Fremont City Council Meeting: 04/16/24 07:00 PM
3300 Capitol Avenue Div/Dept: Planning
Fremont, CA 94538 Category: Appeals
SCHEDULED
Sponsors:
COUNCIL STAFF REPORT (ID # 5120) DOC ID: 5120
Updated: 4/12/2024 9:19 AM by Dina Lewis Page 1
FREMONT HUB MIXED-USE APPEAL – 39150 Argonaut Way – PLN2024-00128 – Public Hearing (Published Notice) to consider a third-party Appeal of the Planning Commission’s decision to deny a third-party Appeal and uphold the Zoning Administrator’s approval action of a Discretionary Design Review Permit (under PLN2022-00487) to allow a proposed mixed-use development consisting of a freestanding 13,000-square-foot retail-pharmacy building with a drive-through lane and a six-story mixed-use building containing 314 apartment units and 14,157 square feet of retail-commercial space at 39150 Argonaut Way in the Central Community Plan Area; and an exemption from the requirements of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15183, as the project is consistent with the density established by the General Plan, for which an Environmental Impact Report (EIR) (SCH#2010082060) was previously prepared and certified, and CEQA Guidelines Sections 15162 and 15164, as none of the circumstances requiring preparation of a subsequent or supplemental EIR have occurred.
Contact Persons:
Name: Mark Hungerford Joel Pullen
Title: Senior Planner Planning Manager
Div/Dept: Planning Planning
Phone: 510-494-4541 510-494-4436
E-Mail: [email protected] [email protected]
Executive Summary: This item is to consider a third-party Appeal of the Planning Commission’s February 22, 2024 action to deny a previous third-party Appeal and uphold the Zoning Administrator’s December 12, 2023 approval of the Fremont Hub Mixed -Use project, a proposed mixed-use development at the northern corner of the Fremont Hub shopping center consisting of a new 13,000-square-foot retail-pharmacy building and a six- story mixed-use building containing 314 market-rate apartment units and 14,157 square feet of ground floor retail-commercial space. Both the Appeal upheld by the Planning Commission and the subject Appeal were filed by Adams Broadwell Joseph & Cardozo on behalf of East Bay Residents for Responsible Development (Appellant).
The project is designed to meet all applicable objective General Plan and zoning standards and thus is afforded protection under the State’s Housing Accountability Act (HAA). Per the HAA, an objectively compliant project may not be disapproved or conditioned in such a way as to require development at a lower density unless written findings supported by a preponderance of the evidence shows that the housing development project would have a specific, adverse impact upon public health or safety and there is no feasible method to satisfactorily mitigate or avoid the identified adverse impact other than by disapproving the housing project or imposing conditions that require development at a lower density.
BACKGROUND
Zoning Administrator Hearing
Council Staff Report (ID # 5120) Meeting of April 16, 2024 Updated: 4/12/2024 9:19 AM by Dina Lewis Page 2
On December 12, 2023, the Fremont Hub Mixed-Use project (PLN2022-00487) was presented at a noticed Zoning Administrator public hearing (Informational Item No. 1 – Zoning Administrator Staff Report). Following a presentation from staff that included a project approval recommendation and testimony from the applicant’s legal counsel, five members of the public spoke on the item. Of the public speakers, four were opposed to the project and one was in favor of the project. In addition to those speakers who raised concerns about the project’s potential to negatively impact area traffic and public safety, the Appellant challenged staff’s finding that the project is not subject to further environmental review pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15183, and that subsequent CEQA documentation is not needed pursuant to CEQA Guidelines Section 15162 and 15164 (Informational Item No. 2 – CEQA Environmental Consistency Checklist). After considering testimony and the whole of the record, the Zoning Administrator approved the project, as conditioned (Informational Item No. 3 – December 12, 2023 Zoning Administrator Hearing Minutes).
On December 21, 2023, within the post-action 10-day appeal period, the Appellant filed a qualifying third-party Appeal of the Zoning Administrator’s approval action (Informational Item No. 4 – Appellant’s Zoning Administrator Appeal Letter).
