Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690
LAMPHIER-GREGORY
Memo
TO: Mark Hungerford, Senior Planner
City of Fremont Community Development
via email at: [email protected]
FROM: Scott Gregory, Lamphier-Gregory
SUBJECT: Response to Appeal of Gateway Plaza Apartments Project and its CEQA Document DATE: Febru ary 8, 2024
At its public hearing on December 12, 2023, the City of Fremont Zoning Administrator approved a Discretionary Design Review Permit 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.
The zoning Administrator also adopted an Exemption from the requirements of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15332: Infill Development Projects, and adopted a finding that no further environmental review is required for the Project 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.
On December 21, 2023, the law firm of Adams Broadwell Joseph & Cardozo filed an appeal of this decision on behalf of East Bay Residents for Responsible Development. The basis for this appeal is the assertion that the City's decision to rely on a Class 32 Infill Exemption under CEQA Guidelines Section 15332 ("Class 32" or "Infill Exemption"), a streamlining exemption pursuant to CEQA Guidelines Section 15183, and a CEQA addendum pursuant to CEQA Guidelines Sections 15162 and 15164, violated CEQA and were not supported by substantial evidence.
Lamphier-Gregory has reviewed the basis of the appeal, the CEQA document and supporting technical studies prepared for the Gateway Plaza Apartment Project, and we believe that the City’s CEQA document is both valid and supported by substantial evidence. Lamphier-Gregory has prepared the following responses to those CEQA issues raised in the appeal letter, as itemized below.
Applica
bility of CEQA Guidelines Section 15332 (Class 32 Infill Development Exemption) and Section 15183 (Projects Consistent with a Community Plan and Zoning) Basis of the Appeal
The appeal asserts the following related to the applicability of CEQA Guidelines section 15183 and section 15332 for the Project:
“East Bay Residents' comments explain that the City's decision to rely on a Class 32 Infill Exemption under California Environmental Quality Act ("CEQA'') Guidelines Section 15332 ("Class 32" or "Infill Exemption"), a streamlining exemption pursuant to CEQA Guidelines Section 15183 ("Community Plan Exemption"), and a CEQA addendum pursuant to CEQA Guidelines Sections 15162 and 15164, violated CEQA and were not supported by substantial evidence because the Project was not contemplated in the 2011 General Plan Update, and has new or more severe significant impacts than INFORMATIONAL ITEM NO. 6
GATEWAY PLAZA APARTMENTS
PLN2024-00129 (PLN2023-00198)
CITY COUNCIL HEARING
04/16/2024
Mark Hungerford, City of Fremont 2/8/24 Page 2
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 previously analyzed in the 2011 General Plan Update EIR which are peculiar to the Project site and were not known and could not have been known at the time of the EIR's certification. These impacts include potentially significant hazardous materials impacts from soil and groundwater contamination, on air quality, noise, and from greenhouse ("GHG") emissions, which require disclosure and mitigation in a project-level EIR.”
“The City's reliance on Sections 15183, 15162, and 15164 is misplaced because the Project was not contemplated in the 2011 General Plan Update, and has new or more severe significant impacts than previously analyzed in the 2011 General Plan Update EIR which are peculiar to the Project site and were not known and could not have been known at the time of the EIR's certification because the Project had not yet been proposed when the 2011 EIR was certified.” “This Project was not contemplated in the Community Plan or General Plan because the Project’s application was filed December 12, 2022, long after both plans were adopted by the City.” Response to the Appeal
These assertions of the appeal are fundamentally incorrect and misconstrue the CEQA requirements for consistency with the General Plan and zoning. Moreover, these assertions are directly contradicted by facts contained in the CEQA document and its administrative record.
The CEQA Environmental Compliance Checklist prepared for the Project does rely on a Class 32 Infill Exemption and Community Plan Exemption pursuant to CEQA Guidelines Section 15183, which contemplates that a specific development project occurring later in time will be evaluated based on its consistency with a prior CEQA document. Each of these exemptions provide a separate and independent basis for CEQA compliance. A fundamental requirement for both the Class 32 Infill Exemption and the Community Plan Exemption is that the Project must be consistent with the development density as established by existing zoning, community plan or General Plan for which a previously prepared EIR has been certified. As fully described in the CEQA Environmental Compliance Checklist and the December 12, 2023 Staff Report to the Zoning Administrator, the Project is fully consistent with the development density and land use characteristics established pursuant to the 2011 Fremont General Plan and as analyzed in the General Plan EIR. The Project is also consistent with the development densities, bulk and land use standards as established by policies of the Fremont City Center Community Plan, and implementing regulations of the applicable City Center – Urban Office (CC-UO) zoning district for the site. The appeal does not challenge these consistency determinations and misstates the requirements of CEQA Guidelines Section 15183.
