Bryan W. Wenter
925.708.9055
[email protected]
3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.226.8247 |www.hsw-legal.com August 22, 2025
VIA EMAIL
Mayor Karen K. Goh
Council Chambers, City Hall
1501 Truxtun Avenue
Bakersfield, CA
Email: [email protected]
Re: Magnolia Ranch
Mitigated Negative Declaration for Vesting Tentative Tract Map 7450 APNs 529-011-33 and 529-011-34
Dear Mayor Goh and Honorable Councilmembers:
This firm represents D.R. Horton and McIntosh & Associates in connection with their development of the Magnolia Ranch housing development project, consisting of 176 single-family homes and 5 public landscape lots located on the 32.66-acre property at the southwest corner of Olive Drive and Rosedale Parkways in northwest Bakersfield.
The Planning Commission approved the project and a Mitigated Negative Declaration by unanimous vote on July 15, 2025. The Sierra Club Kern – Kaweah Chapter appealed the project on July 25, 2025 on the grounds that the MND on the grounds that the project would allegedly have certain impacts to air quality and biological resources that were inadequately analyzed in the MND. The appeal lacks merit and is insufficient for the City to either recirculate the MND or require the preparation of an Environmental Impact Report.
By way of brief review, the project is consistent with the General Plan land use designation of Low Density Residential (LR), which allows single-family developments at less than or equal to
7.26 dwelling units per net acre, and the zoning of Small Lot Single-unit Dwelling (R -2). The project will be developed at 5.86 units per acre. As a result, the primary discretionary entitlement for the project is a tentative map. The City previously approved the development of 124 units on the project site in 2014 through Tentative Tract Map 7217.
Contrary to the assertions in Sierra Club’s appeal, the City prepared a comprehensive and adequate MND for the project. We note, for example, that Sierra Club makes certain assertions that are demonstrably false. For example, Sierra Club claims the MND failed to provide any discussion whatsoever regarding PM
2.5 (i.e., fine inhalable particles, with diameters that are generally 2.5 micrometers and smaller ). But this is simply false. PM 2.5 is specifically discussed and analyzed in the MND in the Air Quality section beginning on page 15 thereof. Sierra Club may not have noticed that analysis or may disagree with it, but the MND contains substantial evidence with respect to this issue.
Sierra Club also argues that the City and or the San Joaquin Valley Air Pollution Control District should adopt new thresholds of significance. In particular, Sierra Club claims the MND should have a net zero threshold for air pollution impacts. But this is simply not the law. The City, as lead agency, and Valley Air D istrict, as responsible agency, have the authority to adopt and apply thresholds of significance, and nothing in CEQA mandates that any such agency ever adopt August 22, 2025 – Page 2
Re: Magnolia Ranch
3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.226.8247 |www.hsw- legal.com
a net zero threshold. The MND validly relied on the applicable thresholds for this issue and it remains supported by substantial evidence.
The project’s technical consultants, Pruett Biological Resources Consulting, Inc. and Trinity Consultants, have reviewed and provided detailed responses to the Sierra Club’s appeal (see attachments), based on thos e organization’s extensive knowledge in their fields and their detailed knowledge of the project. Their responses to Sierra Club’s appeal set forth the reasons the MND is supported by substantial evidence, why Sierra Club’s claims about the MND do not amount to a “fair argument, and why the City should reject the appeal and uphold the approval of the project.
In short, Sierra Club has not demonstrated that the MND for the project is substantively or procedurally inadequate in any way. There is no substantial evidence of a fair argument to support Sierra Club’s claims. Therefore, we respectfully request that the City Council reject the appeal and support the approval of the project.
Sincerely,
BRYAN W. WENTER
ATTACHMENTS: AUGUST 20, 2025 RESPONSE TO COMMENTS BY PRUETT BIOLOGICAL RESOURCES CONSULTING, INC.
AUGUST 21, 2025 RESPONSE TO COMMENTS BY TRINITY CONSULTANTS
CC: JULIE DRIMAKIS, CITY CLERK
JENNIE ENG, ASSISTANT PLANNING DIRECTOR
Pruett Biological Resource Consulting, Inc.
8819 Latera Court, Bakersfield, California 93314
Phone: 661.421.0006. Email: [email protected] [email protected]
20 August 2025
Mr. Blaine Neptune
President | RCE
McIntosh & Associates
10800 Stockdale Highway, Suite 103
Bakersfield, California 93311
Subj: Response to Comments VTTM 7450
Mr. Neptune,
Pruett Biological Resource Consulting, Inc. (PruettBio) has prepared this response to comments submitted by the Sierra Club Kern – Kaweah Chapter (Chapter) regarding Vesting Tentative Tract Map 7450. Specifically, this response has condensed the Chapter’s concerns to three points:
• Post-approval biological surveys do not satisfy CEQA informational requirements. • The MND is defective and violates CEQA in that it has not described and assessed the significance of the cumulative effects of ongoing urbanization and habitat loss on protected species.
