Agenda packet — Orinda City Council, January 20, 2026

CITY COUNCIL

REGULAR MEETING AGENDA
Tuesday, January 20, 2026
07:00 PM
Orinda Library Auditorium
26 Orinda Way, Orinda, CA
Zoom Webinar Link: https://www.tinyurl.com/OrindaCityCouncil YouTube: https://www.youtube.com/@cityoforinda9535/streams

NOTICE OF TELECONFERENCE MEETING
Pursuant to Government Code Section 54953, Subdivision (b), this meeting will include teleconference participation by Councilmember Cara Hoxie from:
62-146 Kamahoi Place,, Kamuela, Hawaii 96743
HOW TO 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 choose not to submit a speaker card or decline to provide the requested information on the card. After the City Council has heard from everyone who submitted a speaker card, anyone who has not submitted 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 the instructions below:

Deliver to City Hall at 22 Orinda Way or send an e-mail to [email protected] by 3 pm on the day of the meeting. Those comments will be forwarded to the City Council. They will also be part of the public record and available for viewing in the public review binder at Orinda City Hall, located at 22 Orinda Way. In addition, they will be available electronically by 5 pm on the day of the meeting by selecting the date of the meeting in this Box account link: https://tinyurl.com/Orinda-Public-Comment Remote Comments: Remote Public Comments have been discontinued for the foreseeable future. This does not include teleconference locations.

Assisted Listening Devices: Assisted listening devices are available on the table in the rear of the Auditorium.

CALL TO ORDER/ROLL CALL
Councilmembers: Cara Hoxie, Latika Malkani, Janet Riley Vice Mayor Darlene Gee, Mayor Brandyn Iverson
A.

PLEDGE OF ALLEGIANCE

ADOPTION OF AGENDA
The City Council may take action on any item listed on the agenda.

ITEMS FOR THE GOOD OF THE CITY

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.

CONSENT CALENDAR
Adoption of Ordinance 25-06, amending Section 17.2.3
(Definitions) and Section 17.8.5 (Downtown commercial district – Use restrictions) of the City’s Planning and Zoning Code for Convenience Markets and Other Ancillary Retail Uses at Service Stations

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The City Council will consider adoption of Ordinance 25-06, which was introduced at the City Council Meeting of January 13, 2026. Ordinance 25-06 would modify regulations for convenience markets and ancillary retail uses at service stations in response to an application by Chevron.

RECOMMENDATION:

Adopt Ordinance 25-06, waiving full reading, amending Section 17.2.3 (Definitions) and Section 17.8.5 (Downtown Commercial District – Use Restrictions) of the Orinda Municipal Code to update regulations governing convenience markets and ancillary retail uses at service stations.

PUBLIC HEARING

POLICY MATTERS
B.

F.1
G.

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Amendment No. 1 to the Professional Services Agreement with NCE for the Storm Drain Asset Survey and GIS Data Collection Project

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The City Council will consider approval of Amendment No. 1 to the NCE Professional Services Agreement and a budget increase for the GIS Field Survey and Mapping of Private and Public Storm Drains Project. Field verification work revealed the storm drain system is significantly larger than originally estimated, with over 1,900 additional assets identified and approximately 3,250 more requiring survey.

RECOMMENDATION:

1. Approve Amendment No. 1 to the Professional Services Agreement with NCE for additional storm drain asset field survey and GIS data collection work;

2. Approve Budget Change Form #010-26 increasing the budget from $497,500 to $672,000, which includes a contingency of $87,666 (15%); and

3. Authorize the City Manager to approve change orders within the approved contingency.

Study Session Page 31
The City Council will hold a study session to further examine housing affordability, including a review of existing State laws/programs designed to encourage affordable development, along with a set of final recommendations for the potential adoption of an inclusionary housing ordinance. Staff will review the ordinance language, discuss fee calculation methods and schedule updates. Additionally, Staff will contextualize the impact of an adoption of an ordinance, including the possible number of units created and/or in-lieu fee collected as part of any adopted ordinance.

RECOMMENDATION:

Receive the presentation, receive public comment, and provide feedback on the pursuit of an Inclusionary Housing Ordinance (IHO).

COUNCILMEMBERS' REPORTS

CITY MANAGER'S REPORT

MATTERS INITIATED

ADJOURNMENT
Please visit the City's website at www.cityoforinda.org to view the City Council Meeting Calendar.

H.1
H.2
I.

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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 discetion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure 1094.6). Further, if you file a challenge in Court, you may be limited by California law, including but not limited to Government Code 65009, to those issues raised in connection with the public hearing. The City Council may be requested to reconsider a decision if the request is made prior to the next City Council meeting. For information on the next City Council meeting, please call 925.253.4221 or visit the website at www.cityoforinda.org. Unless otherwise noted, City Council actions include a determination that the California Environmental Quality Act (CEQA) does not apply. ~Accessible Public Meetings~
The City of Orinda will provide special assistance for disabled citizens to participate in public meetings upon advance notice. If you need auxiliary hearing aid or sign language assistance at 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.

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CITY COUNCIL STAFF REPORT
Department: Administration
Meeting Date: January 20, 2026
SUBJECT:

Adoption of Ordinance 25-06, amending Section 17.2.3 (Definitions) and Section 17.8.5 (Downtown commercial district – Use restrictions) of the City’s Planning and Zoning Code for Convenience Markets and Other Ancillary Retail Uses at Service Stations EXECUTIVE SUMMARY:

RECOMMENDATION:

BACKGROUND:

At the City Council Meeting of January 13, 2026, the City Council introduced Ordinance 25-06, an ordinance amending Section 17.2.3 (Definitions) and Section 17.8.5 (Downtown Commercial District – Use Restrictions) of the Orinda Municipal Code to update regulations governing convenience markets and ancillary retail uses at service stations.

DISCUSSION:

Ordinance 25-06 was introduced at that meeting without changes and is on this agenda to consider its adoption.

FISCAL IMPACT:

None.

STRATEGIC PLAN INITIATIVE:

Not Applicable.

ATTACHMENTS:

A. Ordinance 25-06
Item F.1
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WEBLINK:

A. Staff Report from City Council Meeting of January 13, 2026 Respectfully Submitted by,
Sheri Smith, City Clerk
Approved By:

Linda Smith, City Manager
Item F.1
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BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of: Ordinance 25-06
An Ordinance Amending Section 17.2.3
(Definitions) and Section 17.8.5 (Downtown
commercial district—Use restrictions) of the
City’s Zoning Code to Update Rules
Applicable to Convenience Markets and Other
Ancillary Retail Uses at a Service Station
The City Council of the City of Orinda DOES ORDAIN as follows:

SECTION 1.

The City Council of the City of Orinda intends, by adopting this ordinance, to amend Section 17.2.3 (Definitions) and Section 17.8.5 (Downtown commercial district—Use restrictions) to update the City’s rules regarding convenience markets and other ancillary retail uses at service stations.

SECTION 2.

The following portions of the Zoning Code are amended as specified below and in Attachment A. Attachment A shows additions with double-underlined text and deletions with strike-out text.

Municipal Code Provision Action
§17.2.3 Text amended as shown in Attachment A.
§17.8.5 Text amended as shown in Attachment A.

SECTION 3 – PURPOSE AND INTENT.

A. The purpose of this ordinance is to allow additional and larger convenience markets, and other ancillary retail uses, at service stations in the City. The City’s usual commercial use permit process would continue to apply. In addition, approval of such uses would be based on findings of compliance with the performance criteria and requirements identified in Attachment A.

B. The intent of this ordinance is to promote the design and functionality of any new or expanded ancillary retail uses at service stations to be pedestrian-friendly, aesthetically pleasing, and to provide benefits to the community beyond the sales of gasoline and motor fuel, auto parts and supplies, and incidental auto repair. The requirement for a commercial use permit to allow ancillary retail sales will ensure that each application is considered on a case-by-case basis to find that the listed criteria and requirements are met.

Item F.1
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C. The proposed text amendment would be consistent with the following goals/policies of the General Plan:
• 2.1.3 Downtown: Guiding Policies
o (B) Favor retail services needed frequently by residents by limiting the amount of office space in predominantly retail areas. Office space in retail areas should serve Lamorinda uses and generally not exceed retail space on any one lot.
o (E) Make downtown shopping more attractive by diverting through traffic off local streets in the business district, providing more convenient circulation for shopping traffic, managing the parking supply more efficiently, creating safe and pleasant pedestrian routes, and developing and maintaining sufficient landscaping.
• 2.1.4 Downtown: Implementing Policies
o (E) Enact regulations that will ensure that the central business area will be predominantly retail and which permit only a limited amount of offices that favor local use needs.
• 2.1.4 Downtown: Implementing Policies Village Area Development o (J) In cooperation with the merchants and property owners, develop a plan for Orinda Way that will consolidate driveways, include a street median if feasible, and enrich the street's landscape character. o (K) Encourage property owners to make more intensive use of the San Pablo Creek sides of their buildings by designating a “private street: with public access parallel to the creek that would ‘provide an alternative connection for shoppers who must now turn on Orinda Way and/or enhance and preserve San Pablo Creek with landscaping, pathways and other pedestrian amenities consistent with his primary purpose as flood control.

D. The proposed text amendment would expand the opportunity for fresh and nutritious food within the City.

SECTION 4.

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

SECTION 5.

This ordinance is consistent with the Orinda General Plan.

Item F.1
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SECTION 6.

The City Council finds that this ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines (Title 14 of the California Code of Regulations) Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change in the environment, directly or indirectly.

SECTION 7.

This ordinance becomes effective thirty (30) days after adoption.

SECTION 8.

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

Following a duly-noticed public hearing, the foregoing ordinance was introduced at a meeting of the City Council of the City of Orinda held on _____ and was adopted and ordered published at a regular meeting held on _____ by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:
_____ , Mayor
ATTEST:

Sheri Marie Smith, City Clerk
1586475.1
Exhibit A: Amendments to OMC Sections §17.2.3 and §17.8.5 Item F.1
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ATTACHMENT A
The following text is amended in Orinda Municipal Code Section 17.2.3 Definitions:
"Liquor store" means an establishment primarily engaged in the sale of alcoholic beverages for off-site consumption and incidental sale of general merchandise. This classification includes wine tasting rooms as an incidental use to wine sales. The sale of nonalcoholic beverages and food items is incidental to a liquor store.

The following text (existing graphics excluded) is amended in Orinda Municipal Code Section 17.8.5 Downtown commercial district—Use restrictions:

In the downtown commercial district, certain uses are permitted, permitted with a use permit, or prohibited in certain locations as follows.

A. Types of Interior Spaces. There are three types of interior commercial space in the downtown commercial district:

1. Type I Space. Type I space is a retail floor in a building or a portion of a building that:
a. Faces or abuts a street or street segment listed below; or b. Faces a mall, plaza or parking lot which faces or abuts a street or street segment listed below.

Type I space excludes a retail floor in a building that meets the criteria listed in subsections A.1.a. or A.1.b. of this section, solely because of driveway access to such a street or street segment.

Type I space is located on the following streets and street segments within the downtown commercial and downtown core zoning districts:

Orinda Way; Avenida De Orinda (both sides of the eastern half and the north side of the western half); Camino Sobrante; Santa Maria Way; Moraga Way; Bryant Way (between Moraga Way and Davis Road); Brookwood Road (between Moraga Way and Camino Pablo except for the unit near the garage entrance in the Theatre Square Complex); Camino Pablo (east side between Highway 24 and Moraga Way).

2. Type II Space. Type II space is a retail floor that is not in a building or a portion of a building that faces or abuts any of the streets and street segments listed in subsection A of this section or a building or portion of a building that faces or abuts a mall, plaza, or unenclosed parking lot facing or abutting any of the streets and street segments listed above. Examples include but are not limited to the rear side of buildings along the west side of Orinda Way, Camino Pablo's west side south of Brookwood Road, and Brookwood Road west of Camino Pablo.

Item F.1
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3. Type III Space. Type III space is any other space in the downtown commercial and downtown core zoning districts.

B. Classification of Commercial Uses. There are three general classes of uses permitted in the downtown commercial district.

1. Class A Uses. Retail sales and restaurants, restaurants with take-out*, and restaurants with outdoor dining*;
* Take-out restaurants and outdoor dining are subject to additional regulations set forth in subsection I of this section.

2. Class B Uses. Personal care, personal development services (excluding health care), and business and automotive services, including service stations, if the use will tend to create substantial pedestrian interaction with surrounding businesses (including but not limited to beauty parlors, barber shops, fitness centers, dry cleaners, travel agencies, dance, music, and martial arts studios), and retail financial institutions such as banks, savings and loans, credit unions, and free-standing automatic teller machines; and

3. Class C Uses. Office uses compatible with a village atmosphere such as medical and professional offices, real estate sales, and financing.

C. Uses Not Requiring a Commercial Use Permit. Except as otherwise provided in subsection G of this section, in all spaces, Class A uses are allowed without a commercial use permit. Class B uses are allowed without a commercial permit in Type II and III spaces; and Class C uses are allowed without a commercial use permit in Type III spaces. Where a single space has multiple frontages that, considered separately, would be classed as more than one space type, the entire space is subject to the rules applicable to the higher type, e.g., Type I rather than Type II. Where a single space is proposed to be divided into more than one space, creating one or more new and less-restrictive spaces, a commercial use permit is required.

D. Commercial Use Permit Requirement.

1. Class B Uses. A use permit under Chapter 17.36 is required for a Type B use in a Type I ground floor space.

2. Class C Uses. A use permit under Chapter 17.36 is required for a Class C use in Type II spaces. A Class C use is prohibited in Type I space.

3. Other Uses. Certain uses described in subsection G of this section require a use permit under Chapter 17.36.

4. Extended Hours. A commercial use permit is required for any use which operates before five a.m. or after eleven p.m.

E. Use Prohibition. All uses not specifically permitted in this Chapter 17.8 are prohibited in the downtown commercial district.

F. Space Utilization Chart. The following chart illustrates the provisions of Sections

17.8.5C. and D.

Item F.1
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Type I
Prime Ground Floor
Type II
Secondary Ground
Floor
Type II
Other Than Ground
Floor
Class
A Uses
allowed allowed allowed
Class
B Uses
allowed with use permit allowed allowed
Class
C Uses
not allowed allowed with use permit allowed
G. Supplemental Restrictions for Specific Uses. The following specific uses are also permitted in the downtown commercial district, subject to the contents of the chart above and subject to obtaining a commercial use permit under Chapter 17.36.

Those uses marked by an asterisk are subject to additional regulations set forth in Section 17.8.5H.:

1. Adult business;*

2. Animal sales and services;

3. Bar and tavern;

4. Commercial recreation and entertainment;

5. Convenience market;

6. Convenience market and other ancillary retail at a service station;*

7. Farmer's market;

8. Game center;*

9. Liquor store;

10. Live entertainment;*

11. Maintenance and repair services;

12. Outdoor sales;*

13. Service stations;*

14. Vehicle sales and services;

15. Visitor accommodations;

16. Ancillary retail uses.*
* Uses marked by an asterisk in subsection G. of this section are subject to additional regulations set forth in subsection H. of this section.

H. Supplemental Restrictions for Specific Uses. The following uses are permitted in the downtown commercial district subject to particular restrictions for such uses as described below and subject to obtaining a commercial use permit under Chapter

17.36. Item F.1
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1. Adult Businesses.
a. Purpose.
i. In adopting these provisions, the City Council recognizes that certain types of adult businesses possess certain objectionable operational characteristics which, if such uses are allowed to concentrate, will have adverse effects upon the character of such areas and adjacent neighborhoods. The City Council further recognizes that locating adult businesses in close proximity to establishments frequented by minors will cause the exposure of minors to adult material that may adversely affect such minors due to their immaturity. Additionally, the City Council recognizes that, while certain adult entertainment enjoys limited protection under the First Amendment to the United States Constitution, substantial numbers of citizens of the city are offended by the public display of sexually-oriented material.
ii. Special and limited regulation of adult businesses, consistent with the First Amendment rights of such uses, is therefore necessary. This will ensure that the adverse effects of adult businesses will not contribute to the blighting or downgrading of the DC district in which they are permitted and the downgrading of surrounding neighborhoods; will not adversely affect minors; and will not offend those citizens of the city who do not wish to be exposed to sexually-oriented material. b. Location of Adult Businesses. No adult businesses, including adult bookstores, adult movie theaters, and massage establishments, shall be located:
i. Within four hundred (400) feet of any R district;
ii. Within three hundred (300) feet of the boundaries of a parcel of a real property site occupied by a public or private school, a religious assembly facility that conducts religious education classes for minors, or a park and recreation facility;
iii. Within six hundred (600) feet of any other adult business; or iv. On the ground level of a building.
c. Public Display of Certain Matter Prohibited. No business shall display or exhibit any material depicting private anatomical areas or sexual activities in such a way as to be visible by persons outside the building in which the adult business is located.

2. Convenience Markets and Other Ancillary Retail Uses at a Service Station.

Ancillary retail use, including a convenience market, may be permitted at a service station if a noticed hearing is held under Chapter 17.42 in conjunction with the application under Chapter 17.36 for a commercial use permit (or commercial use permit amendment) for a service station. The proposed use may be approved if findings of fact are made to support each of the listed Item F.1
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criteria and use permit conditions are imposed consistent with the listed requirements:
a. Criteria:
i. The existence of the proposed use will not significantly and adversely alter the impact and the character of the primary service station use;
ii. The proposed use will enhance the pedestrian environment in the vicinity of the service station;
iii. The proposed use will enhance the availability of food in the City; including fresh food
iv. The proposed use will not adversely impact any of the policies set forth in Section 17.8.1;
v. The proposed use will substantially further City goals for downtown Orinda as identified in adopted plans, including but not limited to the ConnectOrinda Streetscape Master Plan.
b. Requirements:
i. The proposed use shall occupy only ground floor space and not exceed 20 percent of the total lot area;
ii. The proposed use shall provide and maintain one or more seating areas (minimum of 8 aggregate seats) to accommodate food and/or beverage consumption;
iii. The building containing the proposed use shall include a pedestrian entrance from a sidewalk in the public right of way. This entrance shall be located:

1. No more than 35 feet from the public sidewalk;

2. On an exterior primary wall that runs roughly parallel to the public sidewalk for a distance of at least 25 feet.
iv. The proposed use must be at least 2,250 square feet and no larger than 3,000 square feet;
v. To the extent that outdoor seating is provided, it shall comply with all outdoor dining requirements contained in Section 17.8.5(I)(1) except for any outdoor dining permit requirement;
vi. To the extent the proposed use comes within the definition of takeout restaurant, it shall comply with all take out restaurant requirements contained in Section 17.8.5(I)(2).
a. The area for nonautomotive retail sales within a service station shall be completely enclosed and no larger than forty (40) square feet.

