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 # 5121) DOC ID: 5121
Updated: 4/12/2024 9:42 AM by Dina Lewis Page 1
GATEWAY PLAZA APARTMENTS APPEAL – 39160 Paseo Padre Parkway – PLN2024-00129 – 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 PLN2023-00198) to allow a proposed five-story, 206-unit apartment building within the Gateway Plaza Shopping Center at 36190 Paseo Padre Parkway in the Central Community Plan Area; and an exemption from the requirements of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15332, Infill Development Projects, and a finding that no further environmental review is required 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 Gateway Plaza Apartments project, a proposed residential development consisting of a five-story, 206-unit market-rate apartment building that would be built at the southeastern portion of the Gateway Plaza Shopping Center. 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 # 5121) Meeting of April 16, 2024 Updated: 4/12/2024 9:42 AM by Dina Lewis Page 2
On December 12, 2023, the Gateway Plaza Apartments project (PLN2023-00198) 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, two members of the public spoke on the item. Both speakers were opposed to the project, citing concerns about construction staging and construction worker parking (a neighboring business owner) and project non-compliance with the requirements of the California Environmental Quality Act (CEQA) (the Appellant). The Appellant’s testimony challenged staff’s finding that the project is not subject to further environmental review pursuant to CEQA Guidelines Section 15183, that subsequent CEQA documentation is not needed pursuant to CEQA Guidelines Section 15162 and 15164, and that the project was eligible for a Class 32 Infill Exemption (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 – 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 initial Appeal (Informational Item No. 5 – Planning Commission Staff Report). Staff’s presentation included references to an Appeal response letter prepared by the City’s environmental consultant, Scott Gregory of Lamphier-Gregory, that defended the project’s CEQA analysis (Informational Item No. 6 – Zoning Administrator Appeal Response Letter). Following the Appellant’s presentation and a presentation from the applicant and their legal counsel, three members of the public spoke on the item, two in support of the project and one opposed to the project. Questions to staff from the Planning Commissioners related to public noticing and whether project feedback had been received from Kaiser Hospital, which is located across Walnut Avenue from the project site. A motion to uphold the Zoning Administrator’s approval action and deny the Appeal passed 6-0-1 (Informational Item No. 7 – 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 a CEQA Infill Exemption;
3. The City lacks substantial evidence to support approval of the project under CEQA Guidelines Section 15183; and
Council Staff Report (ID # 5121) Meeting of April 16, 2024 Updated: 4/12/2024 9:42 AM by Dina Lewis Page 3
4. The City cannot make the necessary findings to approve the project’s entitlements.
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 Gateway Plaza Apartments 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.
Additionally, they argue that project noise and vibration impacts are more severe than those disclosed in staff’s analysis.
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 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 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.
Council Staff Report (ID # 5121) Meeting of April 16, 2024 Updated: 4/12/2024 9:42 AM by Dina Lewis Page 4
Other recommendations proposed by the Appellant related to noise and vibration are similarly satisfied by the City’s standard development requirements. 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.
2. The City lacks substantial evidence to support approval of the project under a CEQA Infill Exemption.
The Appellant argues that the project fails to conform with the General Plan and the City Center Community Plan, and has significant unmitigated effects on air quality and noise, which precludes reliance on the Class 32 Infill Exemption. Furthermore, the Appellant argues that the proximity of Kaiser Hospital to the project site represents an unusual circumstance which precludes reliance on the exemption.
Analysis: The City’s finding for project Class 32 Infill Exemption qualification is supported by substantial evidence in the record. As detailed in Informational Item No. 2 (CEQA Environmental Consistency Checklist), the project is consistent with the General Plan and the City Center Community Plan; occurs on a site no greater than five acres surrounded by urban uses; occurs on a site with no habitat value for endangered, rare, or threatened species; would not result in significant effects related to traffic, noise, air quality, or water quality; and is adequately served by utilities and public services. The proximity of Kaiser Hospital east of the site, across Walnut Avenue, does not warrant an unusual circumstance, as exemptions are commonly used for projects in proximity to sensitive receptors when evidence shows the project would not pose a significant impact on the environment, as is the case with this project. Furthermore, the hospital received public hearing notices for the project’s Zoning Administrator and Planning Commission hearings and did not raise objections to the project.
3. The City lacks substantial evidence to support approval of the project under CEQA Guidelines Section 15183.
The Appellant argues that because the project’s specific impacts were not analyzed in the General Plan Update EIR, use of streamlining under CEQA Guidelines Section 15183 is inappropriate. The Appellant further argues that the General Plan Update EIR’s mitigation measures and the City’s standard development requirements will not reduce potential project impacts to a level less than significant.
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 Council Staff Report (ID # 5121) Meeting of April 16, 2024 Updated: 4/12/2024 9:42 AM by Dina Lewis Page 5
in December 2011 in a process that included preparation and certification of an EIR. As described in Informational Item No. 5 (Planning Commission Staff Report), 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.
4. 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, noise, and public health impacts will render the project detrimental to public health, safety, or welfare.
Analysis: There is substantial evidence in Informational Item No. 2 (CEQA Environmental Consistency Checklist) 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 (Planning Commission Staff Report) for project description details and associated staff analysis that supports the following findings for project approval:
Discretionary Design Review Permit
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:
1. 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, the City Center Community Plan, and City Center District zoning with respect to site planning, massing, architecture, and other urban design characteristics. The project is aligned with the objectives of the City Center Community Plan in that it delivers a dense residential development that provides housing opportunities in the heart of the City Center. The project will positively contribute to the ongoing transformation of the district into a walkable, pedestrian-oriented district that mixes complementary land uses and brings vitality to the area. Additionally, it adds housing to a parcel identified in the Housing Element’s Sites Inventory.
2. When a proposed project is inconsistent with an adopted design rule, the purpose and intent of the design rule is met through alternative means.
Council Staff Report (ID # 5121) Meeting of April 16, 2024 Updated: 4/12/2024 9:42 AM by Dina Lewis Page 6
Analysis: The proposed project is designed in conformance with all applicable objective design rules, as described in the staff report (Informational Item No. 5).
3. 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 wholly residential project, as designed, will not interfere with the use and enjoyment of adjacent developments, nor would it be detrimental to public health, safety, or welfare in that the proposed project is compatible in scale 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.
4. 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:
(a) The proposed removal of 36 protected trees would be consistent with the City’s Tree Preservation Ordinance.
Analysis: The project’s proposed removal of 36 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 114 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 Council Staff Report (ID # 5121) Meeting of April 16, 2024 Updated: 4/12/2024 9:42 AM by Dina Lewis Page 7
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.
Analysis: As documented in the CEQA Environmental Consistency Checklist (Information 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 project is exempt from the requirements of CEQA pursuant to a Class 32 Infill Exemption, as the project is consistent with the General Plan and Zoning Ordinance; would occur within the city limits on a site no greater than five acres substantially surrounded by urban uses; would occur on a site that has no habitat value for endangered, rare or threatened species; would not result in significant effects relating to traffic, noise, air quality and water quality; and is on a site adequately served by utilities and public services.
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 Council Staff Report (ID # 5121) Meeting of April 16, 2024 Updated: 4/12/2024 9:42 AM by Dina Lewis Page 8
December 2011 in a process that included preparation and certification of an Environmental Impact Report (EIR). As described within Informational Item No. 5 and detailed in Informational Item No. 2, 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 and 15164 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 - Gateway Plaza
• 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
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, adopt findings, and approve Discretionary Design Review Permit PLN2023-00198, 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 thirty-six (36) private protected trees pursuant to the City’s Tree Preservation Ordinance.