS: However, in large cities, it may make sense to consider areaspecific increases in an inclusionary requirement because some parts of town may be much hotter development markets than others. An effective way to accomplish this is through the adoption of a specific plan that lays out the land-use controls that apply within a designated geographic area.
TRANSIT AREAS: Some jurisdictions have also crafted specific inclusionary policies that apply to areas adjacent to transit stations, recognizing the wide body of research demonstrating how crucial it is to build affordability into transit-oriented development and the resulting benefits that increase transit ridership, reduce greenhouse gas emissions, and strengthen community stability.
How long should inclusionary units remain
affordable?
Given the time and resources that go into developing housing, an inclusionary ordinance should aim to set the affordability term – how many years a unit must remain “affordable”– for the longest period of time that is feasible.
One important thing to consider in determining the affordability term is the cost of maintaining a unit’s affordability over time compared to the cost of having to provide a new affordable unit to replace it when the deed-restriction period ends. In most cases, the former will be far more cost-effective than the latter.
BUILDING WEALTH: One advantage of homeownership is the ability to build wealth through the ownership of an appreciable asset. Strict resale controls that require the home to be resold at an affordable price to another lowincome homeowner significantly restrict the wealth-building advantages of homeownership.On the other hand, the program should protect against the owner of a for-sale inclusionary home quickly reselling the home at a significant profit.
SHARING EQUITY: The most common way of balancing these interests is an equity-sharing policy in which any appreciation is split between the selling homeowner and the jurisdiction. The jurisdiction then uses its share to assist in future homeownership opportunities for low-income buyers.
Some policies have initial limits on resale (such as 10 years) that require the home to be resold only to a low-income buyer at an affordable price during that period.
Other ordinances have a sliding-scale, equity-sharing provision that states that no proceeds to a homeowner who sells during the initial years, but provides a greater share of the proceeds to the homeowner closer toward the end of the 45-year term.
Should the inclusionary requirement change
over time?
Housing markets are constantly changing, and it would be a challenge to amend an inclusionary requirement in response to every rise and dip in local conditions. However, building in a set review period can be useful for a number of reasons. Periodic review can help determine whether the percentage of units required remains appropriate for local conditions so that the community is not losing out on affordable units that could feasibly be achieved with a higher inclusionary requirement.
It can also help in assessing whether changes to income targeting are necessary. For example, if a community has steadily produced low-income units but not very low-income units, it may be necessary to increase the percentage of very low-income units required by the ordinance and adjust available incentives accordingly to account for the higher cost of providing these units. Every five years is a reasonable review period.
SYNC WITH HOUSING ELEMENT: Another option is to review the ordinance concurrent with the housing-element adoption process every eight years. (While most local jurisdictions in California must update their housing element every eight years, some rural jurisdictions remain on a five-year cycle.) For rental units, 55 years is a common affordability term required by many affordable-housing funding programs in California. An inclusionary ordinance should require at least as long a period, although it’s not uncommon for jurisdictions to require longer periods – or even to mandate that inclusionary rental units be deed restricted in perpetuity, as West Hollywood does.
The typical term with for-sale units is 45 years. Affordability restrictions for these units present some additional policy considerations about the sale of the home during the affordability term.
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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) Packet Pg. 215 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING 5
3. Couple with incentives and concessions.
From both a legal and a practical standpoint, an inclusionary-housing policy should include incentives and concessions for developers to help offset the cost of providing the affordable units. Common concessions and incentives include:
✦ Density increases, including the option of greater density increases in exchange for higher percentages of affordable units. ✦ Waivers of development standards, such as height and setback requirements.
✦ Reduction in or a waiver of minimum parking requirements, especially for projects located in transit areas.
✦ Expedited permit processing or ministerial approval.
✦ Waiver, reduction or deferral of development fees, either on the inclusionary units or the entire project.
✦ Direct financial subsidies.
California law requires that developers who comply with an on-site inclusionary requirement that meets the affordable-housing requirements of the state Density Bonus Law must receive all of the benefits to which they are entitled under that law. These benefits include a density increase, concessions and incentives, waivers of development standards and reduced parking requirements. For example, a project that includes 20% of units affordable to low-income households is entitled to a 35% density bonus, two concessions or incentives and various other benefits provided under the state law.
4. Establish clear development standards.
In addition to specifying the percentage of affordable units and at which income levels, an ordinance should establish clear standards for the inclusionary units. Among such best practices:
✦ The affordable units must be indistinguishable from the market-rate units in the development, at least outwardly.
✦ The project includes a similar mix of unit types. For example, if a multifamily rental development will have an equal number of 1-, 2- and 3-bedroom units, the affordable units should also incorporate an equal mix of 1-, 2- and 3-bedroom units. Many ordinances also require that inclusionary units be the same square footage as the market-rate units, although in some cases jurisdictions have built in flexibility to reduce square footage while including the same number of bedrooms to reduce project costs.
✦ Inclusionary units must be located throughout the development rather than clustered in one area.
✦ Residents of the affordable units must have access to all amenities – such as a pool, a fitness center and parking – that market-rate residents have.
✦ The affordable units must be completed either prior to or concurrent with the market-rate units, and prior to issuance of a certificate of occupancy.
ACCESSORY DWELLING UNITS: For single-family for-sale developments, some jurisdictions have allowed accessory dwelling units (ADUs) as a way tofulfill an inclusionary requirement. This is not considered a best practice and should be avoided. While cities and counties should encourage the construction of ADUs, which can be a land- and cost-efficient way of expanding a community’s housing supply, they are problematic from an inclusionary standpoint.
ADUs are readily distinguishable from the other units in a for-sale development, and may raise equity and fair-housing concerns if used as the means for achieving compliance with an inclusionary policy.
ADUs are also typically studios or 1-bedrooms rather than a match of the bedroom mix of the primary development, and are often designed as “micro” or “efficiency” units without similar amenities as the primary development.
They are challenging to deed-restrict and monitor, and are unlikely to provide the long-term affordability that an inclusionary ordinance should require.
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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) Packet Pg. 216 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 6 MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING If properly designed, an in-lieu fee option can have advantages in certain jurisdictions. In-lieu fees can enable a jurisdiction to leverage state and federal funds that may not have otherwise been available, allowing for more affordable units to be built than would have been created on-site.
IN-LIEU ADVANTAGES: It can also provide flexibility to produce needed units that the inclusionary requirement is not producing, such as extremely lowincome units; use funds to preserve existing affordable housing with expiring deed restrictions; produce rental units in places where the inclusionary requirement is primarily creating for-sale units (or vice versa); or develop affordable units in parts of the city where development isn’t happening and thus the inclusionary requirement is having no impact.
If allowed, the fee amount should be set at a level comparable to the cost of producing a similar unit to the one that otherwise would have been provided on-site. One of the most common methods for determining the fee amount is to base it on the gap between the affordable-housing and market-rate costs. For example, if it costs $300,000 to produce a low-income unit but the rent only covers the financing on $230,000, then the in-lieu fee would be set at $70,000 to cover the difference.
The amount of an in-lieu fee will need to change over time to reflect changes in construction costs, inflation and other market factors. Therefore, it is better to put the formula for determining the fee amount into an ordinance rather than state the amount itself,since amending an ordinance on a regular basis can be time-consuming, costly and potentially controversial.
ADJUSTING THE FEE: The ordinance should specify the mechanism for adjusting the fee over time, such as tying it to increases in the local Construction Cost Index, as San Francisco does. If an ordinance distinguishes between rental and for-sale units in its inclusionary requirements, in-lieu fees should also be distinguished in the same manner to ensure they are an adequate substitute for the provision of on-site units.
Off-site construction
Allowing construction of inclusionary units off-site can have advantages.
For example, a developer may be able to build affordable units more costeffectively off-site, thus enabling more units to be produced. However, there are also pitfalls that jurisdictions should work to avoid.
5. Provide alternative methods of compliance.
Because one of the primary goals of an inclusionary requirement is to make affordable units available in all housing developments, ordinances should require on-site construction of the inclusionary units to the maximum extent possible. However, most jurisdictions have chosen to allow alternatives to on-site production of inclusionary units under certain circumstances.
In California,state law requires that alternative methods of compliance be provided to developers of inclusionary rental housing,although what those alternatives are, and when each alternative is available, is left up to individual jurisdictions. The law doesn’t require alternatives for developers of forsale housing. Common alternatives include in-lieu fees, off-site construction, land donation, and the acquisition and rehabilitation of existing units.
When weighing how to offer to provide some flexibility, alternatives should be appropriately limited to maximize on-site construction. Alternatives should be available where on-site production of units is less feasible, rather than as a default option for all developments. Common mistakes that can lead to inadequate production of actual housing units include setting in-lieu fees too low and failing to establish adequate standards for land donation.
Timing is also a crucial factor in the structure of alternatives. For example, some jurisdictions have required that off-site inclusionary units be completed concurrent with or prior to the development that triggered the inclusionary requirement, or before a certificate of occupancy for that development is issued. Ideally, alternatives should be used only when they will lead to the production of more affordable units than would otherwise be provided on-site, while still being consistent with the ordinance’s other goals.
In-lieu fees
One common alternative is in-lieu fees, which are paid instead of constructing the required affordable units. In-lieu fees are generally paid into a local affordable-housing trust fund that finances the construction of affordable housing at other locations within the community. Of all the alternatives, in-lieu fees provide the greatest challenge to achieving inclusionary goals and therefore should be considered carefully and sparingly.
Unlike off-site construction and land-dedication alternatives, in-lieu fees don’t guarantee a site for the construction of the affordable units. If the amount of the fee is not sufficiently high, the payment may also not produce enough revenue to help produce new affordable units. Without adequate funding and identified locations for their use, the fee revenue could sit unused.
TRUE COST: Furthermore, if in-lieu fees don’t reflect the true cost of producing on-site units, this may drive most developers to opt for paying the fee rather than producing an affordable unit on-site. Over time, this can frustrate the policy and lead to an insufficient proportion of affordable units being developed.
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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) Packet Pg. 217 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING 7 One important consideration with off-site construction is the allowable geography – how far from the development site. Given that the inclusionary requirement seeks to foster mixed-income neighborhoods and reduce segregation, even if inclusionary units can’t be produced on-site in a new development, they should be produced nearby. In cases where that isn’t possible, the jurisdiction should ensure that they are dispersed equitably throughout the community and not clustered in lower-income neighborhoods.
Jurisdictions also typically require more units to be built off-site than would be required on-site. This means the value of the cost savings over on-site construction is captured and translated into a community benefit, and that the policy properly expresses an appropriate preference for on-site units.
Ensuring on-site and off-site construction have similar costs incentivizes on-site construction (which should be the norm), while still providing a meaningful alternative for those projects that can’t feasibly accommodate on-site affordable units.
Another best practice is to require that the off-site units be constructed before or concurrent with the market-rate units,which can be achieved byhaving the off-site units finished before building permits are issued for the market-rate development site. That way an off-site alternative doesn’t simply become an escape hatch to avoid complying with the site’s inclusionary requirement.
Land donation
Land donation can be a useful option where affordable-housing developers have difficulty finding building sites. Paired with in-lieu fees or other sources of affordable-housing funding,dedicated land can be used to produce needed types of housing that might not otherwise get built,such as homes for people with special needs or permanent supportive housing.
However, jurisdictions must establish clear parameters for exercising this alternative. Donated land should be equivalent or greater in value to the affordable units that otherwise would have been produced on-site, and should be ready for development at the time it is donated. It is also important here to consider the allowable geography to make sure that the required affordable units are not concentrated in certain neighborhoods.
6. Include procedure for requesting waivers
or reductions.
An inclusionary requirement may not withstand legal scrutiny if it doesn’t include a process by which a developer can request a waiver or reduction of the requirement. Much like the inclusionary requirement itself,the waiver process should be as clear and specific as possible,detailing both the procedures for requesting the waiver – process, timeline, appeal procedure – and the standards by which the request will be evaluated.
The waiver or reduction process should be carefully structured so that it functions as the exception and not the rule, and is only used in rare cases.
The City of Napa’s inclusionary requirement withstood a constitutional challenge in part because it included a waiver-request provision. The City used a constitutional test todetermine whether a waiver would be approved, under which the developer had to show that the requirement as applied would be unconstitutional.
Other jurisdictions apply a hardship standard,allowing for a waiver or reduction if the developer can show that the requirement would deprive them of all economically viable use of the land. An economic-hardship standard should not be about the level of profit, but about whether any profit can be made.
Feasibility Studies
While not required by state law in California, preparing a feasibility study in support of an inclusionary requirement helps ensure that the requirement is right-sized for local conditions. It’s important not to set an inclusionary requirement so high that it stops development, and equally crucial not to set it too low and miss out on affordable units.
A feasibility study is an opportunity to analyze local market conditions and the economics and tradeoffs of various policy options – affordability percentages and levels, incentives – to make sure the ordinance delivers the number and type of affordable units that a community needs.
It also provides a data-driven foundation for the requirement, which can help overcome opposition by showing that it can be implemented without impeding the developers’ability to earn a profit.
The California Department of Housing and Community Development generally requires local jurisdictions to analyze inclusionary requirements as a potential constraint on development in their housing elements. A feasibility study can help demonstrate that the requirement isn’t a barrier.
NEXUS STUDIES: Feasibility studies should not be confused with nexus studies. A jurisdiction must prepare a nexus study to impose an exaction.
A nexus study would be required if a jurisdiction wanted to adopt a commercial linkage fee, for example, where it must show that the amount of the fee is roughly proportional to the need for affordable housing generated by new commercial development.
An inclusionary requirement is not an exaction but rather a land-use regulation, much like a density requirement or a height restriction, and need only be related to advancing a legitimate purpose. A nexus study is not required when adopting a traditional inclusionary ordinance.
For more information about the preparation of feasibility studies for inclusionary studies: inclusionaryhousing.org/resources/#feasibility H.3.a
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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) Packet Pg. 218 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 8 MEETING CALIFORNIA’S HOUSING NEEDS: BEST PRACTICES FOR INCLUSIONARY HOUSING Some jurisdictions require that tenants move at the end of the lease term as soon as their household income exceeds the income limit for the unit. Others allow a tenant to remain until their household income exceeds the income limit by a set amount or percentage.
The policy should be tied to the cost of market-rate housing in the community and ensure that tenants are aware of requirements and receive adequate notice when they exceed income limits and must vacate the unit. To avoid displacement, consider allowing tenants to stay in a unit after their income exceeds allowable limits but convert that unit rent to market rate. The next comparable unit in the development that becomes vacant would then be offered as affordable to replace that “lost”unit. ✦ State how sales of for-sale units will be handled, including the referral of potential buyers and how funds derived from equity-sharing agreements will be used. Also, if the jurisdiction has an option to purchase a unit upon resale or at the end of the regulatory period, it should have a mechanism in place for handling those options.
A strong monitoring program can have the added benefit of providing clear data about the success of the ordinance. This information can then be used to establish that the inclusionary requirement is not a constraint on development for purposes of the housing-element review process,and for potential future discussions about amendments to the inclusionary requirement.
MORE RESOURCES
✦ inclusionaryhousing.org
✦ lgc.org/advancing-inclusionary-housing-policy
While “inclusionary housing”usually refers to mandatory land-use policies designed to construct affordable housing within market-rate developments, other tools can also capture land value to produce needed affordable units.
Voluntary inclusionary requirements
California has a statewide, voluntary inclusionary method in the form of Density Bonus Law, with which all cities and counties must comply.
Under this law, developers who include affordable units in their projects are entitled to a density increase and other incentives.
Local governments can offer density increases above those specified in the state law in exchange for higher levels of affordability (units for households at the lower AMI levels).
Linkage fees
A linkage fee can be imposed on commercial and residential development togenerate funds for affordable housing. The amount of this fee is set based on the community’s need for affordable housing generated by new development. A growing number of California cities have adopted commercial linkage fees, including Los Angeles, Oakland, Sacramento and San Diego.
