After over a year of legal wrangling, on Aug. 22, the Contra Costa Superior Court issued a peremptory writ of mandate, commanding the city to “set aside the certification of the Plan Orinda Environmental Impact Report (EIR), the adoption of the Statement of Overriding Considerations challenged in this case, and approval of the Downtown Precise Plan.”
The ruling gives the City 60 days to comply and outlines several other actions that must be taken along with associated timelines.
On March 4, 2023, Orindans for Safe Emergency Evacuation (OSEE) filed a lawsuit against the City of Orinda, challenging their Plan Orinda Environmental Impact Report (EIR) as inadequate.
According to the OSEE website orindasee.com, “The Evacuation Analysis, prepared by a planning and design firm for the City, did not include the expected traffic from build-out of the 1,618 housing units in Plan Orinda. This left the EIR with a very limited ‘qualitative’ analysis of how the added traffic would impact evacuation.”
The Orinda News contacted the City of Orinda and OSEE for their comments regarding the ruling. The City issued the following press release.
Lawsuit Against City Reaches End: City Will Make Minor Technical Revisions And Can Return Its Focus to Downtown Revitalization
ORINDA, Calif., August 27, 2024 — Through a court ruling dated August 22, 2024, the City of Orinda has reached a critical milestone in pursuing downtown revitalization and preserving local control. With the direction provided by the recent ruling, the City will proceed with minor revisions to the Environmental Impact Report (EIR) related to wildfire evacuation analysis. Resolution of the lawsuit would allow the City to once again pursue downtown Orinda’s revitalization and rezoning and bring Orinda closer to creating the more vibrant, bustling community that its residents have long requested.
“While we are glad to resolve this legal matter, the City and community have been harmed in several ways by this lawsuit,” stated Mayor Darlene Gee. “The City has poured time and resources into defending ourselves from the accusations within this lawsuit, leading to significant costs for consultants and attorneys. Ultimately, this lawsuit has wasted time and staff resources that could have been better spent on other community priorities. We are frustrated that our community was placed in this situation, despite early extensive attempts at settlement. We will continue to serve and protect residents as we take these next steps.”
Plan Orinda, a multi-year strategic planning effort was initially adopted by the Orinda City Council on January 31, 2023. It includes a Housing Element update that was certified by the California Department of Housing and Community Development (HCD), a Safety Element update, the Downtown Precise Plan (DPP) and an EIR. The EIR, required under the California Environmental Quality Act (CEQA), analyzes the potential impacts of Plan Orinda and identifies possible methods to minimize those impacts.
Following the approval of this project, an entity calling itself Orindans for Safe Emergency Evacuation (OSEE) sued the City under CEQA, a law that has too often been used to slow or stop municipal development. OSEE’s membership is largely unknown; only one individual, Michelle Jacobson, has come forward to identify herself as a member of OSEE in the paperwork filed in court. The OSEE suit against the City under CEQA has led to a lengthy and costly legal process culminating in the recent court ruling.
The lawsuit claimed to be about evacuation, but separate and apart from the lawsuit, the City of Orinda has been a leader within California in pursuing evacuation planning and wildfire resilience. Before, during, and after this lawsuit, the City of Orinda, in partnership with MOFD and neighboring jurisdictions, has been at the forefront in leading evacuation planning efforts using updated technology and a regional approach. While precious taxpayer dollars were required to defend this litigation asking for a revised evacuation analysis, the City was always pursuing evacuation planning in a forward thinking, state of the art manner.
The City did not seek a legal fight on this matter, and actively sought in good faith to settle the case prior to the Court hearing on the matter, to save taxpayer funds and move forward.
The Court’s rulings include an Order and a Writ. In an initial Minute Order issued by the court on February 22, 2024, small technical deficiencies within the City’s EIR regarding wildfire evacuation analysis were identified. On August 22, 2024, the court entered a Writ of Mandate that directs the City to revise certain aspects of the wildfire analysis in the EIR. Throughout the EIR revision process, the City’s certified Housing Element and Safety Element will remain in place. At OSEE’s insistence, the City will set aside its approval of the Downtown Precise Plan—the document which outlined revitalization of Orinda’s downtown. Upon completion of the EIR revisions, the City will assess the need for potential revisions to the Housing Element and other related documents, and the DPP can be re-adopted relying on the revised EIR.
“One unfortunate impact of this litigation has been to delay the Council’s ability to rezone downtown,” stated Vice Mayor Latika Malkani. “Councilmembers and residents have expressed overwhelming support for a more vibrant downtown, and I sincerely hope that we can refocus our efforts on bringing that community vision to life.”
The City of Orinda remains committed to ensuring compliance with legal requirements, including state housing mandates, while addressing the needs and concerns of our residents.
OSEE issued the following press release.
Orindans for Safe Emergency Evacuation Prevail in Lawsuit Against City of Orinda.
From the beginning, it was clear to the citizens group Orindans for Safe Emergency Evacuation, or OSEE, that the Environmental Impact Report (EIR) and the City’s justification for their approval of Plan Orinda violated State law, and the Contra Costa County Superior Court has agreed.
Naturally OSEE is pleased with the ruling, and we were very impressed with the care and effort taken by the Court in its deliberations as evidenced in its extensive Minute Order. https://odyportal.cc-courts.org/Portal/DocumentViewer/DownloadDocumentFile/Download?d=73510F11AD333504B71BDB67058A5CFE&c=D54448AB2989E0646F61C30D40733A65&l=A14F6D03B297BF8BE85C2297EECFFD06&cn=F1CD0E545114827A2CE8E9C5CBD7B55B&fileName=N23-0579%20-%20Minutes&docTypeId=3&isVersionId=False
The Court describes the EIR’s inadequacies and the resultant weakening of the City’s approval justifications in detail in its Order and summarized their opinion as follows:
“Because the EIR provides ambiguous information on the impacts on evacuation in WFR-1 [Wildfire Risk-1] and does not provide the public and decision-makers with sufficient information to understand the magnitude of the impacts of the Project on evacuation in the face of wildfire hazards, the City did not have sufficient information to balance the benefits of the Project against its adverse impacts, after mitigation, and the City’s Statement of Overriding Considerations is therefore not supported.”
OSEE is particularly relieved because this gives the City the chance to take full advantage of the power of the Program EIR before it is too late. This EIR is the only opportunity the community will have to weigh in on the full development plan envisioned in Plan Orinda and any attached mitigations or alternatives comprehensively. Due to current housing development regulations, future projects will most likely be able to rely entirely on this EIR to fulfill their environmental review requirements. The fact that the EIR didn’t cover wildfire risk adequately would be immaterial.
In addition, inadequate evacuation capacity and insufficient emergency response capability are not problems that can or should be solved by individual developments. Use of a program EIR allows the community to consider broad policy alternatives and program-wide mitigation measures and provides greater flexibility to address environmental issues and/or cumulative impacts on a comprehensive basis. If there is any environmental analysis done on individual developments in the future, any mitigations could only be piecemeal and ineffective.
OSEE hopes to work along with other community members and the City in good faith to advance the process as thoroughly and quickly as possible so that the job of reinvigorating downtown can restart. Along with many Orindans, half of OSEE’s leadership team were on the Board of Orinda Vision – a group dedicated for years to reinvigorating the downtown.
Now the City needs to take responsibility and faithfully follow the Court’s order – analyze the impacts to evacuation capacity from build-out of Plan Orinda, identify how to minimize or eliminate the impacts, and seek funding to make it happen.
Thank you,
Michele Jacobson
Member, OSEE leadership team
The Orinda News will continue to report on this story as it develops.
