interested Tribes (as a result of correspondence with area Tribes) shall coordinate with the landowner regarding treatment and curation of these resources. Typically, the Tribe will request preservation in place or recovery for educational purposes. Work may continue on other parts of the project while evaluation takes place.
B. Preservation in place shall be the preferred manner of treatment. If preservation in place is not feasible, treatment may include implementation of archaeological data recovery excavation to remove the resource along the subsequent laboratory processing and analysis. All Tribal Cultural Resources shall be returned to the Tribe. Any historic archaeological material that is not Native American in origin shall be curated at a public, non-profit institution with a research interest in the materials, if such an institution agrees to accept the material. If no institution accepts the archaeological material, they shall be offered to the Tribe or a local school or historical society in the area for educational purposes.
C. Archaeological and Native American monitoring and excavation during construction projects shall be consistent with current professional standards.
All feasible care to avoid any unnecessary disturbance, physical modification, or separation of human remains and associated funerary objects shall be taken.
Principal personnel shall meet the Secretary of the Interior standards for archaeology and have a minimum of 10 years’ experience as a principal investigator working with Native American archaeological sites in southern California. The Qualified Archaeologist shall ensure that all other personnel are appropriately trained and qualified.
Prior To Issuance of Grading Permit
30. All Conditions of Approval and Mitigation, Monitoring, and Reporting Program (MMRP) contained herein shall be incorporated into all applicable final construction plans and a copy of these conditions shall be placed on a sheet in the final building and grading plans prior to issuance of any building or grading permits.
31. Prior to issuance of a Certificate of Occupancy, the applicant shall underground all utilities, which for the purpose of this condition shall include all boxes, structures and/or other equipment located in the public rights-of-way, any public utility easement(s), and on any private property, to the satisfaction of the Director of Planning.
ENGINEERING LAND DEVELOPMENT:
32. The project shall be served by the City’s sanitary sewer system and all sewer facilities shall be constructed in accordance with the City Standards. Main trunk sewer line shall be in accordance with master sanitary sewer plan or as approved by the City Engineer.
33. The applicant/developer/property owner shall obtain design and plan approval from all utility providers having jurisdiction over the on-site and off-site utilities. 178 755
ATTACHMENT NO. 5
Completion of all undergrounding of on-site and off-site utilities is required by Section No. 27-52 of the City Municipal Code and in accordance with plans and specifications approved by the City Engineer.
34. The applicant shall maintain all improvements and utilities within the public right-ofway, including street sweeping, prior to issuance of final certificate of occupancy by the City.
35. The project will have at most two ingress/egress points along Slover Ave. The easternmost location shall be designed, constructed, and signed for emergency vehicle access only. The westernmost location shall be designed, constructed, and signed to restrict ingress and egress to right-in and right-out movements only.
36. The project will have at most three ingress/egress points along Oleander Ave.
37. Left-turn ingress and/or egress at all access locations may be restricted in the future due to traffic operational or safety concerns. Alternatives to such restrictions may be considered, subject to approval of the City Engineer.
38. Intersection sight distance and stopping sight distance must be shown to meet the required standards both horizontally and vertically at all ingress/egress locations including consideration for walls, landscaping, grading, and vegetation.
39. The location of bicycle parking shall be depicted on the site plan. Bicycle parking shall comply with the Association of Pedestrian and Bicycle Professionals.
40. All gated ingress locations shall provide a visual indication to drivers prior to entering the gated driveway whether the gate is closed or open. This may be excluded if sufficient turn-around space is provided for the design vehicle or if the gate is manned with personnel who would permit an errant driver to enter the gate to turn around and depart. At no time shall the project cause vehicles entering the site to need to reverse into a travel lane in the public right-of-way in order to depart or turnaround.
41. The Project shall provide a ridesharing program and establish a permanent transportation management association with funding requirements for employers.
Ridesharing shall be promoted through a multifaceted approach including designating a minimum of 18 desirable parking spaces for ridesharing vehicles, designating adequate passenger loading and unloading and waiting areas for ridesharing vehicles, and providing an app or website for coordinating rides.
42. The project shall contribute the fair share amount for improvements identified in the traffic study. The project shall contribute 25.4% of the cost for a new traffic signal based on an engineer’s estimate provided by the applicant and approved by the City Engineer for the construction of a new traffic signal at Juniper Ave and Slover Ave.
43. The project shall identify the improvements necessary for the intersection of Oleander Ave and Slover Ave to achieve an acceptable Level of Service, subject to the approval of the City Engineer. The project shall design and construct the improvements identified.
179 756
ATTACHMENT NO. 5
PRIOR TO ISSUANCE OF GRADING PERMIT
44. The Applicant shall submit and gain approval of a complete Water Quality Management Plan report in accordance with the County of San Bernardino Technical Guidance Document and latest template.
45. The Applicant shall submit, and gain approval of a final drainage study prepared in accordance with the County of San Bernardino Hydrology Manual and Fontana Master Plan of Drainage.
PRIOR TO ISSUANCE OF CONSTRUCTION PERMITS
46. The Applicant shall record all map’s, lot line adjustments, right-of-way dedications, easements, reciprocal access agreement as required for the development.
47. The Applicant shall submit engineered improvement plans and obtain full approval.
All required public improvements, including but not limited to streets, storm drainage systems, sewers, traffic signals, streetlights, striping, signs, landscape, and any required traffic control and/or detour plans. All plans shall conform to City Standards and Specifications, and as approved by the City Engineer.
48. Design the extension of Master Storm Drainage Plan Line DZ-7 in Oleander Ave together with an extension of Line DZ-7 to the project site to serve as the primary drainage discharge point for the project. Include a supporting hydrology and hydraulics study.
49. The Applicant shall perform a pavement quality analysis by a qualified geotechnical engineer for Slover Avenue and Cypress Avenue for the City to review and approve.
Slover Avenue and Cypress Avenue along the project frontage shall be fully replaced to bring the pavement structural section into conformance with City standards. Any remedial action less than full replacement shall be justified by the pavement analysis and shall bring the pavement condition to a 20-year pavement life.
PRIOR TO ISSUANCE OF FINAL CERTIFICATE OF OCCUPANCY
50. Construct the extension of Master Storm Drainage Plan Line DZ-7 in Oleander Ave together with an extension of Line DZ-7 to the project site.
51. The Applicant/Engineer to provide the City of Fontana with As Built/Record Drawings for all public improvement plans.
52. Slurry seal roads effected by the development as directed by the inspector. Slurry seal limits may extend past the project frontage to address existing striping/pavement markings that conflicts with new striping/pavement markings, repair trenches, and other areas as determined by the inspector.
53. The Applicant/Engineer shall provide centerline ties to the City of Fontana reflecting proper setting of all survey monuments within the project limits and replace any existing survey monuments damaged or removed during construction. 180 757
ATTACHMENT NO. 5
54. The Applicant/Engineer shall set survey monuments as required by the map and corner records must be recorded with the County.
55. The Applicant/Landscape Architect shall provide a “Landscape Certificate of Compliance” certifying that the work has been designed, installed, and will be maintained in accordance with the City of Fontana’s Model Water Efficiency Landscape Ordinance (Ordinance 1743, FCC Section 28).
56. All sewers shall be video inspected by applicant/contractor. Sewer video shall include clean-out connection, clean-out to lateral segment, lateral, and main line.
Contractor performing the video inspection must have a NASSCO PACP, LACP, and MACP certification. Applicant shall provide a copy of the video on DVD or flash drive to inspection staff with an accompanying full report. Videos to be inspected and approved by City Inspector. If removal and replacement of any utility is required, a subsequent video of the repair will be required. If a TCO (Temporary Certificate of Occupancy) is required a full video inspection will be required as well at that time.
57. All storm drains shall be video inspected by applicant/contractor. Storm drain video shall include main lines and laterals. Applicant shall provide a copy of the video on DVD or flash drive to inspection staff. Videos to be inspected and approved by City Inspector. If removal and replacement of any utility is required, a subsequent video of the repair will be required.
58. The Applicant/Engineer of Record shall submit a conforming copy of the recorded Memorandum of Agreement for the Water Quality Management Plan and Storm Water Best Management Practice transfer. The Access, Maintenance, and the WQMP Certification for BMP Completion must be submitted to the City Project Engineer.
59. Existing and proposed public catch basins in industrial areas shall be fitted with BioClean™ Connector Pipe Screen (CPS) trash screens in compliance with trash provisions of the water quality control plan for inland surface waters, enclosed bay and estuaries of California.
BUILDING & SAFETY:
60. Shall comply with the latest adopted edition of the following codes:
A. California Building Code
B. California Electrical Code
C. California Mechanical Code
D. California Plumbing Code
E. California Energy Code
F. California Fire Code
G. California Green Building Standards Code
181 758
ATTACHMENT NO. 5
61. Automatic fire sprinkler systems shall be installed in all new construction per Article II, Chapter 11 of the Code of the City of Fontana. Design and type of system shall be based upon the requirements of the Building Code, Fire Code and the requirements of the Department of Fire Protection, Planning and Engineering of the San Bernardino County Fire Department.
62. The requirements of the South Coast Air Quality Management District (909-396- 2000) shall be satisfied prior to the issuance of any permit if hazardous materials are stored and/or used.
63. Any temporary building, trailer, commercial coach, etc. installed and/or used in connection with a construction project shall comply with FMC Chapter 5 Article XIV.
64. The requirements of the Fontana Fire Protection District and the Air Quality Management District shall be satisfied prior to the issuance of any permit if hazardous materials are stored and/or used.
65. All perimeter/ boundary walls shall be designed and constructed so that the outer/exterior face of the wall is as close as possible to the property line. In any case, the outer/exterior face of the wall shall be within two (2) inches of the property line. Distances greater than two (2) inches may be approved prior to construction by the Building Official on a case-by-case basis for extenuating circumstances.
66. All lot lines, easement lines, etc. shall be located and/or relocated in such a manner as to not cause any existing structure to become non-conforming with the requirements of the latest adopted edition of the Building Code, or any other applicable law, ordinance, or code.
67. The Parcel Map shall record prior to the issuance of any building permits.
68. Grading Requirements:
A. Grading plans shall be submitted to and approved by the Building and Safety Department. The grading plans shall indicate all site improvements and shall indicate complete drainage paths of all drainage water run-off.
B. All drainage water shall drain via approved methods, to an approved location, such as a public street, public drainage system, etc.
C. Drainage water shall not cross over a public sidewalk. Drainage water may however, cross under a sidewalk if an approved drainage structure is used.
D. A recorded drainage acceptance agreement is required from adjoining property(s) receiving flows from this property.
E. No water course or natural drainage shall be obstructed. 182 759
ATTACHMENT NO. 5
F. Minimum slope or grade for ALL drainage structures shall be one half (0.50) percent for concrete and one (1.0) percent for all other, or as otherwise approved by the Building Official.
G. Drainage water shall not pass from an ‘improved’ type of drainage structure to an ‘unimproved’ type of drainage structure. (i.e., concrete swale to slag or dirt swale.) unless otherwise approved by the Building Official.
H. A complete hydrology study using the latest edition of the San Bernardino County Flood Control Hydrology Manual, and complete hydraulic calculations justifying the size, slope, capacity, etc. of any and all drainage structures being utilized, shall be submitted to, and approved by the Building and Safety Department.
The on-site drainage system shall, as a minimum, be designed to handle the run-off generated by a ten-year storm. Check for flooding of all on-site structures (buildings) and all adjacent properties during a hundred (100) year storm.
I. The grading plans shall, as a minimum, contain sections at all property lines and/or permit boundary lines. These sections shall clearly indicate:
i. The relationship between the proposed finished on-site grade elevations and the existing adjacent property grade elevations (Indicate any additional drainage water that may come from an adjacent property.); and ii. The ground cover/finished surface material being proposed (i.e.: type of pavement, plant material, etc.); and
iii. All proposed drainage structures; and
iv. Any proposed and/or required walls or fencing.
69. All signs shall be Underwriters Laboratories, or equal, approved.
70. All exterior lighting shall be orientated, directed, and/or shielded as much as possible so that direct illumination does not infringe onto adjoining properties.
Prior To Issuance of Building/Construction Permits
71. Permits are required prior to the removal and/or demolition of structures.
72. The following items (as applicable) shall be completed and/or submitted to Building and Safety prior to the issuance of building permits for this project:
A. Precise grading plans shall be approved
B. Rough grading completed
C. Compaction certification
D. Pad elevation certification
E. Rough grade inspection signed off by a City Building Inspector 183 760
ATTACHMENT NO. 5
73. If hazardous substances are used and/or stored, a technical opinion and report, identifying and developing methods of protection from the hazards presented by the hazardous materials may be required. This report shall be prepared by a qualified person, firm, or corporation and submitted to the Building and Safety Department.
This report shall also explain the proposed facility's intended methods of operation and list all of the proposed materials, their quantities, classifications, and the effects of any chemical (material) inter-mixing in the event of an accident or spill.
74. Please be aware that a Construction Waste Management Plan (CWMP) will be required at time of plan check submittal. For more information regarding waste diversion, please contact Burrtec Waste at (909) 889-0911.
75. For more information related to Building & Safety, please visit our web page at https://www.fontana.org/136/Building-Safety.
76. Trash enclosure required to be designed like a regular building in regard to Building Code setback requirements, fire-resistive walls, protected openings, etc.
SAN BERNARDINO COUNTY FIRE DEPARTMENT:
77. Jurisdiction. The above referenced project is under the jurisdiction of the San Bernardino County Fire Department serving the Fontana Fire Protection District (herein “Fire Department”). Prior to any construction occurring on any parcel, the applicant shall contact the Fire Department for verification of current fire protection requirements. All new construction shall comply with the current California Fire Code requirements and all applicable statutes, codes, ordinances, and standards of the Fire Department.
78. Fire Access Road Width. Prior to map recordation, all fire access roadways shall be designed to meet the requirements for this development and shall be approved by the Fire Department. All buildings shall have access provided by approved roads, alleys, and private drives with a minimum twenty-six (26) foot unobstructed width and vertically to fourteen (14) feet six (6) inches in height. Buildings three (3) stories in height or more shall have a minimum access of thirty (30) feet unobstructed width and vertically to fourteen (14) feet six (6) inches in height. California Fire Code Chapter 5 & SBCoFD Standard A-1
79. Turnaround. An approved turnaround shall be provided at the end of each roadway one hundred and fifty (150) feet or more in length. Cul-de-sac length shall not exceed six hundred (600) feet; all roadways shall not exceed a 12 % grade and have a minimum of nineteen (19) foot inside radius and a forty-five (45) foot outside radius for all turns. California Fire Code Chapter 5 & SBCoFD Standard A-1 184 761
ATTACHMENT NO. 5
80. Street Signs. Approved temporary or permanent street signs shall be installed throughout the project prior any combustible materials being placed on the construction site. California Fire Code Chapter 5 & SBCoFD Standard A-2
81. Fire Lanes. The applicant/developer/property owner shall submit a site plan to the Fire Department for review and approval of all proposed signage and striping for all fire access roadways. All curbs adjacent to fire lanes shall be painted red and “No Parking, Fire Lane” signs shall be installed on public and private roads in accordance with approved standards. SBCoFD Standard A-2.
82. Water System Commercial. Prior to map recordation or lot line adjustment, all water supply systems shall be designed to meet the required fire flow for this development and shall be approved by the Fire Department. The required fire flow shall be determined by using Appendix BB of the California Fire Code. A minimum of one new six (6) inch fire hydrant assembly with two (2) two and one half (2 1/2) inch and one (1) four (4) inch outlet (4”x2.5”x2.5”) shall be provided. All fire hydrants shall be spaced no more than three hundred (300) feet apart as measured along vehicular travel-ways. California Fire Code Chapter 5 & SBCoFD Standard W-2.
The Fire Flow for this project shall be: 4,000 GPM for a two-hour duration at 20 psi residual operating pressure. Fire Flow is based on a 623,460 square foot structure.
83. Hydrant Marking. Blue reflective pavement markers indicating fire hydrant locations shall be installed as specified by the Fire Department. SBCoFD Standard W-2
84. Water Improvement Plan: The applicant shall submit “Water Improvement Plans” to Fontana Fire Prevention. W.I.P. to include site plan, existing & proposed PUBLIC fire hydrant locations, building construction type and largest building square footage.
Once approved by Fire Department, applicant will provide stamped/approved W.I.P to water purveyor for their construction needs. ON-SITE PRIVATE FIRE WATER
SUPPLY SHALL BE INSPECTED AND IN WORKING CONDITION PRIOR TO PLACING COMBUSTIBLE MATERIALS ON THE JOBSITE. California Fire Code Chapter 5
85. Combustible Protection. Prior to combustibles being placed on the project site an approved paved roadway providing fire access and fire hydrants providing an acceptable fire flow shall be installed. California Fire Code Chapter 5.
86. Fire Sprinkler-NFPA #13. An automatic fire sprinkler system complying with NFPA 13, and Fire Department standards is required. A fire sprinkler contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The plans shall include hydraulic calculations and manufacturer specification sheets. The required fees shall be paid at the time of plan submittal.
California Fire Code Chapter 9 & SBCoFD Standard F-1
87. Fire Alarm, Waterflow Monitoring. A water flow monitoring fire alarm system complying with the California Fire Code, NFPA and all applicable codes is required 185 762
ATTACHMENT NO. 5
for fire sprinkler systems with twenty (20) sprinkler heads or more. A fire alarm contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The required fees shall be paid at the time of plan submittal.
California Fire Code Chapter 9, NFPA 72 & SBCoFD Standard F-5
88. Smoke Removal. An automatic smoke removal system complying with the California Fire Code, NFPA and all applicable codes is required. The applicant shall submit three (3) sets of detailed smoke removal system plans to the Fire Department for review and approval. The required fees shall be paid at the time of plan submittal.
California Fire Code Chapter 9
89. Fire Extinguishers. Hand portable fire extinguishers are required. The location, type, and cabinet design shall be approved by the Fire Department. California Fire Code Chapter 9
90. Commercial (large facility) Addressing. Industrial developments in excess of 100,000 sq. ft. shall have the street address installed on the building with numbers that are a minimum twelve (12) inches in height and with a one and one half (1 ½) inch stroke. The street address shall be visible from the street. During the hours of darkness, the numbers shall be electrically illuminated (internal or external). Where the building is two hundred (200) feet or more from the roadway, additional nonilluminated contrasting six (6) inch numbers shall be displayed at the property access entrances. California Fire Code Chapter 5 & SBCoFD Standard B-1
91. Key Box. An approved Fire Department key box is required. The key box shall be provided with a tamper switch and shall be monitored by a Fire Department approved central monitoring service. California Fire Code Chapter 5 & SBCoFD Standard A-4
92. Security Gates. In commercial, industrial and multi-family complexes, all swing gates shall have an approved fire department Knox Lock. Where an automatic electric security gate is used, an approved Fire Department override switch is required. California Fire Code Chapter 5 & SBCoFD Standard A-3
93. Material Identification Placards. The applicant shall install, in all locations deemed appropriate by the Fire Department, approved material identification placards on the outside of all buildings and/or storage tanks that store hazardous or flammable materials. Additional placards shall be required inside the buildings when chemicals are segregated into separate areas. California Fire Code Chapter 50 & NFPA 704
94. High-Piled Storage. The applicant shall submit an application for a High-Piled Storage permit for storage of over 12-foot in height of Class I-IV commodities and/or over 6’ in height of high hazard commodities. Three (3) sets of detailed plans and a commodity analysis report shall be submitted to the Fire Department for review and approval. The applicant shall submit to the Fire Department concurrently with any 186 763
ATTACHMENT NO. 5
racking permits to the Building and Safety Department. California Fire Code Chapter 32 & SBCoFD Standard S-1
95. Secondary Access. The development shall have a minimum of two points of vehicular access during each phase of construction for fire and emergency access purposes and for evacuation routes. SBCoFD Standard A-1
END OF CONDITIONS OF APPROVAL
187 764
ATTACHMENT NO. 6
NOTICE OF DETERMINATION
TO: X County Clerk, County of FROM: City of Fontana
San Bernardino Planning Department
8353 Sierra Avenue
X Office of Planning and Research Fontana, CA 92335
SUBJECT: Filing of Notice of Determination in Compliance with Section 21152 of the Public Resources Code.
Project Title: Master Case No. 21-038, Tentative Parcel Map No. 21-007 (TPM No. 20456) and Design Review No. 21-013, and Final Environmental Impact Report (EIR) – Slover/Cypress Warehouse Development Project
State Clearinghouse Number: 202112059
Name of Person or Agency carrying out project: Jon Dille – Associate Planner. City of Fontana (Lead Agency) 8353 Sierra Avenue, Fontana, CA 92335.
Project Location: The project site is located on the northwest corner of the intersection of Slover Avenue and Cypress Avenue over 22 parcels (APNs: 0251-163-01, -02, -03, -04, -05, -06, -07, - 08, -09, -10, & -13, and 0251-164-03, -04, -10, -11, -12, -14, -15, -16, -20, -23, & -25) Project Description: Master Case No. 22-038: Tentative Parcel Map No. 21-007 (TPM No. 20456) and Design Review No. 21-013 - The consolidation of 22 lots into one (1) to develop the site with an industrial warehouse building totaling approximately 625,460 square feet on approximately 29.08 acres.
Project Proponent & Address: Duke Realty/Prologis, 200 Spectrum Center Drive, Suite No, 1600 Irvine, CA 92618
Contact Name & Phone: Jon Dille (909 350-6681)
This is to certify that on March 19, 2024, the Planning Commission of the City of Fontana approved the above-described project along with the aforementioned Final EIR, and made the following determinations:
1. The project _X_ will will not have a significant effect on the environment.
2. A Subsequent EIR was prepared and fully analyzed the effects of the project. The Subsequent EIR thoroughly analyzed and discussed all potential environmental impacts.
3. Mitigation measures X were were not made a condition of the approval of the project.
4. A Statement of Overriding Considerations _X_ was was not adopted for this project.
5. Findings X were were not made pursuant to the provisions of CEQA.
6. The location and custodian of the documents which comprise the record of proceedings for the Subsequent EIR are specified as follows:
Custodian: City of Fontana, Planning Department
Location: 8353 Sierra Avenue, Fontana, CA 92335
____________________________
Salvador Quintanilla
Senior Planner
Date Received for Filing
188 765
ATTACHMENT NO. 7
NOTICE OF PUBLIC HEARING
In compliance with Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof, the Agenda will be made available in appropriate alternative formats to persons with a disability. Should you need special assistance to participate in this meeting, please contact the City Clerk’s Department by calling (909) 350-7602. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
A PUBLIC HEARING HAS BEEN SCHEDULED BEFORE THE PLANNING COMMISSION OF THE CITY OF FONTANA FOR THE FOLLOWING:
MASTER CASE NO. 21-038, TENTATIVE PARCEL MAP NO. 21-007 (TPM NO. 20456) AND DESIGN REVIEW NO. 21-013
The applicant, Duke Realty/ PROLOGIS, is requesting approval of a Tentative Parcel Map to consolidate 22 parcels into one parcel and is requesting approval of a Design Review for the site and architectural review to construct a 623,460 square foot industrial commerce center building including on-site and off-site improvements on a project site of approximately 29.8 acres.
Environmental
Determination:
This project has been determined to have a significant effect on the environment and a Draft Environmental Impact Report (EIR) (SCH No. 202112059) has been prepared pursuant to Sections 15080 to 15097 and Section 15163 of the California Environmental Quality Act (CEQA).
Location: The project site is located
on the northwest corner of
the intersection of Slover
Avenue and Cypress
Avenue over 22 parcels
(APNs: 0251-163-01, -02,
-03, -04, -05, -06, -07, -08,
-09, -10, & -13, and 0251-
164-03, -04, -10, -11, -12,
-14, -15, -16, -20, -23, & -
25)
Date of Hearing: March 19, 2024
Place of
Hearing:
City Hall Council
Chambers
8353 Sierra Avenue
Fontana, CA 92335
Time of
Hearing:
6:00 PM
189 766
The City of Fontana (City) has prepared a Final Environmental Impact Report (FEIR) for the proposed project. The FEIR is available for review at City Hall (8353 Sierra Avenue Fontana, CA 92335) and online at Environmental Documents | Fontana, CA - Official Website (fontanaca.gov).
Should you have any questions concerning this project, please contact Jon Dille, Associate Planner, at (909) 350-6681 or email him at [email protected].
ANY INTERESTED PARTY MAY APPEAR AND PRESENT ANY INFORMATION WHICH MAY BE OF ASSISTANCE TO THE PLANNING COMMISSION. A COPY OF THE APPLICATION AND
ENVIRONMENTAL DOCUMENTATION IS AVAILABLE FOR INSPECTION IN THE PLANNING DEPARTMENT, CITY HALL AND ON THE WEBSITE.
IF YOU CHALLENGE IN COURT ANY ACTION TAKEN CONCERNING A PUBLIC HEARING
ITEM, YOU MAY BE LIMITED TO RAISING ONLY THOSE ISSUES YOU OR SOMEONE ELSE
RAISED AT THE PUBLIC HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE TO THE CITY AT, OR PRIOR TO, THE PUBLIC HEARING.
Publish: March 8, 2024
190 767
Excerpt from Planning Commission Minutes of March 19, 2024 PH-B Master Case No. 21-038: Tentative Parcel Map No. 21-007 (TPM No. 20456) and Design Review No. 21-013 - A request to consolidate 22 parcels into one (1) parcel to facilitate the development of a new industrial commerce center building totaling 623,460 square feet with approximately 14,000 square feet of office/mezzanine space on an approximately 29.8 acres site, pursuant to the certification of the Final Environmental Impact Report (FEIR), Mitigation Monitoring and Reporting Program, CEQA Findings, and Statement of Overriding Consideration.
Chair Fort opened the Public Hearing.
Jon Dille, Associate Planner, presented the staff report and noted the memorandum that was distributed to the commission, requesting to revise various conditions of approval that are no longer needed and therefore are recommended to be removed.
The commission and staff discussed the removal of conditions of approval related to the storm drainage and the project’s retaining/screening wall and color of window framing.
The applicant Myra Ramirez, on behalf of Duke Realty/ Prologis, stated that she had read and agreed to the Conditions of Approval.
The City Clerk’s Department received three (3) written correspondences in opposition of this item.
The following individuals spoke in opposition:
• Wanyae Mc Donald
• Salvador Rincon
• Zach Strasters
• Robert Lujan
• Andrew Graf
• Godfrey Wachira
• Forrest Peck
• Jason Ellis
• Elizabeth Sena
• Joaquin Castillejos
The following individuals spoke in favor:
• Juan Serrato
• Jonathan Daily
• Amanda Morales
• Eddie Campos
ATTACHMENT NO. 6
768
Excerpt from Planning Commission Minutes of March 19, 2024 • Jon Shardlow
The Public Hearing was closed.
The commission and staff discussed traffic and the commission requested clarification on any existing city requirements that would mandate the developers to utilize union labor.
RECOMMENDATION:
1. Based on the information in the staff report and subject to the attached Findings and Conditions of Approval, staff recommends that the Planning Commission adopt Resolution No. PC 2024-017, and,
a. Certify the Final Environmental Impact Report (FEIR), adopt a Statement of Overriding Consideration, a Mitigation Monitoring and Reporting Program, and a Statement of Facts and Findings, and direct staff to file a Notice of Determination.
2. Based on the information in the staff report and subject to the attached Findings and Conditions of Approval, staff recommends that the Planning Commission adopt Resolution PC No. 2024-018; and,
a. Approve Tentative Parcel Map No. 21-007 (TPM No. 20456); and, b. Approve Design Review No. 21-013.
ACTION: Motion was made by Commissioner Thrasher and seconded by Commissioner Sangha and passed by a vote of 4-0 to approve Public Hearing Item “B”; adopt Resolution PC No. 2024-017 and 018; Master Case No. 21-038: Tentative Parcel Map No. 21-007 (TPM No. 20456) and Design Review No. 21-013 with amended conditions of approval.
The motion carried by the following vote:
AYES: Chair Fort, Secretary Quintana, Commissioners Sangha, and Thrasher; NOES: None; ABSTAIN: None. ABSENT: Vice Chair Sanchez
769
770
771
ATTACHMENT NO. 8
NOTICE OF PUBLIC HEARING
SI DESEA INFORMACION EN ESPAÑOL REFERENTE A ESTA NOTIFICACION O PROYECTO, FAVOR DE COMUNICARSE AL (909) 350-6728.
In compliance with Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof, the Agenda will be made available in appropriate alternative formats to persons with a disability. Should you need special assistance to participate in this meeting, please contact the City Clerk’s Department by calling (909) 350-7602. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
A PUBLIC HEARING HAS BEEN SCHEDULED BEFORE THE CITY COUNCIL OF THE CITY OF FONTANA FOR THE FOLLOWING:
Appeal (APL) No. 24-003, APL No. 24-004 and APL No. 24-006/ Master Case No. 21-038
A request by Golden State Environmental Justice Alliance, Advocates for the Environment, and Adams, Broadwell, Joseph & Cardozo (“The Appellants) to appeal the Planning Commission’s decision on March 19, 2024, which approved Master Case No. 21-038 for Tentative Parcel Map No. 21-007 (TPM No. 20456) and Design Review No. 21-013 along with the certification of an Final Environmental Report (FEIR) State Clearinghouse Number (SCH No. 2021120059), Monitoring, and Reporting Program, (MMRP) to facilitate the consolidation of 22 parcels into one parcel and the development of an industrial warehouse building totaling approximately 623,460 square feet on approximately 29.8 acres (APNs: 0251-163-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, & -13, and 0251-164-03, -04, -10, -11, -12, -14, -15, -16, -20, -23, & -25).
Environmental Determination: On March 19, 2024, the City certified a Final Environmental Impact Report (FEIR) to the previously certified Final Program Environmental Impact Report (FEIR) in accordance with Sections 15162 of the California Environmental Quality Act Guidelines. This document can be reviewed at City Hall (8353 Sierra Avenue Fontana, CA 92335) and online at https://www.fontanaca.gov/2137/Environmental-Documents .
Location of Property: The project site is located on the northwest corner of Slover Avenue and Cypress Avenue (APNs: 0251-163-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, & -13, and 0251-164-03, -04, -10, -11, -12, -14, -15, -16, -20, -23, & -25)
Date of Hearing: May 14, 2024
Place of Hearing: City Hall Council Chambers
8353 Sierra Avenue
Fontana, CA 92335
Time of Hearing: 2:00 PM
772
Should you have any questions concerning this project, please contact Jon Dille, Associate Planner, at (909) 350-6681, e-mail: [email protected].