Item F.1
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b. A service station convenience market shall not be within the immediate vicinity of a church or hospital or within six hundred (600) feet or less of a school, public playground or nonprofit youth facility, as measured pursuant to the rules of the Department of Alcoholic Beverages.
c. No variance may be granted for the requirements in subsections (H)(2)(a) and (H)(2)(b) of this section.

3. Game Centers. The following supplemental regulations shall apply to the operation of game centers, including mechanical or electronic games or any other similar machine or device.
a. Purpose. The intent of these regulations is to control the location and hours of operation of game centers so as not to allow school children to play the games during school hours nor to encourage minors to congregate in areas close to commercial establishments that sell alcoholic beverages.
b. Permit Required. A commercial use permit shall be required to install, operate or maintain four or more mechanical or electronic games. The permit is valid only for the number of games specified; the installation or use of additional games requires a new or amended permit. The permit shall be permanently and conspicuously displayed.
c. Duration and Renewal of Permit. Initially, the permit shall be valid only for one year. Thereafter, the Community Development Director may renew the permit for periods of not more than two years. The procedure for renewal is the same as that for the initial application, and the same factors considered for the initial application shall be considered for the renewal. d. Adult Manager. At least one adult manager shall be on the premises during the time a game center is open to the public.
e. Hours of Operation for Minors Under Eighteen Years of Age. No game center owners, manager or employees shall allow a minor under eighteen (18) years of age to play a mechanical or electronic game machine during the hours of public schools in the district in which the center is located are in session, or after nine p.m. on nights preceding school days, or after ten p.m. on any night. It is the responsibility of the owner or manager of the game center to obtain a current schedule of school days and hours. f. Locational Criteria. A game center shall not be permitted within three hundred (300) feet of a public or private school site or the boundary of an R district, or within five hundred (500) feet of a liquor store, a cocktail lounge, tavern or bar. The distance shall be measured in a straight line from the main public entrance to the game center to the property line of the school site, the district boundary, or the main public entrance of the liquor store or cocktail lounge, as the case may be.
g. Restrictions. The Planning Commission may impose reasonable restrictions on the physical design, location, and operation of a game center in order to minimize the effects of noise, congregation, parking, and Item F.1
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other nuisance factors that may be detrimental to the public health, safety and welfare of the surrounding community.

4. Live Entertainment. The following regulations shall apply to any use offering scheduled live entertainment, as defined, more than three times per calendar year:
a. Exits not limited to emergency use only shall not be opposite an R district adjoining the site.
b. A use permit shall establish conditions ensuring that no litter problem will exist.
c. A use permit for live entertainment shall apply only to the type of entertainment approved, and a different type of entertainment shall require approval of a new use permit.
d. A noise analysis specifying areas affected and sound proofing or other mitigation that will be employed to eliminate excessive noise exposure on adjacent property shall be submitted with a use permit application.

5. Outdoor Sales. Outdoor sales specified in subsection (H)(5) of this section are allowed with a commercial use permit.
a. Permanent outdoor storage and display of merchandise, materials or equipment, including display of merchandise, materials and equipment for customer pick-up;

6. Service Station.
a. All repair work shall be conducted within a building. No outside storage of parts, equipment or vehicles which have been damaged or dismantled completely or partially, is permitted.
b. Activities permitted in a service station include tire sales, installation of mufflers, exhaust and suspension systems, electronic tune-ups, oil/lubrication and filter replacement, wheel alignment, tire rotation and balancing, battery installation or charging, hose replacement, belt replacement, carburetor adjustment, installation and repair of brakes, auto radio and electronics installation and service, alarm installation, or air conditioning or heater service.
c. Activities prohibited in a service station include other major repair activities such as engine overhauls involving body and fender work, painting and undercoating.

7. Ancillary Retail Use. An ancillary retail use is permitted in the downtown commercial district if a noticed hearing is held under Chapter 17.42 in conjunction with the application for a commercial use permit and findings of fact are made to support each of the following criteria:
a. The existence of the ancillary retail use will not significantly and adversely alter the impact and the character of the primary retail use, Item F.1
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b. The ancillary use will not adversely affect the use of more than twenty (20) percent of the existing floor area,
c. The ancillary use will not create a significant adverse impact on parking and pedestrian and vehicular traffic,
d. The ancillary use will not adversely impact any of the policies set forth in Section 17.8.1.

For special rules applicable to ancillary retail uses at service stations, see subsection 2, above.

I. Additional Regulation for Uses Not Requiring a Commercial Use Permit.

1. Outdoor Dining. Outdoor dining is allowed with an outdoor dining permit. a. The following regulations apply to all outdoor dining permit applications:
i. The operator shall furnish tables, chairs, umbrellas, and portable heaters (outdoor dining furniture) as necessary.
ii. Outdoor dining furniture shall not be secured to public streetlights, trees, or other furniture.
iii. No outdoor dining furniture may be located at a street intersection within a triangular area formed by the street curb lines and their projections and a line connecting them at points forty (40) feet from the intersection of the projected curb lines. In cases where curbs do not exist, the edge of street pavement shall be used for measuring purposes.
iv. Outdoor dining furniture shall meet the following standards:
(A) Tables and chairs shall be made of a safe, sturdy, durable material such as wrought iron, wood, steel, or cast
aluminum.
(B) No plastic tables or chairs and no vinyl tablecloths are permitted.
(C) All tables and chairs shall be commercial grade and manufactured for outdoor commercial use.
(D) Tables shall be square, rectangular or round to seat two to four people.
(E) All furniture shall be properly maintained and cleaned regularly.
v. No umbrella signage is permitted.
vi. At least seven feet ground clearance shall be provided under umbrellas.
vii. If portable heaters are used, they shall be located a minimum of two feet from the pedestrian zone.

Item F.1
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viii. The outdoor dining area shall be maintained in a clean and safe condition at all times.
ix. All Americans with Disabilities Act (ADA) requirements shall be met. b. The following regulations apply to applications for outdoor dining located in the public right-of-way:
i. All requirements of subsections I.1. of this section must be met; ii. Approval of a revocable encroachment permit per Chapter 12.08 must be obtained;
iii. Furniture must be located immediately in front of the business it serves or shall have the consent of the businesses in which the outdoor dining area is abutting;
iv. Tables shall be fastened to the ground, in a manner acceptable to the City Engineer;
v. Outdoor dining furniture, except for the tables, shall not be left in the public right-of-way during non-business hours;
vi. Outdoor dining areas shall remain on the same side of the pedestrian zone along public sidewalks not wide enough to accommodate outdoor dining areas on both sides of the pedestrian zone unless there is a ten-foot separation between dining areas;
vii. A two-foot vehicle buffer zone between the curb and the outdoor dining area or the pedestrian zone shall be maintained. viii. A minimum pedestrian zone of four feet and six inches shall be maintained.
ix. Outdoor dining areas shall not cause the pedestrian zone to encroach into the radius of a door swing.
x. Outdoor dining furniture shall not encroach into the vehicle buffer zone or the pedestrian zone.

2. Take-out restaurants are allowed with a take-out restaurant permit. a. The following regulations apply to all take-out restaurant permit applications.
i. Identifiable containers and napkins shall be used for all carry-out food, and all litter resulting shall be promptly removed.
ii. A trash receptacle shall be provided near each public restaurant exit unless there is an existing trash receptacle within twenty-five (25) feet of each exit. If in the public right-of-way, the type of trash receptacle shall be subject to approval by the Public Works Department. iii. The business owner shall keep the area in front of the restaurant clean and litter free and ensure that the trash receptacle does not overflow. In the event that receptacles in the public right-of-way Item F.1
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overflow and are emptied by the city, the applicant shall be charged the cost of emptying the receptacle.
iv. The applicant must provide documentation showing that the requirements for off-street parking in Section 17.16.4 of the Orinda Municipal Code are met.
v. Walk-up service is allowed, provided access is not directly to the public right-of-way.
vi. A restaurant which offers food and beverages, or either one, for sale to a customer in a motor vehicle for consumption off-site is prohibited.

J. Prohibition of Specified Uses.

1. Commercial Marijuana Land Uses. Commercial marijuana land uses are a prohibited use in the downtown commercial district.

2. Outdoor Marijuana Cultivation. The outdoor cultivation of marijuana is a prohibited use in the downtown commercial district.
1586488.1
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CITY COUNCIL STAFF REPORT
Department: Public Works/Engineering
Meeting Date: January 20, 2026
SUBJECT:

Amendment No. 1 to the Professional Services Agreement with NCE for the Storm Drain Asset Survey and GIS Data Collection Project
EXECUTIVE SUMMARY:

RECOMMENDATION:

1. Approve Amendment No. 1 to the Professional Services Agreement with NCE for additional storm drain asset field survey and GIS data collection work;

2. Approve Budget Change Form #010-26 increasing the budget from $497,500 to $672,000, which includes a contingency of $87,666 (15%); and

3. Authorize the City Manager to approve change orders within the approved contingency.

BACKGROUND:

In 2018, the City developed its initial GIS-based storm drain geodatabase using compiled CAD mapping, aerial and satellite imagery (ESRI), and available attribute data (e.g., pipe size and materials). NCE completed this work at a cost of approximately $80,000. While the database has been a valuable tool for identifying storm drain locations, flow directions, and system characteristics, it relied solely on desktop data, with no field verification conducted, resulting in approximate locations and elevations. Because the original CAD maps contained both public and private drainage facilities, the resulting GIS reflects both, though public assets include more complete information. The GIS platform also supports integration of inspection and maintenance data.

On February 6, 2024, the City Council formed an Infrastructure Subcommittee which, on July 2, 2024, approved a work plan including a Request for Proposals (RFP) for comprehensive field survey and GPS mapping of both public and private storm drain infrastructure. The objective is to collect reliable horizontal and vertical GPS data, improving the reliability of the storm drain inventory and supporting asset management and capital planning. The initial estimated cost was approximately $500,000.

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After receiving seven proposals, the City, in compliance with Orinda Municipal Code requirements for professional services, selected Nichols Consulting Engineers (NCE) based on qualifications and negotiated a contract for $398,000 with an additional contingency of $99,500, totaling $497,500.

DISCUSSION:

Field Verification Results and Discovery of Additional Assets After 12 weeks of field work, NCE found that the storm drain system is substantially larger than originally anticipated. To date, crews have visited 4,351 assets and identified 1,455 newly discovered features that were not previously included in the City’s geodatabase.

As a result, the total number of known storm drain assets has increased from an estimated 5,500 to about 7,400.

NCE has not fully completed data collection of the initial estimated 5,500 assets. With the additional expected 1,900 assets, NCE estimates that approximately 3,250 assets still require field data collection to complete the citywide inventory. # of Storm Drain Assets
Location Original Current Difference
Public 3,000 2,670 (330)
Private 2,500 4,730 2,230
Total 5,500 7,400 1,900
The significant increase in private storm drain assets underscores the value of field verification and provides the City with a more accurate understanding of system ownership, connectivity, and responsibility; information that was not reliably available through desktop mapping alone.

Project Benefits
Completion of the field-verified storm drain inventory provides substantial operational, financial, and public safety benefits to the City. Accurate horizontal and vertical GPS data improves confidence in storm drain locations, elevations, and flow direction, enabling more effective maintenance planning, system troubleshooting, and emergency response during storm events. This information reduces uncertainty during flooding incidents and supports quicker, more informed decision-making by staff.

A comprehensive and accurate geodatabase also supports proactive asset management by allowing the City to prioritize inspections, cleaning, and repairs based on system condition and criticality rather than relying on reactive maintenance. Over time, this approach reduces infrastructure failures, minimizes flood risk, and helps extend the useful life of storm drain assets.

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The identification of previously unmapped private storm drain infrastructure provides clarity regarding ownership and maintenance responsibilities, improving coordination with property owners and reducing the potential for disputes or inefficiencies during capital project planning and development review. Additionally, the enhanced dataset strengthens the City’s ability to accurately scope future capital improvement projects, develop reliable cost estimates, and compete more effectively for state and federal infrastructure and resilience funding.

Ultimately, the completed GIS database establishes a foundational tool that can be integrated with inspection records, maintenance histories, hydraulic modeling, and longterm climate resilience planning, positioning the City for data-driven infrastructure investment and regulatory compliance.

Need for Amendment
The expanded inventory significantly increases the effort required for GPS field surveying, coordination of private property access, and data processing, including QA/QC and GIS integration. Although the nature of the work remains consistent with the original scope, the volume of assets to be surveyed and the associated labor hours now exceed the original contract and contingency.

In addition to the increased labor necessary to complete the expanded inventory, the volume of remaining field work and subsequent data processing requires an extension of the contract term. Amendment No. 1 includes a time extension from the current completion date of June 30, 2026, to December 31, 2026, ensuring NCE has sufficient time to complete the additional field surveys and final GIS updates.

Completing this work will meet the objective as recommended by the Infrastructure Subcommittee. It will also provide the City with a comprehensive and accurate storm drain geodatabase that supports maintenance planning, operational decision-making, and capital improvement programming.

BUDGET AND FISCAL IMPACT:

The table below summarizes Amendment #1 and the revised contingency, which is approximately 15% of the revised contract value. Together, these changes increase the total Council-authorized amount to $672,000.

Original Contract $ 398,000.00
Contingency 99,500.00
Council Approved Authorized Amount $ 497,500.00
Request Amendment #1 186,334.00
Revised Contract Value $ 584,334.00
Request New Contingency 87,666.00
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Request New Council Authorized Amount $ 672,000.00
This budget increase of $174,500 supports completion of the expanded scope and provides adequate contingency for unforeseen conditions. Funds are available in the Add-on Sales Tax Measure R Fund #106.

Amendment No. 1 authorizes NCE to perform the additional work at a cost not to exceed $584,334.

STRATEGIC PLAN INITIATIVE:

2.b – Develop a long-term infrastructure vision and funding strategy.

ATTACHMENTS:

A. NCE Proposal for Amendment No. 1
B. Budget Change Form
Respectfully Submitted by,
Scott Christie
Public Works Director
Approved By:

Linda Smith, City Manager
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1003 W. Cutting Blvd., Suite 110
Point Richmond, CA 94804
(510) 215-3620
November 19, 2025
Ha Nguyen
Senior Civil Engineer
City of Orinda
22 Orinda Way
Orinda, CA 94563
RE: Storm Drain Data Collection Scope of Work and Fee Estimate – Full Data Collection Dear Ms. Nguyen:

As per our discussion on November 13, 2025, the City asked NCE to prepare an updated scope of work to meet the City of Orinda’s (City) goal of mapping their entire storm drain network. This scope of work will aim to complete full data collection on the remaining 3,250 assets. The goal of this proposal is to present a scope of work to meet the needs of the City, capture storm drain asset information across the entire City, and provide a set of final deliverables the City can use to effectively manage the storm drain system moving forward.

Project Assumptions and Understanding
NCE’s response to the Request For Proposals from September 26, 2024, included three budget options for data collection, based on an assumed 11,800 total storm drain assets. This total asset count was derived from the City’s existing public right of way GIS (7,500 assets) and new assets based on pipe stubs (4,300 assets), where existing storm drain assets have unknown connectivity with private properties. NCE was also informed through the RFP Q&A process that the City had $400,000 dedicated to the project. As a result, our team presented three data collection options including: 1) full data collection of public and private assets ($850,300), 2) existing data only ($563,600), and 3) new private property assets only ($348,500). Following the interview, selection, and scope negotiations, NCE and the City agreed to a $398,000 fee estimate targeting 5,500 assets on both public and private property. While this number of assets is below the original estimated 11,800, our proposal was accepted and NCE initiated the project in late March 2025.

After completing the kickoff call, project planning, and approximately twelve (12) weeks of field data collection, NCE has determined the City of Orinda’s storm drain system includes asset counts presented in the table below. “New” assets represent assets not previously in the City’s original geodatabase (GDB) and added as part of the present effort, “Update” indicates assets within the original GDB but revisited as part of the present effort, and “Existing” refers to those that are within the original GDB but not yet revisited. To date, NCE has visited 4,351 assets (see red text in the table below including 1,455 New and 2,896 Updated assets). Of these, 2,420 assets have been collected on private property and 1,931 within the public right of way.

The data collected to date is consistent with the approach defined in the original, authorized scope of work.

With the 1,455 New assets identified, the City’s total number of known assets has increased to 7,413, which is 1,913 beyond the originally scoped asset count of 5,500. Based on two methods of calculating the percentage of new assets collected (new against the total vs. new against only the areas visited), the percentage of new assets varies from approximately 13% to 22%. To provide a level of confidence regarding forecasting the number of new assets left to record, 25% is used.

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Private Ownership Public Ownership
Asset Type New* Update* Existing Private Total New* Update* Existing Public Total Public + Private Total Catch Basin 238 197 265 700 126 609 285 1,020 1,720
Manhole 63 36 107 206 16 46 59 121 327
Open Pipe 113 384 658 1,155 114 307 143 564 1,719
Pipe Intersection 0 2 28 30 3 3 17 23 53
Pipe Line 512 675 781 1,968 167 513 223 903 2,871
Culvert 7 7 11 25 6 5 0 11 36
Channel 81 105 473 659 9 7 12 28 687
Total 1,014 1,406 2,323 4,743 441 1,490 739 2,670 7,413 *Assets in red have been visited by NCE.