While linkage fees can be a crucial revenue source, a linkage fee for affordable housing doesn’t produce the other community-wide benefits of a traditional inclusionary requirement, such as economically integrated neighborhoods, and may also not be as economically valuable. Pairing a commercial linkage fee with a traditional inclusionary requirement is one way for a community to maximize the production of affordable housing while also advancing other important policy goals.
Ad hoc inclusionary requirements
Some jurisdictions have tried to negotiate inclusionary requirements on a project-by-project basis, often on larger projects. These ad hoc requirements are problematic from a legal standpoint and don’t ensure that all new residential development includes housing affordable at a range of income levels.
Other Value-Capture Tools to Produce Affordable Housing in Development
7. Monitor implementation and compliance.
A jurisdiction that chooses to adopt an inclusionary ordinance should be prepared to devote staff time and resources to ongoing monitoring and other administrative tasks needed to implement the ordinance effectively.
In addition to ensuring that deed restrictions and covenants are recorded in time and that affordability is maintained for the required time period, it is important to ensure that units are occupied by households at the appropriate income levels over time and that resale provisions are enforced.
To maximize the program’s effectiveness, a jurisdiction should adopt procedures that:
✦ Establish whether the jurisdiction, property managers or a designated third party will be responsible for verifying tenant or homebuyer eligibility, income recertification and other occupancy factors.
The best practice is to have the jurisdiction perform these tasks, although smaller jurisdictions may find it more cost-effective to pool resources with other neighboring jurisdictions and contract with a third party. Having property managers perform these tasks can prove overly burdensome due to the training required. ✦ Ensure that a list of available units is up-to-date and readily accessible to households in the targeted income categories, and that the list is maintained in a way that ensures compliance with fair-housing obligations. ✦ Determine which qualified applicants (those meeting household-income restrictions) are chosen to rent or buy inclusionary units. ✦ Recertify tenant income annually and determine when a tenant household no longer qualifies for residency in the inclusionary unit.
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Attachment: Attachment A - Inclusionary Factsheet (3098 : Inclusionary Housing Ordinance Options) Packet Pg. 219 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 1 Inclusionary Housing in California: The Legal Landscape With the signing of 2017’s landmark housing package, California restored local governments’ ability to apply locally adopted inclusionary housing requirements—which generally mandate that private housing developers include affordable units in their projects—to rental housing.
1 The legislation, combined with recent court decisions upholding the validity of local inclusionary requirements, creates a powerful tool for local governments to wield when crafting policies to promote development that benefits all segments of their community.
A Brief History of Inclusionary Housing
Inclusionary housing ordinances in California “were instituted as a response to . . . exclusionary zoning[], to severe shortages of affordable housing combined with a reduction of federal housing subsidies, and to legal pressures in California and New Jersey.”2 Those legal pressures included the seminal lawsuit filed in New Jersey when a group of low-income African-American and Puerto Rican residents sought to build affordable housing in the Township of Mount Laurel, which maintained exclusionary single-family zoning practices. After that group mounted a legal challenge to the township’s exclusionary practices, the Supreme Court of New Jersey declared that municipalities had an “affirmative obligation” to meet their “fair share” of the regional need for low- and moderate-income housing.3 Later, in enforcing its prior decision, the court found that an affirmative obligation to provide housing opportunities for families of all social strata can sometimes only be satisfied though the use of inclusionary policies.
4 These principles became a blueprint for numerous municipalities across the country, including in California, to promote economic and racial integration within their jurisdictions.
California declared an affirmative legal obligation to meet fair share housing requirements in the state Housing Element Law, enacted in 1969.5 Under the law, “[l]ocal and state governments have a responsibility to use the powers vested in them to facilitate the improvement and development of housing to make adequate provision 1 AB 1505 (Bloom), Chapter 376, Statutes of 2017. 2 Barbara Erlich Kautz, In Defense of Inclusionary Zoning: Successfully Creating Affordable Housing, 36 U.S.F. L. REV. 971, 972 (2002). 3 S. Burlington County N.A.A.C.P. et al. v. Township of Mount Laurel, 336 A.2d 713, 727-8. (N.J. 1975) (Mt.
Laurel I). 4 S. Burlington Cnty. N.A.A.C.P. v. Mount Laurel Twp., 456 A.2d 390, 449 (N.J. 1983) (Mt. Laurel II). 5 Cal. Gov't Code §§ 65580 et seq.
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Packet Pg. 220 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 2 for the housing needs of all economic segments of the community.”6 Local jurisdictions that receive federal funding similarly have a duty to reverse the harmful effects of exclusionary zoning under the federal duty to affirmatively further fair housing.7 In addition, California law now requires cities and counties to affirmatively further fair housing in the administration of their housing and community development activities.8 These issues continue to be pressing to this day, and as the New Jersey Supreme Court noted, inclusionary housing policies remain one of the only ways for cities and counties to address them.
The Problem with 2009: Palmer and Patterson
By 2007, over 170 California jurisdictions had adopted inclusionary housing policies, encompassing mandates for rental, for-sale, or a combination of rental and for-sale units.9 Then, in 2009, two Court of Appeal decisions created uncertainty around inclusionary ordinances: Palmer/Sixth St. Properties, L.P. v. City of Los Angeles, 175 Cal.
App. 4th 1396 (2009) and Building Industry Assn. of Central California v. City of Patterson, 171 Cal.App.4th 886 (2009).
The Palmer Decision
In Palmer/Sixth St. Properties, L.P. v. City of Los Angeles, a developer challenged a mandatory rental inclusionary requirement included in a specific plan governing development in a portion of Los Angeles. He argued that the Costa-Hawkins Rental Housing Act, a law that limits rent control in residential tenancies, prohibited the imposition of mandatory inclusionary policies in rental housing. Costa-Hawkins, in relevant part, states “’[n]otwithstanding any other provision of law,’ all residential landlords may, except in specified situations, ‘establish the initial rental rate for a dwelling or unit.’”10 Though the Legislature never considered or addressed inclusionary ordinances when passing Costa-Hawkins, the Court of Appeal agreed with the developer.11 The court’s decision effectively made invalid local inclusionary requirements imposed on rental housing and any in lieu fees associated with them.
Importantly, local for-sale inclusionary requirements remained valid. 6 Cal. Gov't Code § 65580(d). 7 42 U.S.C. §3608.
8 AB 686 (Santiago), Chapter 958, Statutes of 2018
9 Non-Profit Housing Association of Northern California, Affordable by Choice: Trends in California Inclusionary Housing Programs (2007). 10 Palmer/Sixth St. Properties, L.P. v. City of Los Angeles, 175 Cal. App. 4th 1396, 1410–11, 96 Cal. Rptr. 3d 875, 886 (2009). 11 Id. at 886-87.
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Packet Pg. 221 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 3 The Patterson Decision
In a much narrower holding, another Court of Appeal determined that an in lieu fee associated with the City of Patterson’s inclusionary ordinance was not “‘reasonably justified’ as required by the development agreement for the project at issue unless there [was] a reasonable relationship between the amount of the fee, as increased, and ‘the deleterious public impact of the development.’”12 The court’s decision was based on the language of the development agreement, the unusual formula the city used to determine the in lieu fee, and the failure of the City of Patterson to articulate an alternative formula. The decision created some uncertainty, temporarily, as to what standard of review courts would use when assessing the validity of an inclusionary ordinance, whether applicable to for sale or rental units.
The combination of the Palmer and Patterson decisions created some uncertainty in the landscape of the law applicable to inclusionary housing ordinances for several years.
Fortunately, recent legislation and court decisions have clarified the law and affirmed the continuing validity and importance of such local measures.
Present Opportunities
Two critical changes in the law related to inclusionary housing have occurred in the last several years. First, the California Supreme Court has clarified that the validity of inclusionary housing ordinances should be judged by the traditional standard applicable to a locality’s exercise of its police powers: whether they are “reasonably related to the broad general welfare purposes for which the ordinance was enacted.”13 Second, the Governor signed AB 1505, which reinstated a municipality’s right to apply inclusionary requirements to rental housing.
The CBIA Decision
Two main issues in CBIA v. City of San Jose were: 1) whether San Jose’s local inclusionary ordinance was an unconstitutional exaction as outlined in the United States Supreme Court’s Nollan/Dolan line of cases; and 2) whether the City’s inclusionary ordinance was subject to the San Remo standard that the ordinance be “reasonably related to the impact of a particular development to which the ordinance applies.”14 12 Bldg. Indus. Assn. of Cent. California v. City of Patterson, 171 Cal. App. 4th 886, 898 (2009) (disapproved of by California Bldg. Indus. Assn. v. City of San Jose, 61 Cal. 4th 435 (2015)). 13 California Bldg. Indus. Assn. v. City of San Jose, 61 Cal. 4th 435, 474 (2015). 14 San Remo Hotel v. City and County of San Francisco, 27 Cal.4th 643, 663–664 (2002), relating to the Mitigation Fee Act.
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Packet Pg. 222 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 4 First, the court held that the ordinance was not an exaction. To constitute an exaction, the ordinance would have had to “require a developer to give up a property interest for which the government would have been required to pay just compensation under the takings clause outside of the permit process.” 15 The court reasoned that the law was akin to land use regulations that restrict usage of the property (i.e., setbacks, density requirements, etc.) and price controls (i.e., rent stabilization), which have been held to be constitutional and do not require just compensation. 16 Accordingly, restricting the
amount for which a developer can sell or rent a unit is subject only to the same review as any other land use regulation.
Second, the court held that the city need only show that the ordinance is reasonably related to the broad general welfare purposes for which it was enacted, meaning the San Remo standard did not apply. This decision expressly overturned Patterson “to the extent it indicates that the conditions imposed by an inclusionary housing ordinance are valid only if they are reasonably related to the need for affordable housing attributable to the projects to which the ordinance applies.”17 The court found that the higher standard found in San Remo is intended to apply “to permit conditions that require the payment of monetary fees,” not land use regulations.18 Even more narrowly, the court found that the San Remo standard only applies to development mitigation fees.19 In distinguishing San Remo and overturning Patterson, the court noted that San Jose’s law was passed in order to allow the city to meet its affordable housing goals and to ensure that new economically diverse affordable housing was spread throughout the city. In short, pursuant to CBIA, cities and counties are free to impose inclusionary requirements based on their broad police powers.
The Palmer Fix: AB1505
In 2017, Governor Brown signed the long-awaited Palmer fix, once again allowing municipalities to apply inclusionary requirements to rental housing. However, the fix imposes some new standards for the imposition of those restrictions.
Government Code §65850(g) states that cities may:
“Require, as a condition of the development of residential rental units, that the development include a certain percentage of residential rental units affordable to, and 15 California Bldg. Indus. Assn. v. City of San Jose, 61 Cal. 4th 435, 461 (2015). 16 Id. at 461-464. 17 Id. at 479
18 Id. at 472
19 Id. at 473
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Packet Pg. 223 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 5 occupied by, households with incomes that do not exceed the limits for moderateincome, lower income, very low income, or extremely low income households. . .” This first section reinstates the law as it was prior to Palmer. However, it continues:
“The ordinance shall provide alternative means of compliance that may include, but are not limited to, in-lieu fees, land dedication, off-site construction, or acquisition and rehabilitation of existing units.”
By that language, the fix creates a new requirement that a municipality’s local inclusionary ordinance, as applied to rental housing, must include alternative means of compliance other than the construction of affordable rental units on site in a housing development. While the statute provides examples of alternatives, it does not provide an exhaustive list of what those alternatives could be or when they must be granted, leaving it up to cities and counties to decide. As a practical matter, nearly all inclusionary ordinances adopted in California prior to the passage of AB 1505 had already included alternative means of compliance under certain circumstances.
The second portion of AB 1505 allows the Department of Housing and Community Development (HCD) to review local inclusionary ordinances in specific, limited circumstances. Specifically, Government Code §65850.01 authorizes HCD to review a local inclusionary ordinance if all of the following apply:
1. The ordinance was adopted or amended after September 15, 2017, and no more than 10 years have passed since the adoption or most recent amendment of the ordinance.
2. The ordinance requires that more than 15% of the total units in a residential rental development be affordable to occupants at or below 80% of area median income (i.e, lower-income households).
3. The jurisdiction, according to its annual housing element report, has not met at least 75% of its above-moderate share of the regional housing need over at least a five-year period (prorated based on the length of time within the planning period pursuant to Gov’t Code 65588(f)(1)), or the jurisdiction has not submitted the annual housing element report for at least two consecutive years.
If all of these conditions apply, then HCD may request, and the local jurisdiction must provide within 180 days, an economic feasibility study demonstrating that “the ordinance does not unduly constrain the production of housing.”20 Leaving aside best 20 Gov’t Code §65850.01(b).
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Packet Pg. 224 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 6 practices, the feasibility study is only required if HCD has requested it pursuant to its aforementioned authority; it is not required in order to pass a valid ordinance.
Once a jurisdiction submits a requested economic feasibility analysis, HCD can only review it to determine the following:
1. The preparer of the study is a qualified entity with demonstrated expertise in the area.
2. The study was available on the jurisdiction’s website for at least 30 days and then considered at a regularly scheduled legislative meeting prior to approval.
3. The study was sufficiently rigorous and followed best professional practices.
Importantly, HCD’s authority does not extend to imposing its own analysis of economic feasibility. Once a jurisdiction has submitted the study, HCD has 90 days to determine whether the study meets the requirements described above. If HCD finds that it does not and the jurisdiction disagrees with HCD’s negative determination, it may appeal to the Director of HCD or his or her designee. The Director or designee must then make a decision within 90 days of receipt of the appeal.
If a jurisdiction fails to submit the required feasibility study within 180 days or HCD makes a final determination that the study does not meet the prescribed requirements, the ordinance is still valid. However, until the jurisdiction submits a feasibility study that HCD determines meets the prescribed requirements, it may not impose a requirement to include units affordable to households at 80% of area median income in excess of 15%.
With the resolution of several outstanding legal issues that have clouded the policy choices on inclusionary housing in recent years, local governments once again have clear authority to enact these policies for both rental and for-sale housing. Inclusionary housing policies remain an important local tool for increasing the supply of affordable housing and building equitable, inclusive communities.
For questions, contact:
Brian Augusta, California Rural Legal Assistance Foundation, [email protected]
Navneet Grewal, Western Center on Law and Poverty, [email protected] Anya Lawler, Western Center on Law and Poverty, [email protected] H.3.b
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Packet Pg. 225 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 1 1 2 Meeting Date: December 7, 2022
3 4
5 TOWN OF MORAGA STAFF REPORT
6 7 To: Honorable Mayor and Councilmembers
8 9 From: Afshan Hamid, AICP, Planning Director
10 Barry Miller, FAICP, Planning Consultant
11 12 Subject: Conduct a Public Hearing and Consider Waiving the First Reading and 13 Introducing by Title Only an Ordinance Adding Chapter 8.180 to the 14 Moraga Municipal Code Creating an Affordable Housing Requirement 15 for New Residential Development; and Provide Direction to Staff on 16 the Proposed Development Incentives Policy for Projects Meeting the 17 Town’s Affordable Housing Requirements On-site (California 18 Environmental Quality Act (CEQA) - Exempt Pursuant to CEQA 19 Guidelines Section 15061(b)(3)
20 21 Request
22 23 The Town Council is being asked to consider waiving the first reading and introducing by 24 title only an Ordinance adding Chapter 8.180 to the Moraga Municipal Code creating 25 requirements for affordable housing in new residential development of six units or more. 26 The Planning Commission held a study session on November 7 and conducted a public 27 hearing on November 14, to consider the proposed Chapter 8.180. On November 14, the 28 Commission voted 6-1 in support of a Resolution recommending Council adoption. 29 30 The Council is also being asked to provide direction on the proposed Development 31 Incentives Policy for Projects Meeting the Town’s Affordable Housing Requirements On32 site which is tentatively scheduled for adoption on December 14, 2022. 33 34 Background
35 36 The Town is in the process of undertaking a Comprehensive Advanced Planning Initiative, 37 including a State-mandated update of the Moraga Housing Element, and related General 38 Plan and zoning amendments. As part of the Housing Element, the Town is required to 39 demonstrate to the State Department of Housing and Community Development (HCD) 40 that it has the capacity to add at least 1,118 new housing units by 2031, including 673 41 units that are potentially affordable to lower- and moderate-income households. The 42 1,118-unit assignment is commonly referred to as the Town’s “RHNA”—or Regional 43 Housing Needs Allocation.