The appeal asserts that specifics of the Project were not contemplated in the Community Plan or General Plan because the Project’s application was filed long after both of these Plans were adopted, but CEQA Guidelines Section 15183 does not contemplate or require such a scenario. Clearly, the specifics of the Gateway Plaza Apartment Project, or any other individual development project, were not known and could not have been known when the General Plan EIR was prepared in 2011. However, contemplation of the details of specific development projects is not the CEQA standard of consistency for these CEQA exemptions. The standard for consistency as established in CEQA Guidelines Sections 15332 and 15183 is consistency with the development densities and land use standards of the General Plan, community plan and zoning as analyzed in a previously prepared EIR. Findings of the Project’s consistency with density and land use standards have been made and supported by substantial evidence, and they are not challenged here.
Accordingly, the Project meets the General Plan and zoning consistency standards of CEQA guidelines section 15332 and 15183, and the Project is eligible for these CEQA exemptions.
Mark Hungerford, City of Fremont 2/8/24 Page 3
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Reliance on Mitigation Measures and Standard Development Requirements Basis of the Appeal
The appeal asserts the following related to mitigation measures and standard development requirements:
“The City cannot rely on the Class 32 exemption or a Community Plan Exemption, or any other CEQA exemption or streamlining because the City seeks to rely on mitigation measures as a basis for concluding that the Project is categorically exempt.”
“The absence of any previous project-specific analysis renders the City's determination that Standard Development Requirements ("SDRs") would mitigate the impact is unsupported. The City's reliance on SDRs to mitigate these impacts, without first analyzing them in an EIR, violates the requirements of Section 15183, rendering it inapplicable to the Project.” Response to the Appeal
These assertions of the appeal are directly contradicted by the CEQA Guidelines and facts contained in the CEQA document and its administrative record.
Consistent with CEQA Guidelines section 15183 (e)[1], the City does have the authority to impose those mitigation measures from the prior General Plan EIR that the City finds applicable to the Project. The only mitigation measure from the General Plan EIR identified in the Project’s CEQA Environmental Compliance Checklist as being applicable to the Project are the BAAQMD’s recommended Basic Construction Mitigation Measures, which now apply to all development projects and which have been incorporated into FMC Section 18.218.050 as Standard Development Requirements.
Additionally, CEQA Guidelines section 15183 (f) provides that an effect of a project on the environment shall not be considered peculiar to the project . . . if uniformly applied development policies or standards have been previously adopted by the city or county, with a finding that the development policies or standards will substantially mitigate that environmental effect when applied to future projects. The finding shall be based on substantial evidence, which need not include an EIR. These provisions do not apply if substantial new information shows that the policies or standards will not substantially mitigate the environmental effect.
As specifically provided in FMC Section 18.218.050, the purpose of the City’s Standard Development Requirements is to ensure universal application of standard development requirements to all development projects that have the potential to adversely disturb or impact special-status species, cultural resources, and air quality due to construction activities such as grading, demolition, and tree and shrub removal. These development standards are consistent with legislative requirements and resource agency protocol to ensure protection of limited or endangered resources, in particular when a proposed project is not subject to, or may be exempt from CEQA. These universal development standards are applicable to all temporary project sites, new development project sites, and sites being redeveloped, where there may be a potential adverse impact to special-status species, cultural, archeological and/or paleontological resources, possible burial sites associated with indigenous cultures, and/or to air quality resulting from the elimination of trees, site grading, ground disturbing construction activities and/or demolition of buildings. Additional Standard Development Requirements apply to issues related to geology and soils, hazardous materials and construction noise.
The City of Fremont’s Standard Development Requirements were adopted by Ordinance, finding that the development policies or standards will substantially mitigate environmental effects when applied to future projects. Accordingly, the Standard Development Requirements cited in the Project’s CEQA Environmental Compliance Checklist do apply to the Project, are not unique mitigation measures specific to the Project, but will serve to mitigate the Project’s potential impacts.