• With the Metropolitan Bakersfield Habitat Conservation Plan is no longer in effect, the City must find another way to effectively address the Project’s contribution to cumulative habitat loss.
California Environmental Quality Act (CEQA), Cal. Code Regs. Tit. 14, § 15065 provide criteria for determining when a project would have a significant impact on biological resources. California Environmental Quality Act (CEQA) Appendix G thresholds provide the matrix to evaluate potential impacts to the biological resources from proposed project development. If CEQA threshold determinations warrant, further consultation may be required with CDFW and USFWS. If additional consultation with the agencies results in the need for Application for a California Incidental Take Permit, Cal. Code Regs., tit. 14, § 783.2 outlines requirements for detailed species-specific take analysis, proposed measures to minimize and fully mitigate impacts, compliance monitoring, and funding. A detailed description satisfying Cal. Code Regs., tit. 14, § 783.2 is not required to meet the CEQA Appendix G thresholds.
In practice, significant impacts are determined through a combination of field surveys, the preparation of biological evaluations, and consultation with wildlife agencies.
Addressing Chapter’s comments:
• Post-approval biological surveys do not satisfy CEQA informational requirements.
Biological field studies for the Project date to June 2014. The most recent field study of the Project was conducted 30 April 2025. CEQA Appendix G thresholds were used to evaluate potential impacts to listed or otherwise special-status species. Avoidance and minimization measures for implementation prior to and during project activities were recommended as appropriate.
• The MND is defective and violates CEQA in that it has not described and assessed the significance of the cumulative effects of ongoing urbanization and habitat loss on protected species.
VTTM 7450 – Response to Comments
20 August 2025
CEQA Guidelines §15355A define a cumulative impact as: “Two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” Cumulative impacts occur when the individual effect of a project is incremental, but when combined with other closely related past, present, and reasonably foreseeable probable future projects, the impact is cumulatively considerable. “Cumulatively considerable” means that the project’s contribution is significant when viewed in connection with the effects of past, current, and probable future projects (§15065(a)(3)).
Typical cumulative biological impacts include:
o Habitat loss and fragmentation (e.g., incremental loss of grasslands, riparian corridors, wetlands).
o Wildlife movement disruption across a region (not just within the project boundary). o Species population declines when combined with other development pressures. o Loss of sensitive natural communities (oak woodlands, vernal pools, etc.). o Invasive species or edge effects spreading with multiple projects.
Potential impacts of the Project on biological resources do not meet the Appendix G thresholds for significant cumulative effects.
• With the Metropolitan Bakersfield Habitat Conservation Plan is no longer in effect, the City must find another way to effectively address the Project’s contribution to cumulative habitat loss.
Pursuant to CDFW Correspondance (Notification), letter dated 06 June 2023, Subject: Notice of Expiration of the Metropolitan Bakersfield Urban Development Incidental Take Permit (2081- 2013-058-04), “…if an entity, person or public agency cannot avoid impact to State-listed species and, therefore, needs take coverage for a State-listed or Candidate species that acquisition of a project-specific Incidental Take Permit (ITP) would be required.” The Notification also recommends that project proponents consult with CDFW regarding any measures that should be implemented to fully avoid the taking of a State-listed or Candidate species pursuant to CESA.
Project proponents are encouraged to obtain take authority for State-listed species such as San Joaquin kit fox (Vulpes macrotis mutica, SJKF) given known occupation throughout Metropolitan Bakersfield. No legal requirement exists for applicants to pursue an ITP when field studies yield negative results for occupation.
Please do not hesitate to contact me if you have any questions of require additional information.
Respectfully,
Steven P. Pruett, Principal Biologist
4900 California Ave, Ste 420A, Bakersfield, CA 93309 / P 661.282.2200 / F 661.427.0703 / trinityconsultants.com
HEADQUARTERS
12700 Park Central Dr, Ste 600, Dallas, TX 75251 / P +1 800.229.6655 / P +1 972.661.8100 8/22/2025
City of Bakersfield Development Services Department
Current Planning Division
1715 Chester Avenue
Bakersfield, CA 93301-5210
RE: Response to Air Quality and GHG Comments in Sierra Club Letter Dated July 15, 2025 Vesting Tentative Tract Map 7450 Mitigated Negative Declaration
Dear Current Planning Division Staff:
Trinity Consultants (Trinity) is pleased to provide this response to specific appeal comments submitted by the Sierra Club regarding the proposed Vesting Tentative Tract Map (VTTM) No. 7450 Project (Project). These responses specifically address comments related to the Air Quality and Greenhouse Gas Memorandum (Memo) prepared by Trinity on behalf of the Project.