To complete the City’s goal of mapping their entire storm drain system, NCE has been directed to continue full data collection throughout the City to update existing data and capture any new assets. Our team has also been asked to no longer collect data on channels. The asset count for this scope of work is derived from our current understanding of the network. The target asset count for this scope of work includes the existing assets (2,323 + 739 = 3,062), minus channels (485), plus a forecasted 25% new (644). Therefore, 3062 – 485 + 644 = 3221.

Rounding up as a conservative measure, the total target asset count for this scope of work is 3,250.

This final phase of data collection will focus on spatial location for each asset and full attribution, as described below and in our original scope of work. Assets will continue to be collected on both public right-of-way and private property (permission will be obtained through knocking on doors). The level of effort for the data postprocessing task has increased due to the increase in asset count, but the final deliverable task remains the same as the original scope of work.

NCE Scope of Services
The project will include a project kickoff call, project planning, data collection and data management, postprocessing, followed by the development of the final project deliverables.

Task 1: Project Coordination (former Kickoff Call task) This task will include time to manage the final phase of data collection. Per the City’s request, NCE will participate in a weekly check-in meeting to discuss the progress of data collection. This task will include time to manage the delivery of the project, participate in weekly check-in calls, and prepare and deliver a summary email, documenting key outcomes and decision from the check-in call. NCE’s project manager and GIS lead will participate in these calls. These virtual check-in calls are assumed to last up to one hour.

Deliverables:
• Weekly summary emails (up to 10)
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Task 2: Project Planning (COMPLETED)
Task 3: Data Collection & Management
NCE will visit up to 3,250 storm drain assets with data collection involving verification of public right of way and private property. Given that 75% of the assets remaining to collect are located on private property, a slower data collection rate of 90 assets per day is assumed (two crews of two field technicians). Field crews will work four 10-hour days each work week. The following attributes will be targeted during data collection:
• Point (node) assets
o For each node asset type (e.g., manhole, inlet, outfall), only the minimum attributes will be collected (assume less than six attributes per feature). Photos of each asset will be taken. • Line (conveyance) assets
o For each conveyance asset type (e.g., pipe, culvert, channel), only the minimum attributes will be collected (assume less than six attributes per feature). o Key attributes identified for pipes include material, size, and flow line elevation (aka invert elevation).
o Photos of conveyance assets within the public right-of-way will not be captured. Photos of conveyance assets within private property will be captured. If ownership is in question, a photo will be captured.

Equipment used on this project will include Trimble GNSS units, GoPro cameras for high resolution photos of pipe openings, and rugged field tablets running ESRI data collection software. One benefit of the ESRI-based workflow is collected data can be tracked and viewed in real time within the AGOL environment. NCE will update the data collection dashboard to continue to track the progress of data collection for the remainder of the project. Data will be backed up weekly by exporting the data collection hosted feature layer to an ESRI file geodatabase, then downloaded to NCE’s server. Concurrent to data collection, a technician will conduct a desktop quality assurance and quality control (QA/QC) protocols (explained below) to verify data accuracy and completeness.

Below we offer additional details about the equipment:
• GNSS equipment:
o Trimble R2 units utilizing the California Survey and Drafting Supply (CSDS) Realtime Network (RTN), a terrestrial based correction service capable of capturing sub-foot, down to centimeter level horizontal accuracy.
• GoPro Hero12
o Capable of taking 24 megapixel stills from video.
o The GoPro will be mounted to a camera boom (aka selfie stick) so it can be inserted within manholes and inlets to capture photos of pipe openings within those facilities. • Tablets
o FOSSiBOT DT2 Rugged Android tablets (1.5 m drop shock resistance, 10-hour battery life, waterproof).
• Data collection software
o ESRI Field Maps
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Regarding photo management:
• Photos of nodes will be stored as attachments within the hosted feature layer. • Photos of pipes will be captured with a GoPro camera. The photo filename will be provided as an attribute within the pipe layer for subsequent linkage. Pipe photos will be delivered to the City via Sharefile or external hard drive. It will be the responsibility of the City to establish hyperlinks to the photos.

Field data is filtered through three rounds of QA/QC, followed by a post data collection review, and a final review by NCE’s Project Manager, to evaluate accuracy and completeness at the network level. QA/QC phases conducted during data collection include the steps summarized below. Two additional review stages, Post Data Collection Review, and the Manager Review, are then conducted before and after post processing, discussed in Task 4.
• First Line Review – This review step occurs in the field, directly after an asset has been collected. A data technician collects the necessary attributes for each asset while the other technician enters the information, and the values are repeated to ensure the data was entered properly. • Second Line Review – This systematic desktop evaluation involves flagging records with missing or erroneous values.
• Third Line Review – This step occurs in the field to check records flagged as part of second line review plus an additional 10% random sample of records collected during the latest phase of the project (the random sample is generated during Second Line Review).

Deliverables provided as part of Task 5.

Task 4: Post Processing
Once data collection is completed and the City has provided initial comments on the draft GIS, NCE will begin post-processing and preparation of the final project deliverables. Specifically, upon completion of data collection, NCE’s Data Manager will perform a fourth round of QC (Post Field Review). Access or other issues related to incomplete data capture are clearly identified in a comment field. Flow direction is evaluated to ensure accuracy within the network. Connectivity is programmatically checked to ensure all lines snap to points.

Following the Post Field Review, NCE’s Project Manager will review the data one final time to scrutinize the data at a coarse scale. This final review helps to identify issues of network connectivity, flow direction, and/or unrealistic or improbable values. Examples include checks to ensure downstream invert elevation is less than upstream invert elevation or pipe crowns do not extend above the ground surface.

Once NCE has completed post processing, the City will be informed the storm drain hosted feature layer is ready for review. NCE will provide a file geodatabase, if requested.

Deliverable:
• Draft hosted feature layer and file geodatabase (if requested).

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Task 5: Final Deliverables
NCE will address one round of consolidated edits/comments from City staff to the final storm drain hosted feature layer or file geodatabase. After the data has been finalized, NCE will prepare a large format system map and a smaller, portable map book in PDF format.

As mentioned, photographs of nodes will be stored within the City’s storm drain hosted feature layer as attachments and the filename of pipe photos will be provided as an attribute. It will be the City’s responsibility to link pipe photos to the GIS.

NCE will participate in one (1) meeting to summarize the key findings of the project, the approach to data collection, and project recommendations. The specific outline of the presentation and meeting will be discussed with the City.

Deliverables:
• Final Storm drain hosted feature layer.
• Final geodatabase.
• Final large format system map (PDF).
• Final portable 11x17 or similar map book (PDF).
• Presentation at one (1) City meeting.

Project Assumptions
• The data collection schema for the current project will closely mirror the previously developed schema. • Assets located outside City limits will not be collected. • Assets will be collected at a rate of 90 per day for two teams of two technicians (45 per day per crew). • Assets determined to have accessibility issues (e.g., high traffic areas, no right of entry grated for private property) or maintenance issues (e.g., ceased manhole lid, pipe occluded with debris/trash/sediment) prohibiting data capture data will not be collected. If funds remain at the completion of data collection, NCE will work with the City to prioritize how best to use those funds to collect additional data. • Horizontal spatial accuracy is anticipated to be sub-foot due to the City’s forested environment; however, GPS equipment proposed and recently evaluated indicates up to centimeter level horizontal accuracy may be achievable in some areas.
• For each node asset type (e.g., manhole, inlet, outfall), only the minimum attributes will be collected (less than six attributes per feature). Photos of each asset will be taken. • For each conveyance asset type (e.g., pipe, culvert, channel), only the minimum attributes will be collected (less than six attributes per feature). Key attributes identified for pipes include material, size, and flow line elevation (aka invert elevation). Photos of conveyance assets within the public right-of-way will not be captured. Photos of conveyance assets within private property will be captured. If ownership is in question, a photo will be captured.
• Photos of nodes will be included as attachments to the GIS. • Photos of pipes will be delivered via Sharefile or external hard drive – pipe photo file names will be provided as an attribute within the GIS for linkage. It will be the responsibility of the City to establish the linkage between the GIS and pipe photos.
• NCE will participate in one City meeting to present the project.

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Updated Budget
NCE’s updated not-to-exceed budget on a time and materials basis is $270,635.

NCE collected approximately 600 assets within the Wilder HOA community. Based on the kickoff call, it was made clear the City was not interested in collecting these assets. These assets were collected over the equivalent of one week of data collection; therefore, NCE will credit the City for $21,950 (calculated weekly cost) to account for this error. We are open to how this credit will be reflected, given there is one outstanding invoice ($27,026.25), a budget amendment request ($14,000), remaining budget on the project, and new proposals that will be reviewed.

We appreciate the opportunity to continue our partnership with the City. If any additional questions or clarifications are needed regarding the updated project approach and budget, please do not hesitate to contact NCE’s Project Manager, Dave Rios.

Sincerely,
NCE
Dave Rios
Project Manager
[email protected]
775-588-2505
Greg Fasiano
Vice President
[email protected]
916-708-1957
Tasks Project
Manager
Data
Manager
GIS
Technician
Field
Technician Clerical Total Hours
Total Labor Direct
Costs
Total Fee
$265 $225 $120 $120 $115
Dave Jeremy Sean/Gena Various Terri
Task 1. Project Coordination 27 22 8 4 2 63 $ 13,775 $ - $ 13,775 Task 2. Full Data Collection - 40 50 1,600 - 1,690 $ 207,000 $ 12,400 $ 219,400 Task 3. Post Processing 16 32 64 - - 112 $ 19,120 $ - $ 19,120 Task 4. Final Deliverables 8 32 68 - 4 112 $ 17,940 $ 400 $ 18,340 Total 51 126 190 1,604 6 1,977 $ 257,835 $ 12,800 $ 270,635 Item H.1
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CITY OF ORINDA
BUDGET CHANGE FORM FISCAL YEAR 2025-26
Funds Originally Appropriated as Part of 2025-26 and 2026-27 Biennial Budget Adopted on June 3, 2025
CHANGE FORM # 010-26
New Appropriations (City CouncilApproval Required): Budget Transfers:

X From Un-Appropriated Reserves From Budgeted Contingent Reserve (Approval Req’d) __ _ Reduction To Adopted Budget

GENERAL FUND
New Revenue ONLY
Between Departments (City Council Approval Req’d)
Other:

BUDGET ACCOUNT
(Revenue / Expense)

INCREASE
AMOUNT

DECREASE
AMOUNT
INCREASE OF BUDGETED EXPENSE IN FY 2025-26:
106-35-10-7180

ADD-ON SALES TAX MEASURE R / PUBLIC WORKS / ADMINISTRATION /PROFESSIONAL SERVICES
$174,500
As Presented at the City Council Meeting on January 20, 2026 #################(Finance Use Only)###################
Posted By: Date:

REASON FOR BUDGET CHANGE ENTRY: Approval of Contract with NCE Amendment #1, including applicable sales taxes, increasing the contract value and contingencies by $174,500, for a revised total contract amount of up to $584,334.

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CITY COUNCIL STAFF REPORT
Department: Planning
Meeting Date: January 20, 2026
SUBJECT:

Study Session – Housing Affordability and Review of Inclusionary Housing Ordinance EXECUTIVE SUMMARY:

The City Council will hold a study session to further examine housing affordability, including a review of existing State laws/programs designed to encourage affordable development, along with a set of final recommendations for the potential adoption of an inclusionary housing ordinance. Staff will review the ordinance language, discuss fee calculation methods and schedule updates. Additionally, Staff will contextualize the impact of an adoption of an ordinance, including the possible number of units created and/or in-lieu fee collected as part of any adopted ordinance.

RECOMMENDATION:

Receive the presentation, receive public comment, and provide feedback on the pursuit of an Inclusionary Housing Ordinance (IHO).

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 Staff committed to bring back for consideration is a possible inclusionary housing ordinance (IHO).

Goal 3: Housing Opportunities, 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.

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 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.

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.

On May 2, 2023, the City Council received a report from Staff on the possibility of the development of an IHO for future consideration and the parameters of such a draft ordinance. 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. During that time, a Planning Technical Assistance Committee of Contra Costa County Planning Staff, operating under the auspices of ABAG called C4, completed a summary of all existing Contra Costa County inclusionary housing programs.

This discussion was continued to May 9, 2023, where many of the details of an IHO were discussed with particular emphasis on the size of the development to which the IHO would apply. The conclusion of the meeting was that the discussion of the many parameters of an ordinance was helpful, and the Planning Director was requested to keep working on this with Staff bringing the topic back later in the summer.

On October 3, 2023, the City Council received an update from Staff and discussed the follow-up report on IHO options. The City Council considered the following ordinance parameters: the size of development, percentage of affordable housing unit inclusion, mix of housing, if an in-lieu fee should be included, and if development incentives should be considered. The conclusion of that discussion was that further information was needed prior to the writing of an ordinance. Staff was directed to bring forward additional information on the questions raised. In order to accomplish this, the City Council hired Lisa Wise Consulting on March 4, 2025.

DISCUSSION:

At tonight’s Study Session, the City Council will examine housing affordability. As part of this discussion, Staff will review State Density Bonus Law and its impact on housing projects in Orinda. Staff will also review the work to date on the creation of an Inclusionary Housing Ordinance and provide updates on matters raised during the last discussion with the City Council, including the proposed amount of an in-lieu fee.

Overview on State Density Bonus Law
The State Density Bonus Law (Gov. Code §§ 65915–65918) gives developers incentives to build affordable and senior housing. Depending on affordable unit levels, projects may gain up to 50% more density, or up to 80% if fully affordable. The law also offers other benefits—like reduced parking, setbacks, and unit sizes—to improve project feasibility.

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These incentives often matter more economically than the density increase itself, although some projects still need financial assistance to work.

Projects using the SDBL will be exempt from any proposed IHO. Recent residential developments including Orinda Grove (8 BMR, moderate for-sales), Monteverde (2 Irwin Way – 67 senior, very-low and low-income rental), and Vista Verde (10 Irwin Way – approved 52 units, senior, moderate income, rental) have produced a mix of unit types using density bonuses. It is anticipated that future projects resulting from the Housing Element rezoning will continue to access the SDBL and the IHO could be an additional policy tool to encourage units that provide housing across a range of income categories.

With that in mind, Staff will contextualize for the City Council what the impact of adoption of an IHO could have on Orinda.

Final Recommendations Memo for Inclusionary Housing Ordinance Additionally, Staff will spend its presentation time on the Final Recommendations Memo from the City’s consultant, Lisa Wise Consulting. This Memo outlines the potential IHO language for the City Council’s consideration. Detailed code language is also attached, along with Clarification Memos 1 and 2 to address discussion points around residual land value relative to development costs, peer community in-lieu fee, how in-lieu fees apply, sample calculation for a 20-unit calculation, fee calculators, fee schedule, partial buildout, and fair housing analysis.

Inclusionary Housing Ordinance
Following is the proposed language. This is informed by the Planning Commission study session, City Council study sessions, and public comment. The recommendations include the variables identified in the Housing Element and additional topics central to guiding the development of the ordinance.

Inclusionary Percentage [of affordable housing units] Requirements:

Require that 15% of units in newly constructed multifamily residential or mixed-use multifamily residential projects (ownership and rental) be deed-restricted affordable housing units.

Income Levels
Structure affordable housing requirements based on tenure. For rental developments, the income mix of affordable units should average out to 80% of AMI or less, with no affordable rental units rented to households above 120% AMI.

For ownership units, the income mix of affordable should average out to 120% of AMI or less, with no affordable ownership units available to households above 150% of AMI.

Project Size Threshold
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Apply the IHO only to residential and mixed-use residential projects with 11 or more units.

Multi-Family vs. Single Family
Apply the IHO only to multi-family housing projects, and exempt single-family residential developments, including both detached and attached single-family subdivisions.

Geographic Extent
Apply the IHO citywide.

Period of Affordability
Require affordable rental units to be deed-restricted for at least 55 years, and affordable ownership units to be deed-restricted for at least 45 years.

Relationship to Other State Incentives
Accept units produced under other State affordable housing incentives (such as Density Bonus projects) to fulfill local IHO requirements.

Ownership vs. Rental
Apply the IHO to both rental and for-sale residential developments.

In-Lieu Fee
Establish an in-lieu fee set at $26.30 per net residential rentable or sellable square foot. This provides applicants with an alternative compliance option under the IHO.

Additional Alternative Compliance
Allow for additional alternative compliance options in addition to the in-lieu fee, including off-site affordable housing production and land dedication, in accordance with State law.

Development Agreements
Applicants may pursue a development agreement as an alternative method of compliance if it results in an equivalent number of affordable units or an equivalent in-lieu fee than is required under the IHO.

Design and Building Requirements
The IHO shall require that affordable units be comparable to market-rate units in exterior appearance, quality, and durability, such that they are visually and functionally indistinguishable. This includes equivalence in unit size, distribution throughout the development, interior finishes, and access to the same common areas and amenities as market-rate units.

Timing of Affordable Unit Construction
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Affordable units shall be constructed at the same time as market-rate units. Also, In-lieu fees or other alternative compliance methods should be completed before the issuance of a certificate of occupancy.

Development Incentives
Continue to exempt affordable units from City impact fees.

Administration of Affordability Control
The City should engage a qualified third-party partner to administer affordability controls.

Waivers and Modifications
The City Council may waive or modify requirements if specific findings are met, waiver requests fulfill all application requirements, and the Council is able to make a determination that the applicant has demonstrated that application of the requirement would result in the alleged impact.

Changes to Chapter 17 of the Orinda Municipal Code
Based on the Recommendations Memo, the preferred approaches to these variables have been incorporated into the IHO language. The following changes would need to be made to Chapter 17 of the Municipal Code (Zoning Ordinance) for consideration by the Planning Commission and City Council. (Attachment F). Each Section amendment and the origin of the suggested modification are described below, and the precise text amendments are shown in the IHO, Public Review Draft.