Mark Hungerford, City of Fremont 2/8/24 Page 4
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Substantial Environmental Effects
Basis of the Appeal
The appeal asserts the following related to substantial environmental effects of the Project:
“The record before the ZA does not contain substantial evidence that the Project will not be detrimental to the public health or safety [or] unreasonably interfere with the use and enjoyment of adjacent development nor be detrimental to the public health, safety, or welfare as required for approval of the discretionary design review permit.”
The individual assertions of the appeal related to substantial environmental effects are addressed individually, below.
Hazardous Materials Exceeding Residential Screening Levels Basis of the Appeal
The appeal asserts the following related to potential impacts related to hazardous materials and water quality:
“The Phase II ESA failed to compare residual contamination to the more stringent residential ESLs which apply to the Project. The Project aims to convert the contaminated site to residential use, not commercial/industrial use.”
“The CEQA Checklist fails to analyze the Project's hazardous contamination impacts compared to residential screening levels, which may be significant and unmitigated. The City therefore lacks substantial evidence demonstrating that approval of the Project would not result in any significant effects relating to water quality. Moreover, the onsite contamination may constitute an unusual circumstance where an exemption is likewise inapplicable.” Response to the Appeal
These assertions of the appeal are incorrect and directly contradicted by facts contained in the CEQA document and its administrative record.
The Project site is located on an approximately 3.3-acre portion of a larger 15-acre parcel that comprises the majority of the Gateway Plaza Shopping Center that comprises much of the block between Paseo Padre Parkway and Civic Center Drive, and between Walnut Avenue and Capitol Avenue. As identified in the CEQA Environmental Compliance Checklist for the Gateway Plaza Apartments project, a Phase I Environmental Site Assessment (ESA) was prepared for the Project site (identified in the Phase I ESA as “the Property”) and its surrounding area in January 2023. As fully disclosed in that Phase I ESA, no historical recognized environmental conditions or controlled recognized environmental conditions were identified at the Project site, but the Phase I ESA did identify that an adjacent portion of the Shopping Center that is not a part of the Project site presented a recognized environmental condition related to a former drycleaner facility. That drycleaner facility was located within an adjacent portion of the Gateway Plaza Shopping Center but not on the Project site, and is no longer in operation. It was a known user of tetrachloroethylene (PCE) as part of its drycleaner operation. The Phase I ESA found no impacts to soil or groundwater at the Project site from that former drycleaners, but did identify elevated soil vapor levels in the surrounding area.
A Phase II Environmental Site Assessment (ESA) also cited in the CEQA Checklist compared sub-slab soil vapor sampling collected from the area to applicable commercial Environmental Screening Levels (ESLs) and to the more stringent residential ESLs that apply to the Project. This comparison concluded that “PCE [Tetrachloroethylene] and its degradation daughter product TCE [Trichloroethene] were not detected above laboratory reporting limits in sub-slab soil vapor samples collected from the site (24-Hour Mark Hungerford, City of Fremont 2/8/24 Page 5
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Fitness building and the adjacent parking lot). PCE and TCE concentrations in soil gas in the courtyard between the 24-Hour Fitness building and the former drycleaners facility did not exceed their respective RWQCB ESLs. Therefore, there appear to be no potential vapor intrusion concerns for the proposed redevelopment and no further investigations are recommended for the proposed redevelopment. The sampling results from the sample locations in the Future Mixed Use Development Area meet the requirements of the residential thresholds (RWQCB Residential ESLs).”1 The Focused Phase II Report specifically evaluated soil vapor conditions surrounding the off-site former drycleaner facility, including sub-slab soil vapor sampling, soil gas sampling, groundwater sampling and soil sampling conducted within a portion of the Project site nearest to the former drycleaners, and at off-site locations within the portions of the Gateway Plaza shopping center to remain at and near the former drycleaner (i.e., not on the Project site). The analytical results of these investigations are presented in the Phase II Report. 2 These results pertaining to the Future Mixed Use Development Area (i.e., the Project site) indicate the following:
• Sub-slab vapor samples collected from sub-slab vapor probes at locations SS-07 and SS-08 (within the Project site) found concentrations of PCE at 11 and 2.7 micrograms per cubic meter (ug/m3) respectively. These concentrations are below the applicable SFRWQCB 2019 Residential Screening Level for PCE of 15 ug/m3.3
• Sub-slab vapor samples collected from these same vapor probes (SS-07 and SS-08) found concentrations of TCE at 8.6 and 2.1 ug/m3, respectively. These concentrations are below the applicable SFRWQCB 2019 Residential Screening Level for TCE of 16 ug/m3. • Soil gas samples collected from soil gas probes at locations RB-06, RB-07 and SG-01 (within the Project site) found concentrations of PCE at 2.7, 8.2 and 2.4 ug/m3, respectively. These concentrations are below the applicable SFRWQCB 2019 Residential Screening Level for PCE of 15 ug/m3.