ANY INTERESTED PARTY MAY PROVIDE INFORMATION BY LETTER OR EMAIL WHICH MAY BE OF ASSISTANCE TO THE CITY COUNCIL. A COPY OF THE APPLICATION AND ENVIRONMENTAL DOCUMENTATION IS AVAILABLE FOR INSPECTION. PLEASE CONTACT THE PLANNER LISTED ABOVE.
IF YOU CHALLENGE IN COURT ANY ACTION TAKEN CONCERNING A PUBLIC HEARING ITEM, YOU
MAY BE LIMITED TO RAISING ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED AT THE
PUBLIC HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE TO THE CITY AT, OR PRIOR TO, THE PUBLIC HEARING.
Publish date: May 3, 2024
773
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2963 Agenda Date: 5/14/2024
Agenda #: C. Category: Public Hearing
FROM:
Planning Department
SUBJECT:
Appeal No. 24-002 and Appeal No. 24-005: Requests to overturn the Planning Commission’s March 19, 2024 decision approving Tentative Parcel Map No. 23-012 (TPM No. 20710) and Design Review No. 22-064 along with the certification of a Final Subsequent Environmental Report State Clearinghouse Number (SCH No. 2009091089) and adoption of a Mitigation, Monitoring, and Reporting Program, for the consolidation of three parcels into one parcel and development of an industrial warehouse building totaling approximately 881,826 square feet on approximately 40.01 acres located at 11115 Hemlock Avenue (APNs: 0237-131-25, 0237-131-26, and -27).
RECOMMENDATION:
1. Deny Appeal No. 24-002 and Appeal No. 24-005, thereby upholding the Planning Commission’s decision on March 19, 2024, approving Tentative Parcel Map No. 23-012 (TPM No. 20710) and Design Review No. 22-064 along with the certification of a Final Subsequent Environmental Report (FSEIR) State Clearinghouse Number (SCH No. 2009091089) and adoption of a Mitigation Monitoring and Reporting Program (MMRP) for the consolidation of three parcels into one parcel and development of an industrial warehouse building totaling approximately 881,826 square feet on approximately 40.01 acres located at 11115 Hemlock Avenue (APNs: 0237-131-25, 0237-131-26, and -27).
2. Uphold the Planning Commission decision to certify the FSEIR, SCH No. 2009091089, and adopt the MMRP and direct staff to file a Notice of Determination.
APPELLANTS / APPEAL APPLICANTS:
Appeal No. 24-002: Golden State Environmental Justice Alliance, PO Box 79222, Corona, CA 92877 Appeal No. 24-005: Adams Broadwell Joseph and Cardozo for Californians Allied for a Responsible Economy (CARE CA): 601 Gateway Boulevard Ste 1000, South San Francisco, CA 94080 COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by establishing a quick, consistent development process. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.
DISCUSSION:
On March 26, 2024, the City received an application for an appeal (Appeal No. 24-002) from Golden State Environmental Justice Alliance; and on April 1, 2024, the City received an application for an City of Fontana Page 1 of 3 Printed on 5/6/2024
powered by Legistar™774
File #: 21-2963 Agenda Date: 5/14/2024
Agenda #: C. Category: Public Hearing
State Environmental Justice Alliance; and on April 1, 2024, the City received an application for an appeal (Appeal No. 24-005) from Adams Broadwell Joseph and Cardozo die Californians Allied for a Responsible Economy (CARE CA). Both applications request overturn of the Planning Commission approval of the consolidation of three parcels into one parcel and development of an industrial warehouse building totaling approximately 881,826 square feet.
Project entitlements include Tentative Parcel Map No. 23-012 (TPM No. 20710) and Design Review No. 22-064 along with the certification of an Final Subsequent Environmental Report (FSEIR) State Clearinghouse Number (SCH No. 2009091089), Monitoring, and Reporting Program, (MMRP) for the consolidation of three parcels into one parcel and development of an industrial warehouse building totaling approximately 881,826 square feet on approximately 40.01 acres located at 11115 Hemlock Avenue (APNs: 0237-131-25, 0237-131-26, and -27).
Background:
The Planning Commission held a public hearing on March 19, 2024, and approved Tentative Parcel Map No. 23-012 (TPM No. 20710) and Design Review No. 22-064, along with certifying the Final Subsequent Environmental Report (FSEIR) State Clearinghouse Number (SCH No. 2009091089), an MMRP and a Statement of Facts and Findings for the project with adoption of Resolution PC Number 2024 - 020 and Resolution PC Number 2024 - 021, respectively, with a vote of 4-0. During this hearing, the Planning Commission also voted (4-0) to adopt Resolution PC Number 2024-022 to forward a recommendation to City Council to adopt an Ordinance approving the Development Agreement No. 24-002 that provides for extended timing of entitlements along with enhance environmental measures in association with a new industrial commerce center. The staff report and attachments for the March 19, 2024 Planning Commission hearing for this project, along with meeting minutes, are included as Attachments 4 and 5, respectively, to this staff report.
The Subsequent EIR (SEIR) for the Hemlock Warehouse Development Project (SCH No. 2009091089) was made available for the public review at the City’s website:
<https://www.fontanaca.gov/2137/Environmental-Documents> (Hemlock Warehouse) and at the front counter and reviewed by the Planning Commission at the November 7, 2023 and March 19, 2024 regular meetings.
Appeal:
Subsequent to the Planning Commission March 19, 2024 approval, the City received appeal applications from the following entitles:
1. Golden State Environmental Justice Alliance filed an appeal (Appeal No. 24-002) application and letter (Attachment No. 2) filed on March 26, 2024; and
2. Californians Allied for a Responsible Economy c/o Andrew Graf, Adams Broadwell Joseph and Cardozo filed an appeal (Appeal No. 24-005) application and letter (Attachment No. 3) filed on April 1, 2024.
In summary, the appellants’ letters include assertions that:
· There are flaws in the Subsequent Environmental Impact Report (SEIR) and CEQA process; · The Subsequent Environmental Impact Report (SEIR) fails as an informational document and City of Fontana Page 2 of 3 Printed on 5/6/2024
powered by Legistar™775
File #: 21-2963 Agenda Date: 5/14/2024
Agenda #: C. Category: Public Hearing
fails to meaningfully disclose and analyze all significant air quality, greenhouse gases (GHG), transportation, and utility impacts;
· A new revised EIR should be prepared due to deficiencies of the SEIR; · The Planning Commission’s certification of the FSEIR was premature and in violation of CEQA because the City Council has not yet considered the Project’s development agreement.
The project environmental consultant (EPD Solutions) that prepared the Subsequent EIR for the Hemlock Warehouse Development Project (SCH No. 2009091089) has prepared detailed written responses to each of appellant’s claims regarding potential environmental impacts and indicates that they have been considered and determined to be without merit and the Subsequent EIR prepared for the project complies with the provisions in CEQA. The responses are included with Attachment Nos. 2 and 3.
FISCAL IMPACT:
None
MOTION:
Approve staff recommendation.
ATTACHMENTS:
1. Vicinity Map
2. Appellant letter (Golden State Environmental Justice Alliance) and Response Memorandum
3. Appellant letter (Californians Allied for a Responsible Economy) and Response Memorandum
4. Planning Commission March 19, 2024 public hearing packet
5. Planning Commission Minutes
6. Clerk of the Board Fee Receipt and NOD
7. Public Hearing Notice
City of Fontana Page 3 of 3 Printed on 5/6/2024
powered by Legistar™776
ATTACHMENT NO. 1
VICINITY MAP
DATE: May 14, 2024
CASE: Appeal (APL) Nos. 24-002 and 24-005 CITY OF FONTANA PLANNING
DEPARTMENT
777
778
779
780
16498.40162\42162395.1
Date: March 27, 2024
Prepared by: Renee Escario, [email protected]
To: Rina Leung, [email protected]
Project: Hemlock Warehouse Development Project
Subject: Responses to Golden State Environmental Justice Alliance (GSEJA) Letter Dated March 25, 2024
This memo contains responses to CEQA related comments raised in the letter that the City of Fontana received on March 26, 2024 that appeals the City’s Planning Commission approval of the Hemlock Warehouse Development Project, which occurred on March 19, 2024. The content of these comments and the concerns that are expressed have been previously submitted by the commenting organization in a comment letter to the Draft Subsequent EIR and a comment letter to the Planning Commission. These comments have been previously responded to in the Final Subsequent EIR, as detailed below.
As further detailed in the individual responses to comments below, none of the comments indicate that there would be a substantial increase in the severity of a previously identified environmental impact that would not be mitigated, or that there would be any of the other circumstances requiring recirculation as described in CEQA Guidelines Section 15088.5. No new significant environmental impact would result from the Project or from a new mitigation measure proposed to be implemented, there is no substantial increase in the severity of an environmental impact, no feasible project alternative or mitigation measure considerably different from others previously analyzed would lessen the environmental impacts of the Project, and the Subsequent EIR is not fundamentally inadequate and conclusory in nature.
ATTACHMENTS
ATTACHMENT A: The previously sent comment letter from GSEJA on December 11, 2024 (p.4-153)
781
16498.40162\42162395.1
Response to Golden State Environmental Justice Alliance Appeal Letter, dated March 25, 2024 Comment 1: This comment states that the Golden State Environmental Justice Alliance is appealing the Fontana City Planning Commission approval of the Hemlock Warehouse Development Project (“Project”), which occurred on March 19, 2024. The commenter states that the appeal seeks to reverse the approval decision and that multiple arguments discussing flaws were presented in an EIR comment letter dated December 11, 2023 and a Planning Commission comment letter dated March 18, 2024. The comment states that the Planning Commission failed to adequately address the environmental, social, and economic justice burden placed on the City of Fontana residents. The comment states that the Planning Commission should have requested a new EIR be prepared due to deficiencies in the EIR and continued air quality and traffic impacts as identified in the December 11, 2023 letter.
Response 1: The previously submitted comment letter dated December 11, 2023 that was sent on behalf of GSEJA and responses to the environmental comments raised within it, was provided as Letter O1 within the Final Subsequent EIR (pages 2-15 through 2-187). As detailed within the responses to these previous comments, the Subsequent EIR is not flawed and does not need to be recirculated for public review.
Appellant provides no legal authority in support of its proposition that the Planning Commission failed to perform a duty to address the environmental, social, and economic justice issues in connection with certification of the Subsequent EIR and approval of the Project.
Similarly, Appellant provides no legal authority in support of its position that a new EIR should be prepared for the Project due to air quality and traffic impacts of the Project. The air quality and transportation impacts were evaluated in Section 5.1, Air Quality and Section 5.4, Transportation of the Draft Subsequent EIR. The Subsequent EIR found that despite the incorporation of all feasible mitigation measures, the Project would nonetheless result in significant and unavoidable operational impacts relating to air quality. Pursuant to Section 15093 of the State CEQA Guidelines, the Planning Commission adopted CEQA Findings of Fact and Statement of Overriding Considerations to address those significant and unavoidable impacts. The Subsequent EIR also determined that mitigation measures and standard conditions were required to mitigate impacts to a less than significant level for transportation.
Comment 2: This comment states that the Planning Commission erred in approving the Project by determining that the Project would not impact a pollution burdened traffic congested area, that the City did not adequately investigate or mitigate the Project, and that under CEQA, the City must “take all action necessary to provide the people of this state with clean air and water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities, and freedom from excessive noise.” Response 2: This comment does not provide specific detailed comments related to the Subsequent EIR analysis or provide substantial evidence of impacts related to the Project and the environmental issues raised.
As set forth in Resolution PC 2024-020, adopted by the Planning Commission, the Subsequent EIR determined that mitigation measures and generally applicable standard conditions of approval were required to mitigate impacts from the Project to a less than significant level for the following resource areas: Aesthetics, Air Quality, Biological Resources, Cultural Resources, Geology and Soils, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Noise, Transportation, Tribal Cultural Resources, and Wildfire. The Subsequent EIR further concluded that despite the incorporation of all feasible mitigation measures, the Project would nonetheless result in significant and unavoidable operational impacts relating to Air Quality. Pursuant to Section 15093 of the State CEQA Guidelines, the Planning Commission adopted CEQA Findings of Fact and a Statement of Overriding Considerations with regard to those significant and unavoidable impacts.
782
16498.40162\42162395.1
Impacts related to water quality were identified to be less than significant with implementation of existing regulations (Appendix A pages 79 through 85 of the Draft Subsequent EIR). The Project site and surrounding areas do not consist of aesthetic natural scenic, or historic areas. The Project site is developed with an industrial use and located in an urban and industrially developed area within the SWIP SCD that provides for light industrial and warehousing uses. The site is in proximity to the I-10 and surrounded by trucking related industrial uses that are not natural, scenic, or historic. The Project site is adjacent to industrial uses to the north and south, and roadways followed by industrial uses to the east and west. As detailed in Section
5.3, Noise, of the Draft Subsequent EIR, the Project would result in less than significant impacts related to noise.
The Project site has a General Plan Land Use designation of General Industrial (I-G) and within the SWIP SCD that provides for light and heavy manufacturing activities at a maximum FAR of 0.80. The Project results in a FAR of 0.543; and therefore, within the anticipated buildout of the Project site and SWIP area (Appendix A page 38 of the Draft Subsequent EIR). As described in Response O1.17 (pages 2-175 and 2- 176) of the Final Subsequent EIR, Draft Subsequent EIR Table 5.4-2 (page 5.4-10) provides a comparison of the Project’s trip generation and the trip generation identified for the site from the SWIP SP EIR traffic analysis, which shows that the Project would generate 1,368 fewer ADT, with 216 fewer AM peak hour trips and 217 fewer PM peak hour trips than previously anticipated from buildout of the site. Thus, the Project would reduce the previously anticipated trips from the area. However, consistent with the findings of the SWIP Final EIR, impacts related to operational regional air quality (NOx emissions from vehicle and truck trips) were determined to be significant and unavoidable. Air quality impact related comments have been previously responded to in the Final Subsequent EIR in Response O1.15 (pages 2-174 and 2-175), as included below:
783
16498.40162\42162395.1
Finally, Appellant provides no evidence to support its claim that the City has failed to comply with the State’s policy requiring it to “take all action necessary to provide the people of this state with clean air and water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities, and freedom from excessive noise.”
Comment 3: This comment states that the appeal addresses the Planning Commission’s understanding of the purpose of CEQA and that the importance of a healthy environment for all is reflected in the purpose of CEQA. The comment includes text from Public Resources Code Section 21000 related to maintenance of a quality environment as a matter of statewide concern, identification of thresholds related to health and safety, prevention of environmental damage, and the same public resource code text listed previously in Comment 2. The comment also includes a definition of environmental justice from Section 65040.12(e) of the Government Code related to fair treatment of all people with respect to environmental laws, regulations, and policies; and not burdening sensitive populations and communities.
Response 3: This comment does not provide specific detailed comments related to the CEQA analysis within the Subsequent EIR, nor does it claim that the Planning Commission and the Subsequent EIR have failed to comply with CEQA or any other laws. The SWIP and Project specific mitigation measures that are included in the Final Subsequent EIR are intended to maintain the quality of the environment and prevent environmental damage. The Draft Subsequent EIR includes thresholds related to the health and safety of people, some of which are described previously in Response 2. Response related to the comment text from Public Resources Code Section 21000, subsection (b) is provided previously in Response 2.
Also, the Final Subsequent EIR in Response O1.15 (pages 2-174 and 2-175), as included previously in Response 2, details that CEQA is an environmental protection statute that is concerned with physical changes
784
16498.40162\42162395.1
to the environment (CEQA Guidelines Section 15358(b)). The environment includes land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance (CEQA Guidelines Section 15360). The Project’s potential environmental justice effects are not considered effects on the environment (CEQA Guidelines Sections 15064(e) and 15131(a)). However, localized impacts, such as air quality, to the surrounding community were evaluated pursuant to CEQA, which determined that SCAQMD localized thresholds would not be exceeded (as also detailed previously in Response 2).
Comment 4: This comment states that the previous comments dated March 18, 2024 include CalEnviro Screening Information depicting the severity of the air pollution that should provide enough data to reconsider the Project approval and request a new EIR.
Response 4: This comment does not provide specific detailed comments related to the CEQA analysis within the Subsequent EIR. Appellant provides no legal authority to support the proposition that the Cal Enviro Screening information created any obligation for the City to reconsider approval of the Project or to prepare a new EIR. The response memo to the March 18, 2024 GSEJA Planning Commission Comment Letter was provided as part of the Planning Commission staff report/agenda packet and describes that CalEnviroscreen is a general policy tool that is generally inappropriate for CEQA review. The response also provided information included in Final Subsequent EIR Response O.15 (above) related to the existing pollution burden of the Project vicinity and the detailed evaluation of the potential air quality related impacts of the Project upon the surrounding community pursuant to SCAQMD methodology. See previously included Final Subsequent EIR Response O.15. Also see Final Subsequent EIR Response O1.32 on pages 2-181 through 2- 182 that responds to this previously submitted CalEnviro Screening Information.
Comment 5: This comment states that due to the reasons listed in the letter and those listed in the previous comment letters, the GSEJA believes the Subsequent EIR is flawed and that a new EIR should be prepared and circulated. The comment requests that the City of Fontana reverse the decision of the Planning Commission’s approval of the Project and require a new EIR.
Response 5: Appellant provides no legal authority to support the proposition that a new EIR should be prepared for the proposed Project. Similarly, Appellant provides no legal authority to support the proposition that City Council should reverse the Planning Commission’s decision to approve the Project. This comment does not provide specific detailed comments related to the CEQA analysis within the Subsequent EIR but refers to previous comments. Responses to all previously provided comments from the commenter have been provided in either the Final Subsequent EIR or the Response Memo dated March 19, 2024 that was included in the Planning Commission Staff Report for the Project. This comment does not identify any of the conditions that would require recirculation of the Draft Subsequent EIR pursuant to CEQA Guidelines Section 15088.5. No new significant environmental impact would result from the Project or from a new mitigation measure proposed to be implemented, there is no substantial increase in the severity of an environmental impact, no feasible project alternative or mitigation measure considerably different from others previously analyzed would lessen the environmental impacts of the Project, and the Subsequent EIR is not fundamentally inadequate and conclusory in nature.
Attachment A (p. 4-153): The comment letter has attached the previously sent comment letter from December 11, 2023.
Response to Attachment A: Responses to the comment letter from December 11, 2023 are provided in the Final Subsequent EIR on pages 2-165 through 2-187.
785
1 1
786
2 3
2
787
3 cont.45
3
788
Attachment A
4 ATTACHMENT A
789
5 ATTACHMENT A
790
6 ATTACHMENT A
791
7 ATTACHMENT A
792
8 ATTACHMENT A
793
9 ATTACHMENT A
794
10 ATTACHMENT A
795
11 ATTACHMENT A
796
12 ATTACHMENT A
797
13 ATTACHMENT A
798
14 ATTACHMENT A
799
15 ATTACHMENT A
800
16 ATTACHMENT A
801
17 ATTACHMENT A
802
18 ATTACHMENT A
803
19 ATTACHMENT A
804
20 ATTACHMENT A
805
21 ATTACHMENT A
806
22 ATTACHMENT A
807
23 ATTACHMENT A
808
24 ATTACHMENT A
809
25 ATTACHMENT A
810
26 ATTACHMENT A
811
27 ATTACHMENT A
812
28 ATTACHMENT A
813
29 ATTACHMENT A
814
30 ATTACHMENT A
815
31 ATTACHMENT A
816
32 ATTACHMENT A
817
33 ATTACHMENT A
818
34 ATTACHMENT A
819
35 ATTACHMENT A
820
36 ATTACHMENT A
821
37 ATTACHMENT A
822
38 ATTACHMENT A
823
39 ATTACHMENT A
824
40 ATTACHMENT A
825
41 ATTACHMENT A
826
42 ATTACHMENT A
827
43 ATTACHMENT A
828
44 ATTACHMENT A
829
45 ATTACHMENT A
830
46 ATTACHMENT A
831
47 ATTACHMENT A
832
48 ATTACHMENT A
833
49 ATTACHMENT A
834
50 ATTACHMENT A
835
51 ATTACHMENT A
836
52 ATTACHMENT A
837
53 ATTACHMENT A
838
54 ATTACHMENT A
839
55 ATTACHMENT A
840
56 ATTACHMENT A
841
57 ATTACHMENT A
842
58 ATTACHMENT A
843
59 ATTACHMENT A
844
60 ATTACHMENT A
845
61 ATTACHMENT A
846
62 ATTACHMENT A
847
63 ATTACHMENT A
848
64 ATTACHMENT A
849
65 ATTACHMENT A
850
66 ATTACHMENT A
851
67 ATTACHMENT A
852
68 ATTACHMENT A
853
69 ATTACHMENT A
854
70 ATTACHMENT A
855
71 ATTACHMENT A
856
72 ATTACHMENT A
857
73 ATTACHMENT A
858
74 ATTACHMENT A
859
75 ATTACHMENT A
860
76 ATTACHMENT A
861
77 ATTACHMENT A
862
78 ATTACHMENT A
863
79 ATTACHMENT A
864
80 ATTACHMENT A
865
81 ATTACHMENT A
866
82 ATTACHMENT A
867
83 ATTACHMENT A
868
84 ATTACHMENT A
869
85 ATTACHMENT A
870
86 ATTACHMENT A
871
87 ATTACHMENT A
872
88 ATTACHMENT A
873
89 ATTACHMENT A
874
90 ATTACHMENT A
875
91 ATTACHMENT A
876
92 ATTACHMENT A
877
93 ATTACHMENT A
878
94 ATTACHMENT A
879
95 ATTACHMENT A
880
96 ATTACHMENT A
881
97 ATTACHMENT A
882
98 ATTACHMENT A
883
99 ATTACHMENT A
884
100 ATTACHMENT A
885
101 ATTACHMENT A
886
102 ATTACHMENT A
887
103 ATTACHMENT A
888
104 ATTACHMENT A
889
105 ATTACHMENT A
890
106 ATTACHMENT A
891
107 ATTACHMENT A
892
108 ATTACHMENT A
893
109 ATTACHMENT A
894
110 ATTACHMENT A
895
111 ATTACHMENT A
896
112 ATTACHMENT A
897
113 ATTACHMENT A
898
114 ATTACHMENT A
899
115 ATTACHMENT A
900
116 ATTACHMENT A
901
117 ATTACHMENT A
902
118 ATTACHMENT A
903
119 ATTACHMENT A
904
120 ATTACHMENT A
905
121 ATTACHMENT A
906
122 ATTACHMENT A
907
123 ATTACHMENT A
908
124 ATTACHMENT A
909
125 ATTACHMENT A
910
126 ATTACHMENT A
911
127 ATTACHMENT A
912
128 ATTACHMENT A
913
129 ATTACHMENT A
914
130 ATTACHMENT A
915
131 ATTACHMENT A
916
132 ATTACHMENT A
917
133 ATTACHMENT A
918
134
ATTACHMENT A
919
135
ATTACHMENT A
920
136
ATTACHMENT A
921
137
ATTACHMENT A
922
138
ATTACHMENT A
923
139
ATTACHMENT A
924
140
ATTACHMENT A
925
141
ATTACHMENT A
926
142
ATTACHMENT A
927
143
ATTACHMENT A
928
144
ATTACHMENT A
929
145
ATTACHMENT A
930
146
ATTACHMENT A
931
147
ATTACHMENT A
932
148
ATTACHMENT A
933
149
ATTACHMENT A
934
150
ATTACHMENT A
935
151
ATTACHMENT A
936
152
ATTACHMENT A
937
153
ATTACHMENT A
938
6841-013acp
ARIANA ABEDIFARD
KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
RACHAEL E. KOSS
AIDAN P. MARSHALL
TARA C. RENGIFO
Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO
SACRAMENTO OFFICE
520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814-4721
TEL: (916) 444 - 6201
FAX: (916) 444 - 6209
ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
601 GATEWAY BOULEVARD, SUITE 1000
SOUTH SAN FRANCISCO, CA 94080 - 7037
___________
TEL: (650) 589 - 1660
FAX: (650) 589 - 5062
[email protected]
printed on recycled paper
April 1, 2024
Via E-File Portal, E-Mail, and Overnight Delivery
Mayor Acquanetta Warren
City Council
c/o Patty Nevins
Planning Department
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
[email protected]; [email protected]
Via E-Mail Only
Rina Leung, Senior Planner
[email protected]
Germaine Key, City Clerk
[email protected]
Re: Appeal of Planning Commission Approval of Hemlock Warehouse Development Project (Master Case No. 22-143) (Tentative Parcel Map 20710; Design Review No. 22-064; Development Agreement No. 24-002) (SCH No. 2009091089)
Dear Mayor Warren, Councilmembers, Ms. Leung, and Ms. Key:
We write on behalf of Californians Allied for a Responsible Economy (“CARE CA”) to appeal the City of Fontana (“City”) Planning Commission’s March 19, 2024 approval of the Hemlock Warehouse Development Project, Master Case No. 22-143, Tentative Parcel Map (TPM 20710) No. 23-012, Design Review No. 22-064, SCH No. 2009091089 (“Project”), proposed by Prologis (“Applicant”), to the City Council pursuant to Sections 5.2 and 9.11 of the Southwest Industrial Park Specific Plan (“SWIP SP”) and Division 5 of City’s Zoning and Development Code. CARE CA hereby appeals all approval actions taken by the Planning Commission, including certification of the Final Subsequent Environmental Impact Report (“Final SEIR”), adoption of the tentative parcel map and design review for the proposed Project, and recommendation to the City Council to approve the proposed development agreement.
939
April 1, 2024
6841-013acp
printed on recycled paper
CARE CA respectfully requests that the City Council vacate the Planning Commission approvals and recommendation, remand this matter to City staff with direction to prepare a revised SEIR, pursuant to the California Environmental Quality Act (“CEQA”),1 that fully discloses, analyzes, and mitigates the Project’s significant air quality, public health, greenhouse gas (“GHG”), transportation, and utility impacts. Moreover, to provide meaningful community benefits as part of the development agreement process, the City Council should require a binding commitment to use local workers and apprentices engaged in the building trades as part of the proposed development agreement, as the recommended agreement fails to provide any tangible benefits to the City.
I. BACKGROUND
The Applicant proposes to re-develop a 40-acre Project site to operate a twostory warehouse facility that would be used for sorting, warehousing, distribution, and office space.2 The proposed building structure would have total square feet (“SF”) of 881,826 SF with a first-floor office of 20,000 SF, a second-floor office mezzanine area of 20,000 SF, a warehouse area of 726,826 SF, and a pick module mezzanine area of 115,000 SF.3 The warehouse area may include up to 220,500 SF of cold storage.4
The City prepared a Draft Subsequent Environmental Impact Report (“Draft SEIR”) for the proposed Project which tiers from the Final Environmental Impact Report (“FEIR”) for the SWIP SP. The Draft SEIR evaluated air quality, energy, greenhouse gas emissions (“GHGs”), noise, transportation, tribal cultural resources, and other CEQA considerations.5 The City released the Draft EIR for public review and comment on October 10, 2023.6 CARE CA submitted comments on the Draft SEIR.7
1 Pub. Res. Code § 21000 et seq. 2 City of Fontana, Draft Subsequent Environmental Impact Report: Hemlock Warehouse Development Project SCH No. 2009091089 (Oct. 2022) pp. 1-1, 1-3, 3-1, available at https://fonopengislayers.fontana.org/WebLink/DocView.aspx?id=1777471&dbid=0&repo=FontanaRec ords. 3 Id. at pp. 1-3, 3-2. 4 Id. at pp. 1-3, 3-9.
5 Id. at pp. 2-5 to 2-6.
6 City of Fontana, Notice of Public Hearing and Availability of a Draft Subsequent Environmental Impact Report (Oct. 10, 2023), available at https://files.ceqanet.opr.ca.gov/192221- 8/attachment/f1TuKqilci4LtJjQmgs2awaRS1EDjqzoqD6vN4koQ1kjG2NXNzAzLoi4CwiCuHxpKsmp Bak9__CnBYFq0. 7 Exhibit A, Letter to Rina Leung, City of Fontana from Andrew J. Graf, Adams Broadwell Joseph & Cardozo re: Comments on the Draft Subsequent Environmental Impact Report for the Hemlock
940
April 1, 2024
6841-013acp
printed on recycled paper
The City subsequently released the Final SEIR, which responded to comments raised during the Draft SEIR public comment period and identified revisions to the Draft SEIR.8 The City prepared separate responses to CARE CA’s comments on the Draft SEIR,9 which were released with the staff report for the Planning Commission hearing.10
On March 19, 2024, the Planning Commission held a public hearing to consider certification of the FSEIR, approval of a tentative parcel map and design review, and a recommendation to the City Council to approve the proposed development agreement. Prior to the public hearing, CARE CA submitted written comments and an accompanying expert report to the Planning Commission demonstrating that the City violated CEQA by failing to adequately describe the Project, and failing to meaningfully disclose, analyze, and mitigate all significant air quality, GHG, transportation, and utility impacts.11 CARE CA reiterated these deficiencies in oral comments during the public hearing.
Despite these defects, the Planning Commission approved the following:
• Resolution PC 2024-020, certifying the SEIR, adopting a Statement of Overriding Consideration, adopting a Mitigation and Monitoring Program, adopting a Statement of Facts and Findings, and directing staff to file a Notice of Determination; and,
Warehouse Development Project (SCH No. 2009091089, MCN No. 22-143, TPM No. 23-012, DRP No. 22-064) (Jan. 19, 2024).
8 See generally City of Fontana, Final Subsequent Environmental Impact Report: Hemlock Warehouse Development Project SCH No. 2009091089 (Feb. 2024), available at https://www.fontanaca.gov/DocumentCenter/View/43908/Hemlock-Final-SEIR-Feb-2024.. 9 Memorandum to Rina Leung from Renee Escario re: Responses to Late Comments – Californians Allied for a Responsible Economy (CARE CA) (Feb. 29, 2024), available at https://fontana.legistar.com/gateway.aspx?M=F&ID=572f16b4-e80d-4bdb-8d32-4c4f1429c14f.docx. 10 City of Fontana, Action Report, Planning Commission re: Master Case No. 22-143: Tentative Parcel Map (TPM 20710) No. 23-012, Design Review (DRP) No. 22-064, Development Agreement (AGR) No. 24-002, and Final Subsequent Environmental Impact Report for the Development of an Industrial Warehouse Building Totaling Approximately 881,826 Square Feet on Approximately
40.01 Acres (Mar. 19, 2024), available at
https://fontana.legistar.com/View.ashx?M=PA&ID=1147284&GUID=73A82B86-897A-4C58-9C70- 43BFBFCDEA09. 11 Exhibit B, Letter to Cathline Fort, City of Fontana from Andrew J. Graf, Adams Broadwell Joseph & Cardozo re: Agenda Item PH-D – Master Case No. 22-143: Tentative Parcel Map (TPM 20710) No. 23-012, Design Review (DRP) No. 22-064, Development Agreement (AGR) No. 24-002, and Final Subsequent Environmental Impact Report (SCH No. 2009091089) for Hemlock Warehouse Development Project (Mar. 19, 2024).