Town of Moraga Agenda Item
Public Hearing 8. A.
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2 While the Town is proactively rezoning property to accommodate its RHNA, additional 3 measures are needed to ensure that a substantial share of the housing built is actually 4 affordable to lower- and moderate-income households. Without Town intervention, 5 housing developers would likely produce only market rate units on designated housing 6 opportunity sites. Some of these units might meet affordability guidelines for moderate7 income households but few, if any, would be considered affordable to lower-income households.1 8 In the last two Housing Element cycles, the Town did not produce any of 9 the RHNA-required low- or very low-income housing units. HCD has classified Moraga 10 as a “High Resource Area” and is requiring such areas to meet a larger share of the 11 region’s affordable housing needs than they have in the past. 12 13 On November 10, 2022, the Town received the 90-day letter on the Working Draft 14 Housing Element. A common thread throughout the letter is that the Element must 15 demonstrate that the sites identified to meet the Regional Housing Needs Allocation 16 (RHNA) are distributed throughout the community in a manner that Affirmatively Furthers 17 Fair Housing (AFFH). HCD has provided Affirmatively Furthering Fair Housing (AFFH) 18 Guidance for All Public Entities and for Housing Elements, see AFFH link. As of January 19 1, 2019, AB 686 creates a state mandate requiring public agencies and jurisdictions to 20 “take meaningful actions that overcome patterns of segregation and foster inclusive 21 communities free from barriers that restrict access to opportunity based on protected 22 characteristics.” The AFFH Guidance covers a wide range of locally-based solutions for 23 jurisdictions State wide, and also provides Examples of Affirmatively Furthering Fair 24 Housing Actions (page 72). The actions include Housing Mobility Strategies, New 25 Housing Choices and Affordability in Areas of Opportunity, Place-based Strategies to 26 Encourage Community Conservation and Revitalization, Protecting Existing Residents 27 from Displacement.
28 29 One of the tools commonly used and recommended by HCD to ensure that at least some 30 of the units in new developments are “affordable” is inclusionary housing (also called 31 inclusionary zoning). Inclusionary housing ordinances require developers to provide a 32 percentage of new residential units at a price that is considered affordable to very low-, 33 low-, or moderate-income households. The “Inclusionary” units have deed restrictions 34 that limit the rent (or sales price) that may be charged, as well as the annual income of 35 the tenant (or purchaser). Inclusionary Housing is an Affordable Housing tool to help the 36 Town meet its RHNA goal. Over 60 percent of the Town’s RHNA goal is comprised of 37 housing units that are affordable to lower- and moderate-income households. State 38 Density Bonus Law provides an additional tool to meet these targets; however, it is 39 voluntary while the proposed Inclusionary Zoning Ordinance would be mandatory. 40 41 Staff provided an overview on housing implementation tools, including inclusionary 42 housing, at a Joint Planning Commission and Town Council meeting on May 4, 2022. 43 After receiving the report, Council provided direction to staff for a more detailed 1 In 2022, the upper income limit for a “lower income” household was $76,750 for a one-person household, $87,700 for a two-person household, $98,650 for a three-person household, and $109,600 for a four-person household. The equivalent “affordable” monthly housing costs were $1,919 (1 pp), $2,193 (2 pp), $2,466 (3 pp), and $2,740 (4 pp).
For “moderate-income” households, affordable monthly housing costs were $2,999 (1 pp), $3,428 (2 pp), $3,855 (3 pp), and $4,283 (4 pp).
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Packet Pg. 227 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 3 1 presentation at a future Town Council meeting. On August 24, 2022, staff provided a 2 focused discussion on Inclusionary Housing requesting feedback on policy prior to 3 developing an ordinance. The staff reports for these study sessions provide more context 4 and may be consulted for additional detail. Hyperlinks are provided below:
5 6 • The May 4, 2022 staff report may be accessed here. (see pages 13-18) 7 • The August 24, 2022 staff report may be accessed here. 8 9 The policy areas discussed at the August 24th meeting and the direction provided by 10 Council were as follows:
11 12 • The percentage of units that must be affordable. Council direction was to include 13 a 10% affordability requirement.
14 • The depth of affordability required (i.e., of the BMR units, what percentage need 15 to be very low, low, and moderate?) Council direction was 10% low-income 16 affordability for rental units and 10% moderate affordability for for-sale units. 17 • Exemptions (small projects may be exempt from the ordinance). Council direction 18 was to provide an exemption for projects with five or fewer units. 19 • Treatment of “fractional” units (when the total number of units is multiplied by the 20 percentage requirement, the product is usually not a round number). Council 21 direction was to collect an in-lieu fee for fractional units. 22 • Applicability to rental vs ownership units (most ordinances apply to both). Council 23 direction was to apply the affordable requirement to both rental and ownership 24 units.
25 • Alternatives for developers who wish to meet the requirement without providing the 26 unit(s) on-site (this allowance is required by State law). Council provided direction 27 that the off-site affordable unit requirement should be 50 percent higher than the 28 percent required for on-site construction. Council also provided direction that if the 29 affordable requirement was met through acquisition and rehabilitation of existing 30 multi-family housing, at least two units shall be rehabilitated for each affordable 31 unit required.
32 • Design of inclusionary units (do they need to look the same as the market rate 33 units?) Council provided direction on the following:
34 o The units should be dispersed through the project
35 o The units should be comparable in terms of bedroom count, however, the 36 units may be smaller
37 o The exterior design and character should be consistent with the market rate 38 units
39 o The interior finishes may be different but they must be good quality 40 o The affordable units must have access to all amenities. 41 • Calculation of in-lieu fees. Council directed staff to provide additional information 42 on a recommended methodology.
43 • Length of affordability. Council direction was that for-sale units should be 44 affordable for 45 years, while rental units should be affordable for 55 years.
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Packet Pg. 228 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 4 1 • Jurisdiction-wide vs applicability in specific areas only. Council direction was that 2 the ordinance should apply townwide.
3 • Incentives that offset the economic impact of the inclusionary units. Council 4 direction was to take into consideration the concerns of developers. 5 6 The Town Council also requested that staff solicit feedback from developers prior to 7 developing an Inclusionary Housing Ordinance. Staff convened a “Developer 8 Roundtable” on October 20 to receive input on potential Inclusionary Housing 9 requirements. A link to the video of the Developer Roundtable can be found here. 10 11 Staff has developed a Draft Affordable Housing Ordinance based on the input and 12 feedback received from Town Council, at the Developer Roundtable, and from 13 stakeholders. The Planning Commission received a presentation on the proposed 14 Affordable Housing Ordinance on November 7. The Planning Commission held a public 15 hearing to consider the proposed Ordinance on November 14, 2022. 16 17 The Commission approved a resolution recommending adoption of the Ordinance by a 18 6:1 vote at its November 14 meeting. Of the six Commissioners voting in favor, three 19 supported the proposed Ordinance “as is” and three supported a modification to avoid 20 encouraging additional housing units in wildland-urban interface areas. The 21 Commission’s specific concern was that the proposal to allow developers in lower-density 22 zones to meet affordable housing requirements through Accessory Dwelling Units (ADUs) 23 would potentially increase the number of households in high fire hazard areas. The 24 Commissioner casting the “no” vote on the Ordinance indicated his support for the 25 concept of inclusionary zoning but expressed that it should apply only in the Town’s two 26 commercial centers.
27 28 On November 16, the Town Council received a briefing on the proposed Ordinance. The 29 following points were raised:
30 31 • The Town Council was generally supportive of Planning Commission direction to avoid 32 creating incentives for additional housing units in wildland-urban interface areas. A 33 distinction was made between the Town’s ADU regulations, which are guided by State 34 law, and the proposed affordable housing provisions, which are set by the Town. 35 • The Council reiterated the desire to ensure the Ordinance is flexible and responsive 36 to the real estate market.
37 • The issue of expanding public awareness of the proposed ordinance and soliciting 38 community input to the extent possible was raised. Staff explained that public input 39 had been solicited at meetings throughout 2022.
40 • The alternative of using market-rate ADUs rather than deed-restricted units (either for41 sale or for-rent) was generally supported. Councilmembers expressed differing views 42 on the proposed alternative, and discussion occurred regarding the 500 square foot 43 minimum, the 25 percent threshold, and the potential applicability of the ADU 44 alternative to higher density districts.
45 46 Local developer and property-owner David Bruzzone spoke at the November 16 meeting 47 and provided correspondence on the Draft Ordinance. Mr. Bruzzone expressed his view 48 that the Affordable Housing requirement should be voluntary rather than mandatory, that H.3.c
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Packet Pg. 229 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 5 1 there should be no size limit on ADUs for developers using the ADU option, that the ADU 2 option be available in all residential zoning districts, and that the Town allow “banking” or 3 “transfer” of affordable housing credits for developers building market rate housing in one 4 location while providing ADUs in another. Mr. Bruzzone further expressed that fees for 5 fractional units should be required at the time of occupancy rather than Final Map 6 approval or building permit issuance, that the “25 percent ADU option” be reduced to 10 7 percent, and that “off-site alternatives” require the same number of affordable units as the 8 “on-site” requirements. As directed by Council, Staff met with Mr. Bruzzone on November 9 22 to further discuss his concerns about the Ordinance. 10 11 The next section of this report provides an overview of the Draft Ordinance (Attachment 12 “A”). The Ordinance refers to a Policy Resolution (Attachment “B”) which will be adopted 13 by the Town Council separately, rather than as part of the Municipal Code Amendment. 14 The Policy Resolution includes development incentives. Because the incentives require 15 a greater degree of flexibility and potentially amendments in the future, they are not 16 included as part of the proposed Ordinance.
17 18 Discussion
19 20 The proposed Chapter 8.180 (Affordable Housing) is included as Attachment “A” to this 21 Report and is summarized as follows:
22 23 Sections 8.180.010 and .020 indicate the title and purpose of the Ordinance, respectively. 24 The purpose statement explains the importance of the Ordinance to meeting the Town’s 25 RHNA and providing a tool for affirmatively furthering fair housing and creating housing 26 for the Moraga workforce, seniors, students, and other special needs groups in the 27 community.
28 29 Section 8.180.030 provides definitions of key terms used in the Ordinance. All of the 30 terms referenced in the definition appear in later sections of the Ordinance. 31 32 Section 8.180.040 identifies the General Requirements for the program, including the 33 types of projects that are covered (and exemptions), and the percentage of affordable 34 units that are required. Recognizing economic considerations, the Ordinance has 35 different requirements for for-rent and for-sale housing and allows flexibility in the 36 percentages of affordable units to be provided based on the depth of affordability. This 37 section also addresses “fractional” units.
38 39 Section 8.180.050 addresses Administration of the program, including requirements for 40 inclusionary housing plans and agreements. The agreements establish resale restrictions 41 for inclusionary for-sale units, and rental restrictions for rental units, as well as provisions 42 to monitor compliance once units are created. This section also gives the Council the 43 authority to adopt in-lieu fees for fractional units, Very High Fire Hazard Severity Zones 44 and for developers who cannot feasibly provide the inclusionary housing units on-site. 45 The basis for the fee is the gap between the value of a market-rate unit and an affordable 46 unit, which will be established through a future fee resolution. 47 H.3.c
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Packet Pg. 230 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 6 1 Section 8.180.060 identifies alternative means of compliance. In each case, the Town 2 Council must find that on-site provision of affordable units is infeasible or that greater 3 public benefit will result from the units being off-site. The alternative options include 4 building the units off-site, partnering with a non-profit for off-site construction, acquiring 5 and rehabilitating existing multi-family housing in Moraga and making it affordable, or 6 paying an in-lieu fee. The Ordinance also allows applicants to propose other creative 7 concepts for meeting the requirements of the chapter. 8 9 Section 8.180.070 indicates the standards for inclusionary units. This includes the 10 required length of affordability (45 years if for-sale, 55 years if for-rent), requirements for 11 the design of affordable units, and requirements for timing (i.e., when the inclusionary 12 units become available relative to the market rate units). 13 14 Section 8.180.080 identifies incentives to offset the profit loss associated with limiting 15 rents and sales prices for the inclusionary units. These incentives include fee deferral (at 16 the discretion of the Town Council), density bonuses, and modified development 17 standards that support the development of additional units. The incentives are designed 18 to work in tandem with the State density bonus program. The bonuses and incentives 19 themselves are not quantified in the Municipal Code, but a separate document (to be 20 adopted by Resolution) would establish a schedule for use in future applications. 21 22 Section 8.180.090 provides further detail for applicants who choose to comply with the 23 Inclusionary Ordinance by providing accessory dwelling units (ADUs) rather than deed 24 restricted affordable units. This option is only available to for-sale development in lower25 density zoning districts. Projects choosing this option are not eligible for density bonuses 26 but also are not subject to limitations on occupancy, income, or rent of the ADUs. 27 28 Section 8.180.100 includes provisions for applicants requesting waivers or adjustments 29 to the requirements. These are only available in limited circumstances and are subject 30 to approval by the Town Council. Section 8.180.110 addresses enforcement and includes 31 provisions for appeal.
32 33 The sections below highlight how specific issues are addressed by the proposed 34 Ordinance.
35 36 Exemptions/ Applicability
37 38 The Ordinance would apply to all residential projects with six or more units. Projects with 39 five or fewer units would be exempt. The Ordinance would apply Town-wide, but projects 40 in lower density zones would have the option of meeting the inclusionary requirement 41 through ADUs, as described below.
42 43 Percentage of Units Required and Depth of Affordability 44 45 In rental projects, applicants would meet the requirement by dedicating 10 percent of the 46 units for low-income households. Consistent with the RHNA, low income is defined as 47 80% of areawide median income (AMI) and very low income is defined as 50% of AMI.
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Packet Pg. 231 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 7 1 “Affordable” rents may represent no more than 30 percent of monthly income for 2 households in these units.
3 4 In for-sale projects, applicants are required to dedicate 10 percent of the units for 5 purchase by moderate income households. However, in zones with densities of R-6 or 6 lower (e.g., R-6, 3 DUA, 2 DUA, 1 DUA, and Rural Residential), developers may meet the 7 requirement by including ADUs in 25 percent of all new housing units. No deed 8 restrictions or occupancy limitations would apply to the ADUs. 9 10 The Ordinance is written in a flexible manner so that developers may propose alternative 11 percentages upon demonstration that they are of equivalent value to the Town. For 12 instance, a developer may propose a smaller inclusionary percentage in a rental project 13 if the inclusionary units serve very low-income households rather than low-income 14 households.
