KMCO-58573\2899718.1 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 Fremont Hub Mixed Use Project and its CEQA Document DATE: February 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 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. The zoning Administrator also 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 streamlining provision 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 Fremont Hub Mixed Use 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.
Applicability of CEQA Guidelines 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 for the Project:
“As will be shown in these preliminary comments, the City's reliance on CEQA Guidelines Sections 15183, 15162, and 15164 is misplaced because the Project was not contemplated in the 2011 General Plan Update and the Project has new or more severe significant impacts than previously analyzed in the 2011 General Plan Update EIR which are peculiar to the Project 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.”
“The 2011 General Plan Update did not contemplate the Project, as the Project did not exist in December 2011. Rather, the Project was proposed over a decade later, in May 2022. Therefore, it was impossible for the General Plan Update EIR to have contemplated the impacts of this Project.” INFORMATIONAL ITEM NO.6
FREMONT HUB MIXED-USE
PLN2024-00128 (PLN2022-00487)
CITY COUNCIL HEARING
04/16/2024
Mark Hungerford, City of Fremont February 8, 2024 Page 2 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 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 environmental record.
The CEQA Consistency Checklist prepared for the Project does rely on a 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. A fundamental requirement for 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 Consistency 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 consistent with the development densities, bulk and land use standards of the Commercial – City Center designation of the General Plan, the 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. 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 City Center 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 Fremont Hub Mixed use Project, or any other currently contemplated individual development project, was 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 this CEQA exemption. The standard for consistency as established in CEQA Guidelines section 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 15183, and the Project is eligible for this CEQA exemption.
Programmatic vs. Project-Specific Effects
Basis of the Appeal
The appeal asserts the following related to the applicability of CEQA Guidelines section 15183 for the Project:
“Pursuant to the California Environmental Quality Act ("CEQA''), the City prepared a "CEQA Environmental Consistency Checklist" ("CEQA Checklist") for the Project. The CEQA Checklist was prepared pursuant to CEQA Guidelines Section 15183, which allows a streamlined environmental review process for projects that are consistent with the densities established by existing zoning, community plan or general plan policies for which an EIR was certified and for which project-specific effects which are peculiar to the project have been previously analyzed.” Response to the Appeal
These assertions of the appeal inappropriately combine the purpose of a program EIR, such as the City’s 2011 GP EIR, and the purpose of streamlined environmental review, such as the CEQA Consistency Checklist prepared pursuant to CEQA Guidelines Section 15183 for the Fremont Hub Project.
Mark Hungerford, City of Fremont February 8, 2024 Page 3 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Pursuant to CEQA Guidelines section 15186, the Fremont General Plan EIR is a “program” EIR. Among its other purposes and advantages, this program GP EIR allowed the City of Fremont to consider broad policy alternatives and program-wide mitigation measures at an early time when the City had greater flexibility to deal with basic issues or cumulative impacts. Later activities pursuant to the GP Program EIR must be examined in the light of the GP Program EIR to determine whether an additional environmental document must be prepared. Where later activities involve site-specific activities, the City relies on a written checklist to document the evaluation of the Project and its site, and to determine whether the environmental effects of the Project were within the scope of the program GP EIR.
The Fremont General Plan EIR did not, could not have, and was not required to previously analyze project-specific effects that are peculiar to the Fremont Hub Mixed Use Project. The purpose of the CEQA Consistency Checklist prepared pursuant to CEQA Guidelines Section 15183 for this Project was to provide that project-specific analysis, and to consider whether the Fremont Hub Mixed Use Project has any significant impacts that are peculiar to the Project and its site that have not have been previously analyzed. The CEQA Consistency Checklist prepared for the Fremont Hub Project did not find any such unique or peculiar significant impacts. Accordingly, the Fremont Hub Project appropriately qualifies for the CEQA exemption under CEQA Guidelines section 15183.
Reliance on the City Center Community Plan
Basis of the Appeal
The appeal asserts the following related to use of the City Center Community Plan as part of the review of the Fremont Hub Project:
“As explained above, the General Plan Update EIR does not adequately address this Project. Thus, because the City Center Community Plan relies on the same General Plan Update EIR, rather than having its own EIR, the City Center Community Plan is also insufficient as it still does not address this Project. In fact, while the City Center Community Plan provides a general directive for the Hub particularly, Policy 16.8 states that "[a] variety of uses including large format retail, commercial, residential, or a mix of all of these - may occur in the Hub" – the City Center Community Plan did provide any consideration of the extent of demolition and construction that this Project proposes.” Response to the Appeal
These assertions of the appeal are incorrect on two counts, as specifically cited in the CEQA document and its environmental record.