941
April 1, 2024
6841-013acp
printed on recycled paper
• Resolution PC 2024-021, approving Tentative Parcel Map No. 23-012 (TPM No. 20710) and Design Review Project No. 22-064; and,
• Resolution PC 2024-022, forwarding a recommendation to the City Council to adopt an ordinance approving Development Agreement No. 24-002.
Section 5.2B of the SWIP SP specifies that permit processing procedures (e.g., noticing, hearing, appeals, and expiration procedures) and enforcement procedures provided in the Municipal Code Chapter 30 (Zoning and Development Code) apply unless otherwise noted.
Division 5 of the Zoning and Development Code sets forth the City’s appeal procedures. Any action taken by the Planning Commission may be appealed by any interested party.12 The appeal must be in writing, filed with the Planning Division, and indicate specifically the reasons for the appeal.13 Appeals must be filed within 15 calendar days after the approving body has taken action.14 Section 9.11 of the SWIP SP sets forth the entitlement procedures for projects falling within the Slover Central Manufacturing Industrial District. Applications for planning permits are processed in compliance with Table 9-12 – Hearing Bodies.15 Table 9-12 specifies that the Planning Commission is the reviewing body for tentative parcel maps and design review, and the recommending body for development agreements.16 Table 9-12 designates the City Council as the appeal body for tentative parcel maps and design review, and reviewing body for development agreements.17 Decisions of any reviewing body may be appealed to the City Council, except where State law limits such appeal to the City Engineer.18 CEQA provides that the lead agency cannot certify a project’s CEQA document or post a notice of determination before the Project receives final approval from the lead agency.19
12 Zoning and Development Code § 30-25.
13 Id. § 30-28. 14 Id. § 30-29.
15 City of Fontana, Southwest Industrial Park Specific Plan (June 12, 2012) p. 9-98 (hereinafter “SWIP SP”), available at https://www.fontanaca.gov/DocumentCenter/View/29312/SouthwestIndustrial-Specific-Plan---Combined-Document. 16 Id. at p. 9-99. 17 Ibid. 18 Ibid. 19 Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 418-25; POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 731.
942
April 1, 2024
6841-013acp
printed on recycled paper
CARE CA submits the instant appeal of the Planning Commission’s approvals for the proposed Project, including Resolution PC 2024-020, Resolution PC 2024-021, and Resolution PC 2024-022 to the City Council based on the City’s failure to comply with CEQA, local and state land use laws.
II. STATEMENT OF INTEREST
CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental impacts of the Project. CARE CA includes City residents Juan Chavez, Jeffry Davis, and Calos Diaz, as well as the District Council of Ironworkers and Southern California Pipe Trades District Council 16, along with their members, their families, and other individuals that live and/or work in the City and San Bernardino County.
CARE CA advocates for protecting the environment and the health of their communities’ workforces. CARE CA seeks to ensure a sustainable construction industry over the long-term by supporting projects that offer genuine economic and employment benefits while minimizing adverse environmental and other impacts on local communities.
Individual members of CARE CA live, work, recreate, and raise families in the vicinity of the Project. Accordingly, they will be directly affected by the Project's environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards created by the Project. They each have a personal interest in protecting the Project area from unnecessary, adverse environmental and public health impacts.
In addition, CARE CA and its members have an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for CARE CA members. Environmental degradation can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making it less desirable for businesses to locate and people to live there. Indeed, continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities.
Finally, CARE CA and its members are concerned about projects that risk serious environmental harm without providing countervailing economic benefits.
943
April 1, 2024
6841-013acp
printed on recycled paper
CEQA provides a balancing process whereby economic benefits are weighed against significant impacts to the environment.20
III. REASONS FOR APPEAL
This letter and Exhibits A and B detail the specific reasons for the instant appeal. These documents are incorporated by reference as if fully set forth herein.
In sum, the Final SEIR prepared for the proposed Project fails as an informational document and the City lacks substantial evidence to conclude all the Project’s significant environmental impacts are mitigated to the extent feasible.
Specifically, the Final SEIR lacks an adequate project description because it omits reasonably foreseeable consequences of approval, fails to describe necessary utility upgrades, and does not address the proposed development agreement.21 The Final SEIR also fails to meaningfully disclose and analyze all significant air quality, GHG, transportation, and utility impacts which were not analyzed, or are more severe than previously analyzed, in the SWIP SP FEIR.22 Finally, the Final SEIR fails to disclose, analyze, and adopt all feasible mitigation measures before concluding the Project’s impacts are significant and unavoidable.23 Moreover, the proposed development agreement does not provide any tangible benefits to the City because the purported “enhanced environmental measures” constitute feasible mitigation that must be considered before the City can adopt a statement of overriding considerations.24 To provide meaningful community benefits, the City Council should require a binding commitment to use local workers and apprentices engaged in the building trades as part of the development agreement.25
Finally, the Planning Commission’s certification of the FSEIR was premature and in violation of CEQA because the City Council has not yet considered or approved the Project’s development agreement, one of the Project’s principal entitlements. CEQA mandates that agencies refrain from certifying and adopting an EIR prior to full consideration of all aspects of a project.26 Where, as here, a 20 Pub. Res. Code § 21081(a)(3); Citizens for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171.
21 Exhibit A at pp. 7-8; Exhibit B at pp. 7-12. 22 Exhibit A at pp. 8-15; Exhibit B at pp. 13-16. 23 Exhibit A at pp. 15-21; Exhibit B at pp. 16-22. 24 Exhibit B at pp. 23-24. 25 Ibid. 26 See, e.g., County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 963; Coalition for an Equitable Westlake/Macarthur Park v. City of Los Angeles (2020) 47 Cal.App.5th
944
April 1, 2024
6841-013acp
printed on recycled paper
development agreement is an entitlement proposed to implement a project, it is considered part of the project subject to CEQA.27 CARE CA previously commented that the Project’s development agreement is a component of the Project which was required to be analyzed in the SEIR. The Planning Commission’s actions in certifying the Final SEIR before the rest of the Project’s entitlements had been considered by the City Council was therefore a violation of CEQA, which “skirt[red] the purpose of CEQA by segregating environmental review of the EIR from the project approval.”28
While the Municipal Code provides for approval of the Project’s tentative map and design review by the Planning Commission, the City Council is the initial decision-maker for the Project’s development agreement.29 Resolution PC 2024-022 recommended approval of the development agreement by the City Council, but the Planning Commission did not approve the agreement. The City Council has not yet considered or approved the Project’s development agreement. Accordingly, the City has not approved all of the Project’s entitlements. The Planning Commission’s action to certify the FSEIR before the development agreement is approved was premature and in violation of CEQA.30 The City’s related posting of the Notice of Determination with the County Clerk before the City Council approves the development agreement was also premature,31 although the Notice of Determination will be rendered moot by the filing this appeal.32 IV. REQUEST FOR REMAND TO CITY STAFF TO PREPARE A REVISED SUBSEQUENT
ENVIRONMENTAL IMPACT REPORT
The record demonstrates that the Planning Commission abused its discretion when it approved the map and design review, recommended approval of the development agreement, and certified the Final SEIR because City failed to comply with CEQA’s procedural and substantive requirements. For these reasons, CARE CA urges the City Council to uphold this appeal and remand this matter to City staff with direction to prepare a revised SEIR that fully discloses, analyzes, and 368, 379; Stockton Citizens for Sensible Planning v. City of Stockton, 48 Cal. 4th 481, 489; Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 418-25. 27 See Gov. Code § 65864; 14 Cal. Code Regs. (“CCR”) §§15352(a), (b), 15378; Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. 28 California Clean Energy Committee v. City of San Jose (2013) 220 Cal.App.4th 1325, 1341. 29 SWIP SP at p. 9-98. 30 Coalition for Clean Air, 209 Cal.App.4th at 418-25; POET, LLC, 218 Cal.App.4th at 731. 31 Id. 32 El Dorado Union High Sch. Dist. v. City of Placerville (1983) 144 Cal.App.3d 123, 130; Sea and Sage Audubon Society, Inc. v. Planning Commission of City of Anaheim (1983) 34 Cal.3d 412.
945
April 1, 2024
6841-013acp
printed on recycled paper
mitigates the Project’s air quality, GHG, public health, transportation, and utility impacts, and is recirculated for public review and comment.
Sincerely,
Andrew J. Graf
Attachments
AJG:acp
946
Date: April 4, 2024
Prepared by: Renee Escario, [email protected]
To: Rina Leung, [email protected]
Project: Hemlock Warehouse Development Project
Subject: Responses to Californians Allied for a Responsible Economy (CARE) Letter Dated April 1, 2024
This memo contains responses to CEQA related comments raised in the letter that the City of Fontana received on April 1, 2024 that appeals the City’s Planning Commission approval of the Hemlock Warehouse Development Project, which occurred on March 19, 2024. The content of these comments and the concerns that are expressed have been previously submitted by the commenting organization in a comment letter to the Draft Subsequent EIR and a comment letter to the Planning Commission. These comments have been previously responded to in the Final Subsequent EIR, as detailed below.
As further detailed in the individual responses to comments below, none of the comments indicate that there would be a substantial increase in the severity of a previously identified environmental impact that would not be mitigated, or that there would be any of the other circumstances requiring recirculation as described in CEQA Guidelines Section 15088.5. No new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented, there is no substantial increase in the severity of an environmental impact, no feasible project alternative or mitigation measure considerably different from others previously analyzed would lessen the environmental impacts of the Project, and the Subsequent EIR is not fundamentally inadequate and conclusory in nature.
ATTACHMENTS
EXHIBIT A: The previously sent comment letter from CARE on January 19, 2024 (p. 12-64) EXHIBIT B: The previously sent comment letter from CARE on March 19, 2024 (p. 66-98)
947
Response to Californians Allied for a Responsible Economy Appeal Letter, dated April 1, 2024 Comment 1: This comment states that the Californians Allied for a Responsible Economy (CARE) is appealing the Fontana City Planning Commission approval of the Hemlock Warehouse Development Project, which occurred on March 19, 2024. The appellant requests that City Council vacates the Planning Commission’s Project approvals and its recommendation to approve the proposed development agreement. Appellant also requests that City Council remands this matter to City staff to prepare a revised SEIR on grounds that there are flaws in the SEIR related to continued air quality, public health, greenhouse gas (GHG), transportation and utility impacts. In addition, the comment states that the City Council should require a binding commitment by the Project to use local workers and apprentices for construction as part of the development agreement, as the currently proposed agreement fails to provide tangible benefits to the City.
Response 1: Appellant provides no legal authority in support of its proposition that City Council should vacate the Planning Commission’s Project approvals and its recommendation to approve the proposed development agreement. Appellant also provides no legal authority or facts in support of its proposition that a revised SEIR must be prepared. The previously submitted comment letter dated January 19, 2024, that was sent on behalf of CARE and responses to the environmental comments raised within it, was provided as Letter L1 within the staff report for the Planning Commission hearing. As detailed within the responses to these previous comments, the SEIR is not flawed and does not need to be recirculated for public review. The air quality, public health, greenhouse gas (GHG), transportation and utility impacts were evaluated within the Draft SEIR.
This comment is introductory in nature and does not provide specific detailed comments related to the SEIR analysis or provide substantial evidence of any significant environmental issue in which to respond to.
Therefore, no further response is required.
Comment 2: This comment provides a brief summary of the proposed Project and CEQA documentation and describes that the Appellant previously commented on the Draft SEIR which was responded to in the staff report for the Planning Commission hearing.
Response 2: The comment provides a summary of the proposed Project and background into the Project’s CEQA compliance and does not raise a specific issue with the adequacy of the SEIR or raise any other CEQA issue. Therefore, no further response is required or provided.
Comment 3: This comment states that despite the appellant’s submitted written comments and oral comments during the public hearing (which alleged that the City violated CEQA by failing to adequately describe the Project and failing to meaningfully disclose, analyze, and mitigate all significant air quality, GHG, transportation and utility impacts), the Planning Commission certified the SEIR, approved the Tentative Parcel Map, and forwarded recommendation to the City Council to adopt an ordinance approving the Development Agreement. The comment then explains the permitting process procedures outlined in the Southwest Industrial Park (SWIP) Specific Plan (SP) and confirms that the Appellant is submitting an instant appeal of all of the Planning Commission approvals, including Resolution PC 2024-020, Resolution PC 2024-021, and Resolution PC 2024-022. This comment also states that a lead agency cannot certify a project’s CEQA document or post a Notice of Determination before the Project receives final approval from the lead agency.
Response 3: This comment provides a summary of the Planning Commission approvals that took place on March 19, 2024 and the municipal code requirements regarding approval and appeal of the proposed Project. While the Appellant contends that the Notice of Determination should not have been filed after the
948
Planning Commission hearing, as stated within their own comment, the final approving body for the tentative parcel map and design review for the Project was the Planning Commission. Therefore, the Notice of Determination was correctly filed after the Planning Commission approval of Resolution PC 2024-021. This comment does not raise a specific issue with the adequacy of the SEIR or raise any other CEQA issue.
Therefore, no further response is required or provided.
Comment 4: This comment provides a statement of interest from CARECA and states that the Appellant has an interest in enforcing environmental laws that encourage sustainable development. The comment also states that environmental degradation can cause construction moratoriums and other restrictions on growth.
Response 4: The comment is introductory in nature and does not raise a specific significant environmental issue with the adequacy of the Draft SEIR evaluation or raise any other CEQA issue. Therefore, no further response is required or provided.
Comment 5: This comment points to the previous comments attached to the letter and states that the FSEIR lacks substantial evidence to conclude all the Project’s significant environmental impacts are mitigated to the extent feasible. This comment also states that the FSEIR lacks an adequate project description as it does not fully analyze reasonably foreseeable consequences of approval of the Project, fails to describe necessary utility upgrades, and the proposed development agreement. The comment also states that the FSEIR fails to fully analyze the impacts from air quality, GHG, transportation, and utilities as well as fails to adopt all feasible mitigation measures.
Response 5: This comment does not provide specific detailed comments related to the allegation that the FSEIR lacks substantial evidence to conclude all of the Project’s environmental impacts are mitigated to the extent feasible. Responses to all previously provided comments from the Appellant have been provided in either the Response Memo dated February 29, 2024 that was included in the Planning Commission Staff Report for the Project or orally at the Planning Commission Hearing on March 19, 2024. As discussed previously in the Response Memo dated February 29, 2024, Response L1.11 (page 429 of the Planning Commission Agenda Packet) details that CEQA does not require lead agencies to analyze all possible mitigation measures or combinations of general strategies (Santa Clarita Organization for Planning the Environment v. City of Santa Clarita). Rather, lead agencies must identify and implement reasonable and feasible measures to reduce the impact. The reasonable and feasible measures are included as mitigation within the SEIR and compliance with existing regulations. As the large majority of the NOx (88%) and GHG (78%) emissions are related to vehicle and truck emissions that cannot be controlled by the Project applicant or City, there is no nexus for further mitigation measures that would not significantly reduce the Project impacts beyond what has already been mitigated. Response L1.4 though L1.8 (pages 424 through 427) details that the proposed Project analyzed traffic impacts correctly by using trip generation rates consistent with the proposed high cube warehouse which is a reasonably foreseeable use and Draft SEIR Table 5.4-2 (page 5.4-10 of the Draft SEIR) provides a comparison of the Project’s trip generation and the trip generation identified for the site from the SWIP SP EIR traffic analysis, which shows that the Project would generate 1,368 fewer ADT, with 216 fewer AM peak hour trips and 217 fewer PM peak hour trips than previously anticipated from buildout of the site. Thus, the Project would reduce the previously anticipated trips from the area.
Response L1.4 (page 424-425 of the Agenda Packet) details that pursuant to CEQA Guidelines Section 15124, the Project Description “should not supply extensive detail beyond that needed for the evaluation and review of the environmental impact”. The details of the proposed Project are identified by the Project Applicant’s application for the Project and the allowable uses pursuant to the SWIP, City’s zoning code,
949
which are detailed in the Draft SEIR. Section 3.0, Project Description, of the Draft SEIR provides a description of the Project sufficient pursuant to the requested entitlements to meet CEQA’s informational requirements under CEQA Guidelines Section 15124.
As discussed at the Planning Commission hearing on March 19, 2024 in response to the CARE comment letter received March 19, 2024, which is included as Attachment B to this comment, the provisions of the development agreement (DA) are not pertinent to the SEIR’s analysis of the Project’s potential environmental impacts. Additionally, none of the DA provisions are relied upon to reduce the Project’s significant environmental impacts in the SEIR. The DA’s voluntary agreements and the voluntary project design features would apply in certain circumstances that may or may not occur are therefore cannot be adopted by the City as feasible and enforceable mitigation .
Also, as discussed at the Planning Commission hearing on March 19,2024, the City has confirmed that the water line along Beech Avenue is both a 10-inch and 12-inch line, and the Project would connect to the existing 12-inch portion and therefore, was accurately assessed in the SEIR and would not require any additional upgrades. Thus, all utility impacts have been adequately discussed in the SEIR.
Comment 6: This comment states that the proposed development agreement does not provide tangible benefits to the City because the purported “enhanced environmental measures” constitute feasible mitigation that must be considered before the City can adopt a Statement of Overriding Considerations. The comment also states that the City Council should require the Project to use local workers and apprentices engaged in the building trades as part of the development agreement. This comment also states that the Planning Commission’s certification of the Final SEIR before the development agreement was approved by City Council was premature and in violation of CEQA. The comment further states that the City’s posting of the Notice of Determination before the City Council approves the development agreement was premature and will be rendered moot by the filing of this appeal.
Response 6: Comments regarding the request for the DA to include a commitment to local workers has been forwarded to City decisionmakers as part of their review of the Appeal. As discussed above in Response 5 as well as at the Planning Commission hearing on March 19, 2024, the DA has been determined by the City attorney to not be a material change to the Project Description, and discussion of the DA’s provisions are not pertinent to the analysis of the Project’s potential environmental impacts. Additionally, the DA provisions are not relied upon to reduce the Project’s significant environmental impacts in the SEIR. The DA’s voluntary agreements and the voluntary project design features only apply in certain circumstances are therefore not feasible mitigation that is required to be incorporated in the Final SEIR’s mitigation plan before it can consider adopting a statement of overriding considerations pursuant to CEQA.
While the Appellant contends that the Notice of Determination should not have been filed after the Planning Commission hearing, as stated within their own comment, per the City’s Municipal Code, the final approving body for the tentative parcel map and design review for the Project was the Planning Commission. Therefore, as a matter of laws the Planning Commission was required to certify the SEIR before it could issue those approvals and then was required, also as a matter of law, to file the Notice of Determination after approval of Resolution PC 2024-021.
Finally, the City notes that Appellant misconstrues the case law presented in their comment letter. The case cited within the comment letter only provides that CEQA permits suits challenging an agency’s action within 30 days of the last notice filed. (El Dorado Union High School v. City of Placerville (1983) 144 Cal.App.3d 123, 130.)
950
Comment 7: This comment states that the Planning Commission abused its discretion when it approved the map and design review, recommended approval of the development agreement, and certified the FSEIR because the City failed to comply with CEQA’s procedural and substantive requirements. The comment asks City Council to uphold the appeal and remand the matter to City staff to prepare a revised SEIR that fully discloses, analyzes, and mitigates the Project’s impacts, and is recirculated for public review and comment.
Response 7: The Appellant provides no legal authority to support the propositions that the Planning Commission failed to comply with CEQA and abused its discretion when it certified the FSEIR, approved the map, and approved design review. Appellant also provides no legal authority or substantial evidence to support the claim that a revised SEIR should be prepared for the proposed Project. Similarly, Appellant provides no legal authority or substantial evidence to support the claim that City Council should reverse the Planning Commission’s decision to approve the Project. As stated previously in Responses 6, the DA’s provisions are not pertinent to the analysis of the Project’s environmental impacts. Thus, the Planning Commission was able to certify the Final SEIR prior to approval of the DA, as the DA is a voluntary agreement which does not include mitigation measures that would need to be analyzed in the Final SEIR . As stated previously is Response 1, substantial evidence supports the City’s determination that the Project’s air quality, public health, GHG, traffic, and utility impacts were evaluated adequately within the Draft SEIR.
Exhibit A (p. 12-65 of the comment letter): The comment letter has attached the previously sent comment letter from January 19, 2024.
Response to Exhibit A Responses to the comment letter from January 19, 2024 are provided in the Agenda Packet for the Planning Commission meeting on March 19, 2024 on pages 372 through 436.
Exhibit B (p. 66-98 of the comment letter): The comment letter has attached the previously sent comment letter from March 19, 2024.
Response to Exhibit B: Responses to the comment letter from March 19, 2024 were discussed at the Planning commission hearing on March 19, 2024.
951
April 1, 2024
Via E-File Portal, E-Mail, and Overnight Delivery
Mayor Acquanetta Warren
City Council
c/o Patty Nevins
Planning Department
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
[email protected]; [email protected]
Via E-Mail Only
Rina Leung, Senior Planner
[email protected]
Germaine Key, City Clerk
[email protected]
Re: Appeal of Planning Commission Approval of Hemlock Warehouse Development Project (Master Case No. 22-143) (Tentative Parcel Map 20710; Design Review No. 22-064; Development Agreement No. 24-002) (SCH No. 2009091089)
Dear Mayor Warren, Councilmembers, Ms. Leung, and Ms. Key:
We write on behalf of Californians Allied for a Responsible Economy (“CARE CA”) to appeal the City of Fontana (“City”) Planning Commission’s March 19, 2024 approval of the Hemlock Warehouse Development Project, Master Case No. 22-143, Tentative Parcel Map (TPM 20710) No. 23-012, Design Review No. 22-064, SCH No. 2009091089 (“Project”), proposed by Prologis (“Applicant”), to the City Council pursuant to Sections 5.2 and 9.11 of the Southwest Industrial Park Specific Plan (“SWIP SP”) and Division 5 of City’s Zoning and Development Code. CARE CA hereby appeals all approval actions taken by the Planning Commission, including certification of the Final Subsequent Environmental Impact Report (“Final SEIR”), adoption of the tentative parcel map and design review for the proposed Project, and recommendation to the City Council to approve the proposed development agreement.
1 3
952
CARE CA respectfully requests that the City Council vacate the Planning Commission approvals and recommendation, remand this matter to City staff with direction to prepare a revised SEIR, pursuant to the California Environmental Quality Act (“CEQA”),1 that fully discloses, analyzes, and mitigates the Project’s significant air quality, public health, greenhouse gas (“GHG”), transportation, and utility impacts. Moreover, to provide meaningful community benefits as part of the development agreement process, the City Council should require a binding commitment to use local workers and apprentices engaged in the building trades as part of the proposed development agreement, as the recommended agreement fails to provide any tangible benefits to the City.
I. BACKGROUND
The Applicant proposes to re-develop a 40-acre Project site to operate a twostory warehouse facility that would be used for sorting, warehousing, distribution, and office space.2 The proposed building structure would have total square feet (“SF”) of 881,826 SF with a first-floor office of 20,000 SF, a second-floor office mezzanine area of 20,000 SF, a warehouse area of 726,826 SF, and a pick module mezzanine area of 115,000 SF.3 The warehouse area may include up to 220,500 SF of cold storage.4
The City prepared a Draft Subsequent Environmental Impact Report (“Draft SEIR”) for the proposed Project which tiers from the Final Environmental Impact Report (“FEIR”) for the SWIP SP. The Draft SEIR evaluated air quality, energy, greenhouse gas emissions (“GHGs”), noise, transportation, tribal cultural resources, and other CEQA considerations.5 The City released the Draft EIR for public review and comment on October 10, 2023.6 CARE CA submitted comments on the Draft SEIR.7
1 Pub. Res. Code § 21000 et seq. 2 City of Fontana, Draft Subsequent Environmental Impact Report: Hemlock Warehouse Development Project SCH No. 2009091089 (Oct. 2022) pp. 1-1, 1-3, 3-1, available at https://fonopengislayers.fontana.org/WebLink/DocView.aspx?id=1777471&dbid=0&repo=FontanaRec ords. 3 Id. at pp. 1-3, 3-2. 4 Id. at pp. 1-3, 3-9.
5 Id. at pp. 2-5 to 2-6.
6 City of Fontana, Notice of Public Hearing and Availability of a Draft Subsequent Environmental Impact Report (Oct. 10, 2023), available at https://files.ceqanet.opr.ca.gov/192221- 8/attachment/f1TuKqilci4LtJjQmgs2awaRS1EDjqzoqD6vN4koQ1kjG2NXNzAzLoi4CwiCuHxpKsmp Bak9__CnBYFq0. 7 Exhibit A, Letter to Rina Leung, City of Fontana from Andrew J. Graf, Adams Broadwell Joseph & Cardozo re: Comments on the Draft Subsequent Environmental Impact Report for the Hemlock 1 Cont.
2 4
953
The City subsequently released the Final SEIR, which responded to comments raised during the Draft SEIR public comment period and identified revisions to the Draft SEIR.8 The City prepared separate responses to CARE CA’s comments on the Draft SEIR,9 which were released with the staff report for the Planning Commission hearing.10
On March 19, 2024, the Planning Commission held a public hearing to consider certification of the FSEIR, approval of a tentative parcel map and design review, and a recommendation to the City Council to approve the proposed development agreement. Prior to the public hearing, CARE CA submitted written comments and an accompanying expert report to the Planning Commission demonstrating that the City violated CEQA by failing to adequately describe the Project, and failing to meaningfully disclose, analyze, and mitigate all significant air quality, GHG, transportation, and utility impacts.11 CARE CA reiterated these deficiencies in oral comments during the public hearing.
Despite these defects, the Planning Commission approved the following:
• Resolution PC 2024-020, certifying the SEIR, adopting a Statement of Overriding Consideration, adopting a Mitigation and Monitoring Program, adopting a Statement of Facts and Findings, and directing staff to file a Notice of Determination; and,
Warehouse Development Project (SCH No. 2009091089, MCN No. 22-143, TPM No. 23-012, DRP No. 22-064) (Jan. 19, 2024).
8 See generally City of Fontana, Final Subsequent Environmental Impact Report: Hemlock Warehouse Development Project SCH No. 2009091089 (Feb. 2024), available at https://www.fontanaca.gov/DocumentCenter/View/43908/Hemlock-Final-SEIR-Feb-2024.. 9 Memorandum to Rina Leung from Renee Escario re: Responses to Late Comments – Californians Allied for a Responsible Economy (CARE CA) (Feb. 29, 2024), available at https://fontana.legistar.com/gateway.aspx?M=F&ID=572f16b4-e80d-4bdb-8d32-4c4f1429c14f.docx. 10 City of Fontana, Action Report, Planning Commission re: Master Case No. 22-143: Tentative Parcel Map (TPM 20710) No. 23-012, Design Review (DRP) No. 22-064, Development Agreement (AGR) No. 24-002, and Final Subsequent Environmental Impact Report for the Development of an Industrial Warehouse Building Totaling Approximately 881,826 Square Feet on Approximately
40.01 Acres (Mar. 19, 2024), available at
https://fontana.legistar.com/View.ashx?M=PA&ID=1147284&GUID=73A82B86-897A-4C58-9C70- 43BFBFCDEA09. 11 Exhibit B, Letter to Cathline Fort, City of Fontana from Andrew J. Graf, Adams Broadwell Joseph & Cardozo re: Agenda Item PH-D – Master Case No. 22-143: Tentative Parcel Map (TPM 20710) No. 23-012, Design Review (DRP) No. 22-064, Development Agreement (AGR) No. 24-002, and Final Subsequent Environmental Impact Report (SCH No. 2009091089) for Hemlock Warehouse Development Project (Mar. 19, 2024).
2 Cont.
3 5
954
• Resolution PC 2024-021, approving Tentative Parcel Map No. 23-012 (TPM No. 20710) and Design Review Project No. 22-064; and,
• Resolution PC 2024-022, forwarding a recommendation to the City Council to adopt an ordinance approving Development Agreement No. 24-002.
Section 5.2B of the SWIP SP specifies that permit processing procedures (e.g., noticing, hearing, appeals, and expiration procedures) and enforcement procedures provided in the Municipal Code Chapter 30 (Zoning and Development Code) apply unless otherwise noted.
Division 5 of the Zoning and Development Code sets forth the City’s appeal procedures. Any action taken by the Planning Commission may be appealed by any interested party.12 The appeal must be in writing, filed with the Planning Division, and indicate specifically the reasons for the appeal.13 Appeals must be filed within 15 calendar days after the approving body has taken action.14 Section 9.11 of the SWIP SP sets forth the entitlement procedures for projects falling within the Slover Central Manufacturing Industrial District. Applications for planning permits are processed in compliance with Table 9-12 – Hearing Bodies.15 Table 9-12 specifies that the Planning Commission is the reviewing body for tentative parcel maps and design review, and the recommending body for development agreements.16 Table 9-12 designates the City Council as the appeal body for tentative parcel maps and design review, and reviewing body for development agreements.17 Decisions of any reviewing body may be appealed to the City Council, except where State law limits such appeal to the City Engineer.18 CEQA provides that the lead agency cannot certify a project’s CEQA document or post a notice of determination before the Project receives final approval from the lead agency.19
12 Zoning and Development Code § 30-25.
13 Id. § 30-28. 14 Id. § 30-29.
15 City of Fontana, Southwest Industrial Park Specific Plan (June 12, 2012) p. 9-98 (hereinafter “SWIP SP”), available at https://www.fontanaca.gov/DocumentCenter/View/29312/SouthwestIndustrial-Specific-Plan---Combined-Document. 16 Id. at p. 9-99. 17 Ibid. 18 Ibid. 19 Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 418-25; POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 731.