Planning Commission Hearing
On February 22, 2024, the Planning Commission held a noticed public hearing to consider the Appellant’s original Appeal (Informational Item No. 5 – Planning Commission Staff Report). Of the four members of the public who spoke on the item, two spoke in support of the project, one spoke in opposition to the project, and one provided general commentary on construction-related matters. Questions from the Planning Commissioners related to the scope of the project, project CEQA impacts, and project consistency with applicable General Plan noise thresholds were responded to by Planning staff and staff’s environmental consultant, Scott Gregory of Lamphier-Gregory, who prior to the hearing had prepared an Appeal response letter defending staff’s CEQA analysis of the project (Informational Item No. 6 – Zoning Administrator Appeal Response Letter). Additional responses were provided by Michael Strahs representing Kimco Realty, the project applicant, and Bryan Wenter, the applicant’s legal representative. A motion to uphold the Zoning Administrator’s approval action and deny the Appeal passed 6-0-1 (Informational Item No. 7 – February 22, 2024 Planning Commission Hearing Minutes).
On March 1, 2024, within the post-action 10-day appeal period, the Appellant filed a second Appeal (Informational Item No. 8 – Appellant’s Planning Commission Appeal Letter).
Appeal to the City Council
The Appellant’s Appeal to the City Council requests that the City Council overturn the Planning Commission’s decision to approve the project. As detailed in Informational Item No. 8, the Appellant makes several assertions that they believe justify reversal of the Planning Commission’s decision. These points are outlined below.
1. The City’s decision to not prepare a subsequent Environmental Impact Report (EIR) pursuant to CEQA Guidelines Sections 15162 and 15164 was not supported by substantial evidence;
2. The City lacks substantial evidence to support approval of the project under CEQA Guidelines Section 15183; and
3. The City cannot make the necessary findings to approve the project’s entitlements.
Council Staff Report (ID # 5120) Meeting of April 16, 2024 Updated: 4/12/2024 9:19 AM by Dina Lewis Page 3
ANALYSIS OF APPEAL AND APPLICANT’S JUSTIFICATION
1. The City’s decision to not prepare a subsequent Environmental Impact Report (EIR) pursuant to CEQA Guidelines Sections 15162 and 15164 was not supported by substantial evidence.
The Appellant argues that the specifics of the Fremont Hub Mixed-Use project were not known and could not have been known at the time of the General Plan Update EIR’s preparation in 2011. They assert that feasible mitigation measures and alternatives which are different from those identified in the General Plan Update EIR including use (during project construction) of Tier 4 engines, ultra-low-sulfur diesel, electric generators, and truck idling reduction measures, would substantially reduce project impacts on the environment.
Analysis: Pursuant to CEQA Guidelines Section 15186, the Fremont General Plan Update EIR is a “Program” EIR. The General Plan Update’s programmatic EIR analyzed the potential environmental impacts of the General Plan as a whole. Future projects consistent with the General Plan in land use, intensity, and other applicable areas are to be examined to determine whether an additional environmental document for the project is needed. As detailed in Informational Item No. 2, the project was analyzed to determine if it would result in any significant impacts that are peculiar to the project and its site that were not previously identified in the General Plan Update EIR. The consistency checklist prepared for the project found that there is nothing peculiar to the proposed project or its site that would result in a conclusion different than that found in the General Plan Update EIR. The proposed project would result in no new significant effects, on-site, off-site or cumulative, and there is no new information indicating a more severe adverse impact than discussed in the General Plan Update EIR. As such, a subsequent EIR is not required pursuant to CEQA Guidelines Sections 15162 and 15164.
Mitigation measures recommended by the Appellant for construction equipment emissions control would be implemented by the City’s standard development requirements contained in Fremont Municipal Code (FMC) Section 18.218.050(a). These standard development requirements are universally applied to projects that have the potential to generate adverse impacts. For air quality, the requirements specifically target grading and demolition activities and include the following:
• Idling time of diesel-power equipment restricted to no more than two minutes; • Production of a plan that demonstrates 50+ horsepower off-road equipment to be used achieve a project-wide average 20 percent nitrogen oxide (NOx) and 45 percent particulate matter (PM) reduction compared to the most recent Air Resources Board fleet average standards;
• Use of best available control technology for NOx and PM emission reductions to be used in all construction equipment, diesel trucks, and generators; and • Use of equipment that meets the Air Resources Board’s most recent certification standards for off-road heavy-duty diesel engines.
2. The City lacks substantial evidence to support approval of the project under CEQA Guidelines Section 15183.
Council Staff Report (ID # 5120) Meeting of April 16, 2024 Updated: 4/12/2024 9:19 AM by Dina Lewis Page 4
The Appellant argues that use of project streamlining under CEQA Guidelines Section 15183 is inappropriate for a variety of reasons, including the fact that the specific project and its specific impacts were not known in 2015, when the City Center Community Plan was adopted, and that project construction noise and vibration impacts were underestimated.
