MEMBERS OF THE PUBLIC MAY PARTICIPATE IN THIS MEETING
IN PERSON, OR VIEW ON ZOOM OR YOUTUBE AS LISTED BELOW
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In Person:
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CITY COUNCIL
AGENDA
Wednesday, October 9, 2024
6:30 PM - SPECIAL MEETING
City Council
Agenda Page 1 10.09.24
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.
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
REMOTE COMMENTS: Remote Public Comments have been discontinued for the foreseeable future.
6:30 PM - SPECIAL MEETING
A. CALL TO ORDER / ROLL CALL
Councilmembers: Brandyn Iverson, Inga Miller, Janet Riley Vice Mayor Latika Malkani, Mayor Darlene Gee
B. PLEDGE OF ALLEGIANCE
City Council
Agenda Page 2 10.09.24
C. ADOPTION OF AGENDA
The City Council may take action on any item listed on the agenda.
D. POLICY MATTERS
D.1. Receive Staff Report including State Housing Law Updates and Set Aside the January 31, 2023 Certification of the Plan Orinda Environmental Impact Report and Certain Related Approvals, Including the Downtown Precise Plan
Recommendation:
1) Take Public Comment; 2) Receive Staff Report; 3) Adopt Resolution No. 47-24 Setting Aside the January 31, 2023 Certification of the Plan Orinda Environmental Impact Report and Certain Related Approvals, Including the Downtown Precise Plan
E. ADJOURNMENT
The next meeting of the Orinda City Council will be held on Tuesday, October 15, 2024 at 7:00 PM.
Please visit the City’s website at www.cityoforinda.org to view the City Council Calendar.
I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this special meeting agenda has been posted at least 24 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way.
Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org. At least 24 hours in advance of the meeting, this agenda was also delivered to and received by each member of the City Council as well as each local newspaper, radio station and television station requesting written notice of special meetings.
I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this regular meeting agenda has been posted at least 72 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way. Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org
~ Notices ~
There is a 90-day limit for the filing of a challenge in Court to certain City decisions that require a hearing by law, the receipt of evidence, and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6). Further, if you file a challenge in Court, you may be limited by California law, including but not limited to Government Code §65009, to those issues raised in connection with the public hearing. The City Council may be requested to reconsider a decision if the request is made prior to the next City Council meeting. For information on the next City Council meeting, please call 925.253.4221 or visit the website at www.cityoforinda.org. Unless otherwise noted, City Council actions include a determination that the California Environmental Quality Act (CEQA) does not apply. ~ Accessible Public Meetings ~
City Council
Agenda Page 3 10.09.24
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.
City Council
Staff Report
Agenda Item: D.1
Date: October 9, 2024
Department: Administration
AGENDA TITLE: Receive Staff Report including State Housing Law Updates and Set Aside the January 31, 2023 Certification of the Plan Orinda Environmental Impact Report and Certain Related Approvals, Including the Downtown Precise Plan RECOMMENDATION:
1) Take Public Comment; 2) Receive Staff Report; 3) Adopt Resolution No. 47-24 Setting Aside the January 31, 2023 Certification of the Plan Orinda Environmental Impact Report and Certain Related Approvals, Including the Downtown Precise Plan BACKGROUND:
Plan Orinda is an ongoing citywide planning effort that started more than three years ago and includes the Downtown Precise Plan, 6th Cycle Housing Element Update, and Safety Element Update. The Housing Element and Safety Element are two required elements of the City’s General Plan (blueprint for the community’s long-term vision for the future). The Housing Element must be updated every eight years, and the Safety Element must be updated concurrently with the Housing Element. The Downtown Precise plan is not only the vehicle through which the Housing Element implementation will occur in the Downtown, but it also addresses other Downtown development-related matters. The entirety of the Plan Orinda process was assessed through an Environmental Impact Report.
The City maintains a comprehensive set of resources and background on the Plan Orinda effort and process and that can be found at www.planorinda.com.
On January 31, 2023, the deadline by which the City had to approve a Housing Element, the City Council certified the Plan Orinda EIR including adopting a Statement of Overriding Considerations, and approved the Housing Element, Safety Element, and Downtown Precise Plan.
Thereafter, on March 30, 2023, the State Department of Housing and Community Development certified the City’s Housing Element as compliant with the State mandates. The City begin initial implementation activities after approval and certification by the State.
Subsequently, an organization named Orindans for Safe Emergency Evacuation (OSEE) challenged the City’s Plan Orinda approvals and the Environmental Impact Report as prepared under the California Environmental Quality Act (CEQA). That action was filed in the Contra Costa Superior Court as Case No. N23-0579. Additional information on the Plan Orinda Litigation, including Frequently Asked Questions can be found here: Plan Orinda Litigation.
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The litigants in the OSEE matter were successful in having some of their claims sustained by the Judge through his rulings. As a result of the Judge’s rulings, the City is be required to set aside its certification of the Plan Orinda Environmental Impact Report (EIR) and the Statement of Overriding Considerations. It will then revise certain portions of the EIR for review and certification. The City is required to rescind the Downtown Precise Plan during the EIR revision process. Those actions are what is presented to the City Council for action via this item.
It is important to note that the Judge left the City’s Housing Element in place and acknowledged that the City has no choice but to meet the State mandate for adding opportunities for housing development in Orinda. In addition, the Safety Element also remains in place.
NEXT STEPS:
The City will launch the process to make the revisions to the EIR the Judge would like to see, including an updated wildfire evacuation analysis which considers the build-out of Plan Orinda as proposed. After a public review and comment period on the revisions to the EIR, the City will consider certification of the revised EIR, including a new Statement of Overriding Considerations. Thereafter, the City will consider reapproval of the Downtown Precise Plan, possibly with revisions, and can commence the implementation of the Housing Element including rezonings once again in order to have those in place before the 2026 deadline imposed by the State.