15 16 Fractional Units and In-lieu Fees
17 18 The Ordinance gives the Town Council the authority to adopt an in-lieu fee. The primary 19 purpose of the fee would be to calculate the amount due for fractional units. In other 20 words, if an applicant proposed a 24-unit rental project, they would be required to include 21 2.4 lower income units in their project (or a smaller number of very low-income units 22 equivalent in value). Since dwelling units are counted in whole numbers, the “fractional” 23 remainder would be converted to a fee. The amount of the fee has not been established 24 and would be determined by the Town Council. The basis for the fee is included in the 25 Ordinance. It represents the gap between the market-rate price (sales or rent) and the 26 affordable price (sales or rent) of the inclusionary unit. 27 28 Alternate Means of Compliance
29 30 AB 1505 requires that at least one alternate means of compliance is provided in 31 inclusionary housing ordinances. Some developers may find it infeasible to include 32 affordable units in their projects, and request relief through such alternate means. As 33 noted above, the alternatives are off-site construction, acquisition/rehabilitation of existing 34 units, and partnership with a non-profit developer. In the latter case, the partnership could 35 include land donation and financial assistance to facilitate off-site construction of 36 affordable units. The off-site alternatives require higher ratios of affordable units to 37 market rate units. The goal is to assist the Town in meeting AFFH requirements and 38 prioritize units built on site.
39 40 For off-site construction (or assistance to a non-profit), a ratio of 1.5:1 is applied so that 41 the applicant must build 50% more units than would otherwise be required. For 42 developers choosing acquisition/rehab in lieu of building the units off-site (or assistance 43 to a non-profit for this purpose), the applicant must rehabilitate twice the number of units 44 that would otherwise be required. The higher ratios are intended to disincentivize the 45 alternatives and encourage applicants to build the units on-site. 46 H.3.c
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Packet Pg. 232 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 8 1 As noted earlier, another alternate means of compliance is provided for lower-density 2 residential projects (R-6 or lower). This refers to the provision to include ADUs in 25 3 percent of the units rather than dedicating deed-restricted affordable units. 4 5 Based on Planning Commission and Town Council input, staff has added a new 6 alternative that provides developers in Very High Fire Hazard Severity Zones with the 7 option to pay an in-lieu fee rather than developing the 10% affordable units. 8 9 The Ordinance also allows developers to propose other “creative concepts” for meeting 10 the intent of the requirement, subject to Town Council approval. 11 12 Length of Affordability
13 14 The Ordinance proposes that for-sale units are deed restricted for 45 years, and for-rent 15 units are deed restricted for 55 years. These affordability terms are consistent with State 16 Density Bonus Law.
17 18 Timing of Construction
19 20 The Ordinance requires inclusionary units to be constructed prior to or concurrently with 21 construction of the market rate units. In general, construction of affordable units may not 22 be deferred to a future date after the market rate units are completed. However, the 23 Ordinance does establish limited opportunities for a deferral of up to three years where 24 an Agreement has been signed between the market-rate developer and an affordable 25 housing developer. This is in response to comments by developers at the roundtable 26 meeting.
27 28 Design
29 30 The Ordinance requires that the inclusionary units be reasonably dispersed around the 31 project, comparable in bedroom count, compatible in exterior design and character, and 32 have access to all amenities in the project. However, inclusionary rental units may be 33 20% smaller than market-rate units, and inclusionary for-sale units may be 30% smaller 34 than market-rate units. The inclusionary units may have different interior finishes than 35 the market rate units, provided they are durable and of high quality. 36 37 Policy Resolution: Development Incentives for Projects Meeting the Town’s Affordable 38 Housing Requirements On-Site
39 40 Attachment “B” to this Staff Report is a Policy Resolution with specific bonuses and 41 incentives available to developers providing inclusionary units on-site. Developers are 42 entitled to the bonuses provided by the State of California under State Density Bonus Law 43 (SDBL), and an additional local bonus that allows construction of 30 to 36 units per acre. 44 Developers are further entitled to incentives comparable to those offered through the 45 SDBL.
46 47 The Policy Resolution is proposed for adoption at the December 14 Council meeting, 48 following the Second Reading of the Ordinance. The incentives can be adopted by H.3.c
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Packet Pg. 233 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 9 1 resolution rather than by ordinance so that they can be more easily amended in the future. 2 The incentives respond to feedback from the developer roundtable that multi-family 3 projects may not be economically viable at the proposed General Plan and zoning density 4 of 24 units per acre. Additional incentives have been proposed on top of those already 5 allowed by the State, enabling densities of up to 30 units per acre for projects complying 6 with the Ordinance, and up to 36 units per acre for projects providing student or senior 7 housing.
8 9 The incentives would allow some of the provisions of SDBL for lower-income households 10 to apply to projects with affordable housing units serving households earning up to 80 11 percent of AMI. Current SDBL defines low-income households as earning up to 60 12 percent of AMI, so the broader definition (which is consistent with the RHNA definition) 13 would provide an expansion of potential incentives. More specifically, projects meeting 14 the inclusionary requirements on-site would be eligible for the SDBL parking standards, 15 which are lower than the Town’s standards, plus one development incentive, such as 16 reduced setbacks, additional height, or increased lot coverage. 17 18 Next Steps
19 20 The December 7 meeting is the first reading of the Ordinance. A second reading is 21 scheduled for December 14. The Council is scheduled to adopt the Policy Resolution 22 concurrently with the second reading on December 14. The Ordinance will become 23 effective on January 13, 2023, 30 days after the second reading. Once adopted, the 24 effectiveness of the Ordinance and policy resolution will be periodically evaluated, with 25 modifications made as needed based on results.
26 27 The Town Council has retained Keyser Marston, an economics consulting firm, to develop 28 the in-lieu fee/ fractional fee required to implement the Affordable Housing Ordinance. 29 The Council is scheduled to consider a resolution at the January 11, 2023 meeting to 30 adopt the fee.
31 32 CEQA
33 34 The proposed Municipal Code Amendments are exempt from the provisions of the 35 California Environmental Quality Act (CEQA) (Public Resources Code Section 2100, et 36 seq.) pursuant to CEQA Guidelines Section 15061(b)(3). Adoption and implementation 37 of the proposed Ordinance does not constitute a “project” as defined by CEQA because 38 the Ordinance by itself would not result in a direct physical change to the environment or 39 a reasonably foreseeable indirect change.
40 41 The Code Amendments are occurring within the context of a broader planning initiative 42 that is subject to CEQA. A Draft EIR has been prepared for the Comprehensive Advanced 43 Planning Initiative and was published on October 27. The comment period for the 44 Planning Initiative EIR ends on December 12, 2022 at 5:00 p.m. 45 46
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Packet Pg. 234 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 10 1 Fiscal Impact
2 3 Adoption of affordable housing requirements will require the collection of fees for 4 fractional units. A dedicated Affordable Housing Fund would be created by the Town as 5 a repository for these fees. As they accrue, the fees would be used to support Housing 6 Element programs and potentially provide a supplemental funding source for non-profit 7 affordable housing developers. There would be additional costs associated with 8 administering affordable housing requirements, reviewing affordable housing plans and 9 Agreements, and monitoring compliance with the program. Some of these functions 10 could be carried out by third parties, as the Town has limited staff capacity. 11 12 Recommendations
13 14 1. Find the proposed Municipal Code Amendments to be exempt from CEQA pursuant 15 to CEQA Guidelines Section 15061(b)(3) and Adopt Ordinance ___ Amending the 16 Moraga Municipal Code to create Chapter 8.180 – Affordable Housing (first reading). 17 2. Provide feedback to staff on the proposed Development Incentives Policy for Projects 18 Meeting the Town’s Affordable Housing Requirements On-site. 19 20 Report reviewed by: Cynthia Battenberg, Town Manager 21 Karen Murphy, Assistant Town Attorney
22 23 Attachments:
24 25 A. Draft Ordinance Amending the Moraga Municipal Code to Add Chapter 8.180:
26 Affordable Housing
27 B. Draft Development Incentives Policy for Projects Meeting the Town’s Affordable 28 Housing Requirements On-Site
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ATTACHMENT A
Draft Ordinance Amending the Moraga Municipal Code to
Add Chapter 8.180: Affordable Housing
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BEFORE THE TOWN COUNCIL OF THE TOWN OF MORAGA
In the Matter of:
An Ordinance Adding )
Chapter 8.180 to the Moraga )
Municipal Code to Create an )
Affordable Housing Requirement for )
New Residential Development )
Ordinance No. -2022
Affordable Housing
WHEREAS, the State of California has found that local governments have a responsibility to facilitate the development of housing for all economic segments of the community (Government Code Section 65580(d)); and
WHEREAS, the Regional Housing Needs Allocation (RHNA) assigned to the Town of Moraga by the Association of Bay Area Governments requires that the Town plan for 1,118 units of new housing between 2023 and 2031, including 673 units affordable to very low-, low-, and moderate-income households; and
WHEREAS, the Town of Moraga has not produced a sufficient number of affordable units to meet its RHNA in prior Housing Element cycles; and WHEREAS, the State of California has provided limited funding for affordable housing construction, thereby requiring the private sector to participate in meeting the Town’s RHNA; WHEREAS, the Town currently does not have mechanisms in place to compel developers to include housing affordable to very low-, low-, and moderate-income households in future projects; and
WHEREAS the median sales price of a home in Moraga exceeded $1.5 million in 2022, and the median rent for a two-bedroom apartment was $2,900, prices that are not affordable to lower-income households; and
WHEREAS, the shortage of affordable housing in Moraga has resulted in many households overpaying for their housing, including 23 percent of the town’s renters paying more than 50 percent of their incomes on housing and over 60 percent of the town’s very low-income households paying more than 50 percent of their incomes on housing; and Attachment A: Draft Ordinance.
NOTE: Changes from the version provided on November 16 are identified in redlined text.
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WHEREAS, the shortage of affordable housing in the town has also led to insufficient supply of housing for the local workforce and student population, leading to overcrowding in some units, and long commutes as workers seek affordable housing in other communities; and WHEREAS, a stated Goal of the Moraga Housing Element is to achieve a balanced supply of housing for all income groups; and
WHEREAS, legislation adopted in 2017 (AB 1505; Government Code Sections 65850(g) and 65850.01) authorizes cities to adopt inclusionary requirements for rental residential developments, provided that such ordinances provides alternative means of compliance, and the proposed Ordinance provides such alternative means of compliance; and WHEREAS, additional legislation adopted in 2017 (SB 686) requires that every jurisdiction in California affirmatively further fair housing by distributing opportunities for very low-, low-, and moderate-income housing in multiple locations rather than concentrating it in a single location, an outcome that is supported by this Ordinance; and WHEREAS, the Town has drafted a 2023-2031 Housing Element in compliance with State law that includes a program to adopt an Inclusionary Zoning Ordinance; and WHEREAS, the Moraga Town Council convened a public meeting on May 4, 2022 to discuss tools for implementing affordable housing policies and expressed support for an inclusionary housing requirement; and
WHEREAS, the Moraga Town Council convened a public meeting on August 24, 2022 to discuss a framework for inclusionary housing and to provide direction to staff on the specific components of an Ordinance; and
WHEREAS, the Town of Moraga convened a developer roundtable on October 20, 2022 to solicit input from the development community on ways to mitigate the economic effects of an inclusionary housing requirement; and
WHEREAS, the Town finds that the housing shortage for persons of very low, low, and moderate incomes is detrimental to the public health, safety and welfare and that it is a public purpose of the Town, and a public policy of the State of California, to make an adequate supply of housing available for persons of all income groups; and WHEREAS, on November 14, 2022, the Planning Commission held a duly noticed public hearing to consider the proposed amendments related to affordable housing, received the staff report and staff presentation, received comments from the public and interested parties, and after closing the public comments portion discussed the matter; and WHEREAS, following the November 14, 2022 public hearing, the Moraga Planning Commission adopted Resolution No.##-2022, recommending that the Town Council adopt proposed amendments to Town of Moraga Municipal Code to add Chapter 8.180, Affordable Housing, as contained herein; and
WHEREAS, the Town Council received a briefing on the proposed Ordinance at its regularly scheduled meeting on November 16; and
WHEREAS, the Town Council introduced this Ordinance on
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December 7, 2022, after a duly noticed public hearing and adopted the Ordinance on December 14, 2022;
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF MORAGA
DOES ORDAIN AS FOLLOWS:
SECTION 1. The City Council finds that the proposed Municipal Code amendments are exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3) in that they do not constitute a “project” as defined by CEQA since they do not have the potential to result in either a direct physical change to the environment or a reasonably foreseeable indirect physical change to the environment.
SECTION 2. Amendment. Title 8 of the Moraga Municipal Code, Planning and Zoning, is hereby amended to add Chapter 8.180 “Affordable Housing” as follows:
CHAPTER 8.180: AFFORDABLE HOUSING
8.180.010 – Title
This chapter shall be entitled the Affordable Housing Ordinance.
8.180.020 - Purpose
The purpose of this Chapter is to establish standards and procedures to facilitate the development and availability of housing for all economic segments of the community, as required by State law. The Chapter is one of several tools to implement the Town’s Housing Element and fulfill the Town’s obligation to provide housing for very low-, low-, and moderateincome households. It is also a tool for providing housing for the Moraga workforce as well as groups with special housing needs such as college students, persons with disabilities, and older adults. This Chapter supports the State mandate to affirmatively further fair housing by ensuring that housing for lower income households is geographically dispersed and not concentrated in a single location within the Town.
8.180.030 - Definitions
For the purposes of this Chapter, the words and phrases below shall be interpreted as set forth in this section, unless it is apparent from the context that a different meaning is intended.
"Accessory Dwelling Unit," or "ADU," is defined in Chapter 8.124.020. “Affordable Housing Agreement” means a legally binding, written agreement between a Developer and the Town, in form and substance satisfactory to the Planning Director and Town Attorney, setting forth those provisions necessary to ensure that the requirements of this Chapter, whether through the provision of Inclusionary Units or through an alternative method, are satisfied.
“Affordable Housing Fund” is a separate fund of the Town into which all monies collected pursuant to this Chapter shall be deposited. Additional monies from other sources also may be deposited in the Affordable Housing Fund.
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“Affordable Housing Plan” means a plan demonstrating how an Applicant will comply with the requirements of this Chapter and containing the components listed in Section
8.180.050(B).
“Affordable Rent” means monthly rent and utility allowance, which does not exceed onetwelfth of 30 percent of the maximum annual income for a household of the applicable income level.
“Affordable Sales Price” means a sales price which results in a monthly mortgage (including principal and interest), property taxes, utilities, and homeowner association fees, where applicable, which do not exceed one-twelfth of 35 percent of the maximum annual income for a household of the applicable income level.
“Amenities” means and includes features which are not essential to the health and safety of the resident, but provide visual or aesthetic appeal, or are provided as conveniences rather than as necessities. Interior amenities may include, but are not limited to, fireplaces, garbage disposals, dishwashers, cabinet and storage space and bathrooms in excess of one. Exterior amenities include features such as patios and balconies, and common facilities accessible to a development such as fitness centers, play areas, resident community rooms, gardens, bike storage facilities or similar conveniences provided for residents of the development. Amenities do not include items required by building codes or other ordinances that are necessary to ensure the safety of the building and its residents.
“Applicant” means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities which seeks Town real property development permits and approvals.
“Area Median Income” means the Area Median Income for Contra Costa County, adjusted for household size, as published by the State Department of Housing and Community Development.
“Developer” means the same as "Applicant" (see above definition). "Dwelling Unit" means a building of portion thereof that is designed, intended, or used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household. For purposes of this Chapter, "Dwelling Unit" does not include an Accessory Dwelling Unit. Dwelling Units include “For-Sale Units” and Rental Units” as defined elsewhere in this section.
"For-Sale Units” means a single-family detached Dwelling Unit or a Dwelling Unit in a multifamily Residential Development that will be offered for sale, not for rent. “Fractional Unit” is a numeric equivalent that is less than one Dwelling Unit. It is the product of the affordable housing percentage requirement multiplied by the number of units in a Residential Development and expressed to one decimal point, minus the nearest whole number below that product.
“Household” means one person living alone or two or more persons sharing residency.
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“Incentive” means a benefit offered by the Town to facilitate construction of Residential Developments which include Inclusionary Units. Among others, Incentives may include fee reductions for Inclusionary Units, density bonuses beyond State requirements, and flexibility and/or relaxation of development regulations. Incentives are adopted through a Policy Resolution.