Section 17.14 (Affordable Housing)
The proposed amendment would add the new section number and title to an unoccupied number in the code. Section 17.14 Affordable Housing would be added, and it would include two subsections.

Section 17.14.1 (Inclusionary Housing Ordinance)
The proposed amendment would add a new subsection that described the purpose and the intent, included the requirements, and set forth the administration of the ordinance. The section is being added to enhance the public welfare and ensure that future residential development contributes to the attainment of affordable housing consistent with state law, goals set forth in the City’s Housing Element.

Section 17.14.2 (Affordable housing incentive program and density bonus) The existing language currently placed in Section 17.4.31 will be reassigned in its entirety to Section 17.14.2. There are no proposed amendments, and the action would be limited to moving the text for a logical grouping of code sections under the header Section 17.14 Affordable Housing.

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In addition to the text edits to Chapter 17 of the Municipal Code, the City will modify its fees schedule to include the in-lieu fee calculation to determine fees associated with alternative compliance.

STRATEGIC PLAN INITIATIVE:

N/A
NEXT STEPS:

If the City Council wishes to pursue an IHO, the draft ordinance will be updated to reflect City Council input. A public hearing of the Planning Commission will be held in the spring of 2026, for consideration and recommendation to the City Council.

FISCAL IMPACT:

The consultant has an approved contract provided within the adopted budget. Other costs are Staff time to manage the contract, the work of the consultant team, preparation of reports, and administration of the program on an on-going basis.

ATTACHMENTS:

A. Inclusionary Housing Ordinance CEQA Approach Memo (PDF) B. Inclusionary Housing Ordinance Recommendations Memo, Final (PDF) C. Inclusionary Housing Ordinance, Public Review Draft (PDF) D. Clarification Memo 9.4.2025
E. Clarification Memo 10.20.2025
F. Draft City Council Ordinance 2X-XX (Title 17 OMC)
G. Affordable Housing Form
H. Certified 6th Cycle Housing Element (Web Link)
https://www.cityoforinda.org/DocumentCenter/View/3990/6th-Cycle-HousingElement---Adopted-January-31-2023?bidId= Respectfully Submitted by,
Lashun Cross, Planning Director
Approved By:

Linda Smith, City Manager
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1 Memorandum
Date: June 27, 2025
To: Christine Thomson, Principal Planner
From: Mary Bean, Vice President, FirstCarbon Solutions
Subject: Recommended Approach to Complying with the California Environmental Quality Act for the Orinda Inclusionary Housing Ordinance
FirstCarbon Solutions (FCS) has prepared this memorandum to evaluate what, if any, environmental review would be required prior to adoption of an Inclusionary Housing Ordinance (IHO) in the City of Orinda (City).

To avoid and discourage the duplicative and wasteful use of resources, the California legislature has determined, by statute or regulation, and as a matter of law, that various types of projects are exempt from environmental review under the California Environmental Quality Act (CEQA). See CEQA Guidelines Sections 15260-15333. In practice, the various types of exemptions often overlap with respect to their application to certain types of actions, such that a single activity may qualify or be eligible for more than one exemption. The IHO has the potential to utilize one of CEQA’s exemptions. This brief memorandum provides a general discussion related to the applicability of CEQA’s exemptions to the City’s consideration of the IHO.

The purpose of this memorandum is to provide guidance that the City and other entities may use at their discretion. This guidance is not intended to impede the lead agency’s discretion in decision-making, independent judgment and analysis, or role in preparing environmental documents for projects or governmental actions subject to CEQA requirements. The information contained in this memorandum is provided for informational purposes only and should not be construed as legal advice on any subject matter.

PROPOSED INCLUSIONARY HOUSING ORDINANCE
The City’s proposed IHO is a policy document that would amend the Zoning Code to require new development to set aside a designated percentage of units for affordable housing. The IHO does not change any land use or zoning designations or established densities. The purpose of the IHO is to support the development of affordable housing consistent with the 2023-2031 (6th Cycle) Housing Item H.2
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2 Element Update of Plan Orinda. The 6th Cycle Housing Element was adopted by the City Council on January 31, 2023 and certified by the Department of Housing and Community Development on March 30, 2023.1
It is assumed that the IHO would be technical in nature and would not allow, disallow, encourage, or discourage any specific development projects. It is assumed, for purposes of this analysis that the proposed IHO would not create inconsistencies with the 2023-2031 (6th Cycle) Housing Element Update of Plan Orinda or the Zoning Code.

PHYSICAL CHANGE TO ENVIRONMENT IS
“REQUIRED” TO BE A PROJECT UNDER CEQA
Under the definition of “project” in Public Resources Code Section 21065, an activity undertaken, supported, or authorized by a public agency is a project subject to CEQA only if it “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” Section 15378(b)(5) of the CEQA Guidelines specifically states that CEQA’s requirements do not apply to “activities of governments that will not result in direct or indirect physical changes in the environment.”. Accordingly, a government activity that does not have the potential to cause a physical change in the environment is not a project subject to the requirements of CEQA. (CEQA Guidelines § 15060(c)(2)(3)). If the proposed activity is found not to be a project, the lead agency may proceed without further regard to CEQA. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380).

As explained in this memorandum, the proposed IHO is merely a policy document. It would not authorize any specific development. It would not result in any earthmoving activity, grading or changes to the existing setting. Any potential changes that could occur in the future from projects consistent with the IHO are entirely speculative at this time and not reasonably foreseeable. Accordingly, as discussed in more detail below, the IHO would not have a direct or indirect adverse effect on the physical environment, and, therefore, would not be a project within the meaning of CEQA. 1 On March 3, 2023, a group called Orindans for Safe Emergency Evacuation or "OSEE" filed a lawsuit (Case No. N23-0579) challenging the City's approval of Plan Orinda. 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 Writ did not require the City to rescind the City's approval of the 2023-2031 (6th Cycle) Housing Element Update. In further compliance with the Writ, on October 23, 2024, the City circulated revised portions of EIR. These revisions did not identify new or more severe impacts, but provided clarifications required by the court. To further comply with the Writ, on March 18, 2025, the Orinda City Council certified the Revised Final EIR for Plan Orinda. The City also considered whether to pursue revisions to the 2023-2031 (6th Cycle) Housing Element Update components of Plan Orinda, as approved in 2023, and opted not to do so.

A Notice of Determination was filed on March 20, 2025. On June 23, 2025, the City and OSEE filed a Joint Ex Parte Application for an Order Discharging the Writ of Mandate, and the Stipulation and Order to Discharge Writ of Mandate. The judge granted the order, noting that the Writ has been satisfied in full compliance with the final judgment and is discharged.

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3 SECTION 15061(B)(3) EXEMPTS ACTIVITIES THAT DO

NOT CAUSE AN EFFECT ON THE ENVIRONMENT
Even if the IHO were deemed a project under CEQA, it would be exempt and further environmental review would not be required because “CEQA applies only to projects which have the potential for causing a significant effect on the environment.” (CEQA Guidelines § 15061(b)(3); see Muzzy Ranch Co., supra). Under this exemption, the City may exempt an activity from CEQA if “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (CEQA Guidelines § 15061(b)(3)). As discussed below, the IHO would not result in any adverse physical impacts to the environment.

Aesthetics
The IHO would be consistent with the development density and standards contemplated in 2023-2031 (6th Cycle) Housing Element Update of Plan Orinda and, therefore, is not anticipated to introduce environmental impacts related to applicable zoning and other regulations governing scenic quality or visual character and quality. Therefore, it can be seen with certainty that the IHO would have no impact related to aesthetics.

It is further anticipated that any future development consistent with the IHO would be consistent with the development standards and design guidelines in Plan Orinda and the City’s Municipal Code.

Agricultural and Forestry Resources
According to the City’s recently updated 2023-2031 (6th Cycle) Housing Element Update of Plan Orinda, there are no areas of Prime Farmland, Unique Farmland, or Farmland of Statewide Importance within the City. Nor are there any forestry resources. Although there is one Williamson Act Contract in the City, the IHO would not change any zoning, land use designations or zoning. As such, it can be seen with certainty that the IHO would have no impact related to agricultural or forestry resources.

Air Quality, Biology, Cultural Resources and Tribal Cultural Resources, Greenhouse Gases
The IHO does not approve or entitle any specific projects. It does not allow for any earthmoving activities and will not result in any changes to the existing setting. Potential environmental impacts related to air quality, biology, cultural resources and tribal cultural resources occur primarily during construction. As there is no earthmoving or construction activity associated with the IHO, it can be seen with certainty that it would not have any impact on air quality, biology, cultural resources or tribal cultural resources.

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4 Energy
In accordance with CEQA Guidelines Appendix G, a significant energy impact would occur if development facilitated by the project would:

1. Result in a potentially significant environmental impact due to wasteful, inefficient, or unnecessary consumption of energy resources, during project construction or operation; or

2. Conflict with or obstruct a State or local plan for renewable energy or energy efficiency.

The IHO does not involve any construction or development. Accordingly, it can be seen with certainty that the IHO would have no impacts related to energy. Therefore, it can be seen with certainty that the IHO would not result in wasteful, inefficient, or unnecessary consumption of energy.

Geology
The IHO does not approve or entitle any specific development and possible future development consistent with the IHO is too speculative to analyze. Therefore, it can be seen with certainty that the IHO would not have any adverse impact on the physical environment.

However, as noted in the 2023-2031 (6th Cycle) Housing Element Update of Plan Orinda, there are no sites within Alquist-Priolo fault zones within the City, and future construction would be required to comply with California Building Code requirements and implement Plan Orinda goals and policies. Similarly, there are no liquefaction zones in Orinda, which precludes any associated impacts.

Hazards
The IHO does not involve the transport, storage, or use of hazardous materials, nor does it approve or entitle any specific projects that would involve hazardous materials. Additionally, the City of Orinda is located more than 10 miles from the nearest airport, and no private use airports are located within 2 miles of the City, which precludes any impacts related to airports. Therefore, it can be seen with certainty that the IHO would not have any impacts related to hazards.

Hydrology
The IHO is consistent with the 2023-2031 (6th Cycle) Housing Element Update of Plan Orinda. It would not approve any specific projects, nor would it result in unplanned growth. Accordingly, it can be seen with certainty that the IHO would not have any impacts related to hydrology.

Additionally, all construction would be required to comply with the California Green Building Standards Code (24 California Code of Regulations [CCR] Part 11) and the Construction General Permit which includes mandatory measures for residential and nonresidential development related to hydrology and water quality.

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5 Land Use and Planning
The activity is a citywide policy to direct planning. The IHO is consistent with Action 3.G in the 2023-2031 (6th Cycle) Housing Element Update of Plan Orinda and does not make any revisions to land use or planning and does not change zoning density or designation. The IHO is an implementing Future development under existing zoning would be required to comply with regulatory goals and policies. The IHO would not alter connectivity with adjacent areas or divide established communities. Accordingly, it can be seen with certainty that the IHO would not have any impacts related to Land Use and Planning.

Mineral Resources
The IHO does not permit or entitle any specific development activity therefore it would not impact mineral resources. The IHO is a planning level action and does not make changes to land use designations. No additional housing units, beyond those already accounted for in the City’s 2023-2031 (6th Cycle) Housing Element Update of Plan Orinda, would result with implementation of the IHO. Development would be consistent with the Housing Element Update and primarily occur on underdeveloped land currently designated as residential or commercial, which are not compatible with, identified for, or used for mineral extraction in the City. Accordingly, it can be seen with certainty that the IHO would not have any impacts related to mineral resources.

Noise
The IHO is a planning level activity. It does not permit any construction or operations. Accordingly, there is no potential associated noise impact.

Population and Housing
The IHO does not make any changes to land use designations or development densities. Accordingly, it would have no impact on population. No additional housing units, beyond those already accounted for in the City’s 2023-2031 (6th Cycle) Housing Element Update of Plan Orinda, would result with implementation of the IHO. The IHO is intended specifically to provide a guide to implementing methods to provide affordable housing consistent with State law to avoid impacts associated with unplanned growth. Therefore, it can be seen with certainty that the IHO would have no impact related to population and housing.

Public Services, Recreation
The IHO would not change any zoning or development densities. It would not lead to any change in population. Development would be guided by existing zoning. Therefore, it can be seen with certainty that the IHO would have no impact related to public services or recreation.

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6 Traffic
The IHO does not approve or entitle any specific development. Accordingly, there would be no temporary construction-related traffic impacts from grading and construction, nor would there be any impacts associated with operations. Similarly, because the IHO does not include any construction or development, it would have no impact with respect to design hazards or emergency evacuation routes. Therefore, it can be seen with certainty that the IHO would have no impact related to traffic.

Utilities
The IHO does not approve or entitle any development, nor would it result in unplanned growth.

Accordingly, it would have no impact on water, wastewater, and solid waste services. Therefore, it can be seen with certainty that the IHO would have no impact related to utilities.

Wildfire
The IHO does not approve or entitle any development, nor would it result in unplanned growth. Therefore, it can be seen with certainty that the IHO would have no impact related to wildfire.

CAL FIRE has mapped most of the City of Orinda in a High or Very High Fire Hazard Severity Zone (VHFHSZ) and future development would be required to comply with all existing regulations, including fire code regulations, California Building Code requirements, and the County’s Emergency Operations Plan.

STANDARD PRACTICE
The City is the Lead Agency for purposes of determining the appropriate level of CEQA review for the IHO; however, it is notable that it is a common practice for public agencies to utilize the limit on what constitutes a project in CEQA Guidelines Section 15378 and the exemption in Section 15061(b)(3). For example, the following lead agencies have relied on CEQA Guidelines Sections 15378 and/or 15061(b)(3) in approving their recent inclusionary housing ordinances:
• City of Del Mar2
• City of Dublin3
• City of Lafayette4
• City of San Diego5
2 City of Del Mar. Notice of Availability/Notice of Public Hearing. Website: https://www.delmar.ca.us/Archive/ViewFile/Item/2089.

Accessed May 19, 2025.
3 City of Dublin. City Council Staff Report. Website:
https://citydocs.dublin.ca.gov/WebLink/DocView.aspx?id=1010945&dbid=0&repo=CityofDublin&cr=1. Accessed May 19, 2025. 4 City of Lafayette. Planning Commission Staff Report. Website:
https://lafayette.granicus.com/MetaViewer.php?meta_id=87056. Accessed May 19, 2025. 5 City of San Diego. Report to the Planning Commission No. NO. PC-19-068. Website:
https://www.sandiego.gov/sites/default/files/dsd_pc_19- 068_proposed_amendment_to_the_city_of_san_diegos_inclusionary_housing_regulations.pdf. Accessed May 19, 2025.

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7 • City of San Ramon6
• County of Santa Barbara7
• County of Santa Clara8
• Town of Moraga9

CONCLUSION
The proposed IHO would not result in any adverse impacts on the physical environment. As such, the IHO is exempt from further review because it is not a “project” within the meaning of CEQA. Moreover, because the IHO does not result in any adverse impacts on the physical environment, even if it were deemed a project, it would be exempt from further review under CEQA pursuant to the exemption in CEQA Guidelines Section 15061(b)(3).

If you should have any specific questions regarding the above-mentioned information, please do not hesitate to reach out to FCS.
6 City of San Ramon. Ordinance 520. Website: https://cdnsm5- hosted.civiclive.com/UserFiles/Servers/Server_10826046/File/Our%20City/Departments/Community%20Development/Plannin g/FORMS%20&%20APPS/ORD%20520%20Amended%20Inclusionary%20Housing%20Ordinance%202023.pdf. Accessed May 19, 2025.
7 County of Santa Barbara. Website: https://santabarbara.legistar.com/LegislationDetail.aspx?ID=3148126&GUID=EE65A6DCF405-4E37-BB80-1D57A3A1C6C6&Options=&Search=. Accessed May 19, 2025. 8 County of Santa Clara. Board of Supervisors Presentation, October 6, 2020. Website:
https://stgenpln.blob.core.windows.net/document/Inclusionary_Housing_Presentation_BOS_20201006.pdf. Accessed May 19, 2025.
9 Town of Moraga. Town Council Staff Report. Website: https://www.moraga.ca.us/DocumentCenter/View/7502/Council-12-07- 22-Affordable-Housing-Ordinance-PDF. Accessed May 19, 2025.

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Item H.2
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Recommendations Memo | Public Review Draft, August 2025 City of Orinda | 1 MEMO
To: City of Orinda
From: Lisa Wise Consulting, Inc.

Date: August 27, 2025
Subject: Orinda Inclusionary Housing Ordinance, Recommendations Memo (Revised) This memo outlines recommendations for an Inclusionary Housing Ordinance (IHO) for the City of Orinda (City). These recommendations are informed by the Economic Feasibility and Market Study, as well as input from both the Planning Commission and City Council during their respective Study Sessions and associated public comment.

These recommendations are consistent with Action 3.G of Orinda’s 6th Cycle Housing Element, which directs the City to research an IHO and identifies several acceptable methods for developers to provide required affordable housing, including constructing affordable housing on-site or off-site, dedicating land for affordable housing, or paying an in-lieu fee. The Housing Element also requires that the IHO address key components such as project size thresholds for project applicability, the percentage of units to be designated as affordable, design and construction standards, timing for delivery of affordable units, in-lieu fees, available developer incentives such as fee deferrals and waivers, and procedures for administering long-term affordability controls.

The recommendations are also informed by the Metropolitan Transportation Commission (MTC) TransitOriented Communities (TOC) Policy, which sets regional standards for local IHOs in areas served by highquality transit. Given Orinda’s centrally located BART station, the City’s IHO would be evaluated by MTC in terms of TOC Policy requirements to maintain eligibility for One Bay Area Grants, other regional transportation funding, and to support broader housing and transportation goals. Based on feedback from the Planning Commission and City Council, the recommended IHO would be compliant with the MTC TOC Policy.

Recommendations
The recommendations presented below are based on the Economic Feasibility and Market Study and incorporate public feedback received during two independent Study Sessions with both first, the Planning Commission and second, the City Council.

