Here are the speaker bullets used at the October 1st, 2013 City Council Meeting

I. Status of the Housing Element draft and the process

The June 3, 2013 Housing Element draft had significant substantive deficiencies, undoubtedly resulting from the process by which that draft had been developed. Orinda citizens reacted immediately, and overwhelmingly, with concerns about the substance and the process when the June 3, 2013 draft was first disclosed to the Council and the public at the Council’s June 18th meeting. Save Orinda and Orinda Watch submitted thoughtful, carefully-researched, and well-documented letters to the Council on June 25th and July 11th respectively; hundreds of citizens attended Council meetings to share their concerns; and many others sent letters and emails to the Council, and 1,200 residents signed a petition expressing concerns over the June 3rd Housing Element draft.

The initial response of the Council and staff to citizen concerns was disappointing. None of the citizen correspondence was responded to, and none of the citizen concerns were addressed at Council meetings for a number of weeks. Even more regrettably, the staff and Council appeared to take an adversarial approach to portray citizens raising concerns as misinformed, notably in the Special Edition of the Orinda Outlook on July 11, 2013. In perhaps the lowlight of this entire process, an article was sourced in the local press on July 31, where Orinda citizens raising concerns about the Housing Element were portrayed as a tiny minority of unreasonable residents who were obstructing the legitimate business of the Council and harming the interests of other residents and the City as a whole.

It’s important to review this past history as it is essential to learn from what’s happened here, and to resolve that the City not find itself in this unfortunate predicament again. However, it’s equally important to acknowledge that beginning in early August, staff and Council changed their stance towards citizen concerns on the Housing Element draft, and began to engage in dialogue with the public at and outside of Council meetings on these issues. Responding to these concerns, the City has prepared three successive edits directly responding to citizen concerns—the first on September 17, 2013, the second published last Thursday, September 26th in the staff report for this meeting, and a third set of additional edits has been submitted by staff to the Council at this meeting.

We genuinely appreciate the staff and Council’s recent efforts. The resulting draft is not what it would have been if the citizens had been involved from the beginning from November 7, 2012 in creating the draft, and in formulating the strategy and objectives for the draft itself. There are also areas of continuing disagreement and concern. However, the draft now after three successive edits responding to citizen concerns has narrowed those areas of disagreement and concern from a broad, unbreachable gulf to a more manageable distance.

Last, with the yellow sheet edits staff has just provided to the Council and the public and any additional edits in response to two critical outstanding issue Orinda Watch is providing to the Council this evening, we recognize that one further draft must be prepared for review by the Council and the public.

II. The four principles for review of the citizens’ edits submitted September 17, 2013

At the Council’s September 17, 2013 meeting, staff suggested four screens for reviewing the Citizens’ edits to June 3 Housing Element draft that were provided to the Council at that meeting: (1) is the edit advocacy neutral, (2) is the edit required by HCD for certification, (3) is the edit factual, and (4) do other considerations apply to consideration of that edit.

While we agree with the general thrust of staff’s four screens, we feel they must be reframed, and should also apply to the entire Housing Element draft, and to future Housing Element drafts in subsequent RHNA cycles, and to similar city documents. We are not here suggesting that the entire Housing Element draft as now edited, be revised. There is limited time for this now, and the Council and staff have made a number of edits responding to citizen concerns that have narrowed those areas of disagreement and concern from a broad, unbreachable gulf to a more manageable distance.

With respect to whether the edit is advocacy neutral, we believe this should apply to the entire document. Where this is most relevant is of the many citizens’ edits that the staff rejected, or reworded in a fashion that did not preserve the intent of the citizens’ edit, most of these citizen edits were offered to correct what the citizens’ believe were continuing advocacy in the Housing Element draft itself.

However, the most important reframing of the staff screens is the second of the four whether the edit is required by HCD for certification.” We believe this is the wrong approach, and in fact is deeply detrimental to the City’s interests. The City’s goal is not to comply with whatever HCD demands in return for certification of the Housing Element, regardless of whether HCD has the statutory authority to make such a demand. The City’s goal MUST be to comply with state law, period. If the City’s policies comply with state law, and the City’s Housing Element reflects that and also contains the required additional analysis, HCD has no lawful jurisdiction to insist on more in return for certification. HCD’s senior management has assured us of this point, in unequivocal terms. However, just as certainly, individual HCD reviewers and managers insist on more in their negotiations with cities. It is up to the City to push back on unlawful demands by HCD, while complying with all lawful requirements of the housing laws, and negotiate directly with HCD senior management where necessary to accomplish these essential goals.