• Soil samples collected from these same soil gas probes (RB-06, RB-07 and SG-01) found concentrations of TCE at 2.1, 3.4 and 1.9 ug/m3, respectively. These concentrations are below the applicable SFRWQCB 2019 Residential Screening Level for TCE of 16 ug/m3.
According to the San Francisco Bay Regional Water Quality Control Board (SFBRWQCB), “it is unlikely that the presence of a chemical in soil, soil gas or groundwater at concentrations below the corresponding ESL will pose a significant threat to human health, water resources, or the environment.”
4 The Phase II report finds no potential vapor intrusion concerns for the proposed Project site that exceed applicable residential ESLs and recommends no further investigations at the Project site.
Accordingly, sub-slab vapors and soil gas concentrations at the Project site do not constitute an unusual circumstance and do not present an exception to the Project’s CEQA exemption.
The Phase II Report does present the results of sub-slab soil vapors, soil gas samples, soil samples and groundwater samples collected off-site, at the Gateway Shopping Center and specifically at the off-site location of the former drycleaner (i.e., not at the Project site). The analytical results from these samples are appropriately compared to Commercial Screening Levels, as these areas are not part of the Project and will remain in commercial use. The Phase II Report does identify exceedances of the minimum
1 Roux Associates, Inc., Focused Phase II Subsurface Environmental Investigation Report, July 14, 2023, page 10 2 Roux, 2023, Table 2: Sub-Slab Soil Vapor and Soil Gas Sampling Results 3 SF Bay Regional Water Quality Control Board, Summary of Soil Vapor ESLs, 2019 4 SF Bay Regional Water Quality Control Board, User’s Guide: Derivation and Application of Environmental Screening Levels (ESLs), 2019, Revision 1, page iii
Mark Hungerford, City of Fremont 2/8/24 Page 6
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Commercial Screening Levels for PCE and TCE at these off-site locations, and indicates that these exceedances will need to be addressed separately (i.e., not as part of the Project) under regulatory over- sight. These off-site conditions do not constitute an unusual circumstance for the Project and do not present an exception to the Project’s CEQA exemption.
Hazardous Materials Exposure during Construction
Basis of the Appeal
The appeal asserts the following related to potential impacts related to hazardous materials and water quality during construction of the Project:
“Project construction will also disturb soil and groundwater, potentially releasing contaminants during construction. These impacts are peculiar to the Project site and were not known or analyzed at the time the General Plan EIR was prepared.”
Response to the Appeal
These assertions of the appeal are incorrect and directly contradicted by facts contained in the CEQA document and its administrative record.
The Phase II Report included collection of soil samples at seven different locations, including two soil samples collected at the Project site (soil sample locations RB-06 and RB-07, at 5 feet bgs). These samples were collected to assess whether the source of PCE soil vapor exists in the soil. Based on the analytic results presented in the Phase II Report, PCE was detected in one soil sample, at sample site RB- 01-5 located off-site within the former dry-cleaners location. PCE was detected at a concentration of 12 micrograms per kilogram (μg/kg), well below its respected Commercial/Industrial ESL of 2,700 μg/kg. No other volatile organic chemicals (including PCE or TCE) were detected at concentrations that exceed their respective ESLs for soil at the Project site.
As a point of additional comparison, the analytic results of soil samples collected at the Project site were all below the reporting limits of 4.1 ug/kg. According to the SFBRWQCB’s 2019 ESLs, the ESL for Human Health Risk, Direct Human Exposure during Construction is a concentration of 590 ug/kg. Soils at the Project site are well below these ESLs. Furthermore, the primary health concern from PCE and TCE is vapor intrusion to indoor air from sub-surface soil gas. These chemicals are of less concern outdoors, as the compounds naturally dissipate once they reach the open air.