Inclusionary Percentage Requirements
• Recommendation:
o Require that 15% of units in newly constructed multifamily residential or mixed-use multifamily residential projects (ownership and rental) be deed-restricted affordable housing units.

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2 | City of Orinda Recommendations Memo | Public Review Draft, August 2025 • Rationale:
o As demonstrated in the Economic Feasibility and Market Study, a 15% requirement would not represent a constraint on housing production for multifamily and mixed-use multifamily housing types in Orinda. The Economic Feasibility and Market Study found that a 15% requirement would represent a constraint on single-family housing types o The approach is consistent with the certified 6th Cycle Housing Element, which establishes a new residential units target of 1,359 units (in various income categories) for the duration of the planning period from 2023-2031.
o The approach is consistent with progress on Housing Element implementation actions, demonstrating the community’s commitment to meeting the one-year timeframe to adopt an ordinance and work towards the quantified objective of 145 lower income units. o The approach aligns with Housing Element Action 3.G, which establishes a two-phase timeline: within two years of Housing Element adoption, the City must determine whether an inclusionary housing ordinance is appropriate, and, if so, adopt the ordinance within one year of that determination. The Economic Feasibility and Market Study provides the economic foundation needed to evaluate ordinance feasibility. Its recommendations address Action 3.G’s research requirements and will directly support the creation of an ordinance that meets Housing Element timelines and advances progress toward the target of 145 lower income units.
o This approach is consistent with the MTC TOC Policy, which establishes a minimum requirement of 15% affordable units in new residential or mixed-use residential developments.

Income Levels
• Recommendation:
o Structure affordable housing requirements based on tenure. For rental developments, the income mix of affordable units should average out to 80% of AMI or less, with no affordable rental units rented to households above 120% AMI. For ownership units, the income mix of affordable should average out to 120% of AMI or less, with no affordable ownership units available to households above 150% of AMI.
• Rationale:
o The Economic Feasibility and Market Study found that inclusionary housing requirements remain financially viable for multifamily and mixed-use multifamily housing, even when affordable units are restricted to households earning 80% of AMI. o This approach is consistent with the affordability levels established in the Housing Element:
(1) Very Low Income (<50% AMI) – 372 units, (2) Low Income (50-80% AMI) – 215 units, (3) Moderate Income (80-120% AMI) – 215 units, and (4) Above Moderate Income (>120% AMI) – 557 units, for a total of 1,359 units. While some units may be targeted to moderateincome households (those earning more than 80% but less than 120% of AMI), they would Item H.2
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Recommendations Memo | Public Review Draft, August 2025 City of Orinda | 3 be balanced by units serving very low, extremely low, or acutely low-income households.

To meet the average affordability requirement, projects would need to include units at deeper affordability levels, which supports the Housing Element’s objectives for producing housing for lower-income households.
o This approach is consistent with the MTC TOC Policy, which establishes a requirement that the mix of IHO units should be affordable to an average of 80% of AMI for rental units and an average of 120% of AMI for ownership units.

Project Size Threshold
• Recommendation:
o Apply the IHO only to residential and mixed-use residential projects with 11 or more units. • Rationale:
o Assembly Bill (AB) 803, or the Starter Home Revitalization Act of 2021, found that policies that incentivize housing that is smaller and “affordable by design” is more compatible with existing single-family neighborhoods. This law facilitates the construction of “stater home” projects consisting of up to 10 dwelling units (not exceeding an average of 1,750 net habitable square feet) on up to 10 parcels. As later amended by Senate Bill (SB) 684 and SB 1123, these projects qualify for a streamlined, ministerial approval process in both multifamily and single-family zoning districts (effective July 1, 2025). o While comparable communities use lower thresholds, the Economic Feasibility and Market Study suggests this would be a constraint on housing production. o Limiting the IHO to projects with 11 or more units is consistent with the MTC TOC Policy and recognizes the economic challenges faced by small-scale developments. Smaller infill projects often lack the economies of scale necessary to absorb the cost of inclusionary requirements and exempting them may encourage market-rate units which are “affordable by design.”
Multi-Family vs. Single-Family
• Recommendation:
o Apply the IHO only to multi-family housing projects, and exempt single-family residential developments, including both detached and attached single-family subdivisions. • Rationale:
o The Economic Feasibility and Market Study found that requiring inclusionary units within single-family developments made the projects financially infeasible. The cost of development is high, and the revenue gap between market-rate and affordable units is too large to be absorbed within typical single-family development in Orinda. Imposing Item H.2
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4 | City of Orinda Recommendations Memo | Public Review Draft, August 2025 inclusionary requirements in these cases could discourage production altogether, especially for small or moderate-scale builders. Limiting the IHO to multi-family developments targets project types that are better able to accommodate affordability requirements through economies of scale.
o MTC TOC Policy is silent on the application of an IHO to single-family vs. multi-family housing. It states more broadly that for the purposes of TOC Policy compliance, “only residential uses that represent the most common forms of residential dwellings (i.e., singlefamily residences, duplexes, multi-family housing, and mixed-use development) are considered “residential development.”
Geographic Extent
• Recommendation:
o Apply the IHO Citywide.
• Rationale:
o Areas zoned for multi-family and mixed-use residential development are located outside of the TOC zone.
o There are housing development opportunity sites located outside of the TOC area that are identified in the City’s Housing Element.
o MTC TOC Policy states that, “at minimum, policies must apply in TOC areas. Jurisdictions may choose to apply policies beyond the TOC area(s).”
Period of Affordability
• Recommendation:
o Require affordable rental units to be deed-restricted for at least 55 years, and affordable ownership units to be deed-restricted for at least 45 years. • Rationale:
o Lafayette, Moraga, and Walnut Creek require 55 years for rental units and 45 years for ownership units. Danville requires 20 years for both rental and ownership units, and San Ramon currently requires 55 years for rental units, but 30 years for ownership units. o This approach is consistent with the MTC TOC Policy, which requires that affordable units must have recorded document that ensure affordability for at least 55 years for rental housing or at least 45 years for ownership housing.

Relationship to Other State Incentives
• Recommendation:
o Accept units produced under other State affordable housing incentives (such as Density Bonus projects) to fulfill local IHO requirements.

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Recommendations Memo | Public Review Draft, August 2025 City of Orinda | 5 • Rationale:
o Projects utilizing these policies will have the effect of producing BMR units. o This approach streamlines the development application and review process.

Ownership vs. Rental
• Recommendation:
o Apply the IHO to both rental and for-sale residential developments. • Rationale:
o This approach encourages the inclusion of affordable housing across all residential tenures, ensuring a broader and more equitable application of the IHO which supports housing diversity and helps create mixed-income communities. It also prevents developers from shifting project types solely to avoid affordability requirements. o This approach is consistent with the MTC TOC Policy, which requires that IHOs apply to both rental and ownership units constructed as part of new residential or mixed-use residential projects.

In-Lieu Fee
• Recommendation:
o Establish an in-lieu fee set at $26.30 per net residential rentable or sellable square foot.

This provides applicants with an alternative compliance option under the IHO. • Rationale:
o Consistent with State law (AB 1505), the policy requires jurisdictions to offer alternative means of compliance for rental projects with inclusionary housing requirements. o This approach is consistent with the MTC TOC Policy, which states that jurisdictions must demonstrate that in-lieu fees set below $100,000 per required unit will result in affordable housing outcomes equivalent to on-site inclusion.
o This threshold is below the maximum identified in the Economic Feasibility and Market Study, but above the minimum threshold established by MTC TOC Policy while being inline with fees in neighboring comparable communities.

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6 | City of Orinda Recommendations Memo | Public Review Draft, August 2025 Additional Alternative Compliance
• Recommendation:
o Allow for additional alternative compliance options in addition to the in-lieu fee, including off-site affordable housing production and land dedication, in accordance with State law. • Rationale:
o Consistent with State law (AB 1505), the policy requires jurisdictions to offer alternative means of compliance with inclusionary housing requirements. o The approach is consistent with options identified in the Housing Element and described in the Goal 3.G.
o This approach is consistent with the MTC TOC Policy.

Development Agreements
• Recommendation
o Applicants may pursue a development agreement as an alternative method of compliance if it results in an equivalent number of affordable units or an equivalent in-lieu fee than is required under the IHO.
• Rationale:
o This reflects a request from the City Council to retain flexibility and allow the City of Orinda to enter into development agreements that serve the City's interests. o Projects utilizing these policies are expected to produce more affordable units or generate higher in-lieu fees than standard compliance would yield.

Design and Building Requirements
• Recommendation:
o The IHO shall require that affordable units be comparable to market-rate units in exterior appearance, quality, and durability, such that they are visually and functionally indistinguishable. This includes equivalence in unit size, distribution throughout the development, interior finishes, and access to the same common areas and amenities as market-rate units.
• Rationale:
o This requirement is based on fair housing laws and the City’s obligation to Affirmatively Further Fair Housing (AFFH).

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Recommendations Memo | Public Review Draft, August 2025 City of Orinda | 7 Timing of Affordable Unit Construction
• Recommendation:
o Affordable units shall be constructed at the same time as market-rate units. o In-lieu fees or other alternative compliance methods should be completed before the issuance of a certificate of occupancy.
• Rationale:
o Production of affordable units should occur concurrently with the rest of the development. o In-lieu fees or alternative compliance methods should be a condition of project completion.

Development Incentives
• Recommendation:
o Continue to exempt affordable units from City impact fees. • Rationale:
o This reflects a continuation of existing City policy. o The Economic Feasibility and Market Study shows that this has a positive impact on feasibility.
o Feedback from the Focus Groups identified this as a significant incentive for development.

Administration of Affordability Control
• Recommendation:
o The City should engage a qualified third-party partner to administer affordability controls. • Rationale:
o There are numerous community-based housing non-profits in the Bay Area that administer affordability programs, such as BAAHA, Hello Housing, or Rise Housing Solutions. o This is a typical method that cities use within their inclusionary programs.

Waivers and Modifications
• Recommendation
o Authority. The City Council may waive or modify requirements upon finding that:
a. Applying the requirements would result in an unconstitutional taking of property; or Item H.2
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8 | City of Orinda Recommendations Memo | Public Review Draft, August 2025 b. An alternative proposal would result in the production of more affordable units than otherwise specified in this Chapter's purposes; or
c. Application of the requirements would render the project economically infeasible. o Application Requirements. Requests for waivers shall include:
a. A detailed financial analysis demonstrating the basis for the request. The City shall retain an independent consultant, at the applicant’s expense, to prepare or review the required financial analysis.
b. A deposit of funds, in an amount determined by the City, sufficient to cover the full cost of the consultant. Consultant fees shall be charged in accordance with the City’s adopted Master Fee Schedule, including applicable overhead and administrative surcharges. No waiver or modification request shall be deemed complete until the required deposit has been submitted. c. A description of alternatives considered.
d. The applicant’s proposed alternative compliance measures, if any. o Findings. The City Council may approve a waiver or modification only if it determines, based on the consultant’s analysis and the record as a whole, that the applicant has demonstrated that application of the requirement would result in the alleged impact. • Rationale:
o This provision allows for flexibility, as requested by the City, to address unique circumstances where strict application of the Inclusionary Housing Ordinance would be impractical or counterproductive.
o It provides a clear process for exemptions or modifications, ensuring that projects are not prohibited from moving forward solely due to infeasibility concerns. o By requiring an independent financial analysis prepared by a City-selected consultant at the applicant’s expense, the process ensures objective, transparent evaluation of claims while protecting the City’s resources.
o The waiver and modification process serves as a “safety valve” that strengthens the legal defensibility of the ordinance by demonstrating that the City has built-in mechanisms to avoid unconstitutional takings or infeasible requirements. o The findings requirement ensures that waivers or modifications are granted only when they are supported by substantial evidence.

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Inclusionary Housing Ordinance, Public Review Draft | City of Orinda | Page 1 Municipal Code Chapter 17.14 – Affordable Housing is added as follows:
• Inserted between existing Chapter 17.13 – Specific Plan District and existing Chapter

17.15 – Development Standards for all Uses.
• Municipal Code Section 17.4.31 – Affordable housing incentive program and density bonus (currently under Chapter 17.4 – Residential district base development regulations) is moved to Section 17.14.2.

Title 17 – Zoning
Affordable Housing
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Chapter 17.14 – Affordable Housing
Inclusionary Housing Ordinance, Public Review Draft | City of Orinda | Page 3 Inclusionary Housing
Purpose and Intent. The purpose of this Section is to:

1. Enhance the public welfare and ensure that future residential development contributes to the attainment of the affordable housing goals set forth in the City's Housing Element.

2. Meet the requirements of the City’s 2023-2031 Housing Element Goals, Policies, Actions, Action 3.G: Inclusionary Housing Ordinance.

3. Facilitate the development and availability of housing affordable to a broad range of households with varying income levels within the City, consistent with state housing law requirements.

4. Ensure that the limited developable land in the City is utilized in a manner consistent with the City's housing policies and regional housing needs allocation.

5. Affirmatively further fair housing by ensuring that affordable housing is geographically dispersed throughout the community and integrated within market-rate developments.

6. Comply with the Metropolitan Transportation Commission's Transit-Oriented Communities Policy requirements to maintain eligibility for regional transportation funding.

Definitions. For the purpose of this Section, the following terms shall have the meanings set forth below:

1. "Affordable Housing Agreement" means a legally binding written agreement between a developer and the City, in form and substance satisfactory to the City Manager and City Attorney, ensuring compliance with this Section's requirements.

2. "Affordable Housing Fund" means a separate fund established by the City to receive and disburse in-lieu fees and other funds designated for affordable housing purposes.

3. "Affordable Housing Plan" means a plan demonstrating how an applicant will comply with this Section's requirements, containing the components specified in Section 17.14.1.G (Development Standards and Incentives).

4. "Affordable Rent" means monthly rent, including utilities and any tenant-paid fees, not exceeding one-twelfth of thirty percent of the maximum income for households at the targeted income level, adjusted for household size.

5. "Affordable Sales Price" means a sales price at which annual housing costs, including mortgage principal and interest, property taxes, insurance, utilities, and homeowner association fees, do not exceed thirty percent of maximum income for households at the targeted income level.

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6. "Applicant" means any person, firm, partnership, association, joint venture, corporation, or entity seeking City development approvals for a Residential Development Project.

7. "Area Median Income (AMI)" means the median income for Contra Costa County, adjusted for household size, as published annually by the California Department of Housing and Community Development (HCD).

8. "Certificate of Occupancy" means the certificate issued by the City indicating that a building or structure complies with applicable codes and may be occupied.

9. "Developer" means the applicant or any successor in interest who develops a Residential Development Project subject to this Section.

10. "Inclusionary Unit" means a dwelling unit required to be affordable pursuant to this Section.

11. "In-Lieu Fee" means a fee paid to the City as an alternative to providing Inclusionary Units

12. "Low-Income Household" means a household earning more than fifty percent but not more than eighty percent of Area Median Income.

13. "Moderate-Income Household" means a household earning more than eighty percent but not more than one hundred twenty percent of Area Median Income.

14. “Net Residential Square Footage” means the total livable area of a Residential Development Project, excluding garages, parking, common areas, and other nonlivable spaces.

15. "Residential Development Project" means any project that results in the construction of new dwelling units, including mixed-use projects with a residential component, but excluding Accessory Dwelling Units.

16. “Single-Family Residential Development Project” means the development of land with one or more dwelling units designed for occupancy by a single household, including but not limited to:
a. Construction of a new single-family dwelling unit on an individual lot; and b. Subdivision of land that results in the creation of lots intended for development with single-family dwelling units.

17. "Very Low-Income Household" means a household earning not more than fifty percent of Area Median Income.

Applicability.

1. Projects Subject to Requirements. This Section shall apply to all Residential Development Projects that propose 11 or more dwelling units.

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Inclusionary Housing Ordinance, Public Review Draft | City of Orinda | Page 5

2. Exemptions. The following projects are exempt from this Section’s requirements:
a. Residential Development Projects consisting of 10 or fewer dwelling units.
b. Reconstruction of dwelling units destroyed by fire, earthquake, or other disaster, provided the number of units does not increase. c. Single-Family Residential Development Project.
d. Projects utilizing State Density Bonus Law that provide affordable housing consistent with state requirements.

3. Timing of Compliance. Compliance with this Section shall be required as a condition of approval for the first permit or approval for a Residential Development Project.

Inclusionary Housing Requirements.

1. Basic Requirement. All Residential Development Projects subject to this Section shall provide affordable housing as required by this Section or Section 17.14.1.E (Alternative Compliance Methods).

2. On-Site Inclusionary Units.
a. Percentage Requirement. At least fifteen percent of the total units in the project shall be Inclusionary Units.
b. Income Targeting. Income targeting allows a residential development project more flexibility to target specific AMI categories and continue to meet inclusionary requirements. This section provides a calculation method for a project to include units with greater subsidy while still reaching the required average percentages specified below. i. Rental Projects. The income mix of affordable units must average out to eighty percent of the Area Median Income or less, with no affordable rental units available to households above one hundred and twenty percent of Area Median Income. Rental units shall be provided at the affordable rent corresponding to the designated Area Median Income level.
ii. For-Sale Projects. The income mix of affordable units must average out to one hundred and twenty percent of the Area Median Income or less, with no affordable rental units available to households above one hundred and fifty percent of Area Median Income. Forsale units shall be provided at the affordable sales price corresponding to the designated Area Median Income (AMI) level. iii. Affordable Unit Trade Equivalency. This framework establishes a formula for trading affordable housing units across different Area Median Income categories. Each Area Median Income level is Item H.2
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assigned a weight that represents its trade value, allowing conversions between unit types while ensuring that the overall mix of units reaches the required average affordability standard.