And last, but also important, we agree that all statements in the Housing Element must be factual. However, this must be clarified to state that all relevant facts must be disclosed in the Housing Element. There are continuing problems with the Housing Element regarding issues such as the extent and nature of the citizen input to the Housing Element from June to now, and with respect to the City’s housing mandates, how they were developed, and their impact on the City, and regarding the state’s housing laws and their impact on the City.

III. Continuing Areas of Disagreement – Introduction and 20 unit safe harbor issue

The Housing Element draft now after three rounds of recent edits better reflects citizen concerns, citizen input, and the interests in the City and we recognize that the window of time is closing for substantive changes to the draft itself, and that most remaining areas of concern must be deferred to discussions after the Housing Element is approved and certified by HCD.

However, there are two very substantive areas of continuing disagreement between staff and the citizens that need resolution by the Council with this Housing Element draft. The first relates to the City’s taking advantage of the safe harbor of 20 units per—and HCD’s stance on this issue.

Safe Harbor of 20 units

The City must rezone 3.2 acres for housing at a minimum density of 20 units per acre to meet an unmet need for an additional 64 units of zoned for very low income housing. In zoning for 20 units per acre, the City has taken advantage of Government Code 65583.2(c)(3)(B)’s safe harbor in the state’s housing.

If the City has invoked the safe harbor of Government Code 65583.2(c)(3)(B), HCD may not then further analyze that level of density as a government constraint on the development of housing and then as a result of that analysis insist that the city zone for a range of density above the statutory safe harbor for very low or low income zoning—for example from 20 units per acre to 20 to 25 units per acre. HCD’s doing so would compel the city to comply with Government Code 65583.2(c)(3)(A) as well. This would be incorrect as a matter of law, as Government Code 65583.2(c)(3)(B) is a safe harbor in the state’s housing laws that enables a city to avoid the analysis under Government Code 65583.2(c)(3)(A).

This is a black and white question of the law. However, it appears that HCD has as a matter of policy and practice, exceeded its statutory authority on this question, and routinely requires cities to zone for a range above the safe harbor minimum. The City should not and cannot concede this issue, without assenting to HCD’s acting without lawful jurisdiction—a dangerous precedent for the City to allow.

There are a number of steps other than open capitulation to HCD’s acting in defiance of its lawful jurisdiction here short of defying HCD to reject the City’s Housing Element over this issue. One is to insist that HCD provide the City with a written legal analysis outlining its legal authority to require a city that has invoked Section 65583.2(c)(3)(B) to also comply with Section 65583.2(c)(3)(A). If HCD has a credible legal basis for its policy here, presumably they should be willing to provide it—and any failure on their part to provide such an analysis would be very telling. Another alternative is for the City to petition the California Attorney General for an opinion letter on this question, or for it to ask HCD to do so.

IV. Analysis of multifamily housing fees

The second outstanding major area of disagreement and concern that must be addressed by the Council in the current Housing Element Draft relates to the purported analysis on the relative cost of the City’s fees for multifamily housing developments versus single family housing

Section 5.2.7 contains analysis that purports to show that the City’s multifamily development and permitting fees are grossly in excess of its single family fees. This sets up the City for a claim that its development and permitting fees are an unreasonable and hence unlawful constraint on the development of multifamily housing.

We object strenuously to the analysis itself, and to its inclusion in the Housing Element, for the following three reasons:

(1) The Housing Element makes clear that its multifamily fees are similar to those of other nearby cities, thus suggesting that its multifamily fees are reasonable. Further, no suggestion has been raised that the City’s multifamily fees are not cost-based, and in fact, the Housing Element explicitly states that the City, as a matter of practice and policy, establishes development and permitting fees with reference to the costs to the City of providing those fees. By definition, a cost-based fee cannot be an unreasonable, hence an unlawful, governmental constraint on the development of housing, unless it can also be shown that the costs incurred by the City are unreasonable—and there is no suggestion of that here.