“Inclusionary Unit” means a Dwelling Unit developed pursuant to an Affordable Housing Agreement that will be offered For-Sale or rent to Very Low-, Low- and Moderate- Income Households, at an Affordable Rent or Affordable Sales Price, as applicable, pursuant to this Chapter.
“In-Lieu Fee” means a fee paid to the Town by an Applicant for a Residential Development in the Town in lieu of providing the Inclusionary Units required by Section
8.180.040. It includes fees for Fractional Units, as defined in this Section. “Low-Income Household” means a household with an annual income between 50 percent and 80 percent of Area Median Income limits applicable to Contra Costa County, adjusted for household size, as published by the State Department of Housing and Community Development for Contra Costa County.
“Market-Rate Units” mean those Dwelling Units in a Residential Development that are not Inclusionary Units or otherwise subject to deed restrictions and income limits. “Moderate-Income Household,” means a household with an annual income between 80 percent and 120 percent of Area Median Income limits applicable to Contra Costa County, adjusted for household size, as published by the State Department of Housing and Community Development for Contra Costa County.
"Rental Unit" means a single-family detached Dwelling Unit or a Dwelling Unit in a multifamily Residential Development that will be offered for rent, not for sale. “Residential Development” means a development of six (6) or more residential units or lots for, without limitation, detached single family dwellings, multiple dwelling structures, groups of dwellings, condominium conversions, cooperative developments and land subdivisions. “Town” means the Town of Moraga or its designee, or any entity with which the Town contracts with to administer this section.
“Very Low-Income Household” means a household whose income does not exceed 50 percent of the Area Median Income limits applicable to Contra Costa County, adjusted for household size, as published by the State Department of Housing and Community Development for Contra Costa County.
8.180.040 General Requirements
Each Residential Development shall be subject to the requirements set forth in this Section.
Developments with five or fewer Dwelling Units are exempt from this Chapter.
A. For-Rent Residential Developments:
(1) At least ten (10) percent of the Rental Units shall be Inclusionary Units for occupancy by Low-Income Households; or
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(2) The Developer may propose alternate percentages of Low- and Very Low-income Rental Units to meet this requirement upon demonstration that they are of equivalent value. Satisfying the requirement with moderate-income Rental Units is not permitted.
B. For-Sale Residential Developments:
(1) At least ten (10) percent of the Dwelling Units shall be Inclusionary Units for occupancy by Moderate-Income Households. These units may be either Rental or For-Sale Units, or a combination of both. Any Rental Units that are provided shall be subject to an agreement prepared by the Applicant and approved by the Town, including provisions ensuring the long-term affordability of the units and their occupancy by a qualifying Household; or
(2) For Residential Developments in zoning districts of R-6 densities or lower, at least 25 percent of the Dwelling Units shall include Accessory Dwelling Units. These units are subject to the provisions defined in Section 8.180.090 and shall have no restrictions on income or occupancy.
C. Incentives, as specified in Section 8.180.080 shall be available to Applicants meeting the inclusionary requirements on-site.
D. Residential Developments with six (6), seven (7), eight (8), or nine (9) units shall have the option of providing one full Inclusionary Unit or paying the In-Lieu Fee in an amount equal to the following schedule for the fractional unit multiplied by the In-Lieu Fee as authorized in Section 8.180.050(D)(4).
Total Units in Project Fractional Inclusionary Unit Required 6 0.20
7 0.40
8 0.60
9 0.80
E. Applicants proposing ten (10) or more units shall calculate the required number of Inclusionary Units. In the event this calculation results in a Fractional Unit, the Developer shall have the option of either: (i) providing a full Inclusionary Unit; or (ii) paying an InLieu Fee in an amount equal to the percentage represented by the fractional unit multiplied by the In-Lieu Fee, as authorized in Section 8.180.050(D)(4).
F. Additional units authorized through a density bonus under California Government Code Section 65915(b)(1) or (b)(2) will not be counted in determining the required number of Inclusionary Units. Inclusionary requirements apply to the initial base number of units proposed.
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Packet Pg. 106 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 242 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Ordinance No. XX-2022 A-7 December 7, 2022
8.180.050 Administration
A. Applicability. Any Town action approving a Residential Development subject to this Chapter shall contain conditions sufficient to ensure compliance with the provisions of this Chapter. No building permit or final inspection shall be issued, nor any development approval granted which does not meet the requirements of this Chapter.
B. Affordable Housing Plan. Developers subject to the provisions of this Chapter shall prepare a draft Affordable Housing Plan setting forth in detail the manner in which the requirements shall be implemented as part of their development application. No discretionary approval, Town approval or building permit shall be issued until the Affordable Housing Plan has been finalized and approved by the entity approving the underlying approval or permit. The Affordable Housing Plan shall be submitted as part of the initial application and include:
(1) The location, tenure (rental or ownership) and size of the proposed Market-Rate and Inclusionary Units;
(2) The calculations used to determine the number of Inclusionary Units; (3) A floor plan or site plan depicting the location of the Inclusionary Units; (4) The affordability level for each Inclusionary Unit; (5) The term of affordability;
(6) A phasing plan for the Inclusionary Units, in the event the project includes phases; (7) A description and details of any requested density bonuses, Incentives, waivers or exemptions;
(8) The process by which eligibility of qualified Households will be reviewed and selected to rent or purchase affordable units;
(9) An annual reporting schedule; and
(10) Additional information that may be requested by the Planning Director.
C. Affordable Housing Agreement. The Developer shall execute and cause to be recorded an Affordable Housing Agreement with the Town prior to the earlier of the issuance of the first building permit or final map approval. The form of the Affordable Housing Agreement will vary depending on the manner in which the provisions of this Chapter are satisfied for a particular development and whether an Alternative is proposed and approved. All Affordable Housing Agreements for Residential Developments providing Inclusionary Units on-site must include, at a minimum, the following:
(1) Description of the development, including whether the Inclusionary Units will be rented or owner-occupied;
(2) The number, size and location of Very Low-, Low- or Moderate-income Units; (3) Inclusionary Incentives offered by the Town that are being requested, including the nature and amount of any local public funding;
(4) Provisions and/or documents for resale and/ or rental restrictions, rights of first refusal, and/or rental restrictions, and performance deeds of trust, as appropriate; H.3.c
Packet Pg. 107 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 243 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Ordinance No. XX-2022 A-8 December 7, 2022
(5) A deed restriction or other enforceable obligation approved by the Town Attorney ensuring the ongoing affordability requirements (this requirement shall not apply to Developers of For-Sale Units using the Accessory Dwelling Unit option described in Section 8.180.90); and
(6) Provisions for monitoring the ongoing affordability of the units and the process for qualifying prospective resident Households for income eligibility.
D. In-Lieu Fees. The Town Council shall, by resolution or other action, establish an Affordable Housing In-Lieu Fee. Fees may be based on a fee per Market-Rate unit, fee per square foot, or any other reasonable basis. The fees may be periodically adjusted based on the annual percentage increase or decrease in the construction cost index since the last update.
(1) For-Sale Units. The fee amount should represent a reasonable portion of the gap between the Affordable Sales Price at the corresponding income level and the Market-Rate sales price of for-sale housing of a similar product type. (2) Rental Units, the fee amount should represent a reasonable portion of the gap between the Affordable Rent at the corresponding income level and the market-rate rent for a similar product type over the lifetime of the affordability term. (3) Affordable Housing Fund. All fees collected shall be deposited in an Affordable Housing Fund. The monies deposited in the Affordable Housing Fund must be used to increase or maintain the supply of housing affordable to very low-, low-, and moderate-income Households, including reasonable administrative or related expenses.
(4) Applicability to Fractional Units. The In-Lieu Fee shall be applied to Fractional Units that result when the inclusionary requirements are applied to Residential Development when the Applicant chooses not to build an additional Inclusionary Unit.
(5) Timing of Payment. Payment of In-Lieu Fees is due as follows:
a. For custom lot subdivisions where lots will be sold and homes will be constructed a future date, the In-Lieu Fee shall be paid at time of Final Map approval.
b. For all other Dwelling Units, the fee shall be paid to prior to building permit issuance for the project.
8.180.060 Alternatives
In lieu of including the Inclusionary Units in the Residential Development pursuant to Section
8.180.040, the requirements of this Chapter may be satisfied through the alternatives listed below. In each case, the Town Council must first find that on-site production of the Inclusionary Units is infeasible or that greater public benefit will result from the proposed alternative.
A. Off-Site Alternatives for Developer. As an alternative to providing all or a portion of the Inclusionary Units on the same site as the Residential Development, the Developer may H.3.c
Packet Pg. 108 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 244 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Ordinance No. XX-2022 A-9 December 7, 2022
elect to construct the units off-site elsewhere in the Town of Moraga, subject to the following requirements:
(1) At least 1.5 units shall be provided for each Inclusionary Unit required. (2) The following provisions shall apply to the off-site development:
a. The off-site development shall be governed by the terms of a deed restriction limiting occupancy of the required number of units to qualified Low- or Very LowIncome households and establishing rents meeting affordability criteria for Low or Very Low-Income households.
b. Environmental review shall have been completed, including provisions to mitigate any hazardous materials or geologic conditions, to the satisfaction of the Town . c. If applicable, the off-site units shall include a declaration of covenants, conditions, and restrictions similar to that required for on-site Inclusionary Units. d. Construction of the off-site Inclusionary Units shall be completed prior to the issuance of the first certificate of occupancy of the Residential Development, e. The off-site parcel shall have General Plan and zoning densities equivalent to R6 or higher.
B. Agreement with Non-Profit Developer. As an alternative to providing all or a portion of the Inclusionary Units on the same site as the Residential Development, the Developer may enter into an agreement with a non-profit developer to (i) fund a portion of a proposed affordable housing project in Moraga; or (ii) to provide a land donation for the construction of affordable housing units on an alternative site in the Town of Moraga, subject to the following requirements:
(1) At least 1.5 units shall be provided for each Inclusionary Unit required. (2) The value of the land donation and/or funding shall be approximately equivalent to or greater than the Developer cost associated with Alternative (A) described above. (3) The Developer and the Non-Profit Housing Developer shall enter into a signed written agreement to construct the required Inclusionary Units at the time of project entitlement.
(4) The following provisions shall apply to the off-site residential development:
a. The off-site development shall be governed by the terms of a deed restriction limiting occupancy of the required number of units to qualified Low or Very Lowincome households and establishing rents meeting affordability criteria for Low or Very Low-income households.
b. If applicable, the off-site units shall include a declaration of covenants, conditions and restrictions similar to that required for on-site Inclusionary Units. c. In the event that off-site construction is used, the Affordable Housing Agreement shall include a construction schedule which ensures the off-site units will be available for occupancy concurrently with the Market-Rate Units. Where concurrent construction cannot be guaranteed, an alternate method may be used to ensure construction within three years of occupancy of the Residential Development.
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Packet Pg. 109 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 245 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Ordinance No. XX-2022 A-10 December 7, 2022
d. The off-site parcel shall have General Plan and zoning densities equivalent to R6 or higher.
C. Acquisition, Rehabilitation, and Deed Restriction of Existing Multi-Family Housing Units.
As an alternative to providing all or a portion of the Inclusionary Units on the same site as the Residential Development, the Developer may acquire housing units on an alternative site in Moraga and rehabilitate and deed restrict the units as affordable units, subject to the following requirements:
(1) At least 2.0 rehabilitated units shall be provided for each Inclusionary Unit required. (2) The following provisions shall apply:
a. The off-site development shall be governed by the terms of a deed restriction limiting occupancy of the required number of units to qualified Low or Very Lowincome households and establishing rents meeting affordability criteria for Low or Very Low-income households.
b. If applicable, the off-site units shall include a declaration of covenants, conditions and restrictions similar to that required for on-site Inclusionary Units. c. The Affordable Housing Agreement shall include a schedule which ensures the off-site units will be available for occupancy concurrently with the Market-Rate project. Where concurrent implementation cannot be guaranteed, an alternate method may be used to ensure implementation within three years of occupancy of the Residential Development.
d. With respect to rehabilitation, a tenant displacement reduction plan shall be prepared by the Developer, including relocation assistance and first right of return for impacted tenants.
D. In-Lieu Fee for Projects in Very High Fire Severity Zones (VHFSZ). Applicants of projects in a VHFSZ as determined by CAL FIRE may at their discretion, select to pay an in-lieu fee as an alternative to constructing the affordable units on-site, off-site, or through Accessory Dwelling Units (ADUs). Nothing in this provision precludes the owner from including ADUs in their project, as permitted by State law.
E. Alternate Methods of Compliance. Applicants may propose creative concepts for meeting the requirements of this Chapter, whether on or off-site. The Town Council may approve such alternate methods if the Applicant demonstrates that the purpose of this Chapter (as set forth in Section 8.18.020) has been met.
H.3.c
Packet Pg. 110 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 246 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Ordinance No. XX-2022 A-11 December 7, 2022
8.180.070 Standards
A. Term of Affordability. For-Sale Inclusionary Units shall be deed restricted pursuant to this Chapter for a period not less than 45 years. Rental Inclusionary Units shall be deed restricted pursuant to this Chapter for a period not less than 55 years.
B. Design. The following requirements shall apply:
(1) Inclusionary Units should be reasonably dispersed throughout the entirety of the Residential Development.
(2) Inclusionary Units should be comparable in terms of bedroom count to the MarketRate units, excluding ADUs. However, on-site Rental Units may be up to 20% smaller than the Market-Rate Units in the Residential Development project and onsite For-Sale Units may be up to 30% smaller than the Market-Rate Units in the Residential Development.
(3) The exterior design and character of the Inclusionary Units shall be substantially consistent with that of the Market-Rate Units in the Residential Development. (4) Interior Finishes. Inclusionary Units may have different interior finishes than Market Rate units so long as the interior finishes are durable, of good quality and consistent with current State building code standards for new housing. (5) The Inclusionary Units must have access to all Amenities available to the MarketRate Units.
C. Timing. Inclusionary Units must be constructed prior to or concurrently with the construction of the Market-Rate Units. In the event the Town approves a phased project, the Inclusionary Units required by this Chapter shall be constructed and occupied in proportion to the number of units in each phase of the Residential Development. In no case shall an Affordable Housing Unit be the final Dwelling Unit issued a Certificate of Occupancy of a Residential Development or its approved phase(s).
D. Segmentation. Segmentation of a project to avoid the requirements of this Chapter is not permitted. Construction of proximate Dwelling Units within any five-year period for which there is evidence of common ownership, control or interest, whether or not covered by the same land use entitlements, shall be subject to the regulations of this Chapter. However, nothing herein shall prohibit the phased development of a project, as approved by the Town.
8.180.080 Incentives
The Town shall make available to the Applicant Incentives to increase the feasibility of Residential Developments to provide Inclusionary Units. These Incentives shall only be available to Applicants who construct the Inclusionary Units on-site:
A. Fee Deferral. The Town Council, by resolution, may defer payment of Town of Moraga development impact fees (e.g. General Government, Public Safety, Park Development, Storm Drain, Parkland Development, the Lamorinda Fee and Finance Authority Fee, H.3.c
Packet Pg. 111 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 247 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Ordinance No. XX-2022 A-12 December 7, 2022
etc.) applicable to the Residential Development of which they are a part. Development impact fees for each unit shall be paid no later than the time of transfer of the unit to the first occupant, or at the time a certificate of occupancy is issued for Rental Units. The Developer and Town shall enter into a fee deferral agreement to be recorded against the real property prior to building permit issuance that restricts the transfer of any Dwelling Unit until all development fees for that parcel have been paid in full.