The Phase II Report included groundwater sampling collected from three locations within the parking lot immediately adjacent to the former drycleaner location. During this sampling, initial groundwater was observed at approximately 45 feet below ground surface. The analytical results presented in the Phase II report found that PCE was not detected at or above a reporting limit of 0.5 micrograms per liter (ug/L) in any of the groundwater samples, as compared to a Commercial/Industrial ESL of 2.8 ug/L and a Residential ESL of 0.64 ug/L. Furthermore, the Project’s construction activity is not expected to involve any deep excavations for parking garages or basements. Ground disturbance of perhaps 5 to 6 feet for grading, and perhaps 8 feet for utility trenching, is expected. The Project’s construction activity is not expected to disturb or encounter groundwater.
Accordingly, disturbance of soil and groundwater would not result in a significant release of contaminants during construction, does not constitute an unusual circumstance, and does not present an exception to the Project’s CEQA exemption.
Air Quality
Basis of the Appeal
The appeal asserts the following related to potential air quality impacts during operation of the Project:
Mark Hungerford, City of Fremont 2/8/24 Page 7
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 “The Air Quality Analysis fails to analyze sources of operational emissions, including the back-up generator that will be required for the elevator on-site. California Building Code Title 24, Part 2 § 2702.2.2 requires that standby power shall be provided for elevators and platform lifts where, as here, a building has an accessible floor four or more stories above an emergency exit. The Project is required to have standby power in the form of a back-up generator for the elevator, but the Air Quality analysis fails to analyze the backup generator's air quality and GHG emissions impacts in comparison to BAAQMD thresholds or on nearby sensitive receptors. Given the proximity to Kaiser Permanente Hospital and the IVF clinic within 90 feet, the air quality and health-risk impacts of the back-up generator may be significant, but are insufficiently analyzed and mitigated. The City cannot rely on a categorical exemption, or any other CEQA exemption, because the Project may result in significant impacts to air quality which require mitigation.” Response to the Appeal
These assertions of the appeal are incorrect and directly contradicted by facts contained in the CEQA document and its administrative record.
Construction Period Noise
Basis of the Appeal
The appeal asserts the following related to potential noise impacts during construction of the Project:
“An EIR must be prepared because the Project results in significant noise impacts, precluding reliance on an Infill Exemption or any other CEQA exemption. Here, the Project's Noise analysis analyzes the Project's noise impacts to Kaiser Hospital with a 600-foot distance between the center of construction to sensitive receptors in the hospital. This metric is incorrect, and unsupported by substantial evidence. In fact, the construction noise will be heard by receptors in Kaiser as close as 400 feet away from the edge of the Project's construction site.” Response to the Appeal
These assertions of the appeal are incorrect and directly contradicted by facts contained in the CEQA document and its administrative record.
The CEQA Environmental Compliance Checklist discloses that, “while construction noise will vary, it is expected that average noise levels during construction at the nearest commercial uses to the west would approach 83 dBA Leq.” More specifically, the Noise and Vibration Impact Analysis for the Fremont Gateway Plaza Apartments Project (LSA, October 2023) provides that, “Project construction would result in short-term noise and vibration impacts on adjacent land uses. Maximum construction impacts would be short term, generally intermittent depending on the construction phase, and variable depending on receiver distance from the active construction zone.”
Depending on the construction sequence and phase, construction activities for the Project will occur as close as 400 feet from the Kaiser Hospital, and as far as 860 feet from the Kaiser Hospital. To account for these variable distances, the construction noise analysis correctly relies on a 630-foot average distance from the center of the construction site to the Kaiser Hospital. Reliance on measurements from the center of the construction site is a common professional best practice and a logical means for approximating the average construction noise from a larger construction site. Relying on a composite construction noise level for the site preparation phase of construction (the construction phase expected to result in the greatest noise level), average construction noise levels at the Kaiser Hospital are calculated to be 66 dBA Leq and 70 dBA Leq at the Medical Center, also located to the east of the Project site. While construction operations have the potential to generate audible noise at the Kaiser Hospital and at the Medical Center, hearing construction noise is not the applicable CEQA Threshold. As presented in the CEQA Environmental Compliance Checklist, the threshold for construction noise is a Mark Hungerford, City of Fremont 2/8/24 Page 8
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 substantial temporary or permanent increase in ambient noise levels in the vicinity of the Project in excess of standards established in the local general plan or Noise Ordinance. According to the Fremont Noise Ordinance, temporary construction noise levels generated during permitted construction hours are exempt from compliance with City noise standards. Temporary construction noise is considered less than significant, provided the Project complies with the construction hours as specified in the City’s Noise Ordinance, and implements the Standard Development Requirements of Section 18.218.050(g) of the FMC related to construction noise.