(2) The analysis relates to the cost of materials used by single family home developers and the cost of materials used by multifamily developers. These are elective acts by the developers themselves, wholly out of the control of the City itself, and wholly irrelevant to the question of the reasonableness of the City’s fees.

(3) Last, and perhaps most concerning, the purported analysis is no more than a back of the envelope analysis. The only factual datum used to analyze the cost of multifamily housing is the $160.00 construction cost per square foot taken from Eden Senior Housing’s tax credit filing with the state, and from this, the analysis concludes that the cost per multifamily unit is $200,000 per unit. Yet that same tax filing by Eden Housing shows the cost per unit for 2 Irwin Way of $326,970—more than 60% higher than the purported analysis for those same units in section 5.2.7, and a more relevant comparison still is the Lafayette Senior Eden project being constructed at the same time whose comparable tax filings with the state show a cost per unit of $487,447. And further, the analysis here needs to show the cost to the public, since virtually all of the costs of these housing units are borne by the public through the plethora of federal, state, and local subsidies provided to these development projects.

V. Fundamental principles in the citizens edits

We believe that there is no place in this Housing Element draft for uncritical endorsements, express or implied, of the state’s housing laws, the City’s housing mandates, high density housing overall, high density housing downtown, for subsidized housing. We are not asking for condemnation—the document should simply be neutral on these questions. The Housing Element should also not indicate in any way that the City is obligated to provide subsidies or fee waivers to housing developments, or to require market rate development projects to provide subsidies to other housing developments, either. There should be no advocacy of such policies, and no commitment to same—nor should there be condemnation—the document should simply be neutral. The document also should contain no concessions or implications that the City is obligated to make sure zoned for housing is actually built, or that decisions by the City to not subsidize low income housing do not constitute an illegal governmental constraint to the development of housing.

We also believe that the City’s goal should be to comply with all the state’s housing laws and that its Housing Element must reflect that it has adopted policies to do so—but that it should commit to no other policies that are not required by state law other than those that have broad, widespread, and uncontroversial support on the part of the residents. And, a corollary to this is that the City must work in a principled fashion with HCD, but not agree to any demands by HCD that the City adopt policies that HCD insists upon in return for certification of the Housing Element, but that the City is not required to adopt by state law—and also believe that the City must push back on any such demands by HCD.

We also believe there must be full and fair disclosure of all relevant facts. There are continuing factual questions such as the extent and nature of the citizen input to the Housing Element from June to now, and with respect to the City’s housing mandates, how they were developed, and their impact on the City, and regarding the state’s housing laws and their impact on the City. All of these are immensely and directly relevant to the City’s Housing Element, both when it is initially drafted then adopted by the City, and when it is reviewed after the fact for the City’s performance of the actions it has committed to do in the Housing Element.

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Here is the version of the Citizens' Edit for the September 18, 2013 City Council Meeting.
READ MORE...

September 1, 2013

Looking for footage from the August 20th Meeting in front of the City Council?  Look no further.  Roughly 35 speakers spoke, roughly 85-90% of whom had very serious concerns about the city's Draft Housing Element.

Before viewing the video, here are the Bullet Points worth reviewing on why Orinda Watch has serious concerns about the Orinda Housing Element PROCESS and CONTENT plus Orinda Watch's position and overview:  
Orinda Watch - Position & Overview 
Process Issues in the draft Housing Element 
Substance Issues in the draft Housing Element

Or instead of viewing the video, read the Partial Transcript from the first 5 speakers during the Public Forum

Audio from the City Council Meeting

Listen for yourself to the audio of the City Council Meeting.

It is critical that Orinda citizens pack the house tomorrow night at the most important City Council meeting in years--please bring a friend. 7:00pm at Orinda Library Auditorium. Please fill out a speaker card. We'll have bullet points available to help jog your memory. City staff has stated there will not be a vote tomorrow night but there will be a Powerpoint presentation from City staff.

Be prepared for a carefully scripted infomercial on behalf of City staff intended to convince you that everything they have done with the Housing Element has been above board and authorized, and has involved the public, and the resulting Housing Element draft is perfect for the City’s needs. The staff did this during the first 45 minutes of the Council’s Special Meeting on Plan Bay Area on May 13 of this year—a meeting that was sold to the public as an opportunity for the Council to hear from the public about Plan Bay Area, but turned out instead to be an opportunity for staff and certain Council members to defend Plan Bay Area and argue to the public that their concerns about the Plan were overwrought and unnecessary.