Table 1. Affordable Rental Unit Trade Equivalency
Area Median Income
Category
Weight (Trade Value per
Unit)
Moderate (120%) 1.5
Low (80%) 1
Very Low (50%) 0.63
Extremely Low (30%) 0.38
Acutely Low (15%) 0.19
Table 2: Affordable For-Sale Unit Trade Equivalency
Area Median Income
Category
Weight (Trade Value per
Unit)
Above Moderate (150%) 1.5
Moderate (120%) 1.00
Low (80%) 0.67
Very Low (50%) 0.42
Extremely Low (30%) 0.25
Acutely Low (15%) 0.13
iv. Affordable Unit Trade Equivalency Formula.

Let:

Uᵢ = number of required inclusionary units at Area Median Income level i
Wᵢ = weight assigned to Area Median Income level i (see Table 1:

Affordable Rental Unit Trade Equivalency or 2: Affordable ForSale Unit Trade Equivalency)) The total trade-adjusted unit equivalent (T) is calculated as:

T = Σ (Uᵢ × Wᵢ)
v. Average Affordability Formula. After confirming that the minimum equivalent requirement is satisfied, the average affordability of the project shall be calculated as the mean Area Median Income level of all Inclusionary Units:

𝐴𝐴 = (∑ xᵢ
𝑁𝑁
𝑖𝑖=1
𝑁𝑁 )
Where:

Item H.2
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Inclusionary Housing Ordinance, Public Review Draft | City of Orinda | Page 7 A = Average affordability (as a percentage)
N = Total number of affordable units
xᵢ = Area Median Income percentile assigned to unit i
c. Calculation Procedure for Affordable Unit Trade Equivalency i. Determine Baseline Number of Dwelling Units Required. Identify the total number of affordable units required under this chapter at the baseline income level.
ii. Allocate Baseline Number of Dwelling Units by Affordability Level.

If the applicant proposes to satisfy the inclusionary requirement using dwelling units at multiple affordability levels, allocate the total baseline obligation (U) across the proposed income categories. Let Uᵢ represent the number of baseline dwelling units assigned to income level i (e.g., Very Low, Acutely Low, Moderate). iii. Apply Equivalency Weights. For each income level, multiply the number of baseline dwelling units (Uᵢ) by the corresponding weighting factor (Wᵢ) assigned to that income level. Each weighting factor represents how many units at that affordability level must be produced to equal one baseline dwelling unit. Once multiplied, the resulting value represents the number of dwelling units that must be built at the selected affordability level to provide an equivalent number of baseline dwelling units being substituted.

Any fractional unit resulting from this calculation shall be rounded up to the nearest whole number.
iv. Calculate Total Number of Dwelling Units to Be Constructed. Sum the results for all income levels to determine the total number of inclusionary dwelling units (T) that must be constructed. d. Calculation Procedure for Average Affordability
i. Confirm Minimum Equivalency. Verify the project meets the minimum equivalent inclusionary requirement (after applying dwelling unit trade‐offs at differing levels of affordability and rounding for whole units).
ii. Identify Units and Area Median Income (AMI) Levels. Determine the total number of inclusionary units to be constructed. For each inclusionary unit, record its assigned AMI level as a percentage (e.g., 50% Very Low, 80% Low, 120% Moderate), using the values specified in this chapter.
iii. Total AMI Percentages. Add together the AMI percentages for all inclusionary units counted in the project total.

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iv. Determine the Average. Divide the combined AMI total from Step 3 by the total number of inclusionary units identified in Step 2 to determine the project’s average affordability level.
e. Unit Mix and Design Standards.
i. Inclusionary Units shall reflect the range of unit types in the Residential Development Project.
ii. The proportion of Inclusionary Units by bedroom count shall be the same proportionately to the market-rate units.
iii. Inclusionary Units shall be dispersed throughout the project and shall not be isolated in separate buildings or floors.
iv. Inclusionary Units shall be constructed with the same exterior appearance, quality, and durability, such that they are visually and functionally indistinguishable from market-rate units.
v. Inclusionary Units shall be constructed with the same size, finishes, distribution throughout the development, and access to common areas as market rate units.

3. Fractional Units. When calculation of the inclusionary requirement results in a fractional unit the requirement shall be rounded up to the next whole unit.

Alternative Compliance Methods.

1. In-Lieu Fee.
a. The Applicant may pay an In-Lieu Fee instead of providing some or all of the required Inclusionary Units.
b. The In-Lieu Fee amount shall be established by City Council resolution and updated periodically.
c. The In-Lieu Fee shall be calculated per the net residential square footage of the entire project.
d. In-Lieu Fees shall be paid as required by state law
e. In the event of a partial build-out where the applicant is proposing a combination of on-site units and payment of the In-Lieu fee, the In-Lieu fee shall be calculated based on the total net residential square footage minus the square footage of the affordable units to be constructed. The resulting net square footage will then be multiplied by the applicable persquare-foot fee rate to determine the total In-Lieu Fee amount. The unit mix equivalency by income level would not be factored into the partial inlieu fee calculation, as the fee is based on the total built residential square footage.

2. Off-Site Construction.

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Inclusionary Housing Ordinance, Public Review Draft | City of Orinda | Page 9 a. With City Council approval, an Applicant may construct Inclusionary Units at an alternative site within City limits. In order to approve such a proposal, the City Council must find that on-site production of Inclusionary Units is infeasible or that greater public benefit will result from the units being off-site.
b. Off-site Inclusionary Units shall meet the following requirements:
i. The number of off-site Inclusionary Units shall be at least equal to the number of on-site Inclusionary Units that would otherwise be required.
ii. The off-site location shall be suitable for residential development and have appropriate zoning.
iii. Off-site Inclusionary Units shall be completed prior to or concurrently with the Residential Development Project.
iv. Unit Mix and Design Standards.
(a) Inclusionary Units shall reflect the range of unit types in the Residential Development Project.
(b) The proportion of Inclusionary Units by bedroom count shall be comparable to the Residential Development Project. (c) Inclusionary Units shall be constructed with the same size, finishes, distribution throughout the development, and
access to common areas as any units in a Residential
Development Project
(d) Inclusionary Units shall be constructed with the same exterior appearance, quality, and durability, such that they are visually and functionally indistinguishable from marketrate units.

3. Land Dedication.
a. With City Council approval, an Applicant may dedicate land to the City or a qualified affordable housing developer for future affordable housing development.
b. The dedicated land must be:
i. Suitable for residential development with appropriate zoning; ii. Free of environmental contamination;
iii. Within the City limits;
iv. Fully improved with infrastructure and utilities at the property line; and,
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v. Of sufficient size to accommodate the required number of affordable units plus additional value equal to the subsidy needed for development.

4. Acquisition and Rehabilitation.
a. With City Council approval, an Applicant may acquire and rehabilitate existing units to create deed-restricted affordable housing. In order to approve such a proposal, the City Council must find that on-site production of such units is infeasible or that greater public benefit will result from the units being off-site.
b. The number of rehabilitated units provided shall be equal to or greater than the number of Inclusionary Units otherwise required. c. Rehabilitation must bring units to current Building Code standards. d. Units must be within the City limits.
e. Unit Mix and Design Standards.
i. Inclusionary Units shall reflect the range of unit types in the Residential Development Project.
ii. The proportion of Inclusionary Units by bedroom count shall be comparable to the Residential Development Project .
iii. Inclusionary Units shall be constructed with the same size, finishes, distribution throughout the development, and access to common areas as any units in a Residential Development Project. iv. Inclusionary Units shall be constructed with the same exterior appearance, quality, and durability, such that they are visually and functionally indistinguishable from market-rate units.

5. Development Agreement. Applicants may pursue a Development Agreement, subject to approval by the City Council, as an alternative method of compliance with the requirements of this Section. A Development Agreement shall provide for either:
a. The production of an equivalent or greater number of affordable units than otherwise required under this Section; or
b. The payment of an equivalent or greater in-lieu fee than otherwise required under this Section.

6. Combination of Methods. An Applicant may combine two or more alternative compliance methods.

Affordable Housing Plan.

1. Submission Requirements. An Affordable Housing Plan shall be submitted with the first application for approval and shall include:

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Inclusionary Housing Ordinance, Public Review Draft | City of Orinda | Page 11 a. The total number of units in the project;
b. The number, location, size, and bedroom count of Inclusionary Units; c. The income levels targeted, the calculation of the average affordability level, and a description of the strategy for achieving a mix of affordability levels;
d. The proposed method(s) of compliance;
e. A phasing plan if the project will be built in phases; f. Marketing plan for affordable units; and
g. Property management approach.

2. Review and Approval. The City shall review the Affordable Housing Plan for compliance with this Section. An Affordable Housing Plan proposing compliance with this Chapter through alternative compliance methods other than payment of an In-Lieu Fee shall be reviewed by and subject to approval by the City Council.

The Plan is considered part of the development application and may also be incorporated into any project conditions of approval.

Affordable Housing Agreement.

1. Required Agreement. Prior to issuance of building permits, the Applicant shall execute an Affordable Housing Agreement with the City.

2. Agreement Contents. The Agreement shall specify:
a. Number, housing type, bedroom count, location, and size of all Inclusionary Units;
b. Affordability levels and target income groups;
c. Term of affordability restrictions;
d. Provisions for income certification and tenant screening; e. Resale restrictions and equity-sharing provisions for for-sale units; f. Monitoring and reporting requirements; and
g. Remedies for breach.

3. Affordability Term.
a. Rental Units. Inclusionary rental units shall remain affordable for a minimum of 55 years from the date of initial occupancy. b. For-Sale Units. Inclusionary for-sale units shall remain affordable for a minimum of 45 years from the date of initial sale.

4. Recordation. The Agreement shall be recorded against the property prior to issuance of any building permits or final map approval, whichever occurs first.

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Construction Timing.

1. Concurrent Construction. Inclusionary Units shall be constructed prior to or concurrently with market-rate units according to the following schedule:
a. When 50 percent of market-rate units receive certificates of occupancy, at least 50 percent of Inclusionary Units shall be completed. b. When 90 percent of market-rate units receive certificates of occupancy, 100 percent of Inclusionary Units shall be completed.

2. Phased Projects. For phased projects, Inclusionary Units shall be proportionally distributed among phases and constructed concurrently within each phase.

Implementation and Administration.

1. Program Administration. The Planning Director or their designee shall administer this Section and may adopt administrative guidelines and procedures.

2. Affordable Housing Fund.
a. Establishment. Unless otherwise required by law, all fees, promissory note repayments, shared appreciation payments, or other funds collected under this Section shall be deposited into an Inclusionary Fee Fund, if established, or in an Affordable Housing Fund, if established. b. Use of Funds. Funds shall be used exclusively for:
i. Development of affordable housing;
ii. Preservation or rehabilitation of existing affordable housing; iii. Acquisition of land for affordable housing;
iv. Provision of loans or grants for affordable housing; or v. Reasonable administrative costs not to exceed 10 percent of annual revenues.
c. Reporting. The City shall annually report on Fund revenues and expenditures consistent with Government Code Section 65906.6.

3. Third-Party Administration. The City may contract with qualified entities to administer tenant selection, income certification, and ongoing monitoring.

4. Annual Monitoring. Owners of Inclusionary Units shall submit timely reports, as determined by the Affordable Housing Agreement, demonstrating compliance with affordability requirements, consistent with Government Code Section 65915.3.

5. Monitoring Fees. The City Council may establish fees to cover costs of program administration and monitoring, consistent with Government Code Section 65915.3.

6. Periodic Review.

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Inclusionary Housing Ordinance, Public Review Draft | City of Orinda | Page 13 a. The City Council shall review the In-Lieu Fee at least every two years to ensure the Fee is aligned with current development costs. b. The City Council shall review this Section at least every five years to evaluate its effectiveness and consider adjustments to requirements and income levels.

Waivers and Modifications.

1. Authority. An Applicant may submit a request to the City Council to waive or modify the requirements of this Section. The City Council may waive or modify the requirements of this Section upon finding that:
a. An Applicant has shown, based on substantial evidence, that applying the requirements of this Section would take property in violation of the United States or California Constitutions or violate any other state or federal law; or
b. An alternative proposal that involves a waiver or modification of the requirements of this Section would result in the production of more affordable units and more effectively advances this Section's purposes; or c. Application of the requirements would render the Residential Development Project economically infeasible.

2. Application Requirements. Requests for waivers and modifications shall include:
a. A detailed financial analysis that demonstrates the basis for the request.

The City may retain an independent consultant, at the Applicant’s expense, to prepare or review the required financial analysis. b. A deposit of funds, in an amount determined by the City, sufficient to cover the full cost of the consultant and City staff time. Consultant fees are charged in accordance with the City’s adopted Master Fee Schedule, including applicable overhead and administrative surcharges. A waiver or modification request will not be considered complete until the required deposit has been submitted.
c. A description of alternatives considered.
d. The Applicant’s proposed alternative compliance measures, if any.

3. Application Review.
a. Any request for a waiver or modification under this Section shall be submitted to the City concurrently with the Affordable Housing Plan. b. The City Council will review and consider the request for a waiver or modification and this requested review is subject to the same appeal process in Section 17.14.1.L (Appeals).

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c. The City Council will review and consider the request for a waiver or modification with an Affordable Housing Plan. This requested review is subject to the same appeal process in Section 17.14.1.L (Appeals).

Appeals. Decisions under this Section may be appealed in accordance with the procedures set forth in Chapter 17.43 (Appeals).

Enforcement. Violation of any provision of this Section shall be subject to enforcement as described in Title 19.

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Inclusionary Housing Ordinance, Public Review Draft | City of Orinda | Page 15 Affordable Housing Incentive Program and Density Bonus
Purpose. The purpose of this section is to comply with state law regarding density bonuses and other incentives (California Government Code Section 65915 et seq.), to implement the housing element of the Orinda General Plan and to provide incentives to developers who guarantee that a portion of their housing development will be affordable to persons of lower income, thus expanding housing opportunities for lower-income persons throughout the city.

Definitions. Terms used in this section shall be defined as in Government Code Section 65915 et seq.

Eligibility for Density Bonus and Incentive(s) or Concession(s). Project applicants shall be granted a density bonus and incentive(s) or concession(s) to the extent and subject to the terms required by California Government Code Section 65915 et seq. Any request for approval of a density bonus, incentive(s) or concession(s) pursuant to this section shall be made along with other related planning approval requests for the project as specified in the City of Orinda zoning ordinance.

Application. Applicants requesting a density bonus, incentive(s) or concession(s) shall submit an application to the Planning Director together with an application for approval of the development. The application shall include at least the following information:

1. A concise written description of the project and the planning approval(s) requested.

2. A site plan showing the location and general layout of the proposed development, surrounding land uses and roadways, total number of units, number and location of affordable units, and number and location of density bonus units.

3. Level of affordability of qualifying units and proposals for ensuring affordability.

4. Description of any requested incentive(s) or concession(s), proposed waiver(s) or modification(s) of development standards, and/or parking standards.

5. Reasonable documentation to establish eligibility for the requested density bonus, incentive(s) or concession(s), waiver(s) or reduction(s) of development standards and/or parking ratios. The application shall identify upon which basis of Government Code Section 65915 the applicant elects to calculate its density bonus. If incentive(s) or concession(s) are requested, the application shall include an explanation of how the incentive(s) or concession(s) result in identifiable and actual cost reductions as described in Government Code Section 65915. If waiver(s) are requested, the application shall describe with a narrative and/or drawings how application of the development standard(s) the applicant seeks to waive would have the effect of physically precluding the construction of the proposed development at the densities and with the concession(s) or incentive(s) permitted. If a density bonus parking ratio is requested, the application shall identify which parking ratio in Government Code section 65915 applies and Item H.2
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describe the characteristics of the proposed development or site that qualify the proposed development for that parking ratio.

6. If an applicant proposes to donate land to the city pursuant to Government Code Section 65915, the application shall provide evidence that each of the associated eligibility conditions has been met.

7. If an applicant proposes to develop a child care facility pursuant to Government Code Section 65915, the application shall show the location and square footage of the child care facility and provide evidence that each of the associated eligibility conditions has been met.

8. Such other materials as the Planning Director may determine are necessary to review the request in accordance with this code and state law.

Review Process. An application for a density bonus, incentive(s) or concession(s) will be processed concurrently with all other applications required for the development. When the application is complete, notice shall be given as required by Section 17.42.1 and a hearing shall be held by the Planning Commission. The Planning Commission shall make recommendations to the City Council regarding the proposed density bonus and incentive(s) or concession(s). The City Council's decision shall be final.

Housing Incentive Agreement Required. Prior to the issuance of a building permit for any dwelling unit in a development for which a density bonus, incentive(s) or concession(s) have been granted, the applicant shall enter into a written agreement with the city for the mandated duration of affordability. The terms and conditions of the agreement shall run with the land which is to be developed, shall be binding upon the successor in interest of the applicant, and shall be recorded in the Office of the Contra Costa County Recorder. The agreement shall be approved by the City Council and shall address all issues required by state law.

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983 Osos Street, San Luis Obispo, CA 93401 | (805) 595 1345 | lisawiseconsulting.com | 1 MEMO
To: Christine Thomson, City of Orinda
From: Lisa Wise Consulting, Inc. (LWC)
Date: 9/4/2025, Revised 10/9/2025
Subject: City of Orinda Inclusionary Housing Ordinance
This memo has been prepared in response to requests for clarifications related LWC ongoing work with the City of Orinda in preparing an inclusionary housing ordinance (IHO) and related supporting analyses.

1. Relationship Between Residual Land Values and Development Costs (Table 2.3.7)— (Response to September 2, 2025, 5:44 PM email)
Table 2.3.7 is drawn from the residual land value (RLV) analysis, which estimates land value. The RLV method calculates the total capitalized value of the income a project could generate, then subtracts all development costs such as construction, fees, financing, and developer profit. The remainder represents the estimated land value.

By comparison, Table 2.3.7 shows the median development cost from the projects included in the RLV analysis.

This is important because it provides a median development cost per unit and per project, which allows us to generate an estimate that can then be cross-checked against the findings from the Economic Feasibility and Market Study and validated through the Focus Groups.