B. Incentives. Density bonuses and reduced parking requirements shall be available to projects meeting the requirements of this Chapter by providing Inclusionary Units onsite, in accordance with a schedule of Incentives to be adopted through a Moraga Affordable Housing Incentive Policy Resolution by the Town. Incentives shall be consistent with and may exceed the concessions and waivers available through State Density Bonus Law. Such Incentives may include but are not limited to:
(1) Increased height/stories
(2) Reduced setbacks or stepbacks
(3) Reduced private open space requirements
(4) Increased floor area ratio, where applicable
(5) Increased lot coverage
8.180.090 Accessory Dwelling Unit (ADU) Alternative Means of Compliance As indicated in Section 8.180.040(B)(2), an Applicant constructing a For-Sale Residential Development in any zoning district with densities equivalent to R-6 or lower may fulfill a development’s inclusionary housing requirements with the development of Accessory Dwelling Units, as set forth in this section.
A. Applicability. The provisions of this section shall apply to all new For-Sale Residential Developments with six or more units in the RR, R-1 DUA, R-2 DUA, R-3 DUA, and R-6 zoning districts.
B. Scope. Developers shall include Accessory Dwelling Units (ADUs) in a minimum of 25 percent of all primary units in the Residential Development. Such ADUs shall be at least 500 square feet in floor area, or no less than the maximum allowable size of Junior ADUs established by State law, whichever is less. Junior Accessory Dwelling Units (Junior ADUs) shall be ineligible to meet this requirement. In the event the number of required ADUs is not a whole number, the number of units shall be rounded up to the nearest whole number regardless of the fractional amount. No restrictions on occupancy or the income of occupants shall be required.
C. Ineligibility for Density Bonus. Developers providing ADUs as provided in this Section to meet their affordable housing requirements shall be ineligible for density bonuses or Incentives.
D. Design Parameters. Any ADUs constructed pursuant to this Section shall meet the design and development standards at Chapter 8.124 of the Municipal Code (Accessory Dwelling Units).
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Packet Pg. 112 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 248 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Ordinance No. XX-2022 A-13 December 7, 2022
E. Reporting. The Town may, from time to time, request that the owner of each unit ADU subject to this Section report the occupancy status of the ADU using a Town-supplied reporting form.
8.180.100 Waivers
A. The requirements of this Chapter may be waived, adjusted, or reduced if a Developer shows, based on substantial evidence, that there is no reasonable relationship between the impact of a proposed Residential Development and the requirements of this Chapter, or that applying the requirements of this Chapter would take property in violation of the United States or California Constitutions.
B. Any request for a waiver, adjustment, or reduction under this section shall be submitted to the Town concurrently with the Affordable Housing Plan required by Section
8.180.050(B). The request for a waiver, adjustment, or reduction shall set forth in detail the factual and legal basis for the claim.
C. The request for a waiver, adjustment, or reduction shall be reviewed and considered in the same manner and at the same time as the Affordable Housing Plan.
D. In making a determination on an application for waiver, adjustment, or reduction, the Developer shall bear the burden of presenting substantial evidence to support the claim.
The waiver, adjustment or reduction may be approved only to the extent necessary to avoid an unconstitutional result, after adoption of written findings, based on substantial evidence, supporting the determinations required by this section.
8.180.110 Enforcement
A. Applicability. The provisions of this Chapter shall apply to all agents, successors and assigns of an Applicant.
B.
Enforcing Authority. The Town Manager or their designee is the enforcing authority for this Chapter. The Town Manager may suspend or revoke any building permit or approval upon finding a violation of any provision of this Chapter.
C. Excessive Sales Price and Rents/Legal Action. It is unlawful, a public nuisance and a misdemeanor for any person to sell or rent an Inclusionary Unit at a price or rent exceeding the maximum allowed under this Chapter or to a household not qualified under this Chapter. If the Town determines that the sales price or rents in excess of those allowed by operation of this Chapter have been charged to a household residing in an affordable unit, the Town may take appropriate legal action.
SECTION 3. Effective Date. This Ordinance becomes effective thirty (30) days after its final passage and adoption.
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Packet Pg. 113 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 249 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Ordinance No. XX-2022 A-14 December 7, 2022
SECTION 4. Severability. If any provision of the Ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Ordinance which can be given effect without the invalid provisions or applications of the Ordinance. To this end, the provisions of this Ordinance are severable. This Town Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof.
SECTION 6. Publication. The Town Clerk shall cause this Ordinance to be published in accordance with State law.
The foregoing Ordinance was introduced at a regular meeting of the Town Council of the Town of Moraga, California, held on December 7, 2022, and was adopted and ordered published at a regular meeting of the Town Council held on December 14, 2022 by the following vote:
Ayes:
Noes:
Abstain:
Absent:
Recused:
____________________________
Steve Woehleke, Mayor
ATTEST:
___________________________________
Yashin Abbas, Interim Town Clerk
H.3.c
Packet Pg. 114 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 250 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing)
ATTACHMENT B
Draft Development Incentives Policy Resolution for Projects Meeting the Town’s Affordable Housing Requirements On-Site H.3.c
Packet Pg. 115 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 251 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) B-2
Development Incentives Policy
Developers meeting the Town’s affordable housing requirements on-site shall be eligible for the density bonuses listed below. Developers meeting the requirements through an Alternative means of compliance as defined in Section 8.180.060 of the Moraga Municipal Code shall not be eligible for local bonuses. Projects with five units or fewer shall likewise be ineligible for local bonuses.
State Density Bonus Law (SDBL) requires that projects receiving low-income housing density bonuses must be affordable to households earning 60 percent of Areawide Median Income (AMI) or lower. As an incentive, the Town of Moraga will award equivalent density bonuses for projects serving households earning 80 percent of AMI or less. In addition, the Town will offer a supplemental local density bonus which may be added to the State bonus for projects providing on-site inclusionary units. The tables below represent the aggregate of the State Density Bonus and an additional Town of Moraga bonus for various housing types. As the table indicates, higher bonuses are provided for housing types identified in the 2023-2031 Housing Element as being particularly important to the Town.
R-24 Zoning District:
Housing Type Base
Density
(General
Plan and
Zoning)
State Density
Bonus
Available to
Projects
providing
10% low
income (*)
State
Density
Bonus
Available to
Projects
providing
10%
moderate(*)
Town of Moraga
Supplemental
Bonus for
Projects
meeting the
inclusionary
requirement onsite
Total
Bonus
Allowable
Density
with
Local
Bonus
Rental Housing,
General
24 DUA 20% N/A 5% 25% 30 DUA
Rental Housing,
Senior
30 DUA 20% N/A N/A (**) 20% 36 DUA
Rental Housing,
Student
24 DUA 35% N/A 15% 50% 36 DUA
For-Sale
Housing, Senior
30 DUA N/A 15% 5% 20% 36 DUA
DUA= Dwelling Units Per Acre
Attachment B
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Packet Pg. 116 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 252 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) B-3
MSCP MU-RR, MSCP MU-OR zoning districts, and for the Rheem Center Commercial/Residential (RM-CR), and Rheem Center Office/Residential (RM-OR) zoning districts once established:
Housing Type Base
Density
(General
Plan and
Zoning)
State Density
Bonus
Available to
Projects
providing
10% low
income (*)
State
Density
Bonus
Available to
Projects
providing
10%
moderate(*)
Town of Moraga
Supplemental
Bonus for
Projects
meeting the
inclusionary
requirement onsite
Total
Bonus
Allowable
Density
with
Local
Bonus
Rental Housing,
General
24 DUA 20% N/A 5% 25% 30 DUA
Rental Housing,
Senior
24 DUA 20% N/A 30% 50% 36 DUA
Rental Housing,
Student
24 DUA 35% N/A 15% 50% 36 DUA
For-Sale
Housing, Senior
24 DUA N/A 15% 35% 50% 36 DUA
DUA= Dwelling Units Per Acre
R-20 Zoning District:
Housing Type Base
Density
(General
Plan and
Zoning)
State Density
Bonus
Available to
Projects
providing
10% low
income (*)
State
Density
Bonus
Available to
Projects
providing
10%
moderate(*)
Town of Moraga
Supplemental
Bonus for
Projects
meeting the
inclusionary
requirement onsite
Total
Bonus
Allowable
Density
with
Local
Bonus
Rental Housing,
General
20 DUA 20% N/A 5% 25% 25 DUA
Rental Housing,
Senior
30 DUA 20% N/A N/A (**) 20% 36 DUA
Rental Housing,
Student
20 DUA 35% N/A 15% 50% 30 DUA
For-Sale
Housing, Senior
30 DUA N/A 15% 5% 20% 36 DUA
H.3.c
Packet Pg. 117 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 253 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) B-4
R-12 Zoning District:
Housing Type Base
Density
(General
Plan and
Zoning)
State Density
Bonus
Available to
Projects
providing
10% low
income (*)
State
Density
Bonus
Available to
Projects
providing
10%
moderate(*)
Town of Moraga
Supplemental
Bonus for
Projects
meeting the
inclusionary
requirement onsite
Total
Bonus
Allowable
Density
with
Local
Bonus
Rental Housing,
General
12 DUA 20% N/A 5% 25% 15 DUA
Rental Housing,
Senior
12 DUA 20% N/A 5% 25% 15 DUA
Rental Housing,
Student
12 DUA 35% N/A 0% 35% 16 DUA
For-Sale
Housing, Senior
12 DUA N/A 15% 10% 25% 15 DUA
MCSP R-6 Zoning District:
Housing Type Base
Density
(General
Plan and
Zoning)
State Density
Bonus
Available to
Projects
providing
10% low
income (*)
State
Density
Bonus
Available to
Projects
providing
10%
moderate(*)
Town of Moraga
Supplemental
Bonus for
Projects
meeting the
inclusionary
requirement onsite
Total
Bonus
Allowable
Density
with
Local
Bonus
Rental Housing,
General
6 DUA 20% N/A 13.4% 33.4% 8 DUA
Rental Housing,
Senior
6 DUA 20% N/A 13.4% 33.4% 8 DUA
Rental Housing,
Student
6 DUA 35% N/A 0% 35% 8 DUA
For-Sale
Housing, Senior
6 DUA N/A 15% 18.4% 33.4% 8 DUA
(*) For the purposes of these tables, low-Income is defined as 80% of AMI and moderate-income is defined as 120% of AMI, adjusted for household size.
(**) For senior housing in the R-20 and R24 zoning districts, the Town’s zoning already establishes a base density of 30 DUA, which is higher than the density allowed for other housing types. Thus, a supplemental local bonus is not provided for senior housing. Such projects may use the State Density Bonus of 20 percent to achieve 36 DUA.
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Packet Pg. 118 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 254 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) B-5
Parking
In addition to the density bonus, such projects shall be entitled to use State Density Bonus parking requirements for lower income housing for projects serving households up to 80 % of AMI, rather than the 60% AMI required by the State. The parking requirements are:
• Studio and One-Bedroom: 1 space
• Two or Three Bedrooms: 1.5 space
• Four Bedrooms: 2.5 spaces
Concession or Incentive
Consistent with State Density Bonus Law, applicants who meet the 10% affordable housing requirement on-site are also automatically eligible for one concession or incentive. Only one incentive may be requested unless deeper levels of affordability are provided. Developers seeking relief from other development standards may request waivers as allowed by State Density Bonus Law.
Examples of desired incentives include but are not limited to:
(1) Increased height/ stories
(2) Reduced setbacks or stepbacks
(3) Reduced private open space requirements
(4) Increased floor area ratio, where applicable
(5) Increased lot coverage
H.3.c
Packet Pg. 119 Attachment: Attachment C - Moraga Affordable Housing Ord (3098 : Inclusionary Housing Ordinance Options) H.3.a
Packet Pg. 255 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 1 1 2 Meeting Date: February 22, 2022
3 4
5 TOWN OF MORAGA STAFF REPORT
6 7 To: Honorable Mayor and Councilmembers
8 9 From: Afshan Hamid, AICP, Planning Director
10 Barry Miller, FAICP, Planning Consultant
11 David Doezema, Keyser Marston Associates, Inc
12 13 Subject: Study Session on Establishing a Fractional In Lieu Fee in Accordance 14 with the Town’s Affordable Housing Ordinance
15 16 CEQA: The project is consistent with the previously certified Environmental 17 Impact Report for the Comprehensive Advanced Planning Initiative and is 18 categorically exempt under the California Environmental Quality Act 19 Guidelines 15061(b)(3) and is covered by the commonsense exemption. 20 21 Request
22 23 Receive an informational report on the proposed Affordable Housing Fractional In Lieu 24 Fees pursuant to the adopted Affordable Housing Chapter 8.180 in the Moraga Municipal 25 Code, which created requirements for affordable housing in new residential development 26 of six units or more. The Town Council adopted Chapter 8.180 on December 14, 2022, 27 and it went into effect on January 13, 2023.
28 29 Background
30 31 On December 14, the Town Council adopted an Affordable Housing Ordinance 32 (Ordinance) to increase affordable housing production and meet a new State requirement 33 to Affirmatively Furthering Fair Housing (AFFH). The Ordinance requires developers to 34 provide a percentage of new residential units at a price that is considered affordable to 35 very low-, low-, or moderate-income households. The “Inclusionary” units will have deed 36 restrictions that limit the rent (or sales price) that may be charged, as well as the annual 37 income of the tenant (or purchaser). Inclusionary Housing is a tool to help the Town meet 38 its Regional Housing Needs Allocation (RHNA) goal of 1,118 new units. Over 60 percent 39 of the Town’s RHNA goal is comprised of housing units that are affordable to lower- and 40 moderate-income households. The detailed December 7, 2022 staff report for the 41 Affordable Housing Ordinance may be accessed here.
42 43 The Ordinance gives the Town Council the authority to adopt a fractional in-lieu fee. The 44 primary purpose is to address situations where the inclusionary requirement does not Town of Moraga Agenda Item
Ordinances,
Resolutions,
Requests for Action
10.C
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Packet Pg. 256 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 2 1 result in a whole number of affordable units that are required. Projects with a fractional 2 inclusionary unit requirement are eligible to either pay an in-lieu fee for the fractional unit 3 or provide a whole inclusionary unit. For example, if an applicant proposed a 24-unit rental 4 project, the 10% inclusionary requirement represents 2.4 lower income units. Since 5 dwelling units are counted in whole numbers, the “fractional” remainder of 0.4 units could 6 either be satisfied through payment of an the proposed fractional in-lieu fee or the 7 applicant could choose to round up and provide 3 affordable units within the project. In 8 this instance, the requirement for 2.4 units would mean two affordable units would be 9 provided and the applicant would pay a fee equal to four-tenths of a dwelling unit. 10 11 The amount of the fee has not yet been established and must be determined by the Town 12 Council. The basis for the fee is included in the Ordinance. It represents the gap between 13 the market-rate price (sales or rent) and the affordable price (sales or rent) of the 14 inclusionary unit. At the December 7 meeting, staff shared that a study is required for the 15 in lieu fees and it would be brought to Council as a future separate action. Since the 16 December meeting, staff contracted with Keyser Marston Associates, Inc. (KMA) on an 17 Inclusionary Housing Fee Calculation memorandum (see Attachment B). 18 19 Section 8.180.040 identifies the General Requirements for the program, including the 20 types of projects that are covered (and exemptions), and the percentage of affordable 21 units that are required. Recognizing economic considerations, the Ordinance has 22 different requirements for for-rent and for-sale housing and allows flexibility in the 23 percentages of affordable units to be provided based on the depth of affordability. This 24 section also addresses “fractional” units.
25 26 Section 8.180.050 addresses Administration of the program, including requirements for 27 inclusionary housing plans and agreements. The agreements establish resale restrictions 28 for inclusionary for-sale units, and rental restrictions for rental units, as well as provisions 29 to monitor compliance once units are created. A summary of the Ordinance specific to In 30 Lieu Fees is as follows:
31 32 1. Applicability to rental vs ownership units (most ordinances apply to both). Council 33 direction was to apply the affordable requirement to both rental and ownership 34 units.