So, be prepared for the staff and perhaps one or more members of the Council to do the same thing in during the meeting tomorrow night. And, be prepared for the staff and Council to assert that the City is listening to the public, and offer to make several changes to the Housing Element draft—begrudgingly to be sure—to accommodate public requests. The staff and Council will discuss clarifying how multifamily housing will be rezoned, removing commitments to the Planning Process Review Task Force Downtown Plan recommendations for high density housing downtown, and removing the commitment to a General Plan update to consider high density housing downtown.

These concessions, while necessary, do not address the root cause of the public’s concerns. The public has been left out of the process of developing the Housing Element portion of the City’s General Plan. These modifications, while necessary, are insufficient to remove the detrimental and unnecessary provisions inserted in the draft Housing Element by the Planning Director and the City’s housing consultant, and the Housing Element draft cannot be edited to remove those detrimental provisions by the same City staffer who inserted them in the first place.

Also, the Council must engage an independent investigative body to evaluate the conduct of City staffers—as amply documented in Orinda Watch’s letters to the Council of August 14, August 15, and August 19, 2013. And, finally, this process that has gone so awry can remedied, and the Housing Element draft can be properly edited to comply with state laws and serve the City’s interests, and the Council can restore the trust of the residents, by establishing an ad hoc citizen committeereporting to the Council to finish the Housing Element edits and secure certification from the state’s Department of Housing and Community Development (HCD) within the timeframe necessary.

Why Council Must Take Immediate Action to Address Conduct of City Staff

We can’t emphasize to you strongly enough that you carefully read Orinda Watch’s letters to the Council of August 14 and August 15, and that you read Orinda Watch’s letter to the Council sent this evening on the Planning Director’s Staff Report for tomorrow’s meeting. These letters are carefully documented, and you will be deeply dismayed at what you learn—and like us, will insist that the Council take immediate action to address the conduct of City staff.

New Information gleaned from the Staff Report dated Aug 20th:

-Housing consultant (Miller) did not fulfill his contract, even though the Planning Director claims as much. Instead of claiming Miller's-work-is-done-and-we-just-don't-need-him-anymore (paraphrased), the records need to show that the housing consultant (Miller) has FAILED to complete his contract (which was "to assist the City with completion of the General Plan Housing Element and to obtain HCD certification,") and that the record should show that housing consultant Miller been "dishonorably discharged", for lack of better term. Miller also never completed the CEQA certification ($1,440) for which the city contracted.

-Planning Director Ursu has returned to the Council requesting an additional $75,000 - $100,000 to complete the work that the City has already paid for. Why?

-Rezoning for 20 units per acre has magically become 25 units per acre. As if he thought no one would notice the change, the Planning Director claims Aug 20th staff report that the June 4th draft talked about rezoning from '20 to 25' units per acre, which is patently FALSE, created an overlay zone of '20 to 25' units per acre, which is also patently FALSE. None of these statements regarding 25 units per acre made by Mr. Ursu in his August 20, 2013 Staff Report are true. .

-Orinda Watch's Correspondence with the City Does Not Capture All of the Problems with The Housing Element because there are just too many problems...made-up metrics, false numbers to calculate subsidies, and risky admissions to a state agency for no reason just to summarize a few others and there are many, many, many more. We document one clear example of this in our August 19, 2013 letter about the Planning Directors August 20, 2013 Staff Report.

--The Planning Director claims to have been authorized by the Council on February 1, 2011 to negotiate the terms of the Housing Element with HCD in complete secret, with no review or approval by the Council or knowledge of the public, and to include in the Housing Element draft innumerable commitments to policy positions that are unnecessary under state law, haven’t been agreed to by the Council, and aren’t supported by the public. Yet his proffered evidence shows that he wasn’t given this authorization on February 1, 2011 by the Council, not even remotely so. Doesn’t he consider the possibility that the public will read his cited documents and check his alleged facts and arguments?

The above is just the tip of the iceberg of what you will learn in reading our August 20, 2013 letter to the Council. Read the letter, please. Then take action. We are certain you will agree with us that this situation cannot stand.