2. Comparison of Proposed In-Lieu Fee to Neighboring Jurisdictions—(Response to September 3, 2025, 8:32 AM email)
“Please remind us regarding how we reached our initial range. Does the sq.ft. equate to the minimum range if per unit? if not per unit does it equate to $100,000 range simply applied to affordable units?” Table 4.3.1 of the Economic Feasibility and Market Study shows the revenue gap between market-rate and below-market-rate (BMR) units. The study found this gap to be $548,300, which represents the maximum inlieu fee the City of Orinda could charge per required affordable unit. The minimum, based on MTC TOC policy, would be $100,000 per required affordable unit.
“Is the in-lieu per unit a fee for all units or just the 15% affordable units ? How is Orinda utilizing or defining the sq. ft fee within the Admin Draft Ord. ? “
Based on our calls, the recommended in-lieu fee is the average of neighboring jurisdictions. Most nearby cities calculate their fees based on habitable (livable) square footage. In Orinda, the recommended in-lieu fee would be applied to the net residential square footage of the project. This is the total livable area of all units, excluding garages, parking, common areas, and other non-livable spaces. The fee would therefore be calculated across the entire project, not only the affordable units.

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983 OSOS STREET, SAN LUIS OBISPO, CA 93401 | (805) 595 1345 | LISAWISECONSULTING.COM |2 “I think each local jurisdiction applied the sq.ft. fee in various ways. What were they?” Neighboring Jurisdictions:
• Moraga: Charges per habitable square foot of a project, excluding garages and non-livable space. • San Ramon: Calculates the fee as a percentage of total new livable residential square footage, excluding garages. The percentage is based on the required inclusionary rate and then applied as a per-square-foot charge.
• Walnut Creek: Charges per square foot of the total living area across the entire project.

3. Illustration of How Fees Apply (Per Square Foot, Per Unit, Per Project)—(Response to September 3, 2025, 9:36 AM voicemail)
The attached table summarizes the average and median in-lieu fees based on neighboring jurisdictions, the maximum fee supported by the study, and the minimum fee under MTC TOC policy.

The total in-lieu fee is one amount, but it can be expressed in different ways depending on how you want to understand its impact. The fee does not change, only the way it is presented. It illustrates the fee in several formats:
• In-lieu fee based on per net residential square foot (NRSF) • Sample Project Example: Based on the prototypes from the Economic Feasibility and Market Study, the sample project consists of 157,605 NRSF, including 133 units with an average unit size of 1,185 sq. ft., of which 20 are designated as affordable units.
o Total fee per unit shows that same total divided by the number of units in the project. o Total fee for a sample project shows the full fee amount across the entire project. o Total fee per required affordable unit shows the same total expressed in terms of what it would equal for each required affordable unit.

In other words, these are not three different fees. They are simply three ways of breaking down and presenting the same total in-lieu fee.

Table 1: In-Lieu Comparison
Regional
Comparables
In-lieu Fee per
NRSF
In-lieu Fee per
1,180 sqft Unit
In-lieu Fee
Total 134
Unit Project
In-lieu Fee per Required
Affordable Unit at 15%
Median $25.52 $30,241 $4,022,080 $201,608
Average $26.30 $31,166 $4,145,012 $207,770
75th Percentile $29.28 $34,697 $4,614,674 $231,312
Max in-lieu fee based
on Study $69.39 $82,227 $10,936,211 $548,181
Lowest Based on MTC
TOC $12.66 $15,002 $1,995,279 $100,014
Item H.2
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4. In Lieu Fee calculation—(Response to September 3, 2025 4:05 PM email) The two tables below show the steps for calculating the in-lieu fee under two scenarios: one with an in-lieu fee of $26.30 per NRSF and the other with an in-lieu fee of $69.39 per NRSF. Both scenarios assume a 100- unit project with an average unit size of 1,180 square feet.

Table 2: In-Lieu Fee Calculation Scenario 1
Scenario 1
Units 100
Size 1,180
Inclusionary Percent 15%
In-Lieu Fee $26.30
Total Net Residential Square Feet
Units X NRSF 100 X 1,180
Total NRSF 118,000
Total In-Lieu Fee
In-lieu Fee X Total NRSF $26.30 X 118,000
In-Lieu Fee Total $3,103,400
Number of Required Inclusionary Units
# of Units X Inclusionary Percent 100 X 15%
Total Number of Inclusionary Units 15
Cost per Required Inclusionary Units
Total In-lieu Fee/ # of Inclusionary Units $3,103,400/15 Cost per Required Inclusionary Units $206,893

SUMMARY
Total In-Lieu Fee $3,103,400
Cost per Required Inclusionary unit $206,893
Item H.2
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Scenario 2
Units 100
Size 1,180
Inclusionary Percent 15%
In-Lieu Fee $69.39
Total Net Residential Square Feet
Units X NRSF 100 X 1,180
Total NRSF 118,000
Total In-Lieu Fee
In-lieu Fee X Total NRSF $69.39 X 118,000
In-Lieu Fee Total $8,188,020
Number of Required Inclusionary Units
# of Units X Inclusionary Percent 100 X 15%
Total Number of Inclusionary Units 15
Cost per Required Inclusionary Units
Total In-lieu Fee/ # of Inclusionary Units $8,188,020/15 Cost per Required Inclusionary Units $545,868

SUMMARY
Total In-Lieu Fee $8,188,020
Cost per Required Inclusionary unit $545,868

5. In Lieu Fee calculation 20 Unit Project—(Response to October 9, 2025 10:20 AM email) The table below outlines the steps for calculating the in-lieu fee under a scenario where the fee is $26.30 per NRSF, based on a 20-unit project with an average unit size of 1,180 square feet.

Item H.2
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Scenario 3
Units 20
Size 1,180
Inclusionary Percent 15%
In-lieu Fee $26.30
Total Net Residential Square Feet
Units x NRSF 20 x 1,180
Total NRSF 23,600
Total In-Lieu Fee
In-lieu Fee x Total NRSF $26.30 x 23,600
In-lieu Fee Total $620,680
Number of required inclusionary units
# of Units X Inclusionary Percent 20 x 15%
Total Number of Inclusionary Units 3
Cost per Required Inclusionary Units
Total In-lieu Fee/ # of Inclusionary Units $620,680/3
Cost per Required Inclusionary Units $206,893
Summary
Total In-Lieu Fee $620,680
Cost per required Inclusionary Unit $206,893
Item H.2
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983 Osos Street, San Luis Obispo, CA 93401 | (805) 595 1345 | lisawiseconsulting.com | 1 MEMO
To: Christine Thomson, City of Orinda
From: Lisa Wise Consulting, Inc. (LWC)
Date: October 20, 2025
Subject: City of Orinda Inclusionary Housing Ordinance – Response to City Questions 10/15 and 10/14 This memo addresses the City’s questions regarding the methodology for calculating the required in-lieu fee or affordable units, as well as other related questions as part of the Inclusionary Housing Ordinance (IHO) project for the City of Orinda. Specifically, these questions respond to items requested in our email correspondence of 10/15/25 and as discussed during our call on 10/14/25.

In-Lieu Fee Items
In-lieu Fee
Please see the attached Excel file (LWC_Orinda_IHO_InLieu_Calculator), which includes both instructions for calculating the in-lieu fee and a calculator to determine the required fee amount.

Under the ordinance, “Net Residential Square Footage” is defined as the total livable area of a Residential Development Project, excluding garages, parking areas, common areas, and other non-livable spaces. The in-lieu fee is based solely on the project’s Net Residential Square Footage (NRSF).

The three excel workbooks attached provide instructions for calculating:
• Calculation of In-Lieu Fees
• Calculation Unit mix at differing affordability levels • Calculation of In Lieu fee when combined with provision of units on site (Partial Build) Fee Schedule Items
In-Lieu Fee Schedule
For purposes of updating the Master Fee Schedule, the proposed in-lieu fee is $26.30 per NRSF. This fee would be added to the Master Fee Schedule through a resolution, consistent with how the City’s other fees are adopted.

We recommend that the in-lieu fee be reviewed and updated every two years to reflect changes in market conditions and construction costs.

Application Fee
For the Application Fee, we recommend using the following approach: “Staff hourly rate charges. A cash deposit will be required before work commences.” This is consistent with the language used for other review processes.

Item H.2
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983 OSOS STREET, SAN LUIS OBISPO, CA 93401 | (805) 595 1345 | LISAWISECONSULTING.COM | 2 The fee must be tied to cost recovery to ensure that staff time and related expenses are fully reimbursed. (i.e. it can not be a profit-generating charge).

The Application Fee would also be added to the Master Fee Schedule through a resolution consistent with the adoption process for other fees.

Monitoring Fee
Under AB 2430 (2024), which adds Government Code § 65915.3, a city, county, or city & county shall not impose a recurring monitoring fee on a housing development if all of the following conditions are satisfied:
• The housing development receives a density bonus under § 65915. • The development meets the criteria of subparagraph (G) of paragraph (1) of subdivision (b) of § 65915. • The housing development is subject to a recorded regulatory agreement with the California Tax Credit Allocation Committee, the California Housing Finance Agency, or the Department of Housing and Community Development that requires compliance with subparagraph (G) of paragraph (1) of subdivision (b) of Section 65915.
• Prior to building permit issuance, the applicant provides to the local government a fully executed tax credit reservation.
• The applicant provides a copy of the recorded regulatory agreement. • The applicant agrees to provide the compliance monitoring document required by the state agency under its rules.

If a development already placed in service satisfies all these conditions, then beginning January 1, 2025, such development shall no longer be subject to the monitoring fee. (§ 65915.3(c)) However, notwithstanding the above, a local jurisdiction may impose a monitoring fee in a development meeting subparagraph (G) when any of the following apply:
• The applicant participates in a local incentive program that entails deeper affordability than required by the state agency.
• The applicant accepts a local funding source that imposes affordability/rental requirements differing from the state-regulated ones.
• The development includes units for moderate-income households under local programs. • The applicant receives funding from a regional, state, or federal source (other than TCAC, CalHFA, or HCD) that requires additional local monitoring beyond what the state already mandates.

AB 2430’s prohibition does not restrict a local jurisdiction from charging monitoring or compliance fees in cases where the development does not (i) receive a density bonus under § 65915, or (ii) is not under a qualifying state regulatory monitoring agreement. For example, a project built under a local inclusionary housing ordinance (not using the density bonus) may be subject to local monitoring fees. Likewise, an affordable housing project funded directly by the jurisdiction (i.e. local subsidy) is not within the prohibition.

In situations in which the local jurisdiction retains authority to collect a monitoring fee (i.e. under the exceptions above), that fee should be structured so that it is related to and limited to cost recovery.

Partial Build-Out Option
For a partial build-out, the in-lieu fee calculation would be based on the total net residential square footage minus the square footage of the affordable units to be constructed. The resulting figure represents the portion of the project Item H.2
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983 Osos Street, San Luis Obispo, CA 93401 | (805) 595 1345 | lisawiseconsulting.com | 3 subject to the in-lieu fee. The total number of required affordable units is determined by multiplying the total number of units by the applicable inclusionary percentage. The unit mix equivalency by affordability level would not be factored into the partial in-lieu fee calculation, as the fee is based solely on the total built residential square footage.

The proposed IHO ordinance also includes a provision where the City may also enter into a Development Agreement with an applicant to establish alternative negotiated terms consistent with the Inclusionary Housing Ordinance, provided that the agreement ensures:
a) The production of an equivalent or greater number of affordable units than otherwise required; or b) The payment of an equivalent or greater in-lieu fee than otherwise required.

This approach could also be applied to an applicant’s request for flexibility in providing units and paying the in-lieu fee.

Revise Inclusionary Housing Ordinance Language
E. Alternative Compliance Methods.

1. In-Lieu Fee.
a. The Applicant may pay an In-Lieu Fee instead of providing some or all of the required Inclusionary Units.
b. The In-Lieu Fee amount shall be established by City Council resolution and updated periodically.
c. The In-Lieu Fee shall be calculated per the net residential square footage of the entire project.
d. In-Lieu Fees shall be paid as required by state law. e. In the event of a partial build-out where the applicant is proposing a combination of on site units and payment of the In-Lieu fee , the In-Lieu fee shall be calculated based on the total net residential square footage minus the square footage of the affordable units to be constructed. The resulting net square footage will then be multiplied by the applicable persquare-foot fee rate to determine the total In-Lieu Fee amount. The unit mix equivalency by income level would not be factored into the partial in-lieu fee calculation, as the fee is based on the total built residential square footage.

Fair Housing Analysis
We recommend retaining the unit integration language in the IHO. Both federal and state fair housing laws primarily rely on disparate impact and disparate treatment standards to address housing discrimination in the quality of affordable units. Including language in the ordinance regarding unit size, quality, and appearance provides clarity and ensures consistency with these broader fair housing principles. The summaries below describe how federal and state laws interact with this requirement.

Item H.2
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A. Fair Housing Act (42 U.S.C. §§ 3601–3619)
The Fair Housing Act (FHA) prohibits discrimination in housing based on race, color, religion, sex, familial status, national origin, and disability. The FHA applies broadly to all aspects of housing design, construction, marketing, and management. Courts and the U.S. Department of Housing and Urban Development (HUD) interpret the Act to prohibit not only intentional discrimination (disparate treatment) but also policies that have a discriminatory effect (disparate impact).

Segregating affordable units within a project, using visibly inferior construction, or restricting access to shared amenities may constitute unlawful discrimination if such practices disproportionately affect protected classes or perpetuate segregation.

HUD guidance and federal case law, including Texas Department of Housing & Community Affairs v. Inclusive Communities Project (576 U.S. 519, 2015), affirm that policies producing a segregated effect may violate the FHA, even absent discriminatory intent. Accordingly, affordable and market-rate units within a mixed-income development must be comparable in design, quality, and access to avoid violating the FHA’s disparate impact standard.

B. Affirmatively Furthering Fair Housing (42 U.S.C. §§ 3608(d), 3608(e)(5)) The Fair Housing Act requires HUD and all federal agencies to "administer their programs and activities relating to housing and urban development...in a manner affirmatively to further the purposes of" the Fair Housing Act. AFFH obligates funding recipients to take "meaningful actions" beyond merely avoiding discrimination. HUD defines AFFH as "taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns." Courts have interpreted AFFH to require recipients to proactively address segregation and barriers for protected classes, particularly in racially or ethnically concentrated areas of poverty.

The 2015 AFFH Rule specifically requires "replacing segregated living patterns with truly integrated and balanced living patterns" and includes analysis of "Disparities in Access to Opportunity" to ensure nondiscriminatory access to community assets. Creating separate amenities, inferior unit quality, different appearance standards, or restricted access between affordable and market-rate units within mixed-income developments perpetuates segregated living patterns prohibited by AFFH. HUD guidance and enforcement actions have emphasized that affordable and marketrate units must be physically integrated and comparable in quality and access to satisfy AFFH’s integration mandate.

Unlike disparate impact claims, AFFH creates proactive planning obligations with potential federal funding consequences for non-compliance, providing stronger enforcement mechanisms than individual litigation.

Accordingly, affordable and market-rate units within federally-funded mixed-income developments must be indistinguishable in quality, appearance, amenities, and access to satisfy AFFH's integration mandate and avoid creating barriers to opportunity based on protected characteristics.

C. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) Title VI prohibits discrimination based on race, color, or national origin in any program or activity receiving federal financial assistance. For jurisdictions or developers using federal funds (e.g., CDBG, HOME, LIHTC, or Section 8), housing practices that segregate residents or treat affordable tenants differently can constitute a Title VI violation when those practices have a disproportionate impact on racial or ethnic minorities. HUD enforces Title VI Item H.2
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983 Osos Street, San Luis Obispo, CA 93401 | (805) 595 1345 | lisawiseconsulting.com | 5 compliance in coordination with its AFFH obligations, requiring proactive steps to foster integration and eliminate discriminatory effects in federally funded housing programs.

Given that affordable housing residents are disproportionately minorities, differential quality standards, separate amenities, or inferior appearance between affordable and market-rate units within the same development may violate Title VI by producing racially disparate treatment or disparate impact Title VI's broad application to all federal funding recipients means that any entity receiving HUD assistance must ensure that housing policies and practices do not perpetuate racial segregation or create barriers to equal opportunity based on race, color, or national origin. Federal agencies may suspend or terminate funding for Title VI violations, providing additional enforcement leverage beyond individual civil rights litigation to ensure equal treatment of affordable housing residents.

D. Summary
Federal fair housing laws do not explicitly require affordable and market-rate units within a mixed-income development to be identical in appearance or location. However, the Fair Housing Act, Title VI of the Civil Rights Act, and the federal Affirmatively Furthering Fair Housing (AFFH) mandate prohibit policies or practices that have the effect of segregating, stigmatizing, or limiting access for protected classes. Through HUD guidance and case law, these laws have been interpreted to require that affordable units be physically integrated and comparable in quality, design, and access to shared amenities to avoid discriminatory effects or perpetuation of segregation. These obligations apply most directly to developments that receive federal housing or community development funds, though the Fair Housing Act’s disparate-impact standard may also extend similar protections to privately financed projects if their design or management practices result in unequal treatment or segregation.

California
A. Fair Employment and Housing Act (FEHA) – Government Code §§ 12900–12996 California’s FEHA, enforced by the Civil Rights Department (CRD), prohibits housing discrimination on a broader range of protected bases than federal law, including source of income, sexual orientation, and gender identity.

Practices that treat tenants differently based on their source of income (such as housing subsidies) may violate FEHA's source of income protections. Additionally, design decisions that segregate affordable units or restrict access could potentially violate FEHA if they constitute discrimination based on source of income or other protected characteristics, though such claims would need to be evaluated on a case-by-case basis under applicable legal standards.

B. Affirmatively Furthering Fair Housing (AFFH) – Government Code §§ 65583(c)(5) and 8899.50 (AB 686, 2018)
Through AB 686, California incorporated the federal AFFH standard into state law. Every city and county must affirmatively further fair housing not only in its housing element but in all land-use and programmatic decisions. This duty requires jurisdictions to take meaningful actions to overcome patterns of segregation and foster inclusive communities.