The Project’s construction does not constitute an unusual circumstance within the surrounding urban environment. The FMC defines construction noise as exempt from compliance with City noise standards and therefore a less than significant impact, provided all applicable construction-period Standard Development Requirements are implemented, as they will be here. Construction noise does not present an exception to the Project’s CEQA streamlining.
Construction Period Vibration
Basis of the Appeal
The appeal asserts the following related to potential vibration impacts during construction of the Project:
“The methodology used in the Noise Memo is not adequate to identify potentially significant noise and vibration impacts since activities such as demolition and compaction would occur near the north and east property lines, closest to sensitive buildings. The Medical Center appears to be 90 ft to the north of the project, and the Kaiser Hospital appears to be 415 ft to the east. Recalculating the noise and vibration impacts could identify significant impacts requiring mitigation. An exemption is improper and an EIR must be prepared to adequately analyze the Project's potentially significant noise and vibration impacts to nearby sensitive receptors.” Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and its administrative record.
The CEQA Environmental Compliance Checklist relies on the FTA’s Transit Noise and Vibration Impact Assessment Manual (FTA 2018) to define a significant vibration impact threshold of 0.20 PPV (in/sec).
Construction vibrations exceeding this threshold have the potential for building damage to non- engineered timber and masonry buildings. The analysis presented in the CEQA Environmental Compliance Checklist as derived from the Noise and Vibration Impact Analysis for the Fremont Gateway Plaza Apartments Project (LSA, October 2023) finds that vibration levels generated by dump trucks and other large equipment operating at the Project site would generate ground-borne vibration levels of
0.192 PPV (in/sec) at the closest structures to the Project site. These closest structures are the remaining Gateway Shopping Center’s commercial uses to the west of the site that are approximately 10 feet from the Project’s construction activity. Vibration levels at these structures 10 feet from construction activity would not exceed the CEQA threshold of 0.2 PPV (in/sec). All other buildings, including the Kaiser Hospital (at either 630 feet average or 400 feet at its nearest point) and the Medical Center Building (at 390 feet average or 175 feet at its nearest point) are substantially further removed from the Project’s construction activity, and vibration levels would be substantially lower than the threshold.
The Noise and Vibration Impact Analysis also addresses impacts related to potential human annoyance from construction vibration. That analysis relies on a ground-borne vibration threshold of “distinctly perceptible”, which corresponds to approximately 72 VdB for frequent vibration events at locations where people sleep. The analysis presented in the CEQA Environmental Compliance Checklist as derived Mark Hungerford, City of Fremont 2/8/24 Page 9
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 from the Noise and Vibration Impact Analysis for the Fremont Gateway Plaza Apartments Project (LSA, October 2023) finds that the Kaiser Hospital (at 630 feet from the center of the Project site) would experience ground-borne vibration levels of approximately 45 VdB. This level of construction vibrations from the Project would not exceed the FTA vibration threshold of 72 VdB for human annoyance at the Kaiser Hospital.
Even under a more conservative scenario where heavy construction equipment (i.e., a hoe ram, large bulldozer and/or heavy trucks) operate as close as 175 feet from the nearest point at the Medical Center, the resulting vibration level would be approximately 62 VdB. These vibration levels would be less than the FTA threshold of 75 VdB for institutional land uses with primarily daytime use, and would be less than the FTA threshold of 65 VdB for buildings where vibration might interfere with interior operations (i.e., for operation of most moderately sensitive equipment such as optical microscopes).
Vibration levels would be even lower at 400 feet, or at the nearest point from the Project site to the Kaiser Hospital.
The Project’s construction does not constitute an unusual circumstance within the surrounding urban environment. Calculated vibration levels due to heavy construction activity would not exceed threshold levels at any of the nearby land uses, including the Kaiser Hospital and the Medical Center. The Project would not have a significant construction-period impact related to vibrations. Accordingly, construction vibrations do not present an exception to the Project’s CEQA exemption.
Construction Period Traffic Noise
Basis of the Appeal
The appeal asserts the following related to potential traffic noise impacts during construction of the Project:
“The City's Noise Analysis for the Project is not supported by substantial evidence for its failure to appropriately evaluate the potential significance of temporary noise increases from construction traffic. The truck traffic noise analysis should consider the speed and stop-and-go conditions which can generate more severe noise levels than free-flow traffic.” “The General Plan Noise Element provides that trucks passing by at 50 feet can reach noise levels of 75-85 dBA. These noise levels may result in a significant noise impact to nearby sensitive receptors.” Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and its administrative record.