 August 18, 2013

City staff is requesting $75,000 - $100,000 to finish work the City has already paid for  

City staff has filed a staff report for the August 20, 2013 City Council meeting that we will respond to shortly.  Staff plans a Powerpoint presentation at Tuesday’s meeting that will be a defense of their actions in developing and submitting the Housing Element to the state Department of Housing and Community Development (HCD) on June 4, 2013.  Staff is also asking the Council for $75,000 - $100,000 in additional funds to complete the work of finalizing the Housing Element, securing HCD certification, and completing the required environmental documentation. 

The Planning Director is requesting new monies to complete work that the City has already paid for.  This work has not been completed properly because the City’s housing consultant and Planning Director inserted into June 4, 2013 Housing Element draft, without any review, approval, or authorization by the Council—and with no knowledge by the public—numerous provisions that commit the City to policy actions that the Council hasn’t agreed to, Orinda residents don’t support, and are not required by state law.

Orinda Watch’s August 14 letter to the Council on concerns regarding the process by which the City hired its housing consultant

Orinda Watch has filed with the Council a letter on August 14, 2013, detailing significant concerns about the process by which City staff hired the city’s housing consultant in the fall of 2012, and calling for an independent investigation of staff’s conduct.  We urge you to read our August 14 letter to the Council that you can find here (and the attachments to that letter are here). 

An Ad Hoc Citizen Committee is necessary to revise the Housing Element draft

The substantive deficiencies in the June 4, 2013 Housing Element draft go well beyond those that Orinda Watch has identified in earlier correspondence with the Council.  In addition, correcting the deficiencies in the June 4, 2013 Housing Element cannot and must not be left to City staff who inserted those problematic provisions in the first place.  And finally, the process is irredeemably and irretrievably impaired.  The Council must address this impaired process as its first priority. 

To remedy these errors, and to develop a Housing Element draft that complies with state law while not committing the City to policy decisions it has not decided to make and are unnecessary to include in the Housing Element, an Ad Hoc Citizen Committee is necessary to revise the Housing Element draft, and negotiate its terms with HCD. The City must engage independent, competent counsel to advise the Citizen Committee as to the requirements of state housing laws. Orinda Watch recommends the Committee be comprised of seven members, including representatives from Orinda Watch, Save Orinda, and Orinda Vision, as well as four citizens at large. City staff should be available to support the efforts of this Committee, as needed, but should not sit on the Committee as members.

The Committee should be tasked with completing the revised draft Housing Element by the end of 2013. The Committee should further be tasked with removing all policy elements or commitments that are not required to comply with state housing laws, or that do not represent a broad consensus on the part of all Orinda residents. Substantive policy decisions and recommendations regarding Orinda’s downtown should not be included in this Housing Element draft.

There is still time and opportunity for the City to (a) correct the substantive deficiencies in the Housing Element draft, (b) comply with the state’s housing laws in every respect, (c) reach an amicable agreement with HCD on that revised draft that will lead to certification of the City’s Housing Element, and (d) restore the public’s trust in the Council and in this process.  But the Council will not achieve any of these vitally important outcomes if it follows the process for remedying the situation that has been proposed by City staff.

 Documents:
August 14th letter to the City Council 
Attachments to August 14th letter 

August 16, 2013

Yesterday morning, an Orinda Watch representative signed and delivered a letter to the Orinda City Council which documents significant concerns regarding the actions of certain City staffers in developing and submitting a revised draft of the City’s Housing Element to the state’s Department of Housing and Community Development (HCD) on June 4, 2013. These concerns arose from a review of documents retrieved from a public records act request for the records of communications between Orinda City Staff and HCD—documents that the City itself has still not disclosed to Orinda residents.

The concerns raised in our August 15 letter to the Council address the actions of Planning Director Emmanuel Ursu, City Attorney Osa Wolff, City Manager Janet Keeter, and housing consultant Barry Miller throughout the draft Housing Element process. Orinda Watch is requesting that the City Council engage or hire an independent agency or body that will investigate then report back to the Council and Orinda residents on the important, and legitimate questions that must be addressed about the conduct of these City staffers, together with recommendations for further actions that the Council must take, if any.