3 Cont.
6
955
CARE CA submits the instant appeal of the Planning Commission’s approvals for the proposed Project, including Resolution PC 2024-020, Resolution PC 2024-021, and Resolution PC 2024-022 to the City Council based on the City’s failure to comply with CEQA, local and state land use laws.
II. STATEMENT OF INTEREST
CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental impacts of the Project. CARE CA includes City residents Juan Chavez, Jeffry Davis, and Calos Diaz, as well as the District Council of Ironworkers and Southern California Pipe Trades District Council 16, along with their members, their families, and other individuals that live and/or work in the City and San Bernardino County.
CARE CA advocates for protecting the environment and the health of their communities’ workforces. CARE CA seeks to ensure a sustainable construction industry over the long-term by supporting projects that offer genuine economic and employment benefits while minimizing adverse environmental and other impacts on local communities.
Individual members of CARE CA live, work, recreate, and raise families in the vicinity of the Project. Accordingly, they will be directly affected by the Project's environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards created by the Project. They each have a personal interest in protecting the Project area from unnecessary, adverse environmental and public health impacts.
In addition, CARE CA and its members have an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for CARE CA members. Environmental degradation can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making it less desirable for businesses to locate and people to live there. Indeed, continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities.
Finally, CARE CA and its members are concerned about projects that risk serious environmental harm without providing countervailing economic benefits. 3 Cont.
4 7
956
CEQA provides a balancing process whereby economic benefits are weighed against significant impacts to the environment.20
III. REASONS FOR APPEAL
This letter and Exhibits A and B detail the specific reasons for the instant appeal. These documents are incorporated by reference as if fully set forth herein.
In sum, the Final SEIR prepared for the proposed Project fails as an informational document and the City lacks substantial evidence to conclude all the Project’s significant environmental impacts are mitigated to the extent feasible.
Specifically, the Final SEIR lacks an adequate project description because it omits reasonably foreseeable consequences of approval, fails to describe necessary utility upgrades, and does not address the proposed development agreement.21 The Final SEIR also fails to meaningfully disclose and analyze all significant air quality, GHG, transportation, and utility impacts which were not analyzed, or are more severe than previously analyzed, in the SWIP SP FEIR.22 Finally, the Final SEIR fails to disclose, analyze, and adopt all feasible mitigation measures before concluding the Project’s impacts are significant and unavoidable.23 Moreover, the proposed development agreement does not provide any tangible benefits to the City because the purported “enhanced environmental measures” constitute feasible mitigation that must be considered before the City can adopt a statement of overriding considerations.24 To provide meaningful community benefits, the City Council should require a binding commitment to use local workers and apprentices engaged in the building trades as part of the development agreement.25
Finally, the Planning Commission’s certification of the FSEIR was premature and in violation of CEQA because the City Council has not yet considered or approved the Project’s development agreement, one of the Project’s principal entitlements. CEQA mandates that agencies refrain from certifying and adopting an EIR prior to full consideration of all aspects of a project.26 Where, as here, a 20 Pub. Res. Code § 21081(a)(3); Citizens for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171.
21 Exhibit A at pp. 7-8; Exhibit B at pp. 7-12. 22 Exhibit A at pp. 8-15; Exhibit B at pp. 13-16. 23 Exhibit A at pp. 15-21; Exhibit B at pp. 16-22. 24 Exhibit B at pp. 23-24. 25 Ibid. 26 See, e.g., County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 963; Coalition for an Equitable Westlake/Macarthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 4 Cont.
5 6
8
957
development agreement is an entitlement proposed to implement a project, it is considered part of the project subject to CEQA.27 CARE CA previously commented that the Project’s development agreement is a component of the Project which was required to be analyzed in the SEIR. The Planning Commission’s actions in certifying the Final SEIR before the rest of the Project’s entitlements had been considered by the City Council was therefore a violation of CEQA, which “skirt[red] the purpose of CEQA by segregating environmental review of the EIR from the project approval.”28
While the Municipal Code provides for approval of the Project’s tentative map and design review by the Planning Commission, the City Council is the initial decision-maker for the Project’s development agreement.29 Resolution PC 2024-022 recommended approval of the development agreement by the City Council, but the Planning Commission did not approve the agreement. The City Council has not yet considered or approved the Project’s development agreement. Accordingly, the City has not approved all of the Project’s entitlements. The Planning Commission’s action to certify the FSEIR before the development agreement is approved was premature and in violation of CEQA.30 The City’s related posting of the Notice of Determination with the County Clerk before the City Council approves the development agreement was also premature,31 although the Notice of Determination will be rendered moot by the filing this appeal.32 IV. REQUEST FOR REMAND TO CITY STAFF TO PREPARE A REVISED SUBSEQUENT
ENVIRONMENTAL IMPACT REPORT
The record demonstrates that the Planning Commission abused its discretion when it approved the map and design review, recommended approval of the development agreement, and certified the Final SEIR because City failed to comply with CEQA’s procedural and substantive requirements. For these reasons, CARE CA urges the City Council to uphold this appeal and remand this matter to City staff with direction to prepare a revised SEIR that fully discloses, analyzes, and 368, 379; Stockton Citizens for Sensible Planning v. City of Stockton, 48 Cal. 4th 481, 489; Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 418-25. 27 See Gov. Code § 65864; 14 Cal. Code Regs. (“CCR”) §§15352(a), (b), 15378; Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. 28 California Clean Energy Committee v. City of San Jose (2013) 220 Cal.App.4th 1325, 1341. 29 SWIP SP at p. 9-98. 30 Coalition for Clean Air, 209 Cal.App.4th at 418-25; POET, LLC, 218 Cal.App.4th at 731. 31 Id. 32 El Dorado Union High Sch. Dist. v. City of Placerville (1983) 144 Cal.App.3d 123, 130; Sea and Sage Audubon Society, Inc. v. Planning Commission of City of Anaheim (1983) 34 Cal.3d 412. 6 Cont.
7 9
958
mitigates the Project’s air quality, GHG, public health, transportation, and utility impacts, and is recirculated for public review and comment.
Sincerely,
Andrew J. Graf
Attachments
AJG:acp
7 Cont.
10 Page 21 of 109
959
EXHIBIT A
11 Page 22 of 109
960
January 19, 2024
VIA Email and Overnight Mail
Rina Leung, Senior Planner
City of Fontana
Planning Department
8353 Sierra Avenue
Fontana, California 92335
[email protected]
Re: Comments on the Draft Subsequent Environmental Impact Report for the Hemlock Warehouse Development Project (SCH No.
2009091089, MCN No. 22-143, TPM No. 23-012, DRP No. 22-064) Dear Ms. Leung:
We write on behalf of Californians Allied for a Responsible Economy (“CARE CA”) to comment on the Draft Subsequent Environmental Impact Report1 (“DSEIR”) (SCH No. 2009091089) prepared by the City of Fontana (“City”), pursuant to the California Environmental Quality Act (“CEQA”),2 for the Hemlock Warehouse Development Project (“Project”) proposed by (“Applicant”). As discussed in detail below, the DSEIR fails to comply with CEQA’s procedural and substantive requirements. The City must correct the many deficiencies in a revised DSEIR that is recirculated for public review before the Project is approved.
I. INTRODUCTION
The Applicant proposes to re-develop a 40-acre Project site to operate a twostory warehouse facility that would be used for sorting, warehousing, distribution, and office space.3 The proposed building structure would have total square feet 1 City of Fontana, Draft Subsequent Environmental Impact Report: Hemlock Development Warehouse Project (Oct. 2023) (hereinafter “DSEIR”), available at https://fonopengislayers.fontana.org/WebLink/Browse.aspx?id=1777465&dbid=0&repo=FontanaReco rds. 2 Pub. Res. Code §§ 21000 et seq.
3 DSEIR at pp. 1-1, 1-3, 3-1.
12 Exhibit A Page 23 of 109
961
(“SF”) of 881,826 SF with a first-floor office of 20,000 SF, a second-floor office mezzanine area of 20,000 SF, a warehouse area of 726,826 SF, and a pick module mezzanine area of 115,000 SF.4 The warehouse area may include up to 220,500 SF of cold storage.5
Construction would take approximately 15 months and includes demolition of existing buildings, site preparation, grading, building construction, paving, and architectural coatings.6 The Project would operate 24 hours a day, 7 days a week.7 The facility would have 114 loading docks located on the east and west sides of the building.8 The Project is expected to generate 1,598 average daily trips, including 1,036 passenger cars and 562 trucks.9
The DSEIR tiers from a Final Environmental Impact Report (“FEIR”) for the Southwest Industrial Park (“SWIP”) Specific Plan (“SP”) Update and Annexation certified by the City in 2012. The City prepared the DSEIR because the proposed Project “may involve new significant environmental effects or a substantial increase in the previously identified effects.”10 The DSEIR evaluates air quality, energy, greenhouse gas emissions (“GHGs”), noise, transportation, tribal cultural resources, and other CEQA considerations.11
We reviewed the DSEIR, its technical appendices, and available reference documents with the assistance of air quality and hazardous resources expert, James J. Clark, Ph.D., and traffic and transportation expert, Daniel T. Smith, Jr., P.E.
Their comments and qualifications are included as Exhibit A12 and Exhibit B,13 respectively. Based on our review and that of the technical experts, we conclude the DSEIR fails to comply with CEQA.
4 DSEIR at pp. 1-3, 3-2.
5 DSEIR at pp. 1-3, 3-9. 6 DSEIR at p. 3-10.
7 DSEIR at p. 3-10.
8 DSEIR at p. 3-9.
9 DSEIR, appen. F at p. 40.
10 DSEIR at p. 2-4. 11 DSEIR at pp. 2-5 to 2-6. 12 Exhibit A, Letter to Andrew J. Graf, Adams Broadwell Joseph & Cardozo from James J. Clark, Clark & Associates Environmental Consulting, Inc. re: Comment Letter on Draft Environmental Impact Report for Hemlock Warehouse Development Project, SCH No. 2009091089, Fontana, California (Jan. 18, 2024) (hereinafter “Clark Comments”). 13 Exhibit B, Letter to Andrew J. Graf, Adams Broadwell Joseph & Cardozo from Daniel T. Smith Jr. P.E., Smith Engineering & Management re: Hemlock Warehouse Development Project DSEIR SCH # 2009091089 (Jan. 18, 2024) (hereinafter “Smith Comments”). 13 Exhibit A Page 24 of 109
962
As explained more fully below, the DSEIR fails to accurately describe the Project and fails to meaningfully disclose, analyze, and mitigate all the Project’s potentially significant air quality, GHG, and transportation impacts. As a result, the City cannot approve the proposed Project until it corrects these deficiencies in a revised DSEIR that is recirculated for public review and comment.
The technical comments and all attachments are incorporated by reference as if fully set forth herein. The City must respond to each technical expert’s comments separately and fully.14
II. STATEMENT OF INTEREST
CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental impacts of the Project. CARE CA includes the District Council of Ironworkers and Southern California Pipe Trades District Council 16, along with their members, their families, and other individuals that live and/or work in the City and San Bernardino County.
CARE CA advocates for protecting the environment and the health of their communities’ workforces. CARE CA seeks to ensure a sustainable construction industry over the long-term by supporting projects that offer genuine economic and employment benefits while minimizing adverse environmental and other impacts on local communities.
Individual members of CARE CA live, work, recreate, and raise families in the vicinity of the Project. Accordingly, they will be directly affected by the Project's environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards created by the Project. They each have a personal interest in protecting the Project area from unnecessary, adverse environmental and public health impacts.
In addition, CARE CA and its members have an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for CARE CA members. Environmental degradation can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making it less desirable for businesses
14. Pub. Res. Code § 21091(d); 14 Cal. Code Regs (“CEQA Guidelines”) §§ 15088(a), (c) (CEQA requires that a lead agency evaluate and prepare detailed written responses to comments raising significant environmental issues in FEIR); Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal. App. 4th 603, 615.
14 Exhibit A Page 25 of 109
963
to locate and people to live there. Indeed, continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities.
Finally, CARE CA and its members are concerned about projects that risk serious environmental harm without providing countervailing economic benefits.
CEQA provides a balancing process whereby economic benefits are weighed against significant impacts to the environment.15 It is in this spirit we offer these comments.
III. LEGAL BACKGROUND
CEQA requires that an agency analyze the potential environmental impacts of its proposed actions in an EIR.16 The EIR is the very heart of CEQA.17 “The foremost principle in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”18
CEQA has two primary purposes. First, CEQA is designed to inform decision makers and the public about the potential, significant environmental effects of a project.19 “Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’”20 The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.”21
Second, CEQA directs public agencies to avoid or reduce environmental damage when “feasible” by requiring consideration of environmentally superior 15 Pub. Res. Code § 21081(a)(3); Citizens for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171.
16 See e.g., Pub. Res. Code § 21100.
17 Dunn-Edwards v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 652. 18 Communities for a Better Environment v. Cal. Res. Agency (2002) 103 Cal. App.4th 98, 109. 19 Pub. Res. Code § 21061; 14 Cal. Code Regs. (“CEQA Guidelines”) §§ 15002(a)(1), 15003(b)-(e); Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 517 (“[T]he basic purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect [that] a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.”). 20 Citizens of Goleta Valley v. Bd. of Supervisors (“Goleta II”) (1990) 52 Cal.3d 553, 564. 21 Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal.App.4th 1344, 1354 (“Berkeley Jets”); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810. 15 Exhibit A Page 26 of 109
964
alternatives and adoption of all feasible mitigation measures.22 The EIR serves to provide agencies and the public with information about the environmental impacts of a proposed project and to “identify ways that environmental damage can be avoided or significantly reduced.”23 If the project will have a significant effect on the environment, the agency may approve the project only if it finds that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns.”24
A subsequent EIR is required when new information discloses: (1) a new substantial environmental impact resulting from the project or from a new mitigation measure proposed to be implemented; (2) a substantial increase in the severity of an environmental impact unless mitigation measures are adopted that reduce the impact to a level of insignificance; (3) a feasible project alternative or mitigation measure that clearly would lessen the environmental impacts of the project, but which the project's proponents decline to adopt; or (4) that the draft EIR was so fundamentally and basically inadequate and conclusory in nature that public comment on the draft was in effect meaningless.“25
A public agency commits prejudicial abuse of discretion when its actions or decisions do not substantially comply with the requirements of CEQA.26 The agency abuses its discretion if it does not proceed in the manner required by law or if its decision is not supported by substantial evidence.27 Claims of procedural error or informational inadequacies in an EIR are questions of law subject to independent review by the courts.28 An EIR is inadequate as a matter of law where (1) the EIR omits information required by law and (2) the omission precludes informed decisionmaking by the lead agency or informed participation by the public.29 “[T]he existence of substantial evidence supporting the agency’s ultimate decision on a 22 CEQA Guidelines § 15002(a)(2)-(3); see also Berkeley Jets, 91 Cal.App.4th at 1354; Goleta II, 52 Cal.3d at 564.
23 CEQA Guidelines § 15002(a)(2). 24 Pub. Res. Code § 21081; CEQA Guidelines § 15092(b)(2)(A)-(B). 25 CEQA Guidelines § 15162(a), (b); Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal. 4th 1112, 1130, citing Mountain Lion Coalition v. Fish & Game Comm’n (1989) 214 Cal.App.3d 1043.. 26 Pub. Res. Code §§ 21168, 21168.5. 27 Sierra Club, 6 Cal.5th at 512; Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426.
28 Sierra Club, 6 Cal.5th at 512-13; see also Laurel Heights Improvement Assoc. (“Laurel Heights I”) v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 392, fn. 5; Woodward Park Homeowners Assoc., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 705.
29 Madera Oversight Coal., Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 76-77. 16 Exhibit A Page 27 of 109
965
disputed issue is not relevant when one is assessing a violation of the information disclosure provisions of CEQA.”30
An EIR must disclose the analytic route the agency traveled from evidence to action, and failure to do so amounts to a procedural error—not a factual one.31 If an EIR lacks analysis or omits the magnitude of an environmental impact, the issue is “not a substantial evidence question” – rather, the courts review the issue de novo.32 In other words, a conclusory discussion of an environmental impact that an EIR deems significant may be held to be inadequate as a matter of law “without reference to substantial evidence,” even where mixed questions of law and fact are involved.33 Only where factual questions predominate is a more deferential standard warranted.34
The substantial evidence standard applies to an agency’s substantive factual conclusions, findings or determinations.35 Substantial evidence means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.”36 Substantial evidence includes facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts,37 but it does not include argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment.38
Importantly, “the reviewing court is not to uncritically rely on every study or analysis presented by a project proponent in support of its position. A clearly inadequate or unsupported study is entitled to no judicial deference.”39 Failure to comply with the basic substantive requirements of CEQA is necessarily prejudicial 30 Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 82, quoting Assn. of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1392. 31 Sierra Club, 6 Cal.5th at 513 quoting Topanga Assn. for a Scenic Community v. City of L.A. (1974) 11 Cal.3d 506, 515.
32 Sierra Club, 6 Cal.5th at 514.
33 Ibid.; see also Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, 1103-04. 34 Sierra Club, 6 Cal.5th at 514, 516 (emphasis added). 35 Pub. Res. Code § 21168. 36 CEQA Guidelines § 15384(a).
37 CEQA Guidelines § 15384(b).
38 CEQA Guidelines § 15384(a).
39 Berkeley Jets, 91 Cal.App.4th at 1355.
17 Exhibit A Page 28 of 109
966
error, requiring the decertification of any EIR and the recission of any approvals adopted in reliance on the same.40
IV. THE DSEIR LACKS AN ADEQUATE PROJECT DESCRIPTION
Generally, an adequate EIR must be “prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences.”41 “A project description must contain sufficiently specific information about the project to allow the public and reviewing agencies to evaluate and review its environmental impacts. California courts have repeatedly held that “an accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.”42 Without a complete, stable and accurate project description, the environmental analysis under CEQA is impermissibly limited, thus minimizing the project’s impacts and undermining meaningful public review.43 CEQA Guidelines § 15378 defines “project” to mean “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”44 “The term “project” refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term project does not mean each separate governmental approval.”45 Courts have explained that a complete description of a project must “address not only the immediate environmental consequences of going forward with the project, but also all “reasonably foreseeable consequence[s] of the initial project.”46 “If a[n]…EIR…does not adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences of the project, informed decisionmaking cannot occur under CEQA and the final EIR is inadequate as a matter of law.”47
40 North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 671; Neighbors for Smart Rail v. Exposition Metro Line Construction Auth. (2013) 57 Cal.4th 439, 463; Save Cuyama Valley v.
County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1073. 41 Dry Creek Citizens Coalition v. County of Tulare (199) 70 Cal.App.4th 20, 26. 42 Stopthemillenniumhollywood.com v. City of Los Angeles (2019) 39 Cal.App.5th 1, 17; Communities for a Better Environment, 184 Cal.App.4th at 85–89; County of Inyo, 71 Cal.App.3d at 193. 43 Stopthemillenniumhollywood.com, 39 Cal.App.5th at 17. 44 CEQA Guidelines § 15378. 45 Id. § 15378(c).
46 Laurel Heights I, 47 Cal. 3d 376, 398 (emphasis added); see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 449-50. 47 Riverwatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal. App. 4th 1186, 1201. 18 Exhibit A Page 29 of 109
967
Here, the Project is being developed for reasonably foreseeable future uses, and does not disclose a specific tenant. High cube warehouses can be used for a variety of uses as recognized by the Institute of Transportation Engineer’s Trip Generation Manual, 11th Edition. The Trip Generation Manual includes several classifications: transload facility, short-term storage, cold storage, fulfillment center, parcel hub.48 These classifications generate different types of impacts. For example, fulfillment centers and parcel hub warehouses have significantly higher trip generation rates than transload, short-term, and cold storage warehouses.49 The DSEIR’s omission of information about the reasonably foreseeable higher intensity uses at the Project site is similar to the EIR’s omission of critical operational analysis in Bakersfield Citizens for Local Control v. City of Bakersfield.
In Bakersfield, the court found that an EIR’s simple statement that “no stores have been identified” for the subject shopping center “without disclosing the type of retailers envisioned for the proposed project is not only misleading and inaccurate, but it hints at mendacity.”50 Since the Project is being designed to be capable of supporting a variety of high-cube warehouse uses, including higher intensity warehouse uses, the DSEIR must be revised to analyze the impacts of the most intensive reasonably foreseeable uses of the Project site. The DSEIR’s failure to provide information about the reasonably foreseeable use causes the DSEIR to fail as an informational document.
V. THE DSEIR FAILS TO ADEQUATELY DISCLOSE AND ANALYZE PROJECT
IMPACTS
A. The DSEIR Fails to Consider Reasonably Foreseeable TrafficIntensive Uses of the Project, Resulting in an Underestimation of Vehicle Emissions and Vehicle Miles Traveled
To comply with CEQA, lead agency must make “a reasoned and good faith effort to inform decision makers and the public” about the project’s potential impacts.”51 This includes a meaningful analysis of all reasonably foreseeable project impacts, including the project’s various allowed uses.52 The DSEIR’s transportation section relies on the assumption that the Project will operate as a 48 Clark Comments at pp. 8-9; see also Institute of Transportation Engineers, High-Cube Warehouse Vehicle Trip Generation Analysis (Oct. 2016) p. 4-6 (discussing high-cube warehouse classifications), available at https://www.ite.org/pub/?id=a3e6679a%2De3a8%2Dbf38%2D7f29%2D2961becdd498. 49 Clark Comments at pp. 8-9. 50 Bakersfield Citizens for Local Control v. City of Bakersfield (“Bakersfield”) (2004) 124 Cal.App.4th 1184, 1213.
51 Berkeley Jets, 91 Cal.App.4th at 1367. 52 Laurel Heights I, 47 Cal.3d at 396. 19 Exhibit A Page 30 of 109
968
general warehouse with some cold-storage,53 but does not consider reasonably foreseeable uses for the Project that would result in significantly greater traffic intensive uses of the site. By disregarding reasonably foreseeable uses that would result in significantly higher traffic from the Project, the DSEIR fails to “reflect a good faith effort at full disclosure” as is required by CEQA.54 The DSEIR evaluated the Project’s transportation impacts based on the Trip Generation Manual’s trip rates for proposed warehousing (Land Use Code 150) and high-cube cold storage warehouse uses (Land Use Code 157).55 As Dr. Clark explains, the Trip Generation Manual outlines several other compatible uses of high-cube warehouses which are: High Cube Transload and Short-Term Storage Warehouse (Land Use Code 154), Transload High Cube Fulfillment Center Warehouse (Land Use Code 155), High Cube Parcel Hub Warehouse (Land Use Code 156).56 Dr. Clark further notes that the trip generation rate per 1,000 square feet of high-cube warehouse varies significantly across these categories.57 Here, the DSEIR’s trip generation rate is based in part on general warehouse (75%) and high-cube cold storage (25%), without reference to any Project-specific facts that would support this use assumption.58 In doing so, the DSEIR relies on some of the least intensive land use categories for a high-cube warehouse to determine that the Project would generate 1,598 average daily trips (“ADT”).59 But the proposed Project could generate significantly more trips per day if all reasonably foreseeable uses were quantified.60 Dr. Clark explains that the trip generation rate could be as high as 6.44 trips per 1,000 square feet resulting in 4,681 daily trips if the warehouse is used as a fulfillment center.61 In fact, the DSEIR recognizes that the building would be used for “sorting” which is a subcategory of fulfillment center that generates a 6.44 trip rate.62 By underestimating the trip generation rate, the DSEIR underestimates the Project’s operational emissions from mobile sources.63
53 DSEIR at p. 3-9.
54 CEQA Guidelines § 15151; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 721-22.
55 DSEIR, appen. F at p. 38. 56 Clark Comments at pp. 8-9. 57 Clark Comments at p. 9.
58 DSEIR, appen. F at p. 39. 59 Clark Comments at pp. 8-9; Smith Comments at p. 2. 60 Clark Comments at pp. 8-9; Smith Comments at p. 2. 61 Clark Comments at p. 9.
62 DSEIR at p. 3-2 (“The building would be used for sorting, warehousing, distribution, and office space.”).
63 Clark Comments at pp. 9-10.
20 Exhibit A Page 31 of 109
969
Mr. Smith concurs with Dr. Clark’s conclusion that the land use categories on which the DSEIR relies comprise of the two lowest trip generation rates among all the likely uses of the proposed warehouse building.64 Because the DSEIR utilizes the lowest trip generation rate, he concludes that the DSEIR underestimates the vehicle miles traveled (“VMT”) generated by the Project.65 Moreover, the SWIP SP FEIR utilized a daily trip rate of 3.56 per 1,000 square feet for warehousing uses in the specific plan area.66 While the SWIP SP FEIR claims the trip generation rate is conservative because it does not utilize some of the lower high-cube warehouse trip generation rates, it fails to acknowledge that the Trip Generation Manual includes higher trip generation rates for some highcube warehouse uses.67 Regardless, the daily trip rate utilized by the SWIP SP FEIR is nearly double the rate relied on by the DSEIR.
Finally, fulfillment center sort warehouses are a reasonably foreseeable use of the Project site which occurs at other high-cube warehouses approved by the City.
For example, the nearby Southwest Fontana Logistics Center approved in 2018 ultimately turned into an Amazon fulfillment center.68 Amazon notes that its sortable fulfillment facilities are typically 800,000 square feet in size,69 which is approximately the same size as the proposed Project.70 By omitting higherintensity use from the DSEIR’s impact analysis without supporting evidence, the DSEIR artificially reduces the severity of the Project’s potentially significant impacts, in violation of CEQA. The City must evaluate all reasonably foreseeable traffic-intensive uses in a revised and recirculated DSEIR and propose feasible mitigation measures to reduce any potentially significant impacts. 64 Smith Comments at pp. 1-2.
65 Smith Comments at p. 2.
66 SWIP SP FEIR at p. 4.9-32.
67 Ibid. 68 Steve Ganey, Amazon Hiring More than 2,000 Workers for Upcoming Fulfillment Centers in Fontana and Rialto, https://ktla.com/news/local-news/amazon-hiring-more-than-2000-workers-forupcoming-fulfillment-centers-in-fontana-and-rialto/ (Jun. 4, 2019). 69 Amazon, Our Facilities, https://www.aboutamazon.com/workplace/facilities (last visited Jan. 18, 2024) (“Sortable fulfillment center[:] Around 800,000 square feet in size, sortable fulfillment centers can employe more than 1,500 full-time associates.”).
70 DSEIR at p. 3-2.
21 Exhibit A Page 32 of 109
970
B. The DSEIR Lacks Substantial Evidence to Conclude VMT Impacts Are Less than Significant
The DSEIR utilizes the City’s Transportation Impact Analysis Guidelines (“TIA Guidelines”) to assess the Project’s VMT-related transportation impacts.71 The TIA Guidelines contain screening thresholds to determine whether a project has the potential to result in an impact requiring further VMT analysis.72 If a project does not meet the screening criteria, then the City requires VMT modeling using the San Bernardino Transportation Analysis Model (“SBTAM”) to determine if the project would have a significant VMT impact.73 If a project meets the screening criteria, then the VMT impact is considered less than significant and no further VMT analysis is required.74
According to the TIA Guidelines, projects which would generate fewer than 500 net average daily trips (“ADT”) would not cause a substantial increase in the total citywide or regional VMT.75 To determine whether the Project exceeded this screening threshold, the DSEIR utilizes the SWIP SP expected trip generation rate of 2,966 ADT as the baseline, as opposed to existing traffic volumes.76 As discussed in Section V.A., the DSEIR utilizes an extremely low trip generation rate to assess the Project’s VMT.77 If the reasonably foreseeable uses of the Project site are considered, the Project’s expected ADT increases to 4080 if the warehouse is used as a fulfillment center, 4023 if the use is split between evenly between a parcel hub and fulfillment center, and 3365 if used as a parcel hub.78 When compared with the SWIP SP baseline, the Project would result in up to 1,714 net ADT.79 Therefore, the Project clearly does not fall below the 500 ADT threshold, even using the baseline established by the SWIP SP.80 This is consistent with the TIA Guidelines, which expects that a Project of this type and size would exceed the ADT screening threshold and require further VMT analysis.81 71 DSEIR at pp. 5.4-6 to 5.4-7.
72 DSEIR at pp. 5.4-6 to 5.4-7, 5.4-9 to 5.4-10; see also City of Fontana, Traffic Impact Analysis (TIA) Guidelines for vehicle Miles Traveled (VMT) and Level of Service Assessment (Oct. 21, 2020) (hereinafter “TIA Guidelines”), available at
https://www.fontanaca.gov/DocumentCenter/View/35928/TIA-Guidelines---VMT-Assessment. 73 DSEIR at pp. 5.4-7, 5.4-9. 74 DSEIR at p. 5.4-6.
75 DSEIR at p. 5.4-10.
76 DSEIR at p. 5.4-10.
77 Smith Comments at pp. 1-2.
78 Smith Comments at p. 2.
79 Smith Comments at p. 2. 80 Smith Comments at p. 2.
81 TIA Guidelines at p. 14.
22 Exhibit A Page 33 of 109
971
Based on further analysis, Mr. Smith concludes that the SBTAM demonstrates conclusively that the Project would have a significant VMT impact had the DSEIR not utilized an erroneous baseline.82 He found that the Project’s TAZ was found to have a per service population of 71.3, which is compared to 15% below the County of San Bernardino baseline or 28.3 VMT per service population.83 Therefore, the City must identify and adopt all feasible mitigation measures to reduce the Project’s significant VMT impacts.84 Mr. Smith recommends that the City consult the California Air Pollution Control Office Association’s Handbook for Analyzing Greenhous Gas Emission Reduction, Assessing Climate Vulnerabilities, and Advancing Health Equity (“CAPCOA Handbook”) to identify feasible mitigation for the Project.85 The CAPCOA measures include carpool/vanpool matching and incentives, end of trip bicycle facilities, transit information and fare assistance, and innovative strategies such as electric auto and electric bicycle purchase assistance.86 The transportation measures recommended in the CAPCOA Handbook are distinct from those required as part of the SWIP SP FEIR mitigation measures. For example, Mr. Smith explains that SWIP SP FEIR Mitigation Measure 4.2-2d does not require implementation of an employer-sponsored vanpool service as recommended by CAPCOA measure T-11.87 Therefore, the CAPCOA measures go beyond those already required by the DSEIR.88
The City must include a detailed analysis of VMT impacts consistent with the City’s TIA Guidelines, and must identify feasible mitigation measures to reduce the Project’s significant VMT impacts in a revised and recirculated DSEIR.