35 2. Exemptions (small projects may be exempt from the ordinance). Council direction 36 was to provide an exemption for projects with five or fewer units for inclusionary 37 units, with no fee collected for these projects.
38 3. Residential Developments with 6 (six), 7 (seven), 8 (eight), or 9 (nine) units shall 39 have the option of providing one full Inclusionary Unit or paying the In-Lieu Fee in 40 an amount equal to the following schedule:
41 42 Total Units in Project Fractional Inclusionary Unit Required 43 6 0.20
44 7 0.40
45 8 0.60
46 9 0.80
47 4. Applicants proposing ten (10) or more units shall calculate the required number 48 of Inclusionary Units. In the event this calculation results in a Fractional Unit, the H.3.d
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Packet Pg. 257 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 3 1 Developer shall have the option or either: (i) providing a full Inclusionary Unit; or 2 (ii) paying an In Lieu Fee in an amount equal to the percentage represented by 3 the fractional unit multiplied by the In Lieu Fee
4 5. For-Sale Units. The fee amount should represent a reasonable portion of the gap 5 between the Affordable Sales Price at the corresponding income level and the 6 Market-Rate sales price of for-sale housing of a similar product type. 7 6. Rental Units. The fee amount should represent a reasonable portion of the gap 8 between the Affordable Rent at the corresponding income level and the market9 rate rent for a similar product type over the lifetime of the affordability term. 10 7. In Lieu Fee for Projects in Very High Fire Severity Zones (VHFSZ). Applicants of 11 projects in a VHFSZ as determined by CALFIRE may at their discretion, select to 12 pay an in-lieu fee as an alternative to constructing the affordable units on -site, off13 site, or through Accessory Dwelling Units (ADUs). Nothing in this provision 14 precludes the owner from including ADUs in their project, as permitted by State 15 Law.
16 17 Exemptions/ Applicability
18 19 Per the Ordinance, inclusionary requirements and in-lieu fees do not apply to projects of 20 five or fewer units. The Ordinance applies Town-wide, but projects in lower density zones 21 would have the option of meeting the inclusionary requirement through 25% Accessory 22 Dwelling Units (ADUs). No rent or income restrictions would apply to the ADUs and they 23 may be used at the owner’s discretion (rental of the ADUs is not required). 24 25 The focus of this report is the methodology and fee calculation as set forth in the KMA 26 memorandum (Attachment B).
27 28 Discussion
29 30 Based on a review of inclusionary housing fees in other communities, there are two 31 primary ways of calculating the fee—on a square foot basis or on a dwelling unit basis. 32 The square foot basis was used in this case, as it is more equitable and places a lower 33 burden on smaller units. A 1,000 square foot condominium would be subject to a much 34 lower fee than 3,000 square foot home; this would not be the case if the fee was based 35 on the number of dwelling units in the project. This square foot basis allows the fee to 36 scale with the size of the market rate units and avoids creating a disincentive for smaller 37 more affordable market rate units.
38 39 The KMA memo and appendix is extensive and provides a comprehensive methodology 40 and calculations to determine an in-lieu fee consistent with the requirements of the 41 Ordinance. The KMA overall basis for the affordable housing in-lieu fee was calculated to 42 be $39.00 per square foot for for-sale projects and $25.00 per square foot for rental 43 projects. These figures represent the gross per square foot in-lieu that would apply if no 44 affordable units were provided by the project. The gross in-lieu fee amounts are adjusted 45 downward based on the portion of the overall inclusionary requirement to be satisfied with 46 fractional unit in-lieu fees. Gross in-lieu fees are also adjusted downward for smaller six 47 to nine unit projects based on the fractional unit requirements specified in the Ordinance.
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Packet Pg. 258 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 4 1 The basis for the fee is described below, first for for-sale projects and then for rental 2 projects.
3 4 For-Sale Projects Gross in-lieu fee
5 6 a. The methodology is as follows: Estimate the average market rate sales 7 price for Moraga.
8 b. Determine the average square footage for new units in Moraga 9 c. Determine the sales price that would be considered “affordable” to a 10 moderate income household
11 d. Calculate the for-sale affordability gap by subtracting the (c) affordable 12 sales price from the (a) market rates sales price
13 e. Apply the required inclusionary percentage (10%) to (d) affordability 14 gap and divide the result by (b) average unit square feet to calculate the 15 gross-lieu fee applied to for sale projects
16 17 The data points for (a) through (e) are shown below:
18 Gross In-Lieu Fee Calculation, For Sale
a. Average sales price for newer units in Moraga $1,798,000 b. Average net square footage 3,040 sq. ft.
c. Affordable sales price (Moderate) $612,000
d. Affordability Gap (a. – c.) $1,186,000
e. Gross In-Lieu Fee, For-Sale = affordability gap
(d.) x inclusionary % (10%) ÷ avg unit sq. ft. (b.)
$39 per sq. ft.
19 20
21 Rental Projects Gross in-lieu fee
22 23 a. The methodology is as follows: Determine average unit square feet for 24 rental apartments in Moraga
b. Identify market rents for existing apartments in Moraga1 25 , which are 26 primarily built in 1960s and 1970s
27 c. Estimate market rents for newly built apartments in Moraga 28 • Rents for new apartments are estimated based on applying a 50% 29 premium to rents for older existing units in Moraga. This premium 30 is estimated based on a comparison of rents for older and newly 31 built units in Walnut Creek. This step is necessary because no 32 recently built market rate apartments were identified in Moraga 33 d. Determine the rent that would be considered “affordable” to a lower 34 income household (assuming 30% of income set aside for housing costs). 35 e. Calculate the annual rent difference by subtracting the monthly affordable 36 rent from the monthly market rate rent, and then multiplying by 12 37 f. Calculate the rental affordability gap as the forgone project value 38 associated with setting aside an affordable housing unit. 39 The calculation is based on:
1 Nearly all Moraga apartments were built in the 1960s and 1970s. Used market rates for new apartments in Walnut Creek to estimate rent premium for new apartments built in Moraga H.3.d
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Packet Pg. 259 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 5 1 dividing the annual rent difference by a 4% capitalization rate 2 based on averages reported for the submarket
3 g. Multiply the affordability gap by the inclusionary percentage (10%) and 4 divide by (a) average unit per square feet to determine the gross in-lieu 5 fee for rental projects
6 7 The data points for (a) through (g) are shown below:
8 Gross In-Lieu Fee Calculation, For Rent
a. Average rental unit square feet 1,028 sq. ft.
b. Identify market rate rents for current apartments in Moraga.
$2,110
c. Apply a 50% premium to current rents to determine
market rates for new apartments ($2,110 x 50%)
$3,165
d. Calculate affordable monthly rent for a low-income
household (per 30% of monthly income, etc.)
$2,300
e. Subtract monthly affordable rent ($2,300) from market rate rent ($3,165)
$865
f. Multiply monthly difference ($865) x 12 to calculate annual rent difference
$10,382
g. Divide annual rent difference ($10,382) by capitalization rate (4%)2 to determine the capitalized value of rent
difference
$260,000
h. Multiply affordability gap ($260,000) x inclusionary percentage (10%) ÷ average unit square feet (1,028 sq.
ft.) =Gross In-lieu for rental projects
$25 per sq. ft.
9 10 Fee Calculation for Typical Projects
11 12 A number of examples are provided below to explain how the fees would apply to actual 13 projects. The examples used are a 24-unit townhome project (average unit size of 2,200 14 SF), a 42-unit rental project (average unit size of 1,200 SF), and a 66-unit rental apartment 15 project (average unit size of 900 SF).
16 17 Case Study: 24 unit for-sale townhome project (2,200 SF each, or total net area of 52,800 18 square feet in the entire project)
19 20 The applicant is obligated to provide 2.4 units affordable to moderate income households 21 (10 percent). The applicant could meet this obligation by rounding the 2.4 up to three 22 affordable units or by providing two affordable units and paying an in-lieu fee equivalent 23 to 0.4 units. The affordable units would be sold to qualifying buyers at moderate income 24 prices (roughly $612,000) and the remaining units would sell at market rates. 25 26 Assuming the developer chose to pay the in-lieu fee, the fee amount would be $343,200. 27 This is essentially four-tenths of the “gap” between one market-rate unit and one 2 4% average capitalization rate reported by Costar for apartment properties sold in the prior one-year period within the Walnut Creek submarket.
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Packet Pg. 260 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 6 1 subsidized unit in the project. The cost is calculated by applying the unit cost of $39 per 2 square foot as follows:
3 4 0.4/2.4 x $39 x 52,800 = $343,200
5 (Fractional amount / Total requirement) x in-lieu fee x project area 6 7 Case Study: 42-unit apartment project (1,200 SF each, or total net area of 50,400 SF in 8 the entire project)
9 10 The applicant is obligated to provide 4.2 units affordable to lower income households (10 11 percent). The applicant could meet this obligation by rounding the 4.2 up to five affordable 12 units or by providing four affordable units and paying an in-lieu fee equivalent to 0.2 units. 13 The affordable units would be rented to qualifying buyers at lower-income rents (roughly 14 $2,300) and the remaining units would rent at market rates. 15 16 Assuming the developer chose to pay the in-lieu fee, the amount would be $60,000. This 17 is essentially two-tenths of the “gap” between one market-rate unit and one subsidized 18 unit in the project. The cost is calculated by applying the unit cost of $25 per square foot 19 as follows:
20 21 0.2/4.2 x $25 x 50,400 = $60,000
22 (Fractional amount / Total requirement) x in-lieu fee x project area 23 24 Case Study: 66-unit apartment project (900 SF each, or total net area of 59,400 SF in the 25 entire project)
26 27 The applicant is obligated to provide 6.6 units affordable to lower income households (10 28 percent). The applicant could meet this obligation by rounding the 6.6 up to seven 29 affordable units or by providing six affordable units and paying an in-lieu fee equivalent 30 to 0.6 units. The affordable units would be rented to qualifying buyers at lower-income 31 rents (roughly $2,300) and the remaining units would rent at market rates. 32 33 Assuming the developer chose to pay the in-lieu fee, the amount would be $135,000. 34 This is essentially six-tenths of the “gap” between one market-rate unit and one 35 subsidized unit in the project. The cost is calculated by applying the unit cost of $25 per 36 square foot as follows:
37 38 0.6/6.6 x $25 x 59,400 = $135,000
39 (Fractional amount / Total requirement) x in-lieu fee x project area 40 41 Six to Nine Unit Projects
42 For projects with six (6) to nine (9) units either a full inclusionary unit is required or an in 43 lieu fee may be paid. Based on Table 1 in the KMA memorandum (see Attachment B, 44 page 2), the fees for rental units would range from $8.30 per square foot in a 6-unit project 45 to $22.20 per square foot in a 9-unit project. The fees for for-sale units would range from 46 $13.00 per square foot in a 6-unit project to $34.70 per square foot in a 9-unit project. 47 These requirements would primarily only be applied in the event small multi-family 48 projects or townhomes are proposed. It is expected that single family detached projects 49 of six to nine units will generally provide ADUs in lieu of meeting these requirements. The H.3.d
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Packet Pg. 261 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 7 1 Town is not expecting many projects in this range to be submitted based on past 2 submittals.
3 4 Custom Lot / Single Family Subdivision
5 For a subdivision in a zoning district that is RR, R-1, R-2, R-3, or R-6, an alternate means 6 of compliance provision has been provided to applicants. This alternate is to include 7 ADUs in 25 percent of the units rather than dedicating deed-restricted affordable units. 8 Based on cost, the ADU option is expected to be more attractive than dedicating 9 moderate-income for-sale units within the subdivision. 10 11 In subdivisions affordable housing is applicable in two scenarios, by providing 25% ADUs 12 of residences in a custom lot subdivision or in a Very High Fire Severity Zone (VHFSZ). 13 Recent CAL FIRE maps have been updated for the State responsibility areas. Moraga 14 Orinda Fire District (MOFD) will use the existing maps until local maps are adopted. 15 16 The developer does have the option of paying a fractional in-lieu fee, should they choose 17 to dedicate affordable units within their project. In such instances, the fees are due at 18 Final Map. The method and amount of the fee calculation is the same as was described 19 in the examples above. The fee represents a reasonable portion of the gap between the 20 Affordable Sale Price at the corresponding income level and the Market-Rate sales price 21 of For-Sale Housing.
22 23 The fractional fee option is not available to developers meeting the requirement through 24 ADUs. In other words, a 21-lot subdivision would need to include ADUs in six of the 25 homes, even though the 25 percent requirement yields 5.25 units. 26 27 Comparison of Other Cities
28 Staff conducted an analysis of in lieu fees and fractional in lieu fees for 21 East Bay 29 jurisdictions. Each jurisdiction varies in how it applies fees and at the threshold of how it 30 applies fees. Due to the sixth cycle, Housing Element, many jurisdictions are either re31 visiting or establishing in-lieu policies and fees. Clayton, Orinda, Lafayette and Danville 32 are currently in the process of updating or establishing the in lieu fees. Antioch, Hercules, 33 Martinez, Oakley, Pinole and Pittsburg are still working on their Housing Elements so the 34 in lieu policy and fees are not known at this time. San Pablo does not have in lieu fees as 35 the City meets affordable housing goals and most projects that are submitted have 36 affordable housing included. The remaining Cities that have inclusionary in lieu fees 37 adopted as first generation of fees are now in the process of updating, and re-considering 38 the approach to affordable housing fees. The information is in the table below. 39 40
For Sale For Rent sq. ft.
Brentwood $22.88 sq. ft. $28.72
Concord $ 9.00 sq. ft. Only when 600 or more units
are built
Contra Costa
County
$6,600.06 per market rate
unit
$24,200.55 per market rate unit
El Cerrito $22.88 sq. ft. $28.72 sq. ft.
Fremont $44.00 sq. ft. $27.00
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Packet Pg. 262 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 8 $27 sq. ft. for stacked flat
does not include additional
impact fees
$8.75 (up to 700 sq. ft.)
Pleasant Hill $271,350 for each unit
Note these have not been
updated for some time
Fractional is from the amount
listed,
Note these have not been
updated for some time
Richmond $12.00 sq. ft.
San Ramon 15% of units have to be
affordable. Don’t allow for
fees, only allow buildouts.
Most projects are 30 units
and more. Currently updating
fees with KMA and will adjust.
Most future projects
anticipated for MF, and will
ask for a higher fee.
15% of units have to be
affordable. Currently updating
fees
Walnut Creek $26.86 sq. ft.
Includes commercial linkage
fees
Needs to be updated
$26.86 sq. ft.
Includes commercial linkage
fees
Needs to be updated
1 2 Next Steps
3 4 Staff is requesting input and feedback at the February 22 meeting. Staff will continue to 5 reach out to developers for input. Once direction is provided, staff will bring the revised 6 report, recommendation and Resolution for Council adoption. 7 8 California Environmental Quality Act
9 10 The project is consistent with the previously certified Environmental Impact Report for the 11 Comprehensive Advanced Planning Initiative and is categorically exempt under the 12 California Environmental Quality Act Guidelines15061(b)(3) and is covered by the 13 common sense exemption.
14 15 Fiscal Impact
16 17 Adoption of affordable housing requirements will require the collection of fees for 18 fractional units and the adoption of an in-lieu fee. A dedicated Affordable Housing Fund 19 (Fund 791) would be created by the Town as a repository for these fees. As they accrue, 20 the fees would be used to support Housing Element programs and potentially provide a 21 supplemental funding source for non-profit affordable housing developers. There would 22 be additional costs associated with administering affordable housing requirements, 23 reviewing affordable housing plans and Agreements, and monitoring compliance with the 24 program. Some of these functions could be carried out by third parties, as the Town has 25 limited staff capacity.