We have also requested this issue be separately agendized at the August 20, 2013 City Council meeting. This issue must be addressed prior to any discussion of the Housing Element.

What are the questions we are asking? We urge you to read the attached letter, ask yourself, "What's happening behind the scenes here?" and then join with us in requesting the City establish a credible, and legitimate process that will provide the public with answer these questions. Please contact your City Council members to urge they address this issue as well, and please share this letter with your friends and neighbors.

To be sure, there may be more information that the city has which Orinda Watch does not. An objective, independent investigation will identify and evaluate any such information.

The total lack of transparency is one of the gravest deficiencies of a process that has been conducted totally outside of public view—contrary to the Council’s express instructions to the Planning Director on November 7, 2012 that the public be involved at every stage in this process.

Let's give the city council and staff a chance to answer those questions but let's make sure they DO answer these questions.

Documents:
Here's the August 15th Orinda Watch Letter responding to the Orinda Draft Housing Element.  
Here are the attachments that go along with the August 15th Orinda Watch Letter.

July 12, 2013
On July 11th, we hand-delivered a copy of our letter to Orinda City Council which outlines and subsequently argues a number of points which need to be addressed by City Council and City staff as it relates to the Draft Housing Element.  (Oh and if you missed it, the good people over at Save Orinda also released their letter to city council.) 

To be sure, there are SO many more arguments but here's some of the meat of the letter:

FOCUS ON FACTS:
To be sure, the focus of this letter is to point out that:

• a) Orinda citizens were not involved in the process
  
• b) the Housing Element draft was never brought to the City Council for review (and therefore not seen by the citizenry) until after it was submitted to Department of Housing and Community Development (HCD) for review.
  
• c) HCD took just 5 business days to review & respond (HCD had up to 90 days to respond and they are very busy working with all cities in the state), indicating to us that the City Planning Director and/or Consultant had been negotiating terms with HCD for months, again without public input.
• d) the Housing Element draft was never brought to the City Council for review (and therefore not seen by the citizenry) until after it was submitted to Department of Housing and Community Development (HCD) for review.
•  e) HCD took just 5 business days to review & respond (HCD had up to 90 days to respond and they are very busy working with all cities in the state), indicating to us that the City Planning Director and/or Consultant had been negotiating terms with HCD for months, again without public input.
• f) HCD appears to have responded to the Housing Element submission as both an authorized and official submission from the Planning Director
• g) the Planning Directors's apparent unauthorized submission may have placed the City in significant potential legal jeopardy as the city may be obligated by certain legal statutes to make certain zoning changes within 90 days of HCD's response.  If so, any interested party may bring a suit if the city does not implement these zoning changes.
• h) there are numerous commitments on the City's part that are not required by state law, and potentially lock the City into policies neither approved by council nor supported by the Orinda residents.
• i) there are outright or implied admissions to interpretations of state housing law that put the City on the record that we find inaccurate AND deeply detrimental to the City's interests.
• j) includes recommendations from the so-called "Downtown Plan" that came out of the Public Planning Review Task Force (PPRTF) which was never adopted by city council AND which city council has given express instructions for those items to be removed from the draft housing element in the past BUT were NOT removed.

ACTIONS NEEDED BY CITY COUNCIL:
Here are just some of "the firm, immediate action on the part of the Council" Orinda Watch asks for:

1 - Withdraw the June 4, 2013 Housing Element submittal to HCD
2 - Comply with state housing laws
3 - Correct the deficiencies of the Housing Element draft and resubmit to HCD
which include:

A - Do not redefine the City’s residential multifamily zoning from a default of 10 units per acre to a default of 20 units per acre
B - Remove all mention of the Planning Process Review Task Force (PPRTF) Downtown Plan recommendations
C - Remove all mention of the General Plan update
D - Accurately represent the City’s responsibilities to assist the development of low income housing and remove governmental constraints to same
E - Remove all mentions requiring "deed-restrictions" for second units
F - Open, public process on which parcel(s) to rezone

There are other compelling items within the letter and our rationale for each of those items and the items listed above.  We will be sending you all a "cheatsheet" of those recommendations very soon.

We hope you'll take the time to read our letter and please let us know if you have any questions.

 Here's the July 11th Orinda Watch Letter responding to the Orinda Draft Housing Element.