AB 686 requires jurisdictions to affirmatively further fair housing in all housing and community development decisions, including taking meaningful actions to overcome segregation and foster inclusive communities. While the law doesn't specify development standards, jurisdictions must ensure their approval processes align with AFFH Item H.2
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983 OSOS STREET, SAN LUIS OBISPO, CA 93401 | (805) 595 1345 | LISAWISECONSULTING.COM | 6 principles and don't perpetuate segregation or limit housing opportunities for protected classes. Failure to do so may jeopardize a jurisdiction’s compliance with Housing Element Law and expose it to enforcement by the Department of Housing and Community Development (HCD) or the Attorney General.

C. Assembly Bill 491 (Ward, 2021) (Health and Safety Code § 17929) Assembly Bill 491 establishes explicit anti-discrimination requirements for mixed-income multifamily housing developments with five or more units. The law addresses spatial segregation and access disparities by ensuring that affordable housing residents receive equal treatment in building access and amenities. • Equal Access: Affordable housing unit occupants must have the same access to common entrances, common areas, and amenities as market-rate unit occupants. • Anti-Isolation: The structure cannot isolate affordable housing units to a specific floor or area on a specific floor.
• Scope: Applies to any residential structure with both affordable housing units (restricted by deed as affordable to low or moderate income households) and market-rate housing units.

AB 491 requires that affordable housing unit occupants have the same access to common entrances, common areas, and amenities as market-rate unit occupants. The law also prohibits isolating affordable housing units to a specific floor or area within a floor. The statute applies to any residential structure that includes both affordable housing units (restricted by deed as affordable to low or moderate income households) and market-rate housing units. AB 491 declares itself "declaratory of existing law," referencing FEHA and other fair housing statutes, and provides clear enforcement mechanisms through the State Housing Law for these integration and access requirements.

D. State Density Bonus Law (SDBL) – Government Code § 65915 Government Code § 65915 creates a comprehensive framework for encouraging affordable housing production by providing developers with density increases, regulatory concessions, and development standard modifications. The statute focuses on removing barriers to housing development while establishing clear eligibility criteria and procedural requirements. The statute allows reduced parking ratios for density bonus projects, including specific ratios for different unit types and proximity to transit. It permits waiver or reduction of development standards that would physically preclude construction at approved densities.

Government Code § 65915 requires that the chapter "shall be interpreted liberally in favor of producing the maximum number of total housing units". The statute operates as a comprehensive development incentive program that removes regulatory barriers and provides financial benefits to encourage affordable housing production, while leaving specific unit quality, design, and amenity standards to other statutes.

E. Summary
In summary, California state law explicitly regulates the location and access of affordable units within mixed-income developments, requiring that such units be dispersed throughout the project and provided equal access to common areas and amenities. The statutes do not expressly require affordable units to match market-rate units in quality, size, or finishes, but under the Fair Employment and Housing Act (FEHA) and the Affirmatively Furthering Fair Housing (AFFH) mandate (AB 686), any design or siting practice that results in segregation, stigmatization, or inferior treatment may constitute a violation. As a result, HCD and the Attorney General interpret state fair housing law to require comparable quality and integrated design to ensure compliance with the intent of AB 491, AB 686, and broader fair housing principles.

Item H.2
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Under the U.S. Constitution’s Supremacy Clause, federal law takes precedence over state law when the two conflict.

This means that if a state statute contradicts or interferes with a federal law, the federal law will prevail. However, states may adopt additional or stricter standards so long as they do not conflict with federal requirements. In housing, federal fair housing laws establish the baseline protections against discrimination, while California laws such as the Fair Employment and Housing Act (FEHA), AB 686 (Affirmatively Furthering Fair Housing), and AB 491 (Affordable and Market Rate Units) expand and strengthen those protections without contradicting federal law.

Similarly, state law supersedes local ordinances when conflicts arise, because municipalities are considered subdivisions or units of the state. Local zoning and inclusionary housing ordinances must therefore conform to state housing and fair housing statutes. Cities may adopt additional local requirements, but these must remain consistent with and no less protective than the standards established under state and federal law.

In terms of exemptions, projects that utilize the SDBL are proposed to be exempt from the IHO. These projects already provide affordable units as a condition of qualifying for the density bonus, and the intent of both state law and local policy is to encourage the production of housing. Requiring such projects to provide additional affordable units under the IHO would effectively create a “double requirement,” which could make many projects infeasible.

The Exemptions section of the draft ordinance currently reads as follows:
“2. Exemptions. The following projects are exempt from this Section’s requirements:
a. Residential Development Projects consisting of 10 or fewer dwelling units. b. Reconstruction of dwelling units destroyed by fire, earthquake, or other disaster, provided the number of units does not increase.
c. Single-Family Residential Development Project.
d. Projects utilizing State Density Bonus Law that provide affordable housing consistent with state requirements.”
Item H.2
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BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of: Ordinance 25-__
An Ordinance Amending Title 17 of the
Orinda Municipal Code (Zoning) to Enact
Chapter 17.14 (Affordable Housing)
Consisting of a New Section Titled
“Inclusionary Housing” and a Renumbered
Section Titled “Affordable Housing Incentive
Program and Density Bonus”
The City Council of the City of Orinda DOES ORDAIN as follows:

SECTION 1.

The City Council of the City of Orinda intends, by adopting this ordinance, to enact certain regulations in Title 17 of the Orinda Municipal Code (Zoning). These changes are intended to make the City’s Zoning Code consistent with the City’s Housing Element, comply with State law, and set forth reasonable standards and procedures for residential development projects that enable the City to meet its affordable housing targets. The changes include the adoption of inclusionary housing requirements, generally providing that residential projects above a certain size must include a certain percentage of affordable housing on-site or implement an approved alternative compliance method.

Additionally, this ordinance moves affordable housing incentive program and density bonus provisions currently found at Section 17.4.31 of the Zoning Code to Section 17.14.2 to promote clarity and consistency.

SECTION 2
The City Council finds that the lack of affordable housing has a direct impact upon the health, safety, and welfare of City residents. Due to high housing costs in the region, households at all income levels struggle to find adequate housing they can afford, with particular impacts on very low-, low-, and moderate-income households. Rising land costs and limited developable land constrain opportunities for affordable housing development without regulatory requirements or incentives.

The California Legislature requires local jurisdictions to use their powers to facilitate development of housing affordable to all economic segments of the community. This ordinance will promote the inclusion of affordable housing in new City development by enacting reasonable procedures and standards for applicable development projects and creating alternative pathways to compliance that also facilitate affordable housing development.

SECTION 3.

The following portions of the Zoning Code are amended and added as specified below and in Attachment A.

Item H.2
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Municipal Code Provision Action as shown in Attachment A §17.14 New chapter added
§17.14.2 New section added
§17.4.31 Existing text moved to new section 17.14.2
SECTION 4.

SECTION 5.

This ordinance is consistent with the Orinda General Plan, including the relevant affordability goals described in the Housing Element.

SECTION 6.

This ordinance will not result in physical changes in the environment, nor does the ordinance have the potential for causing a significant effect on the environment. The ordinance involves the adoption of policies and programs that may result in applicable developments including affordable housing units or complying via an alternative mechanism. Any potential changes relating to these developments that could occur in the future are speculative and not reasonably foreseeable. These policies and programs will not effectuate a direct or indirect physical change in the environment, nor have a significant effect on the environment and do not require review under the California Environmental Quality Act (“CEQA”). 14 Cal. Code Regs (“CCR”) §§ 15060(c), 15061(b)(3), 15378(b)(5).

Separately and independently, the City Council finds that this ordinance is necessary to implement the Orinda Housing Element, which is part of Plan Orinda, and not subject to any requirement for additional review under CEQA. On March 18, 2025, the City Council adopted the Revised Final Environmental Impact Report (“RFEIR”) for Plan Orinda via Resolution No. 13-25. The inclusionary program changes contained in this ordinance are within the scope of Plan Orinda and any potential environmental effects were fully evaluated in the related environmental review documents (together, “Program EIR”) adopted for Plan Orinda. 14 CCR §§ 15163, 15168. The Program EIR addresses all requirements of CEQA for this ordinance, including the analysis of significant impacts, cumulatively considerable contributions, and feasible mitigation measures of Plan Orinda.

The Program EIR, among other considerations, analyzed the environmental impacts relating to building adequate affordable housing, achieving consistency with Plan Bay Area 2050 Goals, and accelerating mixed-income housing adoption. See Program EIR ES-28-29, 4.7-8, 4.7-9. On March 18, 2025, the Council also adopted Resolution No. 13- 25 containing CEQA findings and a statement of overriding considerations for the Orinda Housing Element based on substantial evidence. Id. § 15183.

Item H.2
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To the extent inclusionary program changes may have any effect on the environment, the changes do not have any environmental effects not already examined in the Program EIR, including in the RFEIR (id. § 15168) or project-specific significant effects peculiar to the project or the site that were not fully analyzed in the Program EIR, including potentially significant off-site or cumulative impacts (id. § 15183). Consequently, the inclusionary program changes contained in this ordinance do not require any subsequent review or revisions to the Program EIR. The inclusionary program changes contained in this ordinance are part of the project analyzed in the Program EIR and do not involve any changes in the project or project circumstances that might require revisions to the Program EIR. Id. § 15162; Pub. Res. Code § 21166. Additionally, there are no substantial changes or new information that might require revisions to the Program EIR. 14 CCR §§ 15168, 15183.

SECTION 7.

This ordinance becomes effective thirty (30) days after adoption.

SECTION 8.

Following a duly-noticed public hearing, the foregoing ordinance was introduced at a meeting of the City Council of the City of Orinda held on _ ____ and was adopted and ordered published at a regular meeting held on _______ by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Latika Malkani, Mayor
ATTEST:

Sheri Marie Smith, City Clerk
Item H.2
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Attachment A: Redline document showing changes to Title 17 1990104.2
Item H.2
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Planning Application: 11/2025 Page 1

CITY OF ORINDA
Affordable Housing
22 Orinda Way, Orinda, CA 94563
(925)253-4210  [email protected]
The City of Orinda’s Inclusionary Housing Ordinance requires 15% affordability for new residential developments with 11 or more units. The ordinance is a commonly used tool to ensure that some of the units in new developments are affordable to seniors, students, and the workforce. Inclusionary Housing requires and incentivizes developers to provide residential units at a price that is considered affordable to low or moderateincome households, and residential developments for rent are required to reserve 15% of the units for households with an average of 80% of the Area Median Income or less (with no affordable rental units available to households above 120% of Area Median Income), and residential developments for-sale are required to reserve 15% of the units for households with an average of 120% of Area Median Income or less (with no affordable units available to households above 150% Area Median Income).

The State Density Bonus Law as required by California Government Code Section 65915(a), provides incentives for the production of housing that is affordable to moderate, low, or very low-income households, senior housing, or includes childcare facilities in accordance with Section 65915 through 65918 of the California Government Code. Under State Density Bonus Law, developments that create 5 or more dwelling units are eligible for a state density bonus if a specified percentage of units are provided at specific affordable rents or sales prices.

ELIGIBILITY REQUIREMENTS

1. Project Summary Table
Demonstrating the basis under the State Density Bonus Law on which the applicant is requesting a density bonus, including the maximum allowable density permitted by the zoning and general plan designations excluding any density bonus; base units; proposed number of affordable units by income level; proposed bonus percentage; total number of dwelling units; residential gross floor area and total gross floor area proposed; density per acre; proposed number of parking spaces; and unit and bedroom counts and unit types for the purpose of calculating parking requirements. Zoning district information is available on the City’s GIS portal.

2. Preliminary Site Plan
Drawn to scale, showing the number and location of all proposed units (more detail can be found in the Plan Set Checklist).

3. Site Legal Description

4. Boundary Survey

5. Identify Maximum Density Bonus
To which the housing development is entitled based on the project as proposed (Project Summary Table, see above)

6. Identify Concession(s)
Provide reasonable documentation consisting of a detailed written statement to establish eligibility for Item H.2
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Planning Application: 11/2025 Page 2
the concession(s)

7. Identify Waiver(s)
Provide a detailed written explanation of why the development standard for which any waiver is sought would have the effect of physically precluding the construction of housing development at the density and with any concession(s) or parking ratio reduction sought.

8. Identify Existing and Vacated Dwelling Units
If the housing development is proposed on any property that includes a parcel or parcels with existing dwelling units or dwelling units that have been vacated or demolished in the five-year period preceding the application, an explanation of how the project meets the State Density Bonus Law’s replacement housing requirements, if applicable, set forth in Government Code section 65915 subdivision (c)(3), as may be amended.

9. Density Bonus is Requested for a Land Donation
The location of the land to be dedicated, proof of site control and reasonable documentation that each of the requirements pursuant to state density bonus law, set forth in Government Code section 65915 subdivision (g), as may be amended can be met.

10. Density Bonus or Concessions Requested (child-care facility) Based all or in part on the inclusion of a child-care facility, a written summary addressing the eligibility requirements pursuant to state density bonus law, as set forth in Government Code section 65915 subdivision (h), as may be amended, have been met.

11. Density Bonus or Concession Requested (condominium conversion) Based all or in part on the inclusion of affordable units as part of a condominium conversion, written summary addressing the eligibility requirements pursuant to state density bonus law, set forth in Government Code section 65815.5, as may be amended, have been met.

Item H.2
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Planning Application: 11/2025 Page 3

CITY OF ORINDA
Affordable Housing
22 Orinda Way, Orinda, CA 94563
(925)253-4210  [email protected]

PROPERTY
Address:

Assessor’s Parcel Number:

PROPERTY OWNER(S)
Name:

Mailing Address:

Phone:

Email:

APPLICANT(S) (If not the property owner)
Name:

Mailing Address:

Phone:

Email:

PROJECT DESCRIPTION

PROJECT SUMMARY TABLE

1. Location Address/Assessor’s Parcel Number

2. Zoning / General Plan Designation

3. Lot or Parcel Area (net and gross)

4. Maximum Allowable Density (existing and density
bonus)

5. Number of Base Units (prior to density bonus)
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6. Provide Number of Affordable Units by Income Level

7. Proposed State Bonus Percentage and Number of Bonus
Units

8. Total Number of Dwelling Units

9. Total number of Bedrooms

10. Number of Each Unit Type (Studio, 1 Bd, 2 Bd, etc.)

11. Proposed Residential Gross Floor Area

12. Proposed Total Gross Floor Area

13. Density per Acre

14. Proposed Number of Parking Spaces [If Seeking a
Reduction in Parking Pursuant to Government Code
65915(p), Indicate the Number of Space Proposed per
Bedroom and the Criteria Proposed for the Reduction.]

15. Are the Units For-Sale or for Rent? If For-Sale, a
Condominium Map Must be Submitted.

ADDITIONAL INFORMATION (if needed):

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ACKNOWLEDGEMENT

1. Failure to provide all pertinent data or providing poorly executed plans may delay the processing of an application.

2. City staff and either the Zoning Administrator or members of the Planning Commission may inspect the site of your proposed project. Access to your property is mandatory, but will be limited to the above mentioned planning agency personnel, as is regulated by the State’s Planning and Zoning Law. You are not required to provide access to your property to the general public. Please make any necessary arrangements with staff regarding their access to your property.

3. Final decisions concerning discretionary permits are within the discretion of the Planning Commission or the Zoning Administrator, as appropriate. Statements made by staff to applicants concerning the merits of a proposed project are intended to guide and assist applicants. Likewise, statements made by individual Planning Commission members during hearings and in other contexts such as study sessions may be intended to guide and assist applicants.

However, such comments do not bind either the Planning Commission as a whole or the Zoning Administrator and they may in fact be disregarded by the decisionmaker. The decision to approve, condition, or deny a proposed project is within the sole discretion of either the Planning Commission or the Zoning Administrator, based on the evidence presented at the hearing. The same is true for Council decisions on appeals.

4. Obtaining discretionary permit approvals from the Planning Commission and the Zoning Administrator does not guarantee that a project may be built according to the approved plans if engineering plans for the proposed project are not approved. It is the applicant's choice to proceed in the discretionary review process without first obtaining engineering approvals.

5. If a request for a discretionary permit is based on soils problems, adequate proof (i.e., soils reports) must be provided to the City Engineer before the Planning Commission hearing to enable the City Engineer to assess the validity of the claim, obtain peer review if necessary, and to present a report to the Planning Commission on the subject.

6. Where soil stability is a factor, the soils engineer will be required as part of the application process to verify that the soils report meets city standards for soils reports and at the end of construction to verify that the grading and construction was accomplished as shown in the approved plans.

7. Applicant agrees to defend, indemnify, release and hold harmless the City of Orinda, its agents, officers, attorneys, employees, departments, boards and commissions (hereafter collectively “City”) from any claim, action or proceeding (hereafter collectively “proceeding”) brought against the City to attack, set aside, void or annul the City’s discretionary project approvals and/or any action relating to such project approvals, including actions taken to comply with the California Environmental Quality Act. This indemnification shall include, but not be limited to, any damages awarded against the City, the City’s attorneys’ fees and cost of suit, the cost of preparing the administrative record, any award of opposing counsel’s attorneys’ fees or costs of suit, and any other liabilities and expenses incurred in connection with such proceeding, whether incurred by the Applicant, the City, and/or the parties initiating or bringing such proceeding. Applicant acknowledges that the City may elect to retain its own counsel to represent it in such proceeding and agrees to reimburse the City for associated attorneys’ fees and costs of suit.

Applicant further agrees to indemnify the City for all costs, attorneys’ fees, and damages, which the City incurs in enforcing this indemnification agreement. In the event any proceeding is brought, City shall promptly notify the Applicant of the proceeding, and City shall coordinate with Applicant regarding defense of the proceeding.

PROPERTY OWNER
Signature: Date:

APPLICANT (If not the property owner)
Signature: Date:

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Orinda City CouncilJanuary 20, 2026

Orinda City Council
January 20, 2026