C. The DSEIR Fails to Use Actual Truck Trip Lengths, Resulting in an Underestimation of Vehicle Emissions
The DSEIR estimates that truck trip lengths would be 40 miles for heavy duty trucks, 14.2 miles for medium duty trucks, and 15.3 miles for light duty truck, which resulted in an overall average of 29.9 miles.89 However, these estimates do 82 Smith Comments at pp. 2-3.
83 Smith Comments at pp. 2-3.
84 Smith Comments at p. 3.
85 Smith Comments at p. 3; see California Air Pollution Control Officers Association, Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (Dec. 2021), available at
https://www.caleemod.com/documents/handbook/full_handbook.pdf. 86 Smith Comments at p. 3. 87 Smith Comments at p. 4.
88 Smith Comments at p. 4.
89 DSEIR at p.5.2-13; id., appen. B at p. 45.
23 Exhibit A Page 34 of 109
972
not account for the actual distances the trucks must travel to service the Project.
As Dr. Clark explains, the most accurate way to estimate average truck trip length is to calculate the distance from the ports.90 This is because goods are typically transported from nearby ports to warehouse like the Project.91 For example, the County of San Bernardino utilized an average truck trip length of 77 miles for a nearby warehouse project based on the distance of the project to the Ports of Los Angeles and Long Beach.92
Here, the Project site is approximately 63 miles from the Port of Long Beach, the closest port to the site.93 Therefore, a minimum average truck length of 63 miles should be used.94 Since the Project’s operational NOx emissions are primarily from mobile sources,95 increasing the trip length by 58% would create an even greater nitrogen oxide (“NOx”) problem in the region.96 The Project’s vehicle emissions and greenhouse gas impacts must be recalculated based on the higher average truck trip lengths.
Moreover, as discussed in Section V.A., depending on the type of warehouse operation, the actual trip generation rate could be magnitudes greater than those assumed by the DSEIR depending on the eventual tenant.97 An increased intensity of use would further compound the Project’s VMT, air quality, and GHG impacts.98 The City must correct the estimated distance traveled by trucks and analyze the Project’s impacts based on actual distances in a revised and recirculated DSEIR.
D. The DSEIR Fails to Comply with SWIP SP FEIR Mitigation Measure
4.2-2K
The DSEIR concludes that the Project would obstruct implementation of the South Coast Air Quality Management District’s (“SCAQMD”) 2022 Air Quality Management Plan (“AQMP”) because the proposed Project would result in regional operational source-emissions that would exceed the threshold of significance for 90 Clark Comments at p. 10-11.
91 Clark Comments at p. 10.
92 Clark Comments at p. 11; see also County of San Bernardino, Duke Alabama and Palmetto Warehouse: Draft Environmental Impact Report (Aug. 19, 2019) p. 4.3-16 (“An average truck trip length of approximately 77 miles was assumed, which is the distance to the Prots of Los Angeles and Long Beach”), available at https://files.ceqanet.opr.ca.gov/93435-2/attachment/VK0ZFLFmWnomTmQUc1OLE3NoESo8LNoggSPQRh7_wTRQdIlHmYJfGSuqC6ApCbG4IaL_oWZ2T6sZKs0. 93 Clark Comments at pp. 10-11. 94 Clark Comments at p. 10-11.
95 DSEIR at pp. 5.1-25 to 5.1-26.
96 Clark Comments at p. 12.
97 Clark Comments at pp. 9-10.
98 Clark Comments at pp. 9-10.
24 Exhibit A Page 35 of 109
973
NOx emissions after implementation of the SWIP SPE FEIR Mitigation Measure
4.2-1a through SWIP SP FEIR Mitigation Measure 4.2-2l.99 The DSEIR confirms that SWIP SP FEIR Mitigation Measure 4.2.-2k applies to the proposed Project.100 This measure states:
Prior to approval of future development projects within the project area, the City of Fontana shall conduct project-level environmental review to determine potential vehicle emission impacts associated with the project(s). Mitigation measures shall be developed for each project as it is considered to mitigate potentially significant impacts to the extent feasible.
Potential mitigation measures may require that facilities with over 250 employees (full or part-time employees at a worksite for a consecutive sixmonth period calculated as a monthly average), as required by the Air Quality Management Plan, implement Transportation Demand Management (TDM) programs.101
The DSEIR claims no additional feasible mitigation measures are available to reduce operational NOx emissions because “[n]either the Project applicant nor the City have the regulatory authority to control tailpipe emissions.”102 As a result, the DSEIR does not identify or describe any additional project-specific mitigation measures to reduce impacts associated with vehicle emissions or other sources of operational emissions. In fact, the DSEIR does not even discuss the feasibility of implementation of a TDM program for the proposed Project despite acknowledging that the proposed Project would result in 738 employees,103 which far exceeds the 250-employee threshold identified in SWIP SP FEIR Mitigation Measure 4.2-2k. By failing to identify and describe project-specific mitigation measures to reduce impacts associated with vehicle emission impacts, the DSEIR violates the requirements of SWIP SP FEIR Mitigation Measure 4.2-2k.
Finally, the DSEIR claims that SWIP SP FEIR Mitigation Measure 4.2-2k would be included in the Project MMRP [Mitigation Monitoring and Reporting Program].”104 However, inclusion of the measure in the MMRP does not alleviate the City from its obligation to identify and describe feasible mitigation measures to reduce significant impacts in the DSEIR. Furthermore, without more, such a 99 DSEIR at pp. 5.1-22 to 5.1-23.
100 DSEIR at p. 5.1-36.
101 DSEIR at p. 5.1-36 (emphasis added).
102 DSEIR at p. 5.1-25, 5.1-37.
103 DSEIR at p. 5.1-23 (“SCAG’s Employment Density estimates that warehousing uses generate approximately one employee per 1,195 SF. Based on this estimate, the proposed Project would result tin 738 employees”).
104 DSEIR at p. 5.1-36.
25 Exhibit A Page 36 of 109
974
measure violates CEQA’s prohibition against deferred formulation of mitigation measures because it does not identify or adopt specific performance standards for mitigating the Project’s significant impact, nor does it identify the types of actions that may achieve compliance with the performance standard.105 The City must identify and discuss mitigation measures available to mitigate the Project’s operational NOx emissions in a revised and recirculated DSEIR.
VI. THE DSEIR FAILS TO ADEQUATELY MITIGATE POTENTIALLY SIGNIFICANT
IMPACTS
A. The DSEIR Fails to Set Forth, Identify, and Describe Feasible Mitigation Measures to Reduce Significant Project Impacts An EIR must describe mitigation measures for each potentially significant impact that it identifies.106 The requirement that EIRs identify mitigation measures implements CEQA’s policy that agencies adopt feasible measures when approving a project to reduce or avoid its significant environmental effects.107 Mitigation measures must be designed to minimize significant environmental impacts, not necessarily eliminate them.108 Any action that is designed to minimize, reduce, or avoid a significant environmental impact or to rectify or compensate for the impact qualifies as a mitigation measure.109 Here, the DSEIR is deficient as a matter of law because it fails to set forth, identify and describe feasible project-specific mitigation measures to reduce significant air quality and GHG impacts.
As discussed in Section V.D., the DSEIR concludes that the Project’s operational NOx emissions are significant, but then fails to comply with SWIP SP FEIR Mitigation Measure 4.2-2k’s requirement to develop project-specific mitigation measures, including an analysis of the feasibility of a TDM program, to mitigate significant impacts associated with operational NOx emissions. The DSEIR also concludes that no new mitigation measures are available to reduce NOx emissions from mobile sources because neither the Project applicant nor the City have regulatory control over tailpipe emissions.110 While the DSEIR focuses on the inability to regulate tailpipe emissions, it wholly ignores identification and 105 CEQA Guidelines § 15126.4(a)(1)(B).
106 Pub. Res. Code §§ 21102.1(a), 21100(b)(3); CEQA Guidelines § 15126.4. 107 Pub. Res. Code §§ 21002, 21081(a).
108 Pub. Res. Code § 21100(b)(3); CEQA Guidelines § 15126.4(a)(1); Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 524.
109 CEQA Guidelines § 15126(a)(1), 15370.
110 DSEIR at p. 5.1-26.
26 Exhibit A Page 37 of 109
975
discussion of feasible mitigation measures to reduce NOx emissions from nonmobile sources. Table 5.1-10 demonstrates that area sources, energy sources, transportation refrigeration units, and emergency engines also generate NOx emissions during the Project’s operation.111 The DSEIR must set forth, identify, and describe feasible mitigation measures to reduce NOx emissions from all operational sources, not just the source that generates the most.
Similarly, the DSEIR concludes that the Project’s operational GHG emissions are significant, but then concludes that no new Project-specific mitigation measures are available to reduce GHG emission from mobile sources because neither the Project applicant more the City have regulatory control over tailpipe emissions.112 Again, the DSEIR wholly ignores identification and discussion of feasible mitigation measures to reduce GHG emission from non-mobile sources. The DSEIR identifies GHG emissions from the following sources: area emissions, energy source emissions, mobile source emissions, on-site cargo handling equipment emissions, water supply, treatment, and distribution, solid waste, and emergency diesel-powered fire pump and generator.113 The DSEIR must set forth, identify, and describe feasible mitigation measures to reduce GHG emissions from all operational sources, not just the source that generates the most.
The City must set forth, identify and describe all feasible mitigation measures to reduce significant air quality and GHG impacts in a revised and recirculated DSEIR.
B. Feasible Mitigation Measures Are Available to Further Reduce Significant Operational NOx Emissions
The DSEIR concludes that NOx emissions from Project operation are significant and unavoidable with implementation of all applicable mitigation measures required by the SWIP SP FEIR and compliance with applicable laws.114 The DSEIR further finds that there are no new mitigation measures that would reduce NOx emissions from vehicle and truck trips because neither the Project applicant nor the City have regulatory authority to control tailpipe emissions.115 Finally, the DSEIR does not identify or discuss any potential mitigation measures to reduce NOx emissions from non-mobile sources despite identifying NOx 111 DSEIR at pp. 5.1-25 to 5.1-26. 112 DSEIR at p. 5.2-14. 113 DSEIR at pp. 5.2-12 to 5.2-13. 114 DSEIR at p. 5.1-36. 115 DSEIR at pp. 5.1-26, 5.1-36.
27 Exhibit A Page 38 of 109
976
emissions from energy sources, transportation refrigeration units, and emergency engines.116
CEQA prohibits agencies from approving projects with significant environmental effects if there are feasible mitigation measures or alternatives that can substantially lessen or avoid those effects.117 CEQA defines “feasible” as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social and technological factors.”118 “The core of an EIR is the mitigation and alternatives sections.”119 When an EIR concludes that a project will have significant impacts, the lead agency has two duties: to meaningfully consider feasible mitigation measures and alternatives, and to identify mitigation measures and alternatives rejected as infeasible.120
If significant effects still exist, a project may still be approved if the “unmitigated effects are outweighed by the project’s benefits.”121 However, “[e]ven when a project’s benefits outweigh its unmitigated effects, agencies are still required to implement all mitigation measures unless those measures are truly infeasible.”122
Infeasibility findings must be supported by substantial evidence.123 The lead agency must respond to specific suggestions for mitigating a significant environmental impact unless the suggested mitigation is facially infeasible. While the response need not be exhaustive, it should evince good faith and a reasoned analysis, and must explain why measures proposed by commenters are not feasible.124 When an agency finds alternatives or mitigation measures to be infeasible, “its analysis must explain in meaningful detail the reasons and facts supporting the conclusion. The analysis must be sufficiently specific to permit 116 DSEIR at p. 5.1-26.
117 Pub. Res. Code § 21002; Mountain Lion Found. v. Fish & Game Comm’n (1997) 16 Cal.4th 105, 134.
118 Pub. Res. Code § 21061.1; CEQA Guidelines § 15364.
119 Citizens of Goleta Valley v. Bd. of Supervisors (“Goleta II”) (1990) 52 Cal.3d 553, 564. 120 Covington v. Great Basin Unif. Air Poll. Control Dist. (2019) 43 Cal.App.5th 867, 879-83; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1353. 121 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 524. 122 Id. at 524-25 (emphasis added); Covington, 43 Cal.App.5th at 879-883. 123 Pub. Res. Code § 21081.5. 124 Covington, 43 Cal.App.5th at 883; Los Angeles Unif. School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1029; see also, Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 443, fn. 8.
28 Exhibit A Page 39 of 109
977
informed decision-making and public participation.”125 Conclusory statements are inadequate.126
Dr. Clark explains that additional feasible mitigation measures are available to reduce operational NOx emissions.127 He recommends that the DSEIR include the following measures to reduce NOx emissions from heavy-duty trucks utilizing the Project site:128
• Contractual language in tenant lease agreements that requires future tenants to exclusively use zero-emission light and medium-duty delivery trucks and vans.
• Include contractual language in tenant lease agreements that requires all heavy-duty trucks entering or on the project site to be model year 2018 or later, expedite a transition to zero-emission vehicles, and be fully zeroemission beginning in 2023. A list of commercially available zero-emission trucks can be obtained from the Hybrid and Zero-emission Truck and Bus Voucher Incentive Project. Additional incentive funds are available from the Carl Moyer Program and Voucher Incentive Program.
• Include contractual language in tenant lease agreements that requires the tenant to be in, and monitor compliance with, all current air quality regulations for on-road trucks including the California Air Resources Board’s Heavy-Duty (Tractor-Trailer) Greenhouse Gas Regulation, Advanced Clean Trucks Regulation, Periodic Smoke Inspection Program, and the Statewide Truck and Bus Regulation.
• Include contractual language in tenant lease agreements restricting trucks and support equipment from idling longer than two minutes while on site.129 Such a measure goes beyond the City’s municipal code which only requires the posting of signage to restrict idling for no more than 3 minutes.130 It also goes beyond SWIP SP FEIR Mitigation Measure 4.2-2c, which only require that signs be posted requiring that trucks not be left idling more than 5 minutes.131
125 Marin Mun. Water Dist. v. KG Land Cal. Corp. (1991) 235 Cal.App.3d 1652, 1664. 126 Covington, 43 Cal.App.5th at 879; Flanders Found. v. City of Carmel-by-the-Sea (2012) 202 Cal.4th 603, 615; Village Laguna of Laguna Beach v. Bd. of Supervisors (1982) 134 Cal.App.3d 1022, 1034-35.
127 Clark Comments at p. 6.
128
129 Clark Comments at p. (internal citations omitted).
130 Fontana Municipal Code § 9-72(c).
131 DSEIR at p. 5.1-35.
29 Exhibit A Page 40 of 109
978
• Ensure that any check-in point for trucks is well inside the Project site to ensure that trucks do not que outside the facility.
• Establish overnight parking within the industrial building where trucks can rest overnight.
• Establish area(s) within the Project site for repair needs. • Limit the number of trucks allowed at the Project site based on the levels analyzed in the DSEIR.
In addition, Mr. Smith explains that implementation of CAPCOA transportation measures to reduce VMT impacts provides other benefits, such as improved air quality.132 For example, end-of-trip bicycle facilities can reduce up to
4.4% of NOx emissions associated with employee VMT commute.133 The DSEIR must consider the feasibility of implementation of CAPCOA transportation measure recommended by Mr. Smith to reduce impacts associated with operational NOx emissions from Project-related mobile sources, including carpool/vanpool matching and incentives, end-of-trip bicycle facilities, transit information and fare assistance, electric auto and electric bicycle purchase assistance.134 Finally, as discussed in Section VI.A., even though NOx emissions from nonmobile sources are much smaller than those derived from mobile source emissions, the City must analyze whether additional feasible mitigation measures are available to reduce NOX emission from all sources. For example, the City must set forth, identify, and describe feasible mitigation measures to reduce NOx emissions from the diesel-powered emergency generator and fire pump. The City should evaluate the use of selective catalytic reduction systems, exhaust gas recirculation systems, high-efficiency engines, optimized air-fuel ratio, NOx reduction additives, operator training, and emission monitoring.135
132 Smith Comments at p. 4.
133 Smith Comments at p. 4.
134 Smith Comments at p. 3.
135 See e.g., M.A. Aderibige et al., Retrofitting Diesel Engine Generators for a Sustainable Environment, Journal of Engineering and Applied Sciences (2017), available at https://www.researchgate.net/profile/AbelAiroboman/publication/314299707_Retrofitting_Diesel_Engine_Generators_for_Sustainable_Environ ment/links/5d80c5f2a6fdcc12cb95a1b3/Retrofitting-Diesel-Engine-Generators-for-SustainableEnvironment.pdf?_tp=eyJjb250ZXh0Ijp7ImZpcnN0UGFnZSI6InB1YmxpY2F0aW9uIiwicGFnZSI6In B1YmxpY2F0aW9uIn19; Department of Planning, Industry, and Environment, Air Emission Control for Back-Up Power Supplies for Data Centers and Other Land Uses (May 5, 2021), available at https://shared-drupal-s3fs.s3-ap-southeast-2.amazonaws.com/mastertest/fapub_pdf/210505_Todoroski+AS_Data+centres+air+emissions+report_draft.pdf; Generator Source, Recent Advances in Diesel Engines & Diesel Generator Sets, https://www.generatorsource.com/Diesel_Generator_Advancements.aspx (last visited Dec. 26, 2023). 30 Exhibit A Page 41 of 109
979
The City must respond to these specific suggestions identifying reductions to significant operational NOx emissions and evaluate each measure’s feasibility before it can conclude that the Project’s operational emissions are significant and unavoidable.
C. Feasible Mitigation Measures Are Available to Further Reduce Significant Operational Greenhouse Gas Emissions
The DSEIR concludes that GHG emissions from implementation of the proposed Project would be significant and unavoidable.136 In fact, the DSEIR finds that the Project’s mobile source emissions, which are derived primarily from employee and truck trips to and from the Project site, exceed the applicable significance threshold on its own.137 The DSEIR relies exclusively on SWIP SP FEIR mitigation measures to reduce the Project’s significant impacts.138 It does not, however, any identify any Project-specific mitigation measures.
As Mr. Smith explains, there are mitigation measures available to reduce GHG emissions from Project related vehicle emissions that neither the SWIP SP FEIR nor the DEIR require.139 For example, end-of-trip bicycle facilities can reduce up to 4.4% of GHG emissions from employee commute VMT.140 The DSEIR must consider the feasibility of implementation of CAPCOA transportation measure recommended by Mr. Smith to reduce impacts associated with operational GHG emissions from Project-related mobile sources, including carpool/vanpool matching and incentives, end-of-trip bicycle facilities, transit information and fare assistance, electric auto and electric bicycle purchase assistance.141 Moreover, the City of Fontana recently released a DSEIR for the Cherry Commerce Center (“CCC”) Project that tiers off the SWIP SP FEIR.142 To reduce significant GHG impacts, the CCC DSEIR set forth, identified, and discussed four project-specific feasible mitigation measures to reduce GHG impacts beyond those 136 DSEIR at p. 5.2-14.
137 DSEIR at pp. 5.2-13 to 5.2-14.
138 DSEIR at p. 5.2-14.
139 Smith Comments at p. 4.
140 Smith Comments at p. 4. 141 Smith Comments at p. 3. 142 City of Fontana, Cherry Commerce Center Project: Draft Subsequent Environmental Impact Report (Dec. 2023) (hereinafter “CCC DSEIR”) p. 4.7-21, available at https://fonopengislayers.fontana.org/WebLink/DocView.aspx?id=1783350&dbid=0&repo=FontanaRec ords;
https://fonopengislayers.fontana.org/WebLink/DocView.aspx?id=1783351&dbid=0&repo=FontanaRec ords.
31 Exhibit A Page 42 of 109
980
imposed by the SWIP SP FEIR.143 The first requires a TDM program to reduce single-occupant vehicle trips and encourage public transit.144 The second requires the installation of photovoltaic solar panels to offset 100% of the Project’s energy emissions.145 The third requires the project to divert 75% of waste from landfills.146 The fourth requires landscape equipment to be 100% electric.147 These are certainly feasible mitigation measures available to reduce GHG impacts for the proposed Project.
The City must identify and evaluate the feasibility of each recommended measure to reduce significant GHG impact associated with operation of the proposed Project in a revised and recirculated DSEIR.
VII. THE STATEMENT OF OVERRIDING CONSIDERATION MUST
CONSIDER WHETHER THE PROJECT PROVIDES EMPLOYMENT
OPPORTUNITIES FOR HIGHLY TRAINED WORKERS
The DSEIR concludes that the Project will have significant and unavoidable environmental impacts related to operational air quality and greenhouse gas emissions.148 Therefore, in order to approve the Project, CEQA requires the City to adopt a statement of overriding considerations, providing that the Project’s overriding benefits outweigh its environmental harm.149 An agency’s determination that a project’s benefits outweigh its significant, unavoidable impacts “lies at the core of the lead agency’s discretionary responsibility under CEQA.”150 The City must set forth the reasons for its action, pointing to supporting substantial evidence in the administrative record.151 This requirement reflects the policy that public agencies must weigh a project’s benefits against its unavoidable environmental impacts, and may find the adverse impacts acceptable only if the benefits outweigh the impacts.152 Importantly, a statement of overriding 143 CCC DSEIR at p. 4.7-21. 144 CCC DSEIR at p. 4.7-26 to 4.7-27. 145 CCC DSEIR at p. 4.7-27.
146 CCC DSEIR at p. 4.7-27.
147 CCC DSEIR at p. 4.7-27.
148 DSEIR at pp. 5.1-22 to 5.1-23, 5,1-25 to 5.1-26, 5.1-31, 5.1-36, 5.2-12 to 5.12-14, 5.2-19, 6-2 to 6-3. 149 CEQA Guidelines § 15043. 150 Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392.
151 Pub. Res. Code § 21081, subd. (b); CEQA Guidelines § 15093(a)-(b); Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 357. 152 Pub. Res .Code § 21081(b); CEQA Guidelines § 15093(a)-(b) 32 Exhibit A Page 43 of 109
981
considerations is legally inadequate if it fails to accurately characterize the relative harms and benefits of a project.153
In this case, the City must find that the Project’s significant, unavoidable impacts are outweighed by the Project’s benefits to the community. CEQA specifically references employment opportunities for highly trained workers as a factor to be considered in making the determination of overriding benefits.154 Currently, there is not substantial evidence in the record showing that the Project’s significant, unavoidable impacts are outweighed by benefits to the community. For example, there is no evidence in the record that the Applicant has made any commitments to employ graduates of state approved apprenticeship programs or taken other steps to ensure employment of highly trained and skilled craft workers for Project construction. The City would not fulfill its obligations under CEQA if it adopted a statement of overriding considerations and approved the Project without consideration of employment opportunities for highly trained workers and substantial evidence to support this analysis.
If a statement of overriding considerations is adopted for the Project, we urge the City to consider whether the Project will result in employment opportunities for highly trained workers.
VIII. CONCLUSION
For the reasons discussed above, the DSEIR is wholly inadequate under CEQA. It must be thoroughly revised to provide legally adequate analysis of, and mitigation for, all the Project’s potentially significant impacts. These revisions will necessarily require that the DSEIR be recirculated for additional public review.
Until the DSEIR has been revised and recirculated, the City may not lawfully approve the project.
Thank you for your consideration of these comments. Please include them in the record of proceedings for the Project.
Sincerely,
Andrew J. Graf
Attachments
AJG:acp
153 Woodward Park Homeowners Association v. City of Fresno (2007) 150 Cal.App.4th 683, 717. 154 Pub. Resources Code, § 21081, subds. (a)(3) and (b). 33 Exhibit A Page 44 of 109
982
EXHIBIT A
34 Exhibit A Page 45 of 109
983
January 18, 2024
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Attn: Mr. Andrew J. Graf
Subject: Comment Letter on Draft Subsequent Environmental Impact Report (DEIR) For Hemlock Warehouse
Development Project, SCH No. 2009091089, Fontana,
California
Dear Mr Graf:
At the request of Adams Broadwell Joseph & Cardozo (ABJC), Clark and Associates (Clark) has reviewed materials related to the above referenced project.
The 40.01-acre Project site is located at 11115 Hemlock Avenue in the southern portion of the City of Fontana within San Bernardino County. The Project area is an urban, developed, industrial use area of the City to the south of I-10. The Project site is currently developed with light industrial uses and occupied by Modular Space Corporation (ModSpace), which uses the site for leasing, storage, and refurbishing of modular trailers, offices, and storage bins. The Project site is developed with one building and three modular buildings, which total 11,590 SF. In addition, the site contains stored modular units, scrap metal and recycling collection bins, parking lots, and storage areas.1
The proposed Project consists of development and operation of a warehouse facility that would have a building footprint of approximately 747,000 SF. The proposed building would be two stories with a maximum height of 60 feet. The building would be used for 1 EPD Solutions. 2023. Hemlock Warehouse Development Project Draft Environmental Impact Report. October, 2023.
Pg 1-1
Clark & Associates
Environmental Consulting, Inc.
OFFICE
12405 Venice Blvd
Suite 331
Los Angeles, CA 90066
PHONE
310-907-6165
FAX
310-398-7626
EMAIL
[email protected]
35 Exhibit A Page 46 of 109
984
sorting, warehousing, distribution, and office space. The proposed building would have a first-floor office of 20,000 SF, a second floor office mezzanine area of 20,000 SF, a warehouse area of 726,826 SF, and a pick module mezzanine area of 115,000 SF. This totals 881,826 SF.2 Figure 1: Project Site Location
2 EPD Solutions. 2023. Hemlock Warehouse Development Project Draft Environmental Impact Report. October, 2023.
Pg 1-3
36 Exhibit A Page 47 of 109
985
3 Figure 2: Project Conceptual Site Plan
According to the DSEIR, the storage of refrigerated goods would occur within the 220,500 SF of the warehouse. The facility would have 114 loading docks that would be located on the east and west sides of the building.4
3 EPD Solutions. 2023. Hemlock Warehouse Development Project Draft Environmental Impact Report. October, 2023.
Pg 3-2
4 EPD Solutions. 2023. Hemlock Warehouse Development Project Draft Environmental Impact Report. October, 2023.
Pg 3-9
37 Exhibit A Page 48 of 109
986
The proposed warehouse building is expected to operate up to 7 days a week. The warehousing uses could include multiple shifts with operational activities 24 hours per day. Operations would primarily be conducted within the enclosed buildings, except for traffic movement, parking, and the loading and unloading of trucks at designated loading docks.
Onsite soils would be excavated to depths of 3 to 4 feet below the existing ground surface and proposed building pad subgrade, recompacted as engineered fill to support the proposed building structure. The compaction of fill would comply with the California Building Code (CBC) regulations.
The Project includes approximately 58,700 cubic yards (cy) of cut and 63,000 cubic yards of fill. With shrinkage from compaction, a total of 6,000 cy of import would be required. The proposed construction schedule is provided below.
Table 1: Assumed Construction Schedule
Construction Activity Working Days
Demolition 60
Site Preparation 15
Grading 30
Building Construction 222
38 Exhibit A Page 49 of 109
987
Paving 20
Architectural Coating 20
The City notes that there are 43 different projects within the vicinity of the Project site. There are 36 different warehouse/high-cube warehouse/fulfillment center projects within the vicinity of the Project site. The warehouse projects total 7,681,892 square feet of warehousing. The DEIR only assesses the impacts qualitatively.
# Project Land Use Quantity1
1 Fontana Corporate Center Warehouse 355.370 TSF
2 FontanaTrailer Storage Yard Truck Trailer Storage Yard 17.4 AC 3 MG Home International Warehouse Warehouse 15.570 TSF
4 Calabash Industrial Building Warehouse 64.692 TSF
5 Cherry Av.Warehouse Warehouse 174.280 TSF
6 Beech &Santa AnaWarehouse Warehouse 174.000 TSF
7 Banana & Rose Warehouse 85.730 TSF
8 MCN No.19-040 Warehouse 106.500 TSF
9 MCN No.21-074 Warehouse 42.000 TSF
10 TPM No.20236(MCNNo.20-040) Warehouse (2 Buildings) 158.223 TSF 11 MCN No. 19-094 Warehouse 192.000 TSF
12 MCN No. 19-057 Warehouse 146.800 TSF
13 Slover andRedwood Industrial Truck Trailer Storage Yard 5.1 AC 14 14801SloverAvenueWarehouse Warehouse 308.211 TSF
15 MCN No. 21-049 Warehouse 210.400 TSF
16 Banana and Santa AnaWarehouse Warehouse 299.041 TSF
17 ChaffeyCollege-Fontana Junior/Community College 854 STU 18 GLCFontana III Warehouse 362.416 TSF
High-CubeColdStorageWarehouse 90.604 TSF
19 Fontana Foothills High-CubeWarehouse / DistributionCenter 754.408 TSF 20 SloverIndustrialCenter High-Cube Warehouse (Cold Storage) 20.421 TSF Warehousing 115.719 TSF
21 La Quinta Inn Hotel 104 Room
22 Townplace Suites Hotel 116 Room
23 Citrus/ SloverWarehouse (SECof
CitrusAv.&SloverAv.)
Warehousing 194.212 TSF
24 Cypress and SloverWarehouse High-Cube Warehouse (Cold Storage) 156.365 TSF High-CubeFulfillment Center 469.095 TSF
25 SloverAvenue Office/Warehouse Warehouse 41.000 TSF
26 SierraBusinessCenter High-Cube Warehouse Fulfillment Center (Sort)
707.735 TSF
27 AffordableHousing Project Affordable Homes 130 DU
39 Exhibit A Page 50 of 109
988
# Project Land Use Quantity1
28 TheHeights as Southridge SingleFamily Detached Residential 255 DU 29 SouthridgeDog Park Dog Park 0.53 AC
30 ElmWarehouse Warehousing 88.619 TSF
31 Boyle Industrial Warehousing 126.655 TSF
32 Clover Industrial Warehousing 148.028 TSF
33 16025 Slover Ave Warehouse High-Cube Fulfillment Center 400.000 TSF 34 Catawba & Aliso Industrial Warehousing 14.955 TSF
35 James Hardie Development Research and Development 200.600 TSF 36 Fontana Business Center High-Cube Fulfillment Center 490.565 TSF 37 First Industrial Catawba Warehouse Warehousing 18.467 TSF 38 Jurupa and Citrus Warehouse Warehousing 77.558 TSF
39 CHI Fontana Citrus Warehousing 174.888 TSF
40 Poplar South Distribution Center Warehousing 490.565 TSF 41 Fontana Business Center 2 Warehousing 40.800 TSF
42 SWC Slover and Cherry Warehousing 165.400 TSF
43 Cherry and Valley Retail Center Coffee Shop with Drive-Thru 2.500 TSF Automobile Parts Store 7.381 TSF
1TSF = Thousand Square Feet; AC = Acres; DU = Dwelling Units; STU = Students The DEIR concludes that no mitigation is required to prevent impacts from the project on air quality in the area. This conclusion is in conflict with the facts provided within the DEIR.