FISCAL IMPACT:
There are no direct costs as a result of the recommended action. There will be costs associated with the consideration and recertification of a amended EIR and related.
ATTACHMENTS:
A. DRAFT Plan Orinda CC EIR Rescission Resolution
Respectfully Submitted by:
David Biggs
City Manager
Prepared By: Sheri Smith, City Clerk
Approved by:
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1 RESOLUTION NO. 47-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ORINDA SETTING ASIDE THE JANUARY 31, 2023 CERTIFICATION OF THE FINAL EIR FOR PLAN ORINDA AND
CERTAIN RELATED APPROVALS
THE CITY COUNCIL OF THE CITY OF ORINDA DOES HEREBY FIND, ORDER, AND RESOLVE AS FOLLOWS:
Section 1. Recitals
A. On January 31, 2023, the City Council approved Resolution No. 07-23, which (1) certified the Final EIR for Plan Orinda (which includes the 2023-2031 Housing Element Update and the Safety Element Update as well as the Downtown Precise Plan); (2) adopted the CEQA Findings, attached and incorporated therein by reference; (3) adopted the Statement of Overriding Considerations for those impacts that were found to be significant and unavoidable, attached and incorporated therein by reference; (4) adopted and incorporated into the Project all of the mitigation measures for the Project; (5) and adopted the Mitigation Monitoring and Reporting Program (“MMRP”) for the Project, attached and incorporated therein by reference. On that same date, the City approved Resolution Nos. 08-23 and 09- 23, which; (6) adopted the Downtown Precise Plan; (7) adopted a General Plan Amendment to approve the 2023-2031 Housing Element Update and the Safety Element Update; and (8) authorized submittal of the approved 2023-2031 Housing Element Update to HCD for final certification.
B. On March 3, 2023, a group called Orindans for Safe Emergency Evacuation or “OSEE” filed a lawsuit challenging the City’s approval of Plan Orinda and its certification of the Final EIR, alleging that the City’s actions violated the California Environmental Quality Act or “CEQA.” C. On February 22, 2024, the Contra Costa Superior Court issued a minute order identifying specific deficiencies related to the EIR’s analysis of wildfire evacuation and the Statement of Overriding Considerations.
D. On August 22, 2024, the Contra Costa Superior Court issued a writ of mandate ("Writ") ordering the City to “set aside the certification of the Plan Orinda Environmental Impact Report (“EIR”), the adoption of the Statement of Overriding Considerations challenged in this case, and approval of the Downtown Precise Plan (“DPP”)” within sixty (60) days of service of the writ.
E. The Writ further ordered the City to subsequently revise the EIR, including but not limited to chapters 4.14 and 6, to correct the specific deficiencies identified in the court’s February 22, 2024 order; recirculate those portions of the EIR that are revised pursuant to CEQA Guidelines 15088.5; prepare and certify a revised Final EIR pursuant to CEQA Guidelines 15089 and 15090; and revise the MMRP, CEQA findings, and Statement of Overriding Considerations.
F. The Writ did not require the City to rescind any project approvals for Plan Orinda other than certification of the EIR, adoption of the Statement of Overriding Considerations, and approval of the DPP. For example, the Writ did not require the City to rescind the City’s approval of the 2023-2031 (6th Cycle) Housing Element Update or the Safety Element D.1.a
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Attachment: DRAFT Plan Orinda CC EIR Rescission Resolution (3441 : Set Aside the January 31, 2023 Certification of the Plan Orinda 2 Update.
G. On September 6, 2024, OSEE served the Writ on the City, thereby commencing the City’s sixty (60) day timeline to comply with the Writ. The deadline for City compliance is therefore November 5, 2024.
H. It is the purpose of this Resolution to comply with the Writ by setting aside the certification of the Plan Orinda EIR, adoption of the Statement of Overriding Considerations, and approval of the DPP within sixty (60) days, as directed by the Writ.
Section 2. Setting Aside the Certification of Plan Orinda EIR, Adoption of Statement of Overriding Considerations, and Approval of the DPP
To comply with the Writ, the City Council hereby sets aside its January 31, 2023 certification of the Final EIR for Plan Orinda. The City Council further sets aside its January 31, 2023 adoption of the Statement of Overriding Considerations for Plan Orinda. The January 31, 2023 certification of the Final EIR and adoption of the statement of overriding considerations shall have no further force, effect, or operation. The remainder of Resolution No. 07-23, which adopted CEQA findings, adopted and incorporated into the Project all of the mitigation measures for the Project, and adopted the MMRP for the Project, remains in full force and effect.
The City Council also hereby sets aside its January 31, 2023 approval of the DPP.
Resolution No. 08-23, by which the City Council approved the DPP, is hereby rescinded and shall have no further force, effect or operation.
Resolution No. 09-23 remains in full force and effect.
This Resolution is not a project subject to CEQA because it is not an approval of any project and instead sets aside the Final EIR, Statement of Overriding Considerations, and DPP, as ordered by the Court.
The City Council further directs the City Attorney to file with the Court an Initial Return to the Writ, which shall include a copy of this Resolution.
PASSED AND ADOPTED at a meeting of the City Council of the City of Orinda held on October 9, 2024, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
ATTEST APPROVED
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Attachment: DRAFT Plan Orinda CC EIR Rescission Resolution (3441 : Set Aside the January 31, 2023 Certification of the Plan Orinda 3 City Clerk Mayor
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Attachment: DRAFT Plan Orinda CC EIR Rescission Resolution (3441 : Set Aside the January 31, 2023 Certification of the Plan Orinda