PM2.5 and Ozone Exposure
Comment
The MND does not discuss PM2.5 and ozone exposure.
Response
Ozone (O3) is primarily formed through photochemical reactions between precursor pollutants, volatile organic compounds (VOCs) and nitrogen oxides (NOx); O3 is not directly produced from any of the Project activities.
Because O3 is not directly emitting by most emission-producing activities, the San Joaquin Valley Air Pollution Control District (SJVAPCD) regulates its precursors, VOC and NOx . SJVAPCD’s Guidance for Assessing and Mitigation Air Quality Impacts (GAMAQI), dated March 19, 2015, identifies thresholds for VOCs (also commonly referred to as Reactive Organic Gases [ROG]) and NOx. Table 1 and Table 2 of the MND provide the estimated VOC and NOx emissions, as well as the PM
2.5 emissions, from the Project’s construction and operational activities, respectively. As identified in the tables, the Project is not anticipated to exceed any of the VOC and NOx emissions thresholds during both construction and operational activities.
Sensitive Receptors
Comment
The MND does not properly discuss the Project’s criteria pollutant impacts on the school.
Response
The California Air Resources Board (CARB) states that “ambient air quality standards (AAQS) define clean air and are established to protect the health of the most sensitive groups in our communities.” California ambient air quality standards (CAAQS) were f irst established in 1962, followed by the national ambient air quality standards (NAAQS) in 1971. The development of CAAQS relies on the Office of Environmental Health Hazard Assessment (OEHHA), which reviews health literature to develop recommendations fo r the standards.
City of Bakersfield, Planning Division - Page 2
8/22/2025
Similarly, the Environmental Protection Agency (EPA) conducts an Integrated Science Assessment (ISA), a Risk/Exposure Assessment (REA), and a Policy Assessment (PA) to determine the NAAQS.
The assessment addressed in the Memo followed the SJVAPCD GAMAQI, specifically the screening thresholds outlined in Section 8.4.4. According to this guidance, if a project's construction emissions, permitted operational emissions (not applicable to this Project), or non -permitted operational emissions exceed 100 pounds per day, an ambient air quality analysis is required.
For this Project, the maximum estimated construction emissions and operational emissions are each below 100 pounds per day. As discussed above, since the proposed Project’s emissions are all below the SJVAPCD’s screening thresholds, the proposed Project’s potential air quality emissions would not have a significant impact in generating adverse health impacts to any of the nearby sensitive receptors, including local schools.
Valley Fever Exposure
Comment
The MND does not provide evidence regarding potential Valley Fever exposure, and the Project should be required to test the soil for Valley Fever spores.
Response
Site preparation and construction activities may potentially disturb soil and release Valley Fever (Coccidioides fungus) spores if they are present in the on -site soil. As the Project is with in SJVAPCD’s jurisdiction, construction activities are subject to Regulation VIII, Fugitive PM 10 Prohibitions, which include requirements for control fugitive dust emissions, such as watering the Project site and limiting on- site vehicle speeds.
Additionally, construction activities shall be conducted in accordance with all applicable building, health, and safety requirements, including Occupational Safety and Health Administration (OSHA) and California’s Division of Occupational Safety and Health (Cal/OSHA) requirements, which include awareness training, respiratory protection, best management practices, etc., to minimize exposure to hazards, including Valley Fever spores.
Additionally, in accordance with the City of Bakersfield municipal code ( §16.44.030 and 16.44.040 ), an approved grading plan and preliminary soils report and compaction tests conducted by a registered or licensed civil engineer must be submitted to the building director prior to recordation of the final map and issuance of any building permits. Additionally, if the preliminary soils report indicates any soil problems, the civil engineer will recommend corrective actions, and a final soils report conducted by the civil engineer must certify that all corrective action has been taken and completed to satisfaction.
Air Pollution Threshold
Comment
The MND should adopt a net zero threshold for air pollution impacts.
Response
SJVAPCD is a Responsible Agency for this Project and is responsible for assisting the City of Bakersfield (the Lead Agency) by providing technical expertise in characterizing air quality project-related impacts. As the Responsible Agency with the technical expertise for air quality related impacts, SJVAPCD has developed the GAMAQI and the embedded thresholds to be used to determine the significance of environmental effects.
City of Bakersfield, Planning Division - Page 3
8/22/2025
The City of Bakersfield, as the Lead Agency, has elected to adopt SJVAPCD’s air quality significance thresholds for this Project.
Comment
Only requiring the Project to comply with SJVAPCD’s weak requirements does not address the local pollution problem.