1. There Are a Number Of Mitigation Measures That Will Have A Direct Impact On Operational NOx and GHG Emissions Not Explored By The City In The DSEIR The primary source of NOx for the Project is from trucks entering and exiting the Project site.
According to the California Air Resources Board (CARB), heavy-duty trucks over 10,000 pounds gross vehicle weight rating (GVWR) are responsible for over 70 percent of the NOx emissions from on-road mobile sources.5 The mitigation measures outlined in the DSEIR do not go far enough to reduce the emissions. Additional binding mitigation for the project that focuses on the primary source of NOx associated with the project, i.e., the heavy-duty trucks utilizing the site, is necessary. Those mitigation measures should include:
• Contractual language in tenant lease agreements that requires future tenants to exclusively use zero-emission light and medium-duty delivery trucks and vans. 5 CARB. 2019. Staff White Paper: California Air Resources Board Staff Current Assessment of the Technical Feasibility of Lower NOx Standards and Associated Test Procedures for 2022 and Subsequent Model Year MediumDuty and Heavy-Duty Diesel Engines. Prepared by Staff of the Mobile Source Control Division Mobile Source Regulatory Development Branch. Dated April 18, 2019. Pg. 1. 40 Exhibit A Page 51 of 109
989
• Include contractual language in tenant lease agreements that requires all heavy-duty trucks entering or on the project site to be model year 2018 or later, expedite a transition to zeroemission vehicles, and be fully zero-emission beginning in 2023. A list of commercially available zero-emission trucks can be obtained from the Hybrid and Zero-emission Truck and Bus Voucher Incentive Project (HVIP).
6 Additional incentive funds are available
from the Carl Moyer Program and Voucher Incentive Program.7 • Include contractual language in tenant lease agreements that requires the tenant to be in, and monitor compliance with, all current air quality regulations for on-road trucks including CARB’s Heavy-Duty (Tractor-Trailer) Greenhouse Gas Regulation,8 Advanced Clean Trucks Regulation,9 Periodic Smoke Inspection Program (PSIP),10 and the Statewide Truck and Bus Regulation.11
• Include contractual language in tenant lease agreements restricting trucks and support equipment from idling longer than two minutes while on site. • Have truck routes clearly marked with trailblazer signs, so that trucks will not enter residential areas.
6 Zero-Emission Truck and Bus Voucher Incentive Project. Accessible at: https://californiahvip.org/ 7 Carl Moyer Program and Voucher Incentive Program. https://ww2.arb.ca.gov/carl-moyer-program-apply 8 In December 2008, CARB adopted a regulation to reduce greenhouse gas emissions by improving the fuel efficiency of heavy-duty tractors that pull 53-foot or longer box-type trailers. The regulation applies primarily to owners of 53-foot or longer box-type trailers, including both dry-van and refrigerated-van trailers, and owners of the heavy-duty tractors that pull them on California highways. CARB’s Heavy-Duty (Tractor-Trailer) Greenhouse Gas Regulation is available at:
https://ww2.arb.ca.gov/our-work/programs/ttghg
9 On June 25, 2020, CARB approved the Advanced Clean Trucks Regulation. The regulation requires manufacturers to start the transition from diesel trucks and vans to zero-emission trucks beginning in 2024. The rule is expected to result in about 100,000 electric trucks in California by the end of 2030 and about 300,000 by 2035. CARB is expected to consider a fleet regulation in 2021 that would be compatible with the Advanced Clean Trucks regulation, requiring fleets to purchase a certain percentage of zero-emission trucks and vans for their fleet operations. https://ww2.arb.ca.gov/ourwork/programs/advanced-clean-trucks 10 The PSIP program requires that diesel and bus fleet owners conduct annual smoke opacity inspections of their vehicles and repair those with excessive smoke emissions to ensure compliance. CARB’s PSIP program is available at:
https://www.arb.ca.gov/enf/hdvip/hdvip.htm
11 The regulation requires that newer heavier trucks and buses must meet particulate matter filter requirements beginning January 1, 2012. Lighter and older heavier trucks must be replaced starting January 1, 2015. By January 1, 2023, nearly all trucks and buses will need to have 2010 model-year engines or equivalent. CARB’s Statewide Truck and Bus Regulation is available at: https://www.arb.ca.gov/msprog/onrdiesel/onrdiesel.htm 41 Exhibit A Page 52 of 109
990
• Ensure that any check-in point for trucks is well inside the Proposed Project site to ensure that no trucks are queuing outside of the facility.
• Establish overnight parking within the industrial building where trucks can rest overnight. • Establish area(s) within the Proposed Project site for repair needs. • Limit the daily number of trucks allowed at the Proposed Project to levels analyzed in the CEQA document. If higher daily truck volumes are anticipated to visit the site, the City as the Lead Agency should commit to re-evaluating the Proposed Project through CEQA prior to allowing this land use or higher activity level
The City must consider these mitigation measures in a revised DSEIR for the project before proceeding with the approval of the DSEIR.
2. The Underlying Assumptions Regarding the Number of Vehicles Associated With Each Square Foot of Building Utilized In The Air Quality Analysis Reflects Only The Low End Of The ITE Guidance On High Cube Warehouses And Does Not Reflect The Range Of Values Reported By ITE.
The choice of the daily trip rate has a profound impact on the calculated emissions for operational associated with the Project. The City’s choice for the trip rate is at the lowest end of the values reported in the literature. The ITE manual includes a variety of average daily vehicle trips for HCWs which range from a low of 1.4 per 1,000 square feet for transload and short-term storage warehouses to a high of 6.44 trips per square feet for fulfillment center warehouses.12 An averaged value of all the warehouse HCW types reported in the ITE manual would be 3.28 trips per 1,000 square feet. Based on the results in the DSEIR, it is assumed that a 75% warehouse use (ITE Code 150) with a trip generation rate of 1.710 and 25% cold storage (ITE Code 157) with a 2.120. This equates to a trip generation rate of 1.81 trips per 1,000 square feet. 12 Institute of Transportation Engineers (2020).
42 Exhibit A Page 53 of 109
991
Figure 3: Trip rates per 1,000 square feet as reported in ITE manual Using the ITE manual rates above, the proposed 726,826 square foot of HCW Project could result in 1,017 to 4,681 trips daily.
In the 2016 SCAQMD study, a value of 1.432 daily vehicle trips per 1,000 GSF is calculated for Transload and Short-term Storage HCWs. The study further states that, while the dataset for Transload and Short-term Storage HCWs is larger than those for Cold Storage HCWs, Fulfillment Center HCWs, and Parcel Hub HCWs, the relationship between building gross square footage and vehicle trips for Transload and Short-term HCWs does not produce an acceptable level of correlation to develop a fitted curve equation (emphasis added). In a 2019 study of warehouse trip generation performed by WSP for the Western Riverside Council of Governments (WR-COG), the average daily trip rate was substantially higher (50% higher) than the SCAQMD study. WSP performed traffic counts at 16 warehouses, segmented between 11 fulfillment centers and 5 parcel hubs. The average daily trip rate across the 11 fulfillment centers was 2.13 per 1000 square feet.
These studies suggest that the value used to justify the number of vehicle trips per day utilized by the City are not supportable, and the DSEIR lacks any supporting evidence to justify its reliance on a 1.81 daily trip rate. Based on the evidence and reasonable calculations provided in the SCAQMD and WR-COG studies, the City should, at a minimum, re-evaluate the Project’s operational emissions Transload
and ShortTerm Storage
Warehouse
Fulfillment
Center
Warehouse -
Non-Sort
Fulfillment
Center
Warehouse -
Sort
Parcel Hub
Warehouse
Cold Storage
Warehouse
Rate Used In
DSEIR
Daily Vehicle Traffic Trips 1.4 1.81 6.44 4.63 2.12 1.81
1.4 1.81
6.44 4.63
2.12 1.81
43 Exhibit A Page 54 of 109
992
based on the newer WR-COG rate (2.13) in a revised DSEIR.
3. The DSEIR Underestimates The Average Truck Trip Length Of 40 Miles Used In The Air Quality Analysis Does Not Match The Length(s) Used To Support A Nearby Duke Warehouse.
According to the Air Quality Analysis for the DSEIR, the SCAQMD recommended truck trip length of 40 miles was incorporated in the CalEEMod analysis. Guidance from SCAQMD does not require a 40-mile truck trip, rather as stated in the SCAQMD’s Final Environmental Assessment and Adoption of Proposed Rule 2305 – Warehouse Indirect Source Rule (WAIRE), the trip length for Class 8 trucks (heavy duty multi-axle trucks) are assumed to travel 39.9 miles per trip based on modeling conducted for the 2016 Regional Transportation Plan (RTP) from SCAG and the 2016 Air Quality Management Plan (AQMP).13 This misinterpretation of the averaged value from SCAG’s model is another example of how the County’s assumption are unsupported. The DEIR’s reliance on the 40-mile trip length does not comport with the reality of where warehoused materials will ship from in the region. The 40-mile distance is insufficient to allow vehicles to travel to the major ports in the Southern California region – Los Angeles and Long Beach. It is also inconsistent with average truck trip lengths assumed in other County CEQA documents for similar warehouse projects. A review of the path length from the Project Site to the Port of Long Beach (closest port to Project Site) shows that the true trip length is approximately 63 miles (approximately 158% longer than the assumed 40 mile trip length).
13 SCAQMD. 2021. BOARD MEETING DATE: MAY 7, 2021 AGENDA NO. 27 pg 815. http://www.aqmd.gov/docs/default-source/Agendas/Governing-Board/2021/2021-May7-027.pdf 44 Exhibit A Page 55 of 109
993
Figure 4: Distance From Hemlock Warehouse To Port Of Long Beach In its 2019 DEIR of the Duke Realty Alabama and Palmetto Warehouse Project, SCH 2019029078, submitted to the County of San Bernardino, an average truck trip length of approximately 77 miles was assumed, which is the distance to the Ports of Los Angeles/Long Beach.14 The Alabama/Palmetto Warehouse is located approximately 17 miles away from the Slover/Alder Project, therefore likely to have similar trip distances to the nearby ports. 14 MIG. 2019. Duke Alabama and Palmetto Warehouse Draft Environmental Impact Report. Prepared for Count of San Bernardino. Appendix B Air Quality Analysis Technical Memorandum. Pg 3 45 Exhibit A Page 56 of 109
994
Figure 5: Locations of Hemlock Warehouse Project and Duke Alabama/Palmetto Projects The air quality analysis of the Hemlock Warehouse Project must be updated to reflect the actual distance of the Project’s average daily truck trips, a minimum of approximately 63 miles (the distance to the Port of Long Beach). Since the Project’s operational emissions of NOx are primarily from mobile sources (55.70 lbs per day out of 70.54 lbs or 79% based on Table 5.1-10 of the DSEIR), increasing the trip length by 58% would create an even greater NOx problem for the Region. The City must revise the DSEIR’s air quality analysis to accurately calculate emissions using fact-based, reasonably foreseeable truck trip lengths.
Duke Alabama/Palmetto
Project
Hemlock Warehouse
Project
46 Exhibit A Page 57 of 109
995
Conclusion
The facts identified and referenced in this comment letter lead me to reasonably conclude that the Project could result in significant, unmitigated impacts if allowed to proceed. The DSEIR should be revised to address these substantial concerns.
Sincerely,
47 Exhibit A Page 58 of 109
996
Exhibit A:
Curriculum Vitae
48 Exhibit A Page 59 of 109
997
49 Exhibit A Page 60 of 109
998
James J. J. Clark, Ph.D.
Principal Toxicologist
Toxicology/Exposure Assessment Modeling
Risk Assessment/Analysis/Dispersion Modeling
Education:
Ph.D., Environmental Health Science, University of California, 1995 M.S., Environmental Health Science, University of California, 1993 B.S., Biophysical and Biochemical Sciences, University of Houston, 1987 Professional Experience:
Dr. Clark is a well-recognized toxicologist, air modeler, and health scientist. He has 30 years of experience in researching the effects of environmental contaminants on human health including environmental fate and transport modeling (SCREEN3, AEROMOD, ISCST3, Johnson-Ettinger Vapor Intrusion Modeling, RESRAD, GENII); exposure assessment modeling (partitioning of contaminants in the environment as well as PBPK modeling); conducting and managing human health risk assessments for regulatory compliance and risk-based clean-up levels; and toxicological and medical literature research.
SELECTED AIR MODELING RESEARCH/PROJECTS
Client(s) - Confidential
Dr. Clark performed a historical dose reconstruction for community members from an active 700 acre petroleum refinery in Los Angeles. The analysis included a multi-year dispersion model was performed in general accordance with the methods outlined by the U.S. EPA and the SCAQMD for assessing the health impacts in Torrance, California. The results of the analysis are being used as the basis for injunctive relief for the communities surrounding the refinery.
Client(s) – Multiple
Indoor Air Evaluations, California: Performed multiple indoor air screening evaluations and risk characterizations consistent with California Environmental Protection Agency’s (Cal/EPA) Department of Toxic Substances Control (DTSC) and Regional Water Quality Control Board (RWQCB) methodologies. Characterizations included the use of DTSC’s Clark & Associates
Environmental Consulting, Inc
Office
12405 Venice Blvd.
Suite 331
Los Angeles, CA 90066
Phone
310-907-6165
Fax
310-398-7626
Email
[email protected]
50 Exhibit A Page 61 of 109
999
modified Johnson & Ettinger Model and USEPA models, as well as the attenuation factor model currently advocated by Cal/EPA’s Office of Environmental Health and Hazard Assessment (OEHHA).
Client – Adams, Broadwell, Joseph Cardozo, P.C.
Dr. Clark has performed numerous air quality analyses and risk assessments of criteria pollutants, air toxins, and particulate matter emissions for sites undergoing evaluation via the California Environmental Quality Act (CEQA) process. The analyses include the evaluation of Initial Study (IS) and Environmental Impacts Reports (EIR) for each project to determine the significance of air quality, green house gas (GHG), and hazardous waste components of the projects. The analyses were compiled as comment letters for submittal to oversight agencies.
Client – Confidential
Dr. Clark performed a comprehensive evaluation of criteria pollutants, air toxins, and particulate matter emissions from a carbon black production facility to determine the impacts on the surrounding communities. The results of the dispersion model were used to estimate acute and chronic exposure concentrations to multiple contaminants and were be incorporated into a comprehensive risk evaluation.
Client – Confidential
Dr. Clark performed a comprehensive evaluation of air toxins and particulate matter emissions from a railroad tie manufacturing facility to determine the impacts on the surrounding communities. The results of the dispersion model have been used to estimate acute and chronic exposure concentrations to multiple contaminants and have been incorporated into a comprehensive risk evaluation.
PUBLIC HEALTH/TOXICOLOGY
Client: Confidential
Dr. Clark performed a historical dose reconstruction for community members from radiologically impacted material (RIM) releases from an adjacent landfill. The analysis was performed in general accordance with the methods outlined by the Agency for Toxic Substances Control (ATSDR) for assessing radiation doses from historical source areas in North St. Louis County, Missouri.
Client: City of Santa Clarita, Santa Clarita, California Dr. Clark managed the oversight of the characterization, remediation and development activities of a former 1,000 acre munitions manufacturing facility for the City of Santa 51 Exhibit A Page 62 of 109
1000
Clarita. The site is impacted with a number of contaminants including perchlorate, unexploded ordinance, and volatile organic compounds (VOCs). The site is currently under a number of regulatory consent orders, including an Immanent and Substantial Endangerment Order. Dr. Clark assisted the impacted municipality with the development of remediation strategies, interaction with the responsible parties and stakeholders, as well as interfacing with the regulatory agency responsible for oversight of the site cleanup.
Client: Confidential
Dr. Clark performed a historical dose reconstruction for community members exposed to radioactive waste released into the environment from legacy storage facilities. The releases resulted in impacts to soils, sediments, surface waters, and groundwater in the vicinity of the sites. The analysis was performed in general accordance with the methods outlined by the Agency for Toxic Substances Control (ATSDR) for assessing radiation doses from historical source areas in the community.
Client: Confidential
Dr. Clark performed a dose assessment of an individual occupationally exposed to metals and silica from fly ash who later developed cancer. A review of the individual’s medical and occupational history was performed to prepare opinions regarding his exposure and later development of cancer.
Client: Brayton Purcell, Novato, California
Dr. Clark performed a toxicological assessment of residents exposed to methyl-tertiary butyl ether (MTBE) from leaking underground storage tanks (LUSTs) adjacent to the subject property. The symptomology of residents and guests of the subject property were evaluated against the known outcomes in published literature to exposure to MTBE. The study found that residents had been exposed to MTBE in their drinking water; that concentrations of MTBE detected at the site were above regulatory guidelines; and, that the symptoms and outcomes expressed by residents and guests were consistent with symptoms and outcomes documented in published literature.
Client: Confidential
Dr. Clark performed a toxicological assessment of an individual occupationally exposed to hexavalent chromium who later developed cancer. A review of the individual’s medical and occupational history was performed to prepare opinions regarding her exposure and later development of cancer.
52 Exhibit A Page 63 of 109
1001
Client: Covanta Energy, Westwood, California
Evaluated health risk from metals in biosolids applied as soil amendment on agricultural lands. The biosolids were created at a forest waste cogeneration facility using 96% whole tree wood chips and 4 percent green waste. Mass loading calculations were used to estimate Cr(VI) concentrations in agricultural soils based on a maximum loading rate of 40 tons of biomass per acre of agricultural soil. The results of the study were used by the Regulatory agency to determine that the application of biosolids did not constitute a health risk to workers applying the biosolids or to residences near the agricultural lands.
Client: Kaiser Venture Incorporated, Fontana, California Prepared PBPK assessment of lead risk of receptors at a 1,100-acre former steel mill. This evaluation was used as the basis for granting closure of the site by lead regulatory agency.
RISK ASSESSMENTS/REMEDIAL INVESTIGATIONS
Kaiser Ventures Incorporated, Fontana, California
Prepared health risk assessment of semi-volatile organic chemicals and metals for a fiftyyear old wastewater treatment facility used at a 1,100-acre former steel mill. This evaluation was used as the basis for granting closure of the site by lead regulatory agency.
ANR Freight - Los Angeles, California
Prepared a comprehensive Preliminary Endangerment Assessment (PEA) of petroleum hydrocarbon and metal contamination of a former freight depot. This evaluation was as the basis for reaching closure of the site with lead regulatory agency.
Kaiser Ventures Incorporated, Fontana, California
Prepared comprehensive health risk assessment of semi-volatile organic chemicals and metals for 23-acre parcel of a 1,100-acre former steel mill. The health risk assessment was used to determine clean up goals and as the basis for granting closure of the site by lead regulatory agency. Air dispersion modeling using ISCST3 was performed to determine downwind exposure point concentrations at sensitive receptors within a 1 kilometer radius of the site. The results of the health risk assessment were presented at a public meeting sponsored by the Department of Toxic Substances Control (DTSC) in the community potentially affected by the site.
53 Exhibit A Page 64 of 109
1002
Unocal Corporation - Los Angeles, California
Prepared comprehensive assessment of petroleum hydrocarbons and metals for a former petroleum service station located next to sensitive population center (elementary school).
The assessment used a probabilistic approach to estimate risks to the community and was used as the basis for granting closure of the site by lead regulatory agency.
Client: Confidential, Los Angeles, California
Managed oversight of remedial investigation most contaminated heavy metal site in California. Lead concentrations in soil excess of 68,000,000 parts per billion (ppb) have been measured at the site. This State Superfund Site was a former hard chrome plating operation that operated for approximately 40-years.
Client: Confidential, San Francisco, California
Coordinator of regional monitoring program to determine background concentrations of metals in air. Acted as liaison with SCAQMD and CARB to perform co-location sampling and comparison of accepted regulatory method with ASTM methodology.
Client: Confidential, San Francisco, California
Analyzed historical air monitoring data for South Coast Air Basin in Southern California and potential health risks related to ambient concentrations of carcinogenic metals and volatile organic compounds. Identified and reviewed the available literature and calculated risks from toxins in South Coast Air Basin.
IT Corporation, North Carolina
Prepared comprehensive evaluation of potential exposure of workers to air-borne VOCs at hazardous waste storage facility under SUPERFUND cleanup decree. Assessment used in developing health based clean-up levels.
Professional Associations
American Public Health Association (APHA)
Association for Environmental Health and Sciences (AEHS) American Chemical Society (ACS)
International Society of Environmental Forensics (ISEF) Society of Environmental Toxicology and Chemistry (SETAC) Publications and Presentations:
Books and Book Chapters
54 Exhibit A Page 65 of 109
1003
Sullivan, P., J.J. J. Clark, F.J. Agardy, and P.E. Rosenfeld. (2007). Synthetic Toxins In The Food, Water and Air of American Cities. Elsevier, Inc. Burlington, MA.
Sullivan, P. and J.J. J. Clark. 2006. Choosing Safer Foods, A Guide To Minimizing Synthetic Chemicals In Your Diet. Elsevier, Inc. Burlington, MA.
Sullivan, P., Agardy, F.J., and J.J.J. Clark. 2005. The Environmental Science of Drinking Water. Elsevier, Inc. Burlington, MA.
Sullivan, P.J., Agardy, F.J., Clark, J.J.J. 2002. America’s Threatened Drinking Water:
Hazards and Solutions. Trafford Publishing, Victoria B.C.
Clark, J.J.J. 2001. “TBA: Chemical Properties, Production & Use, Fate and Transport, Toxicology, Detection in Groundwater, and Regulatory Standards” in Oxygenates in the Environment. Art Diaz, Ed.. Oxford University Press: New York.
Clark, J.J.J. 2000. “Toxicology of Perchlorate” in Perchlorate in the Environment.
Edward Urbansky, Ed. Kluwer/Plenum: New York.
Clark, J.J.J. 1995. Probabilistic Forecasting of Volatile Organic Compound Concentrations At The Soil Surface From Contaminated Groundwater. UMI.
Baker, J.; Clark, J.J.J.; Stanford, J.T. 1994. Ex Situ Remediation of Diesel Contaminated Railroad Sand by Soil Washing. Principles and Practices for Diesel Contaminated Soils, Volume III. P.T. Kostecki, E.J. Calabrese, and C.P.L. Barkan, eds. Amherst Scientific Publishers, Amherst, MA. pp 89-96.
Journal and Proceeding Articles
Tam L. K.., Wu C. D., Clark J. J. and Rosenfeld, P.E. (2008) A Statistical Analysis Of Attic Dust And Blood Lipid Concentrations Of Tetrachloro-p-Dibenzodioxin (TCDD) Toxicity Equialency Quotients (TEQ) In Two Populations Near Wood Treatment Facilities. Organohalogen Compounds, Volume 70 (2008) page 002254.
Tam L. K.., Wu C. D., Clark J. J. and Rosenfeld, P.E. (2008) Methods For Collect Samples For Assessing Dioxins And Other Environmental Contaminants In Attic Dust: A Review. Organohalogen Compounds, Volume 70 (2008) page 000527 Hensley A.R., Scott, A., Rosenfeld P.E., Clark, J.J.J. (2007). “Attic Dust And Human Blood Samples Collected Near A Former Wood Treatment Facility.” Environmental Research. 105:194-199.
Rosenfeld, P.E., Clark, J. J., Hensley, A.R., and Suffet, I.H. 2007. “The Use Of An Odor Wheel Classification For The Evaluation of Human Health Risk Criteria For Compost Facilities” Water Science & Technology. 55(5): 345-357.
Hensley A.R., Scott, A., Rosenfeld P.E., Clark, J.J.J. 2006. “Dioxin Containing Attic Dust And Human Blood Samples Collected Near A Former Wood Treatment Facility.” The 26th International Symposium on Halogenated Persistent Organic Pollutants – 55 Exhibit A Page 66 of 109
1004
DIOXIN2006, August 21 – 25, 2006. Radisson SAS Scandinavia Hotel in Oslo Norway.
Rosenfeld, P.E., Clark, J. J. and Suffet, I.H. 2005. “The Value Of An Odor Quality Classification Scheme For Compost Facility Evaluations” The U.S. Composting Council’s 13th Annual Conference January 23 - 26, 2005, Crowne Plaza Riverwalk, San Antonio, TX.
Rosenfeld, P.E., Clark, J. J. and Suffet, I.H. 2004. “The Value Of An Odor Quality Classification Scheme For Urban Odor” WEFTEC 2004. 77th Annual Technical Exhibition & Conference October 2 - 6, 2004, Ernest N. Morial Convention Center, New Orleans, Louisiana.
Clark, J.J.J. 2003. “Manufacturing, Use, Regulation, and Occurrence of a Known Endocrine Disrupting Chemical (EDC), 2,4-Dichlorophnoxyacetic Acid (2,4-D) in California Drinking Water Supplies.” National Groundwater Association Southwest Focus Conference: Water Supply and Emerging Contaminants. Minneapolis, MN.
March 20, 2003.
Rosenfeld, P. and J.J.J. Clark. 2003. “Understanding Historical Use, Chemical Properties, Toxicity, and Regulatory Guidance” National Groundwater Association Southwest Focus Conference: Water Supply and Emerging Contaminants. Phoenix, AZ. February 21, 2003.
Clark, J.J.J., Brown A. 1999. Perchlorate Contamination: Fate in the Environment and Treatment Options. In Situ and On-Site Bioremediation, Fifth International Symposium. San Diego, CA, April, 1999.
Clark, J.J.J. 1998. Health Effects of Perchlorate and the New Reference Dose (RfD).
Proceedings From the Groundwater Resource Association Seventh Annual Meeting, Walnut Creek, CA, October 23, 1998.
Browne, T., Clark, J.J.J. 1998. Treatment Options For Perchlorate In Drinking Water.
Proceedings From the Groundwater Resource Association Seventh Annual Meeting, Walnut Creek, CA, October 23, 1998.
Clark, J.J.J., Brown, A., Rodriguez, R. 1998. The Public Health Implications of MtBE and Perchlorate in Water: Risk Management Decisions for Water Purveyors.
Proceedings of the National Ground Water Association, Anaheim, CA, June 3-4, 1998.
Clark J.J.J., Brown, A., Ulrey, A. 1997. Impacts of Perchlorate On Drinking Water In The Western United States. U.S. EPA Symposium on Biological and Chemical Reduction of Chlorate and Perchlorate, Cincinnati, OH, December 5, 1997.
Clark, J.J.J.; Corbett, G.E.; Kerger, B.D.; Finley, B.L.; Paustenbach, D.J. 1996. Dermal Uptake of Hexavalent Chromium In Human Volunteers: Measures of Systemic Uptake From Immersion in Water At 22 PPM. Toxicologist. 30(1):14. 56 Exhibit A Page 67 of 109
1005
Dodge, D.G.; Clark, J.J.J.; Kerger, B.D.; Richter, R.O.; Finley, B.L.; Paustenbach, D.J. 1996. Assessment of Airborne Hexavalent Chromium In The Home Following Use of Contaminated Tapwater. Toxicologist. 30(1):117-118.
Paulo, M.T.; Gong, H., Jr.; Clark, J.J.J. (1992). Effects of Pretreatment with Ipratroprium Bromide in COPD Patients Exposed to Ozone. American Review of Respiratory Disease. 145(4):A96.
Harber, P.H.; Gong, H., Jr.; Lachenbruch, A.; Clark, J.; Hsu, P. (1992). Respiratory Pattern Effect of Acute Sulfur Dioxide Exposure in Asthmatics. American Review of Respiratory Disease. 145(4):A88.
McManus, M.S.; Gong, H., Jr.; Clements, P.; Clark, J.J.J. (1991). Respiratory Response of Patients With Interstitial Lung Disease To Inhaled Ozone. American Review of Respiratory Disease. 143(4):A91.
Gong, H., Jr.; Simmons, M.S.; McManus, M.S.; Tashkin, D.P.; Clark, V.A.; Detels, R.; Clark, J.J. (1990). Relationship Between Responses to Chronic Oxidant and Acute Ozone Exposures in Residents of Los Angeles County. American Review of Respiratory Disease. 141(4):A70.
Tierney, D.F. and J.J.J. Clark. (1990). Lung Polyamine Content Can Be Increased By Spermidine Infusions Into Hyperoxic Rats. American Review of Respiratory Disease. 139(4):A41.
57 Exhibit A Page 68 of 109
1006
EXHIBIT B
58 Exhibit A Page 69 of 109
1007
January 18, 2023
Mr. Andrew J. Graf
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080-7037
Subject: Hemlock Warehouse Development Project DSEIR
SCH # 2009091089 P23013
Dear Mr. Graf:
Per your request, I reviewed the Draft Subsequent Environmental Impact Report (the “DSEIR”) for the Hemlock Warehouse Development Project (the “Project”) in the City of Fontana (the “City”). My review is with respect to transportation considerations. I have also reviewed the comments of Dr. James Clark of Clark & Associates with respect to transportation data that underlies the DSEIR’s Air Quality and Greenhouse Gas analyses.
My qualifications to perform this review include registration as a Civil and Traffic Engineer in California and over 50 years of professional consulting practice in these fields. I have both prepared and reviewed the transportation and sections of numerous documents related to compliance with the California Environmental Quality Act (“CEQA”). My professional resume is attached.
My comments on the subject DSEIR and Dr. Clark’s analysis follow.
We Concur With Dr. Clark’s Assessment that the Underlying ADT of Vehicles Generated by the Proposed Floor Area of High Cube Warehouse Use Unreasonably Reflects Only the Low End of ITE Trip Generation Estimates of Potential Uses of High Cube Warehouse Buildings.