Analysis: The City Center Community Plan was adopted by the City Council in May 2015.
The Community Plan implements the General Plan, which was last comprehensively updated in December 2011 in a process that included preparation and certification of an EIR. As described in Informational Item No. 5, the project is consistent with the City Center Community Plan and the applicable standards of the City Center District. Clearly, the specifics of the subject project were not known and could not have been known at the time General Plan Update EIR certification. CEQA Guidelines Section 15183 contemplates that a specific project occurring later in time, post-certification, will be evaluated for its consistency with the prior CEQA document. That evaluation has occurred, and findings that the project would have a less than significant impact on the environment, thus supporting the use of CEQA Guidelines Section 15183 streamlining, have been made and are supported by substantial evidence in the record.
Per the Safety Chapter of the General Plan, temporary construction noise levels are exempt from compliance with noise standards provided construction operations occur within the hours specified within the noise ordinance and the noise-related standard development requirements of FMC Section 18.218.050(g) are implemented. Adherence to the construction hours regulations and implementation of the standard development requirements would reduce noise impacts to a level that is less than significant.
Construction noise therefore does not present an exception to the project’s CEQA streamlining. Furthermore, in accordance with FMC Section 18.218.050(c), the project would be subject to review and approval of a construction management plan prior to construction commencement. The plan must contain measures to minimize construction - period impacts, including impacts related to ground vibration, which may include vibration - related best practice measures identified as mitigation in the General Plan Update EIR. As a result, project groundborne vibration impacts would be less than significant and thus not prohibit use of streamlining for the project.
3. The City cannot make the necessary findings to approve the project’s entitlements.
The Appellant argues that the project’s Discretionary Design Review Permit findings cannot be made because significant air quality and noise impacts will render the project detrimental to public health, safety, or welfare.
Analysis: There is substantial evidence in Informational Item No. 2 and the administrative record demonstrating that project impacts related to air quality, noise, and other matters of public health, safety, or welfare will be less than significant.
PROJECT FINDINGS
Please see Informational Item No. 5 for project description details and associated staff analysis that supports the following findings for project approval:
Discretionary Design Review Permit
Council Staff Report (ID # 5120) Meeting of April 16, 2024 Updated: 4/12/2024 9:19 AM by Dina Lewis Page 5
Pursuant to FMC Section 18.235.060, in order to approve a Discretionary Design Review Permit, the approval authority must make the following findings applicable to the project:
(a) The proposed project is consistent with the general plan, any applicable community or specific plan, planning and zoning regulations, and any adopted design rules and guidelines.
Analysis: The proposed project is designed in conformance with the requirements of the Commercial – City Center designation of the General Plan, 2023-31 Housing Element, the City Center Community Plan, and City Center District zoning with respect to site planning, massing, architecture, and other urban design characteristics. As a relatively compact mixed-use development within a wholly retail-commercial, suburban-style shopping center, the project will provide greater intensity, scale, and diversity of uses in a key location within the City Center, furthering aims of transforming the area into a more walkable, urban district.
(b) When a proposed project is inconsistent with an adopted design rule, the purpose and intent of the design rule is met through alternative means.
Analysis: The proposed project is designed in conformance with all applicable objective design rules, as described in the Planning Commission staff report (Informational Item No. 5).
(c) The multifamily residential project’s architectural, site, and landscape design will not be detrimental to the public health or safety; or a non- multifamily project’s architectural, site, and landscape design will not unreasonably interfere with the use and enjoyment of adjacent development nor be detrimental to the public health, safety, or welfare; and
Analysis: The proposed mixed-use project, as designed, will not interfere with the use and enjoyment of adjacent developments, nor will it be detrimental to public health, safety, or welfare, as it is compatible in scale and use with development allowances within the City Center District. Additionally, Building Division and Fire Department staff have reviewed the project and found that it can be constructed in conformance with all applicable California Building and Fire Code life safety regulations, thereby minimizing project potential for detrimental impacts to public health, safety, or the welfare of persons or property in the project site’s vicinity.
(d) Where HARB review is required, the proposed project is consistent with the applicable standards and findings required in Chapters 18.135 and 18.175.
Analysis: The proposed project does not involve a site within a historical overlay district or one that includes a Register or Register-eligible historic resource. As such, HARB review is not required for the project.