Response
SJVAPCD is the regional agency responsible for air quality in eight counties, including the San Joaquin Valley Air Basin (SJVAB) portion of Kern County. SJVAPCD regulates stationary sources and is responsible for meeting the Environmental Protection Agency (EPA) and CARB mandates to improve public health. Air pollution issues are location specific and often impacted by geography, topography, and meteorology; hence, a local agency with specific expertise and goals to address SJVAB specific air pollution issues is necessary. SJVAPCD’s efforts over the years have reduced emissions and ambient air quality standards exceedances, and SJVAPCD continues to strive to meet all of the state and federal ambient air quality standards through constant review and development of strategies. SJVAPCD has developed the GAMAQI and associated thresholds based on their expertise of SJVAB specific air pollution challenges. The City of Bakersfield, as the Lead Agency, has elected to rely on SJVAPCD’s air quality expertise for this Project.
Cumulative Impacts
Comment
The MND does not address cumulative impacts from this and other planned projects.
Response
Project Consistency with Local and Regional Land Use Plans The proposed Project is located on Assessor’s Parcel Number s (APN) 529-011-33 and 529-011-34. The site has a current zone classification of R-2 (Small Lot Single-Unit Dwelling), with a General Plan land use designation of LR (Low -Density Residential). The Project includes construction of 176 single -family homes, which is consistent with the LR designation. Because the Project conforms to existing zoning and land use regulations, its contributions to cumulative environmental impacts are within the scope of those previously analyzed in the Kern Council of Governments (Kern COG) 2022 Regional Transportation Plan (RTP) Final Program Environmental Impact Report (PEIR). The PEIR evaluated cumulative air quality and greenhouse gas (GHG) impacts of all transportation and land development projects anticipated under the 2022 RTP/Sustainable Communities Strategy (SCS), including those related to climate change. Therefore, the Project is not anticipated to result in any additional cumulative air quality GHG impacts beyond those previously evaluated in the RTP PEIR.
Pursuant to CEQA Guidelines §15183, “projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site.” As previously discussed, the Project is consistent with the City of Bakersfield’s Metropolitan Bakersfield General Plan, the City’s current Municipal Code (including zoning ordinance), and the regional land use pattern established in the Kern COG 2022 RTP/SCS.
City of Bakersfield, Planning Division - Page 4
8/22/2025
Although the Project individually would not have a significant impact on air quality, global warming, or climate change, the Project would contribute to cumulative air pollutant and GHG emissions in California , as well as related health effects. As presented in the MND, the Project emissions would only be a very small fraction of the air basin wide criteria pollutant emissions and statewide GHG emissions. CEQA acknowledges that the more severe the environmental problem, the lower the threshold for determini ng whether a project’s contribution to cumulative impacts is significant. At the same time, CEQA Guidelines §§15065(a)(3) and 15130 require agencies to evaluate whether a project’s incremental contribution is cumulatively considerable, while allowing lead agencies discretion in the choice of methodology. In light of these uncertainties, CEQA directs lead agencies to base their determinations on the best available information and substantial evidence. Given the Project’s individual emissions are less than significant and the Project is consistent with local land use and zoning designations and regional planning datasets, as well as the discretion of the Lead Agency, there is substantial evidence to support that the Project’s contribution to cumulative air quality and GHG impacts would not be cumulatively considerable.
Additionally, CEQA Guidelines §15130, which governs cumulative impacts analysis, allows agencies to rely on previously approved plans and certified EIRs when evaluating cumulative effects, provided the project’s contribution is not cumulatively considerabl e. The proposed Project's consistency with these adopted plans and their associated program-level environmental analyses supports the conclusion that cumulative impacts have been adequately addressed under CEQA, and that the Project’s incremental contribution to such impacts would not be cumulatively considerable.
Mitigation Measure Enforcement
Comment
The four GHG mitigation measures are vague and are not enforceable.
Response
Mitigation measures GHG -1 through GHG -3 all relate to construction equipment exhaust. Construction equipment emissions are regulated by CARB and SJVAPCD. CARB regulates all off -road diesel equipment through the In-Use Off-Road Diesel-Fueled Fleets Regulation (Off-Road Regulation), and SJVAPCD regulates construction emissions through Rule 9501, Indirect Source Review (ISR).
Additionally, the Project is subject to both the City’s building code , California Building Standards Code (Title 24), as well as California’s Green Building Standards Code (CalGreen), which requires the Project to install photovoltaic systems, which will offset the Project’s overall operational energy consumption.
If you have any questions or comments about the information presented in this letter, please do not hesitate to call 661.282.2200.
Sincerely,
TRINITY CONSULTANTS
cc: McIntosh & Associates
D.R. Horton