The DSEIR admits that the ultimate owner, tenant or tenants of the project are currently unknown. It estimates Project trip generation based on the Institute of Transportation Engineers publication Trip Generation, 11th Edition (9-20-21). It estimates that 75 percent of the warehouse would be used as ITE Land Use Category 150 Warehouse use and 25 percent ITE Land Use Category 157 High 59 Exhibit A Page 70 of 109
1008
Cube Cold Storage Warehouse. However, as Clark correctly points out, the high cube warehouse type buildings can be used for types of warehousing that have much higher trip generation rates than the types of uses assumed. Uses with much higher trip generation rates include the increasingly prevalent ITE Land Use Categories 155 Fulfillment Center and 156 Parcel Hub uses. In this commenter’s opinion, the DSEIR’s speculative presumption that the uses that would occupy the Project comprise two uses that have among the lowest trip generation rates of all the likely uses of the proposed warehouse buildings is unreasonable. However, we believe that Clark’s solution, using an averaged trip generation rate considering the possible uses of the high cube warehouse building type is excessively favorable to the Project. Our recommendation is that the DSEIR, since the it states that the ultimate occupancy is currently unknown, consider specific scenarios involving high traffic intensity uses: one where the entire building is used as a Fulfillment Center, one that assumes half the building is used as a Parcel Hub, half as a Fulfillment Center and one that considers the entire building is used as a Parcel Hub. The warehouse in the first scenario would have a gross trip generation of 4080 daily trips, that in the second scenario would have a gross trip generation of 4023 daily trips and the warehouse in the third scenario would have a gross trip generation of 3365 daily trips.
Dr. Clarks comments go on to describe the implications of the trip generation rates on the Air Quality and Greenhouse Gas analyses of the Project. But we note that there is an impact on the Transportation analysis as well. The Project dodges preparation of a VMT analysis on the grounds that it is a small project generating less than 500 net new trips per day, a threshold that exempts it from VMT analysis if not exceeded, according to City guidelines1.
Although DSEIR Appendix F estimates the Project would generate 1598 trips in actual vehicles, it deducts a credit of the difference between this total and the total trips the Project site could have generated under the use permitted under the Southwest Industrial Park Specific Plan (SWIP) and the Slover Central Manufacturing/Industrial District of the SWIP (2,966 daily trips), although that use was never constructed. This deduction leads the DSEIR to conclude that the net new trips of the Project would not exceed the 500 daily trip ceiling and that therefore the Project is exempt from VMT analysis as a ‘small project’. However, if the Project were analyzed with the above scenarios under consideration, and the full 2966 daily trips of the SWIP authorized use were deducted, the first scenario would involve a total of 1714 net new daily trips, the second would involve a total of 1057 net new daily trips and the third would involve 399 net new daily trips. Hence the first and second scenarios would be above the City’s small project exemption ceiling of 500 net new daily trips and only the third would be 1 We note for the record that the City’s 500 trip threshold is nearly 5 times more lenient than the Governor’s Office of Planning and Research (OPR) recommendation for a threshold ceiling of just 110 trips.
60 Exhibit A Page 71 of 109
1009
Mr. Andrew J. Graf
Adams Broadwell Joseph & Cardozo
January 8, 2023
below it although it would still be more than 3 times above OPR’s recommended ceiling to qualify for exemption as a small project. Since plausible uses of the proposed warehouse buildings would not qualify for exemption as a small project, a VMT analysis is required and the DSEIR is deficient in failing to provide one.
If a Formal VMT Analysis Were Performed, Other Evidence Disclosed in the DSEIR Makes Clear That the Project Would Be Found To Have Significant VMT Impact
DSEIR Appendix F page 74, in a section entitled “Step 2, Low VMT Area Screening” the narrative states, “The San Bernardino Transportation Analysis Model (SBTAM) is used to measure VMT performance in individual TAZ’s within the region. The Project’s physical location was identified in the SBTAM model to determine the TAZ in which the Project will reside. The Project TAZ 53713102 is then calculated using Origin-Destination (OD) trip matrices to obtain total OD VMT and the resulting total OD VMT is divided by the Project TAZ’s service population. The Project TASZ 53713102 was found to have a VMT per service population of 71.3 which was compared to 15% below County of San Bernardino baseline or 28.3 VMT per service population. The Project is not located within a low VMT generating zone.”
These same SBTAM model based findings demonstrate conclusively that the Project would have significant VMT impacts had the DSEIR not inappropriately and speculatively presumed that the lowest trip generating types of warehouse use would occupy the Project warehouse buildings in order to screen-out the Project from VMT analysis as an exempt ‘small project’ and instead more reasonably in keeping with CEQA’s demand for a good faith effort to disclose impact assumed plausible occupancy by more traffic intense warehousing uses.
Since the SBTAM model findings described above indicate the Project would generate VMT massively above the City’s significance threshold, the Project must implement all feasible mitigation measures that would reduce VMT. The City should consult the December 2021 edition (adopted 2022) of the authoritative reference Handbook for Analyzing Greenhouse Gas Emission Reduction, Assessing Climate Vulnerabilities and Advancing Health and Equity produced by the California Air Pollution Control Officers Association (CAPCOA), with particular reference to the Chapter 3 section on transportation measures.
The City must require the Project to implement all feasible measures such as carpool/vanpool matching and incentives, end of trip bicycle facilities, transit information and fare assistance, and innovative strategies not included in CAPCOA such as electric auto and electric bicycle purchase assistance. The measures should be mandatory with monitoring, not voluntary. Although, because of the nature and location of the Project, performance of most of the 61 Exhibit A Page 72 of 109
1010
measures would be at the low end of the effectiveness range identified for them in CAPCOA, many are extremely low cost and hence clearly feasible.
These measures are distinct from those required as part of the SWIP SP FIER mitigation measures. For example, SWIP SP FEIR Mitigation Measure 4.2-2d requires that the Project designate preferential parking for vanpools. This measure does not require implementation of an employer-sponsored vanpool service as recommended by CAPCOA measure T-11. Therefore, the CAPCOA measures go beyond those already required by the DSEIR.
Implementation of the transportation measures to reduce VMT impacts would also reduce greenhouse gas (GHG) emissions and provide other benefits, like improved air quality, energy and fuel savings, and water conservation. For example, end-of-trip bicycle facilities can reduce up to 4.4% of GHG emissions from employee commute VMT. The precent reductions in GHG emissions would be the same for NOx, CO, NO2, SO2, and PM emissions.2
Conclusion
The DSEIR must admit that the Project is not a small project that can be presumptively found to have no significant VMT impact and that the evidence indicates the Project would have significant VMT impact.
Sincerely,
Smith Engineering & Management
A California Corporation
Daniel T. Smith Jr., P.E.
President
2 This information comes directly from the CAPCOA Handbook: see https://www.caleemod.com/documents/handbook/ch_3/chapter_3.pdf and https://www.caleemod.com/documents/handbook/ch_3_transportation/measure_t-10.pdf 62 Exhibit A Page 73 of 109
1011
63 Exhibit A Page 74 of 109
1012
Transportation Centers. Project manager for Daly City Intermodal Study which developed a $7 million surface bus terminal, traffic access, parking and pedestrian circulation improvements at the Daly City BART station plus development of functional plans for a new BART station at Colma. Project manager for design of multi-modal terminal (commuter rail, light rail, bus) at Mission Bay, San Francisco. In Santa Clarita Long Range Transit Development Program, responsible for plan to relocate system's existing timed-transfer hub and development of three satellite transfer hubs. Performed airport ground transportation system evaluations for San Francisco International, Oakland International, Sea-Tac International, Oakland International, Los Angeles International, and San Diego Lindberg.
Campus Transportation. Campus transportation planning assignments for UC Davis, UC Berkeley, UC Santa Cruz and UC San Francisco Medical Center campuses; San Francisco State University; University of San Francisco; and the University of Alaska and others. Also developed master plans for institutional campuses including medical centers, headquarters complexes and research & development facilities.
Special Event Facilities. Evaluations and design studies for football/baseball stadiums, indoor sports arenas, horse and motor racing facilities, theme parks, fairgrounds and convention centers, ski complexes and destination resorts throughout western United States.
Parking. Parking programs and facilities for large area plans and individual sites including downtowns, special event facilities, university and institutional campuses and other large site developments; numerous parking feasibility and operations studies for parking structures and surface facilities; also, resident preferential parking .
Transportation System Management & Traffic Restraint. Project manager on FHWA program to develop techniques and guidelines for neighborhood street traffic limitation. Project manager for Berkeley, (Calif.), Neighborhood Traffic Study, pioneered application of traffic restraint techniques in the U.S. Developed residential traffic plans for Menlo Park, Santa Monica, Santa Cruz, Mill Valley, Oakland, Palo Alto, Piedmont, San Mateo County, Pasadena, Santa Ana and others. Participated in development of photo/radar speed enforcement device and experimented with speed humps. Co-author of Institute of Transportation Engineers reference publication on neighborhood traffic control.
Bicycle Facilities. Project manager to develop an FHWA manual for bicycle facility design and planning, on bikeway plans for Del Mar, (Calif.), the UC Davis and the City of Davis. Consultant to bikeway plans for Eugene, Oregon, Washington, D.C., Buffalo, New York, and Skokie, Illinois. Consultant to U.S. Bureau of Reclamation for development of hydraulically efficient, bicycle safe drainage inlets. Consultant on FHWA research on effective retrofits of undercrossing and overcrossing structures for bicyclists, pedestrians, and handicapped.
MEMBERSHIPS
Institute of Transportation Engineers Transportation Research Board
PUBLICATIONS AND AWARDS
Residential Street Design and Traffic Control, with W. Homburger et al. Prentice Hall, 1989.
Co-recipient, Progressive Architecture Citation, Mission Bay Master Plan, with I.M. Pei WRT Associated, 1984.
Residential Traffic Management, State of the Art Report, U.S. Department of Transportation, 1979.
Improving The Residential Street Environment, with Donald Appleyard et al., U.S. Department of Transportation, 1979.
Strategic Concepts in Residential Neighborhood Traffic Control, International Symposium on Traffic Control Systems, Berkeley, California, 1979.
Planning and Design of Bicycle Facilities: Pitfalls and New Directions, Transportation Research Board, Research Record 570, 1976.
Co-recipient, Progressive Architecture Award, Livable Urban Streets, San Francisco Bay Area and London, with Donald Appleyard, 1979.
64 Exhibit A Page 75 of 109
1013
EXHIBIT B
65 Page 76 of 109
1014
6841-012j
ARIANA ABEDIFARD
KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
RACHAEL E. KOSS
AIDAN P. MARSHALL
TARA C. RENGIFO
Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO
SACRAMENTO OFFICE
520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814-4721
T E L : ( 9 1 6 ) 4 4 4 - 6 2 0 1
F A X : ( 9 1 6 ) 4 4 4 - 6 2 0 9
ADAMS BROADWELL JOSEPH & CARDOZO
A PROFESSIONAL CORPORATION
A T T O RN E Y S A T L A W
6 0 1 G A T E W A Y B O U L E V A R D , S U I T E 1 0 0 0 S O U T H S A N F R A N C I S C O , C A 9 4 0 8 0 - 7 0 3 7 ___________
T E L : ( 6 5 0 ) 5 8 9 - 1 6 6 0
F A X : ( 6 5 0 ) 5 8 9 - 5 0 6 2
a g r a f @ a d a m s b r o a d w e l l . c o m
March 19, 2024
VIA Email and Overnight Mail
Chair Cathline Fort
Planning Commission
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
[email protected]
VIA Email Only
Rina Leung, Senior Planner
[email protected]
Re: Agenda Item PH-D – Master Case No. 22-143: Tentative Parcel Map (TPM 20710) No. 23-012, Design Review (DRP) No. 22-064, Development Agreement (AGR) No. 24-002, and Final Subsequent Environmental Impact Report (SCH No. 2009091089) for Hemlock Warehouse Development Project
Dear Chair Fort, Planning Commission Members, and Ms. Leung:
We write on behalf of Californians Allied for a Responsible Economy (“CARE CA”) regarding Agenda Item PH-D, the Hemlock Warehouse Development Project (“Project”) proposed by Prologis, Inc. (“Applicant”). CARE CA objects to the City of Fontana (“City”) Planning Commission’s proposed approval of the Project due to the City’s continuing failure to comply with the California Environmental Quality Act.1 The Final Subsequent Environmental Impact Report (“FSEIR”) prepared for the proposed Project fails as an informational document and the City lacks substantial evidence to conclude that all the Project’s significant environmental impacts are mitigated to the extent feasible.2
1 Pub. Resources Code § 21000 et seq.
2 City of Fontana, Final Subsequent Environmental Impact Report: Hemlock Warehouse Development Project SCH No. 2009091089 (Feb. 2024) (hereinafter “FSEIR”), available at https://www.fontanaca.gov/DocumentCenter/View/43908/Hemlock-Final-SEIR-Feb-2024. 66 Exhibit B Page 77 of 109
1015
March 19, 2024
6841-012j
Given the ongoing deficiencies with the and FSEIR as described below, CARE CA respectfully requests that the Planning Commission continue the public hearing and direct staff fully disclose, analyze, and mitigate the Project’s significant environmental impacts in a revised and recirculated SEIR before considering Project approval.
I. INTRODUCTION
The Applicant proposes to re-develop a 40-acre Project site to operate a twostory warehouse facility that would be used for sorting, warehousing, distribution, and office space.
3 The proposed building structure would have total square feet (“SF”) of 881,826 SF with a first-floor office of 20,000 SF, a second-floor office mezzanine area of 20,000 SF, a warehouse area of 726,826 SF, and a pick module mezzanine area of 115,000 SF.4 The warehouse area may include up to 220,500 SF of cold storage.
5 Construction would take approximately 15 months and includes demolition of existing buildings, site preparation, grading, building construction, paving, and architectural coatings.6 The Project would operate 24 hours a day, 7 days a week.7 The facility would have 114 loading docks located on the east and west sides of the building.8 The Project is expected to generate 1,598 average daily trips, including 1,036 passenger cars and 562 trucks.9
The SEIR tiers from a Final Environmental Impact Report (“FEIR”) for the Southwest Industrial Park (“SWIP”) Specific Plan (“SP”) Update and Annexation certified by the City in 2012.10 The City prepared a DSEIR because the proposed Project “may involve new significant environmental effects or a substantial increase 3 City of Fontana, Draft Subsequent Environmental Impact Report: Hemlock Warehouse Development Project SCH No. 2009091089 (Oct. 2022) pp. 1-1, 1-3, 3-1 (hereinafter “DSEIR”), available at
https://fonopengislayers.fontana.org/WebLink/DocView.aspx?id=1777471&dbid=0&repo=FontanaRec ords.
4 DSEIR at pp. 1-3, 3-2.
5 Id. at pp. 1-3, 3-9.
6 Id. at p. 3-10.
7 Ibid.
8 Id. at p. 3-9.
9 Id., appen. F at p. 40.
10 Id. at pp. 1-2 to 1-3, 2-1 to 2-7.
67 Exhibit B Page 78 of 109
1016
March 19, 2024
6841-012j
in the previously identified effects.”11 The DSEIR evaluates air quality, energy, greenhouse gas emissions (“GHGs”), noise, transportation, tribal cultural resources, and other CEQA considerations.12
The City released a FSEIR responding to comments raised during the public comment period and identifying revisions to the DSEIR.
13 The City prepared
separate responses to CARE CA’s comments on the DSEIR,
14 which were released
with the staff report for the Planning Commission hearing. 15 We reviewed the
FSEIR, its technical appendices, available reference documents, and responses to comments with the assistance of air quality and hazardous resources expert, James J. Clark, Ph.D., whose comments are included as Exhibit A. 16 Based on our review
and that of our technical experts, we conclude the FSEIR fails to comply with CEQA.
As explained more fully below, the FSEIR lacks an adequate project description because it omits reasonably foreseeable consequences of approval, fails to describe necessary utility upgrades, and does not address the proposed development agreement. The FSEIR fails to meaningfully disclose and analyze all significant air quality, GHG, transportation, and utility impacts which were not analyzed, or are more severe than previously analyzed, in the SWIP SP FEIR.
Finally, the FSEIR fails to disclose, analyze, and adopt all feasible mitigation measures before concluding the Project’s impacts are significant and unavoidable.
The City cannot adopt a statement of overriding considerations or approve the Project until it corrects these deficiencies in a revised SEIR that is recirculated for public review and comment.
11 Id. at p. 2-4.
12 Id. at pp. 2-5 to 2-6.
13 See generally FSEIR.
14 Memorandum to Rina Leung from Renee Escario re: Responses to Late Comments – Californians Allied for a Responsible Economy (CARE CA) (Feb. 29, 2024) (hereinafter “Responses to CARE CA Comments”), available at https://fontana.legistar.com/gateway.aspx?M=F&ID=572f16b4-e80d-4bdb8d32-4c4f1429c14f.docx. 15 City of Fontana, Action Report, Planning Commission re: Master Case No. 22-143: Tentative Parcel Map (TPM 20710) No. 23-012, Design Review (DRP) No. 22-064, Development Agreement (AGR) No. 24-002, and Final Subsequent Environmental Impact Report for the Development of an Industrial Warehouse Building Totaling Approximately 881,826 Square Feet on Approximately
40.01 Acres (Mar. 19, 2024) (hereinafter “Planning Commission Action Report”), available at https://fontana.legistar.com/View.ashx?M=PA&ID=1147284&GUID=73A82B86-897A-4C58-9C70- 43BFBFCDEA09.
16 Exhibit A, Letter to Andrew J. Graf, Adams Broadwell Joseph & Cardozo from James J. Clark, Clark & Associates Environmental Consulting, Inc. re: Comment Letter on Final Subsequent Environmental Impact Report (FSEIR) for Hemlock Warehouse Development Project, SCH No. 2009091089, Fontana, California (Mar. 17, 2024) (hereinafter “Clark FSEIR Comments”). 68 Exhibit B Page 79 of 109
1017
March 19, 2024
6841-012j
Moreover, the City and Applicant propose to enter into a development agreement which freezes the City land use regulations and policies in exchange for purported “enhanced environmental measures.”17 However, these measures are feasible mitigation that must be adopted pursuant to CEQA. As a result, the development agreement does not provide any tangible benefits to the City. To provide meaningful community benefits, the City should require a binding commitment to use local workers and apprentices engaged in the building trades as part of the development agreement.
II. STATEMENT OF INTEREST
CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental impacts of the Project. CARE CA includes City residents Juan Chavez, Jeffry Davis, and Calos Diaz, as well as the District Council of Ironworkers and Southern California Pipe Trades District Council 16, along with their members, their families, and other individuals that live and/or work in the City and San Bernardino County.
CARE CA advocates for protecting the environment and the health of their communities’ workforces. CARE CA seeks to ensure a sustainable construction industry over the long-term by supporting projects that offer genuine economic and employment benefits while minimizing adverse environmental and other impacts on local communities.
Individual members of CARE CA live, work, recreate, and raise families in the vicinity of the Project. Accordingly, they will be directly affected by the Project's environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards created by the Project. They each have a personal interest in protecting the Project area from unnecessary, adverse environmental and public health impacts.
In addition, CARE CA and its members have an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for CARE CA members. Environmental degradation can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making it less desirable for businesses 17 Planning Commission Action Report, attach. 6.
69 Exhibit B Page 80 of 109
1018
March 19, 2024
6841-012j
to locate and people to live there. Indeed, continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities.
Finally, CARE CA and its members are concerned about projects that risk serious environmental harm without providing countervailing economic benefits.
CEQA provides a balancing process whereby economic benefits are weighed against significant impacts to the environment.18
III. LEGAL BACKGROUND
CEQA requires that an agency analyze the potential environmental impacts of its proposed actions in an EIR.
19 The EIR is the very heart of CEQA.20 “The
foremost principle in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”21
CEQA has two primary purposes. First, CEQA is designed to inform decision makers and the public about the potential, significant environmental effects of a project.22 “Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’”23 The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.”24
18 Pub. Resources Code § 21081(a)(3); Citizens for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171.
19 See e.g., Pub. Resources Code § 21100.
20 Dunn-Edwards v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 652. 21 Communities for a Better Environment v. Cal. Res. Agency (2002) 103 Cal. App.4th 98, 109. 22 Pub. Resources Code § 21061; 14 Cal. Code Regs. (“CEQA Guidelines”) §§ 15002(a)(1), 15003(b)-(e); Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 517 (“[T]he basic purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect [that] a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.”). 23 Citizens of Goleta Valley v. Bd. of Supervisors (“Goleta II”) (1990) 52 Cal.3d 553, 564. 24 Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal.App.4th 1344, 1354 (“Berkeley Jets”); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810. 70 Exhibit B Page 81 of 109
1019
March 19, 2024
6841-012j
Second, CEQA directs public agencies to avoid or reduce environmental damage when “feasible” by requiring consideration of environmentally superior alternatives and adoption of all feasible mitigation measures.25 The EIR serves to provide agencies and the public with information about the environmental impacts of a proposed project and to “identify ways that environmental damage can be avoided or significantly reduced.”26 If the project will have a significant effect on the environment, the agency may approve the project only if it finds that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns.”27
A public agency commits prejudicial abuse of discretion when its actions or decisions do not substantially comply with the requirements of CEQA.28 The agency abuses its discretion if it does not proceed in the manner required by law or if its decision is not supported by substantial evidence.29 Claims of procedural error or informational inadequacies in an EIR are questions of law subject to independent review by the courts.30 An EIR is inadequate as a matter of law where (1) the EIR omits information required by law and (2) the omission precludes informed decisionmaking by the lead agency or informed participation by the public.31 “[T]he existence of substantial evidence supporting the agency’s ultimate decision on a disputed issue is not relevant when one is assessing a violation of the information disclosure provisions of CEQA.”32
An EIR must disclose the analytic route the agency traveled from evidence to action, and failure to do so amounts to a procedural error—not a factual one.33 If an EIR lacks analysis or omits the magnitude of an environmental impact, the issue is 25 CEQA Guidelines § 15002(a)(2)-(3); see also Berkeley Jets, 91 Cal.App.4th at 1354; Goleta II, 52 Cal.3d at 564.
26 CEQA Guidelines § 15002(a)(2).
27 Pub. Resources Code § 21081; CEQA Guidelines § 15092(b)(2)(A)-(B). 28 Pub. Resources Code §§ 21168, 21168.5.
29 Sierra Club, 6 Cal.5th at 512; Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426.
30 Sierra Club, 6 Cal.5th at 512-13; see also Laurel Heights Improvement Assoc. (“Laurel Heights I”) v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 392, fn. 5; Woodward Park Homeowners Assoc., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 705.
31 Madera Oversight Coal., Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 76-77. 32 Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 82, quoting Assn. of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1392. 33 Sierra Club, 6 Cal.5th at 513 quoting Topanga Assn. for a Scenic Community v. City of L.A. (1974) 11 Cal.3d 506, 515.
71 Exhibit B Page 82 of 109
1020
March 19, 2024
6841-012j
“not a substantial evidence question” – rather, the courts review the issue de novo.34 In other words, a conclusory discussion of an environmental impact that an EIR deems significant may be held to be inadequate as a matter of law “without reference to substantial evidence,” even where mixed questions of law and fact are involved.35 Only where factual questions predominate is a more deferential standard warranted.36
The substantial evidence standard applies to an agency’s substantive factual conclusions, findings or determinations.37 Substantial evidence means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.”38 Substantial evidence includes facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts,39 but it does not include argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment.40
Importantly, “the reviewing court is not to uncritically rely on every study or analysis presented by a project proponent in support of its position. A clearly inadequate or unsupported study is entitled to no judicial deference.”41 Failure to comply with the basic substantive requirements of CEQA is necessarily prejudicial error, requiring the decertification of any EIR and the recission of any approvals adopted in reliance on the same.42
IV. THE FSEIR LACKS AN ADEQUATE PROJECT DESCRIPTION
Generally, an adequate EIR must be “prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences.”43 “A 34 Sierra Club, 6 Cal.5th at 514.
35 Ibid.; see also Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, 1103-04. 36 Sierra Club, 6 Cal.5th at 514, 516 (emphasis added). 37 Pub. Resources Code § 21168.
38 CEQA Guidelines § 15384(a).
39 Id. § 15384(b).
40 Id. § 15384(a).
41 Berkeley Jets, 91 Cal.App.4th at 1355.
42 North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 671; Neighbors for Smart Rail v. Exposition Metro Line Construction Auth. (2013) 57 Cal.4th 439, 463; Save Cuyama Valley v.
County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1073. 43 Dry Creek Citizens Coalition v. County of Tulare (199) 70 Cal.App.4th 20, 26. 72 Exhibit B Page 83 of 109
1021
March 19, 2024
6841-012j
project description must contain sufficiently specific information about the project to allow the public and reviewing agencies to evaluate and review its environmental impacts. California courts have repeatedly held that “an accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.”44 Without a complete, stable, and accurate project description, the environmental analysis under CEQA is impermissibly limited, thus minimizing the project’s impacts and undermining meaningful public review.45 Here, the FSEIR’s project description is inadequate for three reasons. First, the FSEIR fails to describe reasonably foreseeable consequences of project approval that change the scope of the Project and its environmental effects. Second, the FSEIR fails to describe utility upgrades that are required to ensure the Project maintains adequate fire flow. Third, the FSEIR fails to describe the terms of the proposed development agreement.
A. The FSEIR Fails to Describe Reasonably Foreseeable
Consequences of Project Approval
The City claims that an analysis of “worst-case” or speculative scenarios is not required.46 But CARE CA does not argue that the City must analyze “worstcase” or speculative scenarios. Rather, CARE CA demonstrates that higherintensity warehouse uses must be included in the project description and analyzed in the SEIR because they are reasonably foreseeable consequences of Project approval that change the scope of the Project and its environmental effects.
A project description must include all relevant parts of a project, including future activities that will foreseeably result from project approval.47 The California Supreme Court established a two-pronged test to determine whether those reasonably foreseeable activities must be included in an EIR’s project description and for determining whether the impacts of those activities must be analyzed in in the EIR.48 An EIR must include an analysis of the environmental effects from future actions that (1) are a reasonably foreseeable consequence of the project and 44 Stopthemillenniumhollywood.com v. City of Los Angeles (2019) 39 Cal.App.5th 1, 17; Communities for a Better Environment, 184 Cal.App.4th at 85–89; County of Inyo, 71 Cal.App.3d at 193. 45 Stopthemillenniumhollywood.com, 39 Cal.App.5th at 17. 46 Responses to CARE CA Comments at pp. 53-54.
47 Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376. 48 Id. at p. 396.
73 Exhibit B Page 84 of 109
1022
March 19, 2024
6841-012j
(2) change the scope or nature of the project or its environmental effects.49 Here, higher-intensity warehouse uses are reasonably foreseeable consequences of Project approval that change the scope of the project and its environmental effects.
The City claims that its operational/occupancy permitting process ensures that the Project is consistent with the project as approved.50 However, a certificate of occupancy does not ensure that the Project is consistent with what was analyzed in the FSEIR. A certificate of occupancy must be issued if (1) the structure or site is ready for occupancy or use and has been inspected, (2) conforms to all applicable provisions of the zoning and development code and other codes, laws, and ordinances, and (3) the applicant has complied with all conditions of approval imposed by the City on the development.51
The City does not cite any codes, laws, ordinances, mitigations, or conditions of approval that would prohibit higher-intensity warehouse uses. For example, the Project site’s zoning and Specific Plan land use designation do not place any restrictions on the intensity of the Project site.52 Moreover, there are no conditions of approval limiting refrigerated uses to the 220,500 square feet analyzed in the FSEIR. Nor are there any conditions of approval preventing the Project from operating as a fulfillment center or parcel hub, commonly used by commercial warehouse tenants like Amazon or Walmart. Such a condition would be consistent with SCAQMD’s recommendation to limit the daily number of trucks allowed at the proposed Project site to the levels analyzed in the CEQA document.53 The City repeatedly touts its reliance on Institute of Transportation Engineer’s (“ITE”) Trip Generation Manual, 11th Edition to justify the FSEIR’s trip generation rates.
54 However, Dr. Clark and Mr. Smith rely on the same source to demonstrate that the trip generation rates for warehouse uses can vary substantially depending on the ultimate warehouse use.55 If the City deems the ITE Manual to be substantial evidence, then it cannot simultaneously reject that source as speculative.
49 Ibid.
50 Responses to CARE CA Comments at p. 54.
51 Zoning and Development Code § 30-349(a).
52 Responses to CARE CA Comments at pp. 8-9, 47-48.
53 FSEIR at p. 2-8.
54 Responses to CARE CA Comments at pp. 53-55.
55 Id. at pp. 31-32, 47-48; Clark FSEIR Comments at p. 6-7. 74 Exhibit B Page 85 of 109
1023
March 19, 2024
6841-012j
Finally, the City claims a specific tenant does not need to be included in the project description, and a project description may allow for flexibility to respond to changing conditions, such as various tenants.56 But this flexibility is exactly why the FSEIR must describe higher-intensity warehouse uses and analyze its environmental effects. Absent conditions of approval prohibiting any warehouse uses that differ from those analyzed in the FSEIR, the ultimate tenant could, for example, utilize the Project as a fulfillment center. As CARE CA’s experts demonstrate, such a higher-intensity use would have greater transportation, air quality, and GHG impacts than those analyzed in the FSEIR.57 The City must describe the higher-intensity warehouse uses and disclose, analyze, and mitigate any potentially significant impacts associated with these reasonably foreseeable consequences in a revised and recirculated SEIR.
B. The FSEIR Fails to Describe Necessary Utility Upgrades CEQA Guidelines § 15378 defines “project” to mean “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” A complete project description is necessary to ensure the environmental impacts of the entire project are considered.58 A lead agency may not split a single project into smaller ones resulting in piecemeal environmental review that fails to consider the environmental consequences of the entire project.59 Here, the FSEIR fails to describe infrastructure upgrades required to ensure the Project has adequate fire flow.
The SWIP SP provides guidelines on minimum pipe sizes required to meet fire flow requirements.60 For warehouse projects, a minimum of 12-inch pipes in a looping system are required to meet accepted velocity and headless criteria during fie flow conditions.61
56 Responses to CARE CA Comments at p. 54.
57 Id. at pp. 31-32; 47-48.
58 City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454. 59 East Sacramento Partnership for a Livable City v. City of Sacramento (2015) 5 Cal.5th 281, 293. 60 City of Fontana, Southwest Industrial Park Specific Plan (June 12, 2012) p. 4-2 (hereinafter “SWIP SP”), available at https://www.fontanaca.gov/DocumentCenter/View/29312/SouthwestIndustrial-Specific-Plan---Combined-Document. 61 Ibid.