Tree Removal
Pursuant to FMC Section 18.215.070, the following finding is required in order to allow for the proposed removal of trees that are subject to protection under the City’s Tree Preservation Ordinance:
Council Staff Report (ID # 5120) Meeting of April 16, 2024 Updated: 4/12/2024 9:19 AM by Dina Lewis Page 6
(a) The proposed removal of 62 protected trees would be consistent with the City’s Tree Preservation Ordinance.
Analysis: The project’s proposed removal of 62 private protected trees is necessary to enable reasonable and conforming use of the property. All trees to be removed cannot be preserved by a reasonably required project redesign. The protected trees that would be lost would be replaced with 232 new trees planted throughout the site in accordance with the applicable provisions of the Landscape Development Requirements & Policies.
CEQA
Pursuant to CEQA Guidelines Section 15162, when an EIR has been certified for a project no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in light of the whole record, one or more of the following:
1. Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:
(a) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;
(b) Significant effects previously examined will be substantially more severe than shown in the previous EIR;
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or
(d) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.
Council Staff Report (ID # 5120) Meeting of April 16, 2024 Updated: 4/12/2024 9:19 AM by Dina Lewis Page 7
Analysis: As documented in the CEQA Environmental Consistency Checklist (Informational Item No. 2) prepared for the project, none of the criteria listed above has occurred. This checklist and other evidence in the record supports the use of the certified General Plan Update EIR for the project pursuant to CEQA Guidelines Sections 15162 and 15164, finding that the mitigation measures from the EIR are applied to and adequate for the proposed project, which is within the scope of the EIR, and that no further CEQA documentation is required.
ENVIRONMENTAL REVIEW: The City Center Community Plan was adopted by the Fremont City Council in May 2015. The Community Plan implements the General Plan, which was last comprehensively updated in December 2011 in a process that included preparation and certification of an EIR. As described within Informational Item No. 5 (Planning Commission staff report) and detailed in Informational Item No. 2 (CEQA Environmental Consistency Checklist), the project is consistent with the City Center Community Plan and the applicable standards of the City Center District. As such, the project requires no further environmental review in accordance with CEQA Guidelines Section 15183.
Additionally, the project has been found to not trigger subsequent documentation under CEQA Guidelines Sections 15162 as no substantial changes are proposed in the project that would require revisions to the General Plan Update EIR, nor have substantial changes occurred with respect to the circumstances under which the proposed project would be undertaken require revisions to the General Plan Update EIR, nor has new information of substantial importance been identified that would indicate the project would have any new or more significant effects or require new or additional mitigation than what was included in the General Plan Update EIR. The programmatic mitigation measures from the General Plan Update EIR and/or the standard development requirements contained within FMC Chapter
18.218 adequately address the potential environmental effects of the project. The project is thus within the scope of the General Plan Update EIR and no further CEQA documentation is required. The prepared checklist serves as an addendum, in accordance with CEQA Guidelines Section 15164, to the previously certified EIR. Each of the foregoing provides, without limitation, on a separate and independent basis for the no further environmental review finding.
ATTACHMENTS:
• Draft Resolution - Fremont Hub
• Exhibit A - Project Plans
• Exhibit B - Findings and Conditions of Approval
• Informational Item No. 1 - Zoning Administrator Staff Report • Informational Item No. 2 - CEQA Environmental Consistency Checklist • Informational Item No. 3 - Zoning Administrator Hearing Minutes • Informational Item No. 4 - Zoning Administrator Appeal Letter • Informational Item No. 5 - Planning Commission Staff Report • Informational Item No. 6 - Appeal Response Letter
• Informational Item No. 7 - Draft Planning Commission Hearing Minutes • Informational Item No. 8 - Planning Commission Appeal Letter Council Staff Report (ID # 5120) Meeting of April 16, 2024 Updated: 4/12/2024 9:19 AM by Dina Lewis Page 8
RECOMMENDATIONS:
1. Hold public hearing.
2. Find that the proposed project is in conformance with the relevant provisions of the City’s General Plan, including the goals and objectives set forth in the Land Use, Community Plans, Housing Element, and Safety Chapters of the General Plan.
3. Adopt a Resolution denying the Appeal, adopting findings, and approving Discretionary Design Review Permit PLN2022-00487, as shown in Exhibit “A,” based on findings and subject to the conditions of approval provided in Exhibit “B.”
4. Approve the proposed removal and mitigation of sixty-two (62) private protected trees pursuant to the City’s Tree Preservation Ordinance.