26 27 Recommendations
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Packet Pg. 263 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 9 1
2 Accept the informational report and provide guidance and feedback to staff. This feedback 3 will inform the proposed resolution, which is scheduled to be brought to the Council in 4 March/April timeframe.
5 6 Report reviewed by: Brian Dolan, Interim Town Manager 7 Karen Murphy, Assistant City Attorney
8 9 Attachments:
10 11 A. Keyser Marston Associates, Inc. (KMA) on an Inclusionary Housing Fee 12 Calculation memorandum
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ATTACHMENT A
Keyser Marston Associates, Inc. (KMA) on an Inclusionary Housing Fee Calculation memorandum
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Packet Pg. 265 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) 2040 BANCROFT WAY, SUITE 302 BERKELEY, CALIFORNIA 94704 PHONE: 415 398 3050 FAX: 415 397 5065 001-002.docx; jf
WWW.KEYSERMARSTON.COM 16034.002
ADVISORS IN:
REAL ESTATE
AFFORDABLE HOUSING
ECONOMIC DEVELOPMENT
BERKELEY
A. JERRY KEYSER
TIMOTHY C. KELLY
DEBBIE M. KERN
DAVID DOEZEMA
LOS ANGELES
KATHLEEN H. HEAD
JAMES A. RABE
GREGORY D. SOO-HOO
KEVIN E. ENGSTROM
JULIE L. ROMEY
TIM BRETZ
SAN DIEGO
PAUL C. MARRA
LINNIE GAVINO
MEMORANDUM
To: Cynthia Battenberg
Town of Moraga
From: Keyser Marston Associates, Inc.
Date: December 21, 2022
Subject: Inclusionary In-Lieu Fee Calculations
The following memorandum has been prepared for the Town of Moraga (Town) by Keyser Marston Associates, Inc. (KMA) to calculate an in-lieu fee pursuant to the Town’s proposed Affordable Housing Ordinance (AHO). Moraga Municipal Code (MMC) Section
8.180.050 D (proposed) provides for adoption of in-lieu fees for fractional inclusionary unit obligations. Projects with a fractional inclusionary unit requirement are eligible to either pay an in-lieu fee for the fractional unit or provide a whole inclusionary unit.
SUMMARY OF IN-LIEU FEE CALCULATION
In-lieu fees are calculated based on the gap between market-rate and affordable sales prices and rents pursuant to MMC 8.180.050 D. In-lieu fees are expressed per habitable square foot within the project. Applying in-lieu fees on a per square foot basis is permitted under the AHO, is a well-established approach used in many jurisdictions throughout the region and allows the amount of the fee to scale with unit size.
A. Projects from Six to Nine Units
Table 1 presents calculated in-lieu fees for projects from six to nine units in size. In-lieu fees reflect the gap between market and affordable prices and rents and the schedule of fractional inclusionary unit obligations for projects with six to nine units under MMC
8.180.040 (D), which phases in requirements for smaller projects.
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Table 1. In-Lieu Fees for Six to Nine-Unit Projects
Per Habitable Square Foot (1) in Project
For-Sale Units Rental Units
6-unit projects $13.00 /SF $8.30 /SF
7-unit projects $22.30 /SF $14.30 /SF
8-unit projects $29.30 /SF $18.80 /SF
9-unit projects $34.70 /SF $22.20 /SF
(1) Excludes garages, parking area, common areas and common amenities, and other non-livable space.
B. Fractional Inclusionary Unit In-Lieu Fees for Larger Projects.
For projects with more than ten units that choose to meet fractional unit inclusionary requirements by paying an in-lieu fee, the amount is determined based on a “gross per square foot in-lieu fee” multiplied by the share of the inclusionary unit requirement to be satisfied with in-lieu fee payment, as shown in Table 2. The gross in-lieu fee reflects the full affordability gap, assuming no inclusionary units are provided within the project, and was calculated at $39 per square foot for for-sale units and $25 per square foot for rental units. This gross amount must be reduced to reflect the share of the inclusionary requirement to be satisfied with in-lieu fee payment, as shown in Table 2.
Table 2. Fractional Unit In-Lieu Fees, Projects with More Than Ten Units ForSale
Units
$39 𝑃𝑃𝑃𝑃𝑃𝑃 𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺 𝑓𝑓𝑓𝑓𝑓𝑓 ×
𝐹𝐹𝐹𝐹𝐹𝐹𝐹𝐹 𝐹𝐹𝐹𝐹𝐹𝐹 𝐼𝐼 𝐼𝐼 𝐼𝐼 𝑈𝑈 𝑂𝑂𝑂𝑂 𝑂𝑂
𝑇𝑇 𝐼𝐼 𝐼𝐼 𝐼𝐼 𝑈𝑈 𝑅𝑅 𝑅𝑅
× 𝐻𝐻 𝐻𝐻 𝐻𝐻 𝐹𝐹 = 𝑇𝑇 𝐷𝐷
Rental
Units $25 𝑃𝑃𝑃𝑃𝑃𝑃 𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺𝐺 𝑓𝑓𝑓𝑓𝑓𝑓 ×
𝐹𝐹𝐹𝐹𝐹𝐹𝐹𝐹 𝐹𝐹𝐹𝐹𝐹𝐹 𝐼𝐼 𝐼𝐼 𝐼𝐼 𝑈𝑈 𝑂𝑂𝑂𝑂 𝑂𝑂
𝑇𝑇 𝐼𝐼 𝑈𝑈 𝑅𝑅 𝑅𝑅
× 𝐻𝐻 𝐻𝐻 𝐻𝐻 𝐹𝐹 = 𝑇𝑇 𝐷𝐷
Appendix Table 1 provides an example calculation.
C. Custom Lot Subdivisions
For custom lot subdivisions, in-lieu fees are due at Final Map, while homes are built later. In this case, the in-lieu fee must be calculated based on an assumed habitable square footage. KMA recommends use of an estimated or assumed average square footage, as described in Table 3.
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Table 3. Custom Lot Subdivisions
If the total habitable square footage in the development can reasonably be estimated at the time of Final Map, such reasonable estimate shall be used for the in-lieu fee calculation. Otherwise, the total habitable square footage shall be calculated based on the average unit size used for purposes of establishing the in-lieu fee multiplied by the number of buildable lots. Average unit sizes, based on the supporting market data used for establishing in-lieu fees, are:
For-Sale: 3,040 sq ft
Rental: 1,028 sq ft
SUPPORTING ANALYSIS
The following sections walk through the calculation of in-lieu fees.
Gross In-Lieu Fee Calculation for For-Sale Projects
The AHO specifies that the in-lieu fee for for-sale units “…should represent a reasonable portion of the gap between the Affordable Sales Price at the corresponding income level and the Market-Rate sales price of For-Sale housing….” KMA calculated this gap based on a review of market rate sales and an estimate of the affordable sales prices for comparable units. The analysis is summarized below.
To estimate the market rate sales price of a new unit in Moraga, KMA calculated the average sales price of units built since 2010 and sold since January 2019, using data from CoreLogic. There were 72 units that fit these criteria in Moraga, representing a mix of single family detached and attached or duplex units. The average number of bedrooms, unit size and sales prices are shown in Table 4.
Table 4. Average Price of Newer Units in Moraga Built Since 2010, Sold Last 4 Years (1/2019 - 11/2022)
Average Sales Price, Newer Units in Moraga $1,798,000
Average Number of Bedrooms, Newer Units in Moraga 3.96
Average Net Square Footage, Newer Units in Moraga 3,040 sq ft Source: CoreLogic
Average market rate sales prices for for-sale housing in Moraga is the first component of the for-sale affordability gap calculation.
KMA estimated the affordable sales price for a comparable unit based on AHO requirements. The pricing is set to be affordable to households earning the Moderate H.3.d
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Income Limit for Contra Costa County with 35% of income set aside for housing costs including mortgage payments, property taxes, insurance, HOA dues, and utilities. Table 5 presents the affordable sales prices. Appendix Table 4 provides the supporting calculation.
Table 5. Moderate Income Affordable Sales Price
3 Bedroom
Aff Price
4 Bedroom
Aff Price
Weighted
Average (1)
Affordable Price $571,300 $613,400 $612,000
(1) Weighted to reflect the average of 3.96 bedrooms in the market rate unit sales data summarized in Table 4.
The for-sale affordability gap is the difference between the market rate sales price (Table 4) and the weighted average affordable sales prices (Table 5). The affordability gap represents the forgone revenue to the developer from setting aside a unit as affordable.
The calculation is shown in Table 6.
Table 6. For-Sale Affordability Gap
Market Price $1,798,000
Less: Affordable Price ($612,000)
Affordability Gap $1,186,000
Using the affordability gap, KMA calculated a per-square-foot in-lieu fee. The fee is calculated based on the onsite requirement (10% of units) and the average size of the market rate units (3,040 square feet). The calculation is shown in Table 7.
Table 7. Calculation of Gross For-Sale In-Lieu Fee, Before Phase-In Affordability
Gap
Inclusionary
Percentage
Average Unit
Square Feet
Gross In-Lieu
Fee before
phase-in
Gross For-Sale In-Lieu
Fee Before Phase-In
$1,186,000 x 10% ÷ 3,040 sq ft = $39 /SF
In-lieu fees for projects from six to nine units in size presented in Table 1 are based on the gross in-lieu fee per square foot in Table 7, adjusted for the phase in of the inclusionary unit requirement pursuant to MMC 8.180.040 (D). The supporting calculation of this phase in is provided in Appendix Table 1.
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Gross In-Lieu Fee Calculation for Rental Projects
The AHO specifies that the in-lieu fee for rental units “should represent a reasonable portion of the gap between the Affordable Rent at the corresponding income level and the market-rate rent for a similar product type over the lifetime of the affordability term.” KMA calculated this gap based on a review of market rate rents and an estimate of the affordable rents for comparable units. Appendix Table 3 presents the calculations. The analysis is summarized below.
KMA reviewed current market rate rents in Moraga. Costar data indicate that nearly all Moraga apartment units were built in the 1960s and 1970s. The in-lieu fee analysis should be based on the estimated rental rates of newly built units that would be subject to the inclusionary requirement. To estimate the rent premium for new units with modern finishes and amenities, KMA compared market rents for new and old apartments in Walnut Creek, where this data is available. KMA calculated the percentage difference in rents between new and old units from the 1960s and 1970s and estimated that new units rent for approximately 50% more than the older units. KMA estimated rents for new market rate units in Moraga based on applying this 50% premium to existing rents for older units, as shown in Table 8.
Table 8. Estimated Market Rate Rents for New Units in Moraga Avg Number
of BRs
Avg
Unit SF
Avg Effective
Rent Per Month
Averages for Rental Unit in Moraga (older units) 1.83 1,028 $2,110 Estimated Rent Premium for New Construction 50%
Estimated Market Rent for New Rental Units in Moraga 1.83 1,028 $3,165 Source: CoStar
The estimated market rate rents for new apartments in Moraga presented in Table 8 is the first component of the rental affordability gap calculation.
KMA calculated the affordable rent for a comparable unit using the average number of bedrooms from the market data and the requirements of the AHO. The rent is set to be affordable to households earning the maximum income limit for Low Income households in Contra Costa County, with 30% of income set aside for housing costs including rent and utilities. The results are summarized in Table 9.
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Table 9. Affordable Monthly Rent
1 BR/
2-p HH
2 BR/
3-p HH
Weighted
Average (1)
Contra Costa County Low Income Limit, 2022 $87,700 $98,650 Affordable Housing Cost per Month $2,193 $2,466 $2,420
Less: Utilities (2) ($95) ($125) ($120)
Affordable Rent $2,098 $2,341 $2,300
(1) Weighted to reflect the average of 1.83 bedrooms in the market rate rental units. (2) Assumes gas heat, hot water and cooking, air conditioning, electricity and water.
The difference between market rate rents (Table 8) and the affordable rents (Table 9) is shown in Table 10.
Table 10. Net Difference: Market vs. Affordable Rents
Market
Rent
Affordable
Rent
Rent Difference
Per Month
Rent Difference
Per Year
Net Difference:
Market and Affordable Rents $3,165 $2,300 $865 $10,382
The rental affordability gap is calculated based on annual difference between market rate and affordable rents in Table 10, divided by a capitalization rate of 4%, to identify forgone project value associated with setting aside a unit as affordable. The cap rate is based on the average for 2022 year-to-date for the Walnut Creek submarket, according to CoStar. The calculation is shown in Table 11.
Table 11. Rental Affordability Gap (Capitalized value of rent difference) Rent Difference
Per Year
Capitalization
Rate (1)
Capitalized Value
of Rent Difference
Affordability Gap $10,382 ÷ 4.00% = $260,000
(1) Costar Walnut Creek area submarket cap rate for 2022YTD.
Using the affordability gap, KMA calculated the gross in-lieu fee. The fee is calculated based on the affordability gap, the onsite requirement (10% of units), and the average size of the market rate units (1,028 square feet). The calculation is shown in Table 12.
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Table 12. Calculation of Gross Rental In-Lieu Fee, Before Phase-In Affordability
Gap
Inclusionary
Percentage
Average Unit
Square Feet
Gross In-Lieu
Fee Before
Phase-In
Gross Rental In-Lieu
Fee Before Phase-In $260,000 x 10% ÷ 1,028 sq ft = $25.00 /SF In-lieu fees for projects from six to nine units in size are based on the gross in-lieu fee per square foot in Table 12 plus an adjustment for the phase in of the inclusionary unit requirement pursuant to MMC 8.180.040 (D). The supporting calculation is provided in Appendix Table 1.
See also, Appendix Tables 1 through 4, attached, for supporting calculations.
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Packet Pg. 272 Attachment: May 2, 2023 Staff Report with Attachments (3218 : Inclusionary Housing) Appendix Table 1
In-Lieu Fee Calculations
In Lieu Fee Analysis
Town of Moraga, CA
A. B. C. D. E.
Project Size Rental For-Sale
per Ordinance = 10% x No. units = A. / B.
Gross In-Lieu Fee Before Phase-In $25 /SF $39 /SF
Appendix Table 3ppendix Table 2
=C x gross fee =C x gross fee
6-unit projects 0.2 0.6 33% $8.30 /SF $13.00 /SF
7-unit projects 0.4 0.7 57% $14.30 /SF $22.30 /SF
8-unit projects 0.6 0.8 75% $18.80 /SF $29.30 /SF
9-unit projects 0.8 0.9 89% $22.20 /SF $34.70 /SF
(1) Excludes garages, parking area, common areas and common amenities, and other non-livable space.
Example Fractional Unit In-Lieu Fee Calculation (For Sale Project) 1) Habitable Square Footage in Project 92,400
2) Total Units in Project 42
3) Inclusionary Units Required = 10% X Total Units 4.20 4) Whole Inclusionary Units Due 4.00
5) Fractional Inclusionary Units Due 0.20
6) Gross In-Lieu Fee Before Phase In $39 /SF Appendix Table 2 7) Fractional Unit In-Lieu Fee $171,600
B. Fractional Unit In-Lieu Fees for Projects of Eleven or More Units Formula for Fractional Unit In-lieu Fees
= Fractional Units Owed / Total Inclusionary Unit Requirement x Gross Per Square Foot In-Lieu Fee x Total Habitable Square Footage in the Project.
= 0.2 fractional units /
4.2 inclusionary units x
$39/SF x 92,400 SF
In-Lieu Fee
Per Habitable
Square Foot (1)
A. In-Lieu Fees for Six to Nine-Unit Projects
Phase-in of
Inclusionary
Requirement
per Ordinance
8.180.040 (D)
Inclusionary
Units With Full
10%
Requirement
In-Lieu Fee
Phase In
Percentage
(project either pays this amount or
rounds up to five whole inclusionary
units)
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Prepared by: Keyser Marston Associates, Inc.
Filename: \\SF-FS2\wp\16\16034\002\In-Lieu Fee Analysis Town of Moraga 12-21-22.xlsx; Summary