75 Exhibit B Page 86 of 109
1024
March 19, 2024
6841-012j
The DSEIR states that the proposed Project would install onsite water lines that would concert to the existing 10-inch water line within Hemlock Avenue and the existing 12-inch water line within Beech Avenue.62 However, according to Exhibit 3-1 of the Water and Sewer Infrastructure Study prepared for the SWIP SP FEIR, the water line under Beech Avenue is only 10-inches.63 There is no evidence in the record that the water line under Beech Avenue has been upgraded to a 12-inch line since adoption of the SWIP SP.
Because the water lines that serve the Project site are smaller than the minimum pipe size recommended in the SWIP SP, the proposed Project would need to upgrade the existing infrastructure to meet fire flow requirements. However, the FSEIR fails to describe these potential infrastructure upgrades. As a result, the FSEIR severely underestimates the Project’s construction impacts. The City must describe all activities that would be required to ensure the proposed Project has adequate fire flow in a revised and recirculated SEIR.
C. The FSEIR Fails to Describe the Terms of the Development Agreement
The Planning Commission intends to adopt a resolution recommending that the City Council adopt an ordinance approving Development Agreement (“AGR”) No. 24-002.64 The proposed development agreement was not known at the time of the release of the DSEIR because it was not identified as part of the list of 62 DSEIR at p. 3-9.
63 City of Fontana, Southwest Industrial Park (SWIP) Specific Plan Update and Annexation: Public Review Draft Program Environmental Impact Report (Oct. 2011), appen. H (hereinafter “SWIP WSIS”), available at https://www.fontanaca.gov/DocumentCenter/View/43435/SWIP-SP-EIRAppendices--?bidId=. 64 Planning Commission Action Report, attach. 6 (hereinafter “Recommendation Approval for Development Agreement”), available at
https://fontana.legistar.com/gateway.aspx?M=F&ID=17e679fb-5685-4808-8940-eab7cec27625.pdf. 76 Exhibit B Page 87 of 109
1025
March 19, 2024
6841-012j
discretionary approvals to be taken by the City.65 While the FSEIR adds the development agreement to the list of intended uses,
66 it does not add any discussion
or analysis of the agreement’s provisions. The terms of the agreement must be disclosed and analyzed in the FSEIR because the contents of the agreement are germane to the analysis of the proposed Project’s potential environmental impacts.67 The development agreement proposes “enhanced environmental measures” whereby the Applicant agrees to ensure that any future warehouse operator for the proposed project implements measures beyond those required to comply with South Coast Air Quality Management District (“SCAQMD”) Rule 2305. 68 Rule 2305 is
intended to reduce local and regional emissions of nitrogen oxides (“NOx”) and particulate matter (“PM”) and to facilitate local and regional emission reductions with warehouses and mobile sources attracted to warehouses in order to assist in meeting state and federal air quality standards for ozone and fine PM. 69 However,
the FSEIR does not disclose these purported “enhanced environmental measures.” Nor does the FSEIR analyze whether the proposed measures are feasible mitigation required to reduce significant air quality impacts associated with Project or quantify the amount of emissions reductions the measures would purportedly achieve.70
The City’s reliance on additional environmental measures in the development agreement is contrary to CEQA’s requirement that mitigation be included in the EIR’s mitigation program, and contradicts the FSEIR’s purported conclusion that no additional feasible mitigation measures are available to reduce the Project’s significant and unavailable impact caused be NOx emissions. By including these measures in the development agreement, the City and the Applicant are acknowledging that additional feasible NOx reduction measures are available to 65 DSEIR at p. 3-11.
66 FSEIR at p. 3-1.
67 Cf. Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 926-27 (holding that the development agreement did not need to be discussed in the EIR because the provisions of the agreement were not germane to an analysis of the project’s environmental impacts); Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 909-10. 68 Recommendation Approval for Development Agreement at p. 16-17. 69 South Coast Air Quality Management District, Rule 2305: Warehouse Indirect Source Rule – Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program (May 7, 2021) (hereinafter “SCAQMD Rule 2305”), available at https://www.aqmd.gov/docs/default-source/rulebook/reg-xxiii/r2305.pdf?sfvrsn=15. 70 DSEIR at p. 5.1-22.
77 Exhibit B Page 88 of 109
1026
March 19, 2024
6841-012j
further reduce the Project’s significant air quality impacts. The City must incorporate those measures in the FSEIR’s mitigation plan before it can consider adopting a statement of overriding considerations pursuant to CEQA. 71 The City’s failure to include the terms of the development agreement in the project description is prejudicial because the omission (1) undermines informed public participation and decisionmaking concerning the approval of the development agreement and the project as a whole, and (2) is directly relevant to an analysis of the Project’s significant environmental impacts. 72 The City must
disclose and analyze the proposed development agreement in a revised and recirculated SEIR.
V. THE FSEIR FAILS TO MEANINGFULLY DISCLOSE AND ANALYZE ALL THE PROJECT’S POTENTIALLY SIGNIFICANT ENVIRONMENTAL IMPACTS A. The FSEIR Fails to Analyze Higher-Intensity Warehouse Uses that Would Result in Significant Environmental Impacts
As discussed in Section IV.A., the FSEIR fails to describe higher-intensity warehouse uses. The City claims CARE CA has not provided substantial evidence of any significant impact and relies on speculation.73 This is incorrect.
Dr. Clark explains that the trip generation rate for the proposed Project could be as high as 6.44 trips per 1,000 square feet resulting in 4,681 daily trips if the warehouse is used as a fulfillment center.74 In fact, the DSEIR recognizes that the building would be used for “sorting” which is a subcategory of fulfillment center that generates a 6.44 trip rate.75 By underestimating the trip generation rate, the FSEIR underestimates the Project’s operational emissions from mobile sources. 76 Mr. Smith concurred with Dr. Clark’s conclusion that the land use categories on which the DSEIR relies comprise of the two lowest trip generation rates among all the foreseeable uses of the proposed warehouse building.77 Because the DSEIR 71 Pub. Resources Code § 21081(a)(3), (b); Covington v. Great Basin Unif. Air Poll. Control Dist. (2019) 43 Cal.App.5th 867, 879-83.
72 Pub. Resources Code § 21005.
73 Responses to CARE CA Comments at pp. 53-55, 64.
74 Id. at p. 33; Clark FSEIR Comments at p. 6.
75 DSEIR at p. 3-2 (“The building would be used for sorting, warehousing, distribution, and office space.”).
76 Responses to CARE CA Comments at pp. 32-33; Clark FSEIR Comments at pp. 6-7. 77 Responses to CARE CA Comments at pp. 47-48.
78 Exhibit B Page 89 of 109
1027
March 19, 2024
6841-012j
utilizes the lowest trip generation rate, he concludes that the DSEIR underestimates the vehicle miles traveled (“VMT”) generated by the Project.78 Dr. Clark and Mr. Smith’s comments are not unsubstantiated opinion, narrative, or speculation, as the City claims. Their expert opinions are based on the ITE Manual,79 the same source relied upon by the City.
80 Fulfillment center sort
warehouses are a reasonably foreseeable consequences of Project approval, which have occurred at other warehouses approved by the City. For example, the nearby Southwest Fontana Logistics Center approved in 2018 ultimately turned into an Amazon fulfillment center.81 Amazon notes that its sortable fulfillment facilities are typically 800,000 square feet in size,82 which is approximately the same size as the proposed Project.83
By omitting analysis of higher intensity uses, the FSEIR fails to disclose the severity of the Project’s impacts, in violation of CEQA. Dr. Clark and Mr. Smith’s expert opinions, which were developed based on the same source utilized by the City, constitute substantial evidence demonstrating the proposed Project would result in significant, unmitigated air quality and transportation impacts. The City must evaluate all reasonably foreseeable traffic-intensive uses in a revised and recirculated SEIR and propose feasible mitigation measures to reduce any potentially significant impacts.
B. The FSEIR Lacks Substantial Evidence to Support Truck Trip Length Estimates
Both Dr. Clark and SCAQMD alerted the City that the DSEIR severely underestimates truck trip lengths by failing to account for trips to/from the Ports of Los Angeles and Long Beach.84 In response, the City claims it would be speculative to assume all Project truck trips would extend to the ports, and because the percentage of trips to the ports is unknown, the assumptions utilized were 78 Id. at pp. 48-49.
79 Id. at p. 53-55.
80 Ibid. at pp. 53-55.
81 Steve Ganey, Amazon Hiring More than 2,000 Workers for Upcoming Fulfillment Centers in Fontana and Rialto, https://ktla.com/news/local-news/amazon-hiring-more-than-2000-workers-forupcoming-fulfillment-centers-in-fontana-and-rialto/ (Jun. 4, 2019). 82 Amazon, Our Facilities, https://www.aboutamazon.com/workplace/facilities (last visited Jan. 18, 2024) (“Sortable fulfillment center[:] Around 800,000 square feet in size, sortable fulfillment centers can employe more than 1,500 full-time associates.”).
83 DSEIR at p. 3-2.
84 FSEIR at p. 2-7; Responses to CARE CA Comments at pp. 34-35. 79 Exhibit B Page 90 of 109
1028
March 19, 2024
6841-012j
appropriate.85 Reliance on 40-mile truck trip lengths does not comport with the reality of where warehoused materials will ship from in the region given that the largest source of containerized products are the Ports of Los Angeles and Long Beach.
86 Moreover, similar nearby warehouse projects have utilized truck trip lengths based on distances to the nearby ports.87
Since operational NOx emissions are primarily from mobile sources, increasing the truck trip length by 58% would create an even greater impact than those disclosed in the FSEIR.88 The City must calculate emission based on actual distances to ensure meaningful disclosure of the Project’s environmental impacts in a revised and recirculated SEIR.
C. The FSEIR Lacks Substantial Evidence to Conclude the Project Would Not Require Expansion of Water Lines to Meet Fire Flow Requirements
The DSEIR states that the proposed Project would install onsite water lines that would connect to the existing 10-inch water line within Hemlock Avenue and the existing 12-inch water line within Beech Avenue.89 The DSEIR explains that new or expanded off-site water infrastructure would not be required to be constructed to serve the proposed Project.
90 As a result, the DSEIR concludes the
impact is less than significant.91 The FSEIR lacks substantial evidence to support this conclusion.
The SWIP SP, SWIP SP FEIR, and the Water and Sewer Infrastructure Study state that existing distribution capacity may be sufficient for ultimate uses, but defer analysis of fire flow requirements to the project-level.92 The SWIP SP and Water and Sewer Infrastructure Study explain that fire flow requirements should be validated on a case-by-case basis, and hydraulic analysis simulation should be 85 FSEIR at p. 2-11; Responses to CARE CA Comments at p. 56. 86 Clark FSEIR Comments at pp. 2-3.
87 Id. at p. 3.
88 Id. at p. 4.
89 DSEIR at p. 3-9.
90 Id. at p. 5.6-11.
91 Ibid.
92 SWIP SP at p. 4-2; City of Fontana, Southwest Industrial Park (SWIP) Specific Plan Update and Annexation: Public Review Draft Program Environmental Impact Report (Oct. 2011) p. 4.8-23 (hereinafter “SWIP SP DEIR”), available at
https://www.fontanaca.gov/DocumentCenter/View/36382/SWIP-Public-Review-Draft-Program-EIR; SWIP WSIS at p. 9.
80 Exhibit B Page 91 of 109
1029
March 19, 2024
6841-012j
performed to verify service capacity and reliability for adequate service.93 They both identify guidelines for minimum pipe to ensure adequate fire flow. 94 For
warehouse uses, the guidelines recommend at least a 12-inch pipe in a looping system to accommodate a possible fire flow requirement of 5,000 gallons per minute (“gpm”).95
TPM Condition of Approval No. 48 and DRP Condition of Approval No. 60 each require that the proposed Project meet the following fire flow requirements:
4,000 gpm for a two-hour duration at 20 psi residual operating pressure.96 While the fire flow requirement detailed in the conditions of approval is lower than the possible fire flow requirements for warehouse uses identified in the SWIP SP, there is no evidence in the record demonstrating that the water lines supplying the Project site can provide adequate fire flow. For example, the record does not include a flow and pressure availability letter from the Fontana Water Company. Nor does the record include a hydraulic analysis simulation to verify service capacity and reliability for adequate service, as recommended in the SWIP SP.97 To the contrary, the record shows that the existing infrastructure is inadequate. As discussed in Section IV.B., the Project site is served by 10-inch water lines. Per the SWIP SP guidelines, a minimum pipe size of 12-inches is needed to ensure adequate fire flow for warehouse projects.98 Because the FSEIR fails to analyze whether the proposed Project can meet the applicable fire flow requirements with the existing infrastructure, the City lacks substantial evidence to conclude the impact is less than significant as upgrades to the infrastructure could cause significant environmental effects. The City must disclose, analyze, and mitigate any potentially significant fire flow impacts in a revised and recirculated SEIR.
VI. THE FSEIR FAILS TO ANALYZE AND ADOPT ALL FEASIBLE MITIGATION
MEASURES
An EIR must propose and describe mitigation measures to minimize the significant environmental effects identified in the EIR.99 The requirement that 93 SWIP SP at p. 4-2; SWIP WSIS at p. 10.
94 Ibid.
95 Ibid.
96 Planning Commission Action Report, attach. 4 at p. 16, 31. 97 SWIP SP at p. 4-2.
98 Ibid.
99 Pub. Res. Code §§ 21002.1(a), 21100(b)(3); CEQA Guidelines § 15126.4. 81 Exhibit B
1030
March 19, 2024
6841-012j
EIRs identify mitigation measures implements CEQA’s policy that agencies adopt feasible measures when approving a project to reduce or avoid its significant environmental effects.100 Mitigation measures must be designed to minimize significant environmental impacts, not necessarily to eliminate them.101 Any action that is designed to minimize, reduce, or avoid a significant environmental impact or to rectify or compensate for the impact qualifies as a mitigation measure.102 Here, the FSEIR’s discussion of mitigation measures suffers from three critical defects. First, the FSEIR improperly defers formulation of a transportation demand management program (“TDM”). Second, the FSEIR fails to analyze the feasibility of specific measures available to reduce NOx emissions from emergency equipment. Third, the FSEIR fails to analyze the feasibility of implementing emission reductions measures beyond regulatory compliance.
A. The FSEIR Improperly Defers Formulation of Mitigation Measures CARE CA commented that the DSEIR fails to comply with SWIP SP FEIR Mitigation Measure (“MM”) 4.2-2k.103 This measure states:
Prior to approval of future development projects within the project area, the City of Fontana shall conduct project-level environmental review to determine potential vehicle emission impacts associated with the project(s). Mitigation measures shall be developed for each project as it is considered to mitigate potentially significant impacts to the extent feasible.
Potential mitigation measures may require that facilities with over 250 employees (full or part-time employees at a worksite for a consecutive sixmonth period calculated as a monthly average), as required by the Air Quality Management Plan, implement Transportation Demand Management (TDM) programs.104
Neither the FSEIR, nor the City’s response, identifies any project-specific mitigation measures to reduce impacts associated with vehicle emissions (or any other sources of operational emissions). Instead, the City simply reiterates that MM 4.2-2k would be included in the Project Mitigation Monitoring and Reporting 100 Pub. Resources Code §§ 21002, 21081(a).
101 Id. §§ 21100(b)(3); CEQA Guidelines § 15126.4(a)(1). 102 CEQA Guidelines §§ 15126(a)(1), 15370.
103 Responses to CARE CA Comments at pp. 14-16.
104 DSEIR at p. 5.1-36 (emphasis added).
82 Exhibit B
1031
March 19, 2024
6841-012j
Program.105 Inclusion of the MM 4.2-2k in the MMRP does not alleviate the City from its obligation to identify and describe feasible mitigation measures to reduce significant impacts.
In fact, MM 4.2-2k expressly states that project-specific mitigation measures must be developed to mitigate potentially significant impacts and identifies TDM programs as potential mitigation. Yet the FSEIR does not identify any projectspecific mitigation.106 Without more, such a measure violates CEQA’s prohibition against deferred formulation of mitigation measures.
An agency may only defer mitigation if the agency (1) commits to implementing the mitigation, (2) adopts specific performance standards, and (3) identifies the types of actions that may achieve compliance with the performance standard.107 MM 4.2-2k does not commit to implementation of a TDM program. It simply identifies TDM as potential mitigation.
MM 4.2-2k does not identify specific performance criteria for mitigating the proposed Project’s significant impacts. For example, the measure does not set minimum performance goals for reducing vehicle trips or increasing transit use.108 MM 4.2-2k does not enumerate specific measures to achieve compliance with the performance standard. The City claims that the TDM program would be consistent with Zoning and Development Code § 30-512, which identifies trip reduction measures that must be implemented for projects requiring design review in the commercial and mixed-use zoning district.
109 But the FSEIR never once
mentions any of the measures listed in Section 30-512. Nor are any of those measures required to be implemented by the Project under the SWIP SP. Even if the trip reduction measures applied (which they do not), the FSEIR does not analyze how implementation of measures would reduce the Project’s significant impacts. For example, the FSEIR fails to analyze whether the Project meets the San Bernardino County Congestion Management Program thresholds requiring participation in the construction or payment of fees toward construction of bicycle facilities.110
105 Responses to CARE CA Comments at pp. 56-57.
106 DSEIR at p. 5.1-36.
107 CEQA Guidelines § 15126.4(a)(1)(B).
108 See e.g., City of Hayward v. Trustees of California State University (2015) 242 Cal.App.4th 833, 851 (upholding transportation demand management program that identified measures to be evaluated and included monitoring plan, performance goals, and schedule for implementation). 109 Responses to CARE CA Comments at p. 57.
110 Zoning and Development Code § 30-512(13).
83 Exhibit B
1032
March 19, 2024
6841-012j
For all these reasons, the FSEIR violates CEQA by improperly deferring formulation of mitigation measures. The City must propose and adopt feasible mitigation measures to reduce the Project’s significant impacts in a revised and recirculated SEIR.
B. The FSEIR Fails to Analyze the Feasibility of Mitigation Measures to Reduce NOx Emissions from Emergency Equipment
CARE CA identified several feasible mitigation measures to reduce NOx and GHG emissions from a diesel-fuel fire pump and emergency generator. 111 The City
claims “there is no plan for installation of an emergency generator or fire pump.” 112
As Dr. Clark notes, a fire pump is required for compliance with the California Fire Code.113 Regardless, the City’s air quality analysis shows that fire pump and emergency generator would emit NOx and GHGs.114
The City claims it is not required to analyze or adopt mitigation measures to reduce NOx and GHG emissions from emergency equipment because the proposed measures would not effectively address a significant impact.115 Because the majority of NOx and GHG emissions from the Project are related to mobile sources, the City argues it does not need to address whether feasible mitigation measures are available to reduce NOx and GHG emissions from other operational sources.116 This is incorrect.
CEQA prohibits agencies from approving projects with significant environmental effects if there are feasible mitigation measures or alternatives that can substantially lessen or avoid those effects.117 CEQA defines “feasible” as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social and technological factors.”118 “The core of an EIR is the mitigation and alternatives sections.”119 111 Responses to CARE CA Comments at p. 20.
112 FSEIR at p. 2-14.
113 Clark FSEIR Comments at p. 5.
114 DSEIR at p. 5.2-13.
115 Responses to CARE CA Comments at p. 58.
116 Ibid.
117 Pub. Resources Code § 21002; Mountain Lion Found. v. Fish & Game Comm’n (1997) 16 Cal.4th 105, 134.
118 Pub. Resources Code § 21061.1; CEQA Guidelines § 15364. 119 Citizens of Goleta Valley v. Bd. of Supervisors (“Goleta II”) (1990) 52 Cal.3d 553, 564. 84 Exhibit B
1033
March 19, 2024
6841-012j
When an EIR concludes that a project will have significant impacts, the lead agency has two duties: to meaningfully consider feasible mitigation measures and alternatives, and to identify mitigation measures and alternatives rejected as infeasible.120
If significant effects still exist, a project may still be approved if the “unmitigated effects are outweighed by the project’s benefits.”121 However, “[e]ven when a project’s benefits outweigh its unmitigated effects, agencies are still required to implement all mitigation measures unless those measures are truly infeasible.”122 An EIR may include mitigation measures that will partially reduce an environmental impact even if the measure will not reduce the impact below the threshold of significance.123
Infeasibility findings must be supported by substantial evidence.124 The lead agency must respond to specific suggestions for mitigating a significant environmental impact unless the suggested mitigation is facially infeasible. While the response need not be exhaustive, it should evince good faith and a reasoned analysis, and must explain why measures proposed by commenters are not feasible.125 When an agency finds alternatives or mitigation measures to be infeasible, “its analysis must explain in meaningful detail the reasons and facts supporting the conclusion. The analysis must be sufficiently specific to permit informed decision-making and public participation.”126 Conclusory statements are inadequate.127
Here, the City makes no attempt to evaluate the feasibility of selective catalytic reduction systems, exhaust gas recirculation systems, high-efficiency engines, optimized air-fuel ratio, NOx reduction additives, operator training, or emission monitoring to reduce NOx emissions from the diesel-fuel fire pump or 120 Covington, 43 Cal.App.5th at 879-83; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1353.
121 Sierra Club, 6 Cal.5th at 524.
122 Id. at 524-25 (emphasis added); Covington, 43 Cal.App.5th at 879-883. 123 Sierra Club, 6 Cal.5th at 524.
124 Pub. Resources Code § 21081.5.
125 Covington, 43 Cal.App.5th at 883; Los Angeles Unif. School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1029; see also Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 443, fn. 8.
126 Marin Mun. Water Dist. v. KG Land Cal. Corp. (1991) 235 Cal.App.3d 1652, 1664. 127 Covington, 43 Cal.App.5th at 879; Flanders Found. v. City of Carmel-by-the-Sea (2012) 202 Cal.4th 603, 615; Village Laguna of Laguna Beach v. Bd. of Supervisors (1982) 134 Cal.App.3d 1022, 1034-35.
85 Exhibit B
1034
March 19, 2024
6841-012j
emergency generator.
128 Moreover, Dr. Clark recommends that the City require any emergency equipment be Tier 4 compliant.129 Even though NOx emissions from non-mobile sources are much smaller than those derived from mobile source emissions, the City must analyze whether the proposed measures are feasible before it can conclude that the Project’s operational emissions are significant and unavoidable.
C. The FSEIR Fails to Evaluate the Feasibility of NOx Emission Reduction Measures Beyond Regulatory Compliance
SCAQMD Rule 2305 establishes the Warehouse Actions and Investments to Reduce Emissions (“WAIRE”) Program, a menu-based points system. 130 The
WAIRE Program is an indirect source rule that regulates warehouse facilities to reduce emission from the goods movement industry. It seeks to reduce regional and local emissions of NOx and diesel particulate emissions in order to assist in meeting state and federal ambient air quality standards for ozone and fine particulate matter and improve public health, especially in communities located near warehouses.131 Rule 2305 applies to owners and operators of warehouses with at least 100,000 square feet of indoor floor space in a single building.132 Because the proposed Project exceeds the applicable threshold, Rule 2305 applies.133 Under Rule 2305, warehouse owners are required to submit a Warehouse Operation Notification Report which detail the size and tenant status of the warehouse.134 Wearhouse operators are required to submit an Initial Site Information Report and earn WAIRE Points.135 Warehouse owners may choose to earn WAIRE points on behalf of the warehouse operator.136 128 Response to CARE CA Comments at p. 20.
129 Clark FSEIR Comments at p. 5.
130 SCAQMD Rule 2305; see also South Coast Air Quality Management District, WAIRE Implementation Guidelines (June 2021) (hereinafter “WAIRE Implementation Guidelines”), available at https://www.aqmd.gov/docs/default-source/planning/fbmsm-docs/waire-implementationguidelines.pdf?sfvrsn=12. 131 SCAQMD Rule 2305 § (a).
132 Id. § (b).
133 DSEIR at p. 5.1-9.
134 WAIRE Implementation Guidelines at p. 2.
135 Ibid.
136 Ibid.
86 Exhibit B Page 97 of 109
1035
March 19, 2024
6841-012j
The WAIRE Program determines a warehouse operator’s WAIRE Points Compliance Obligation (“WPCO”) based on annual truck trips that enter or exit a warehouse site.
137 Truck trips are defined as one-way trips that tractors and straight trucks make to a warehouse facility when delivering goods to or from another location.138 The WPCO is the number of WAIRE Points a warehouse operator must earn or obtain to comply with Rule 2305.139 Each warehouse operator must earn or obtain WAIRE Points to meet their WPCO on an annual basis by implementing measures to reduce emissions listed on the WAIRE menu, implementing a custom plan approved by SCAQMD, obtaining transferred points, or paying a mitigation fee.
140 “A Custom WAIRE Plan allows for
local hire to be counted as points toward compliance with the rule by reducing employee commute emissions. Use of a local state certified apprenticeship program or a skilled and trained workforce component can help demonstrate those emission reductions.”141
The FSEIR does quantify any emissions reductions that would be achieved by implementation of WAIRE measures because it claims implementation of Rule 2305 is “tenant specific and cannot be quantified at this time.” 142 However, the City
intends to adopt a development agreement where the proposed Project commits to achieving a WPCO greater than what is required for compliance with Rule 2305.
Specifically, the development agreement proposes the following “enhanced environmental measures”:
• If construction has not commenced by December 31, 2026, the owner shall cause the Project to achieve 110% of the WPCO for the Project for a period of five (5) years under the current Rule 2305 standards. • If construction has not commenced by December 31, 2031, owner shall cause the Project to achieve, in the City’s sole discretion, for a period of five (5) years, either (i) 125% of the WPCO for the Project under the current Rule 2305 standards or (ii) 110% of the WPCO for the Project under the Rule 2305 standards in effect at the time of the Project’s first building permit issuance.
137 Id. at p. 3.
138 Ibid.
139 Ibid.
140 Id. at p. 9.
141 Id. at p. 17.
142 DSEIR at p. 5.12-14.
87 Exhibit B Page 98 of 109
1036
March 19, 2024
6841-012j
• If a building permit has not been issued by December 31, 2030, operational activities occurring on the Property on or after January 1, 2031, must achieve 125% of the WPOC for the Project.
• To the extent that Rule 2305 has been voided, lapsed, or otherwise ceases to exist, Owner acknowledges and agrees that for the term of the AGR, Owner shall continue to meet 100% of the WPCO for the Project under the current Rule 2305 standards.143
Based on the terms of the development agreement, achieving 125% of the WPCO for the Project is feasible. Since the WAIRE measures are designed to reduce NOx emissions, the FSEIR must analyze how the proposed Project would comply with SCAQMD Rule 2305 before it can conclude the Project’s impacts are significant and unavoidable. Such an analysis must address the feasibility of each measure identified in the WAIRE menu, including acquiring or using zero emission/near-zero emission trucks, zero emission cargo handling equipment, zero emission chagrining/fueling infrastructure, solar panels, and particulate filters for nearby sensitive land uses.144 At a minimum, the FSEIR should include a mitigation measure requiring that the proposed Project achieve 125% of the WPCO, consistent with the Applicant’s representations in the development agreement.
VII. THE PROPOSED DEVELOPMENT AGREEMENT DOES NOT PROVIDE ANY
TANGIBLE BENEFITS TO THE CITY
The proposed development agreement purports to implement “enhanced environmental measures” in conjunction with the Project’s future operation.145 However, as discussed in Section VI.C., the proposed measures are feasible mitigation that must be adopted before the City can conclude the Project’s impacts are significant and unavoidable. Because these measures are legally required under CEQA, the development agreement would not provide any tangible benefits beyond those required by law.
The purpose of requiring developer concessions as part of a development agreement is for the local agency to obtain public benefits for the community that are above and beyond the actions that the developer is already required to take by law or by design to build their project. The City is under no obligation to enter into a development agreement for this Project. Development agreements are voluntary contracts which the City has broad discretion to approve or deny depending on its 143 Recommendation Approval for Development Agreement at pp. 16-17. 144 SCAQMD Rule 2305, Table 3.
145 Recommendation Approval for Development Agreement at pp. 16-17. 88 Exhibit B Page 99 of 109
1037
March 19, 2024
6841-012j
assessment of the value of such an agreement to the City and its residents. We urge the City to require a binding commitment to use local workers and apprentices engaged in the building trades as part of the community benefits.
Local hire and apprenticeship requirements would provide direct and immediate public benefits by expanding job and career opportunities for disadvantaged workers in the City. Registered apprenticeship programs help diversify the construction industry by bringing in more underrepresented minorities and women into the trades.146 Each apprentice is a full-time worker who is receiving on-the-job training as an employee of a contractor on a jobsite. Increasing the number of apprenticeship opportunities will enable more of the City’s disadvantaged workers to enter the pathway to a long-term, family-supporting career in construction. In addition, apprenticeship programs have been found to “reduce wage differentials and occupational segregation in the workplace itself, as well as help offset the negative career effects of unequal access to good schools and job-hiring networks.”147
The City has limited opportunities to implement local hire and apprenticeship requirements in land use development decisions. Development agreements are one of the few tools available. In exchange for concessions being provided to the Applicant through the agreement, the City should require a binding commitment to use local workers and apprentices engaged in the building trades.
Such a requirement would ensure that the economic and employment benefits from development of the Project stay in the community.
VIII. CONCLUSION
For the reasons discussed above, the FSEIR is wholly inadequate under CEQA. It must be thoroughly revised to provide legally adequate disclosure, analysis, and mitigation for all the Project’s significant environmental impacts.
These revisions will necessarily require that the FSEIR be recirculated for additional public review. Until the FSEIR has been revised and recirculated, the City may not lawfully approve the project. The Planning Commission must continue the public hearing and direct staff to correct the deficiencies in the FSEIR before approving the Project.
146 United States Department of Labor, Apprenticeship USA, Registered Apprentice Program Factsheet (Aug. 2022), available at https://www.apprenticeship.gov/sites/default/files/dol-industryfactsheet-apprenticeship101-v10.pdf. 147 Thomason & Bernhardt, UC Berkeley Center for Labor Research and Education, The Union Effect in California #2: Gains for Women, Workers of Color, and Immigrants (June 2018) p. 1, available at https://laborcenter.berkeley.edu/pdf/2018/Union-Effect-in-California-2.pdf. 89 Exhibit B Page 100 of 109
1038
March 19, 2024
6841-012j
In addition, the City has broad discretion to require that the Applicant provide community benefits which contribute to the economic and environmental health of the City. Before agreeing to waive its right to enforce future land use regulations that would otherwise apply, the City should ensure that the Project will provide workforce benefits to the community as part of the development agreement.
Thank you for your consideration of these comments.
Sincerely,
Andrew J. Graf
90 Exhibit B