As disclosed in the CEQA Environmental Compliance Checklist and more specifically analyzed in the Noise and Vibration Impact Analysis for the Fremont Gateway Plaza Apartments Project (LSA, October 2023), temporary construction noise would result from the transport of construction equipment and materials to the Project site and construction worker commutes. These transportation activities would incrementally raise traffic noise along access roads leading to the site. The effect of temporary construction traffic on ambient noise levels would be small when compared to existing daily traffic volumes on Walnut Avenue. During the building construction phase, an additional 628 vehicles consisting of worker and haul trips would be added to the roadway adjacent to the Project site. Because the existing traffic volume on Walnut Avenue is considerably more than 628 vehicles, typical construction-related vehicle trips would not approach existing daily traffic volumes, and traffic noise would not increase by an applicable CEQA threshold of 3 dBA CNEL The CEQA Environmental Compliance Checklist and its technical appendix also disclose that there would be a relatively high single-event noise exposure resulting from passing trucks, which may generate up to Mark Hungerford, City of Fremont 2/8/24 Page 10
Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 84 dBA Lmax at a distance of 50 feet. However, like all construction noise levels generated during permitted construction hours, construction-period traffic noise is exempt from compliance with City noise standards, and temporary construction noise is considered less than significant. The single-event noise generated by passing haul trucks is not unique or peculiar to the Project, and the temporary construction-related impacts equipment and materials transport to the Project site would not be a significant CEQA impact. Accordingly, construction traffic noise does not present an exception to the Project’s CEQA exemption.
Cumulative Greenhouse Gas Emissions
Basis of the Appeal
The appeal asserts the following related to the Project’s contribution toward cumulative greenhouse gas (GHG) emissions:
“The CEQA Checklist fails to meaningfully address the Project's cumulative GHG impacts and instead states that no feasible mitigation was found capable of fully reducing these impacts. The 2011 General Plan results in potentially significant and unmitigated cumulative greenhouse gas emissions, for which no mitigation would fully reduce the significant impacts. Here, the Project's increased contribution to the General Plan's significant exceedances of cumulative greenhouse gas emissions is a project-level impact that is peculiar to the Project site and were not analyzed in the General Plan EIR, and will result in more severe GHG impacts than previously contemplated. These project-specific impacts must be analyzed in a project-level EIR.
Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and its administrative record.
As fully described in the CEQA Environmental Compliance Checklist and the December 12, 2023 Staff Report to the Zoning Administrator, the Project is fully consistent with the development density and land use characteristics established pursuant to the 2011 Fremont General Plan, the 2015 City Center Community Plan, and existing zoning. Concurrent with adoption of the 2011 General Plan Update, the City prepared and certified a General Plan Update EIR. That GP EIR analyzed the potential environmental effects that were anticipated to occur pursuant to buildout of the General Plan. The GP EIR assumed that the year 2035 was the earliest time period that the growth anticipated pursuant to the General Plan would be achieved. As a project that is consistent with the General Plan, the City Center Community Plan and zoning, the Project’s cumulative effects were fully anticipated and included in the GP EIR analysis. Specifically, the Projects GHG emissions are part of, and not in addition to the GHG emissions as calculated for General Plan buildout.
The CEQA Environmental Compliance Checklist correctly provides an analysis of whether the Project’s GHG emissions are peculiar to the Project or its site, and whether the Project may result in an impact related to GHG emissions that may be more severe than the GHG impact previously disclosed in the GP EIR. This analysis identifies that buildout the General Plan would result in per capita emissions of 5.5 MT CO2e per service population. The calculated GHG emissions for the Project were found to be 1,038 metric ton of CO2e, resulting in a Project-specific GHG efficiency of 1.6 MT CO2e per service population.
The Project’s efficiency metric for GHG emissions is well below the per capita emissions of 5.5 MT CO2e per service population identified for buildout of the General Plan.
Although the Project would contribute incrementally to the significant and unavoidable GHG impacts as previously disclosed in the GP EIR, the Project would not result in any operational GHG impacts that are new or more significant than those analyzed in the GP EIR. Incremental GHG emissions attributed to the Project do not present an exception to the Project’s CEQA exemption.