First, as fully disclosed in the Introduction to the CEQA Consistency Checklist, when the City of Fremont adopted the 2015 City Center Community Plan, the City concluded that the environmental effects attributed to the City Center Community Plan had been fully anticipated under the 2011 General Plan EIR. The City made Findings pursuant to CEQA that the City Center Community Plan and its corresponding Center Code zoning text amendment, and the Zoning Map amendments are implementation measures of the General Plan, and that the potential environmental effects attributed to implementation of the City Center Community Plan had already been assessed in the 2011 General Plan EIR, and no further environmental review was required. Accordingly, the 2011 General Plan EIR provides for streamlined environmental review for individual projects that are consistent with the density and intensity of development as anticipated in the City Center Community Plan.
Secondly, the City Center Community Plan does consider the extent of demolition and construction that this Project proposes. The City Center Plan provides policy guidance, illustrative concepts and implementation actions for a transformation of the entire area near central Fremont, BART and Downtown from an auto-oriented suburban area into a walkable, urban, transit-oriented City Center. It implements the General Plan while consolidating previous planning work within the City Center. The City Mark Hungerford, City of Fremont February 8, 2024 Page 4 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Center Plan recognizes a limited number of sites where rapid transformation to an improved pedestrian environment may be possible, and redevelopment of the Hub Shopping Center is one of those sites.
As specifically noted in the December 12, 2023 Staff Report, “the proposed Project fulfills a primary objective of the City Center planning vision by converting a portion of what is currently an underutilized suburban-style, legal-nonconforming shopping center into a mixed-use development”. Additionally, the Project, “represents the first step in the shopping center’s eventual transition to a denser, more mixed- use character aligned with adopted policies for the site” (emphasis added). The Staff Report make it quite clear that the extent of demolition and construction that this Project proposes is well within the expectations of the City Center Plan.
The City’s 2015 finding that the environmental effects attributed to implementation of the City Center Community Plan had already been assessed in the 2011 General Plan EIR include the full extent of demolition and new construction pursuant to the City Center Plan, including the Project.
Substantial Environmental Effects
Basis of the Appeal
The appeal asserts the following related to substantial environmental effects of the Project:
. . . the Project has new or more severe significant impacts than previously analyzed in the 2011 General Plan EIR which are peculiar to the Project site. These include health risk, air quality, and contamination from hazardous materials. As a result, reliance on the Community Plan exemption is misplaced, and an EIR must be prepared.”
The individual assertions of the appeal related to potentially significant environmental effects are addressed individually, below.
Soil and Groundwater Contamination and Potential Vapor Intrusion Basis of the Appeal
The appeal asserts the following related to potential groundwater impacts related to the adjacent gas station site:
“The Project site is bounded on both sides by gas stations, and the Project is immediately adjacent to a site listed on the Cortese list. In particular, the former Texaco gas station at 4004 Mowry Avenue encountered a release of petroleum hydrocarbons from underground storage tanks (USTs) and associated piping at the former Texaco gas station. As a result of this historical use as a gas station, petroleum hydrocarbons are present in groundwater, and groundwater sampling has indicated concentrations of TPH-g as high as 350,000 ppb. The Phase I Report prepared for the Project determined that the site is a recognized environmental condition ("REC") because of "the presence of and likely continued migration of petroleum hydrocarbons onto the Property." The migration of petroleum hydrocarbons onto the Property through groundwater may result in a significant hazards impact that was not contemplated or addressed in the 2011 General Plan Update EIR.
Response to the Appeal
These assertions of the appeal are limited to information presented in the CEQA Checklist as cited from the Phase I Environmental Site Assessment (Phase I ESA, Roux Associates, January 2018), but do not account for more recent information that was also presented in the CEQA document and its environmental record.
The Project site is bounded on one side (not two) by the current Valero gasoline station. Available records indicate that petroleum hydrocarbons were released from underground storage tanks at this site (4004 Mowry Avenue) in the early 1980s, when the gas station was branded as a Texaco station. The Mark Hungerford, City of Fremont February 8, 2024 Page 5 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Phase I ESA considers the adjacent gasoline station as a “Recognized Environmental Condition (REC) because of the presence of, and likely continued migration of petroleum hydrocarbons onto the Property.1 The REC does not originate from the Project site, and is not an impact of the Project.
Chevron Environmental Management Company (Chevron) is the current Responsible Party for cleanup at the former Texaco station. Shortly after preparation of the Phase I ESA for the Project, Chevron submitted a May 2018 Site Conceptual Model and Low-Threat Closure Request (Closure Request) for this property to the SFRWQCB.2 Chevron and the SFRWQCB have been working toward site closure for the former Texaco site since then. A December 2022 State Water Resources Control Board Review Summary Report, “Additional Work, Third Review” (2022 Summary Report) was cited in the City’s Fremont Hub CEQA Checklist.3 This Summary Report presents the SFRWQCB’s most current conclusions pertaining to Chevron’s Closure Request and implications for off-site properties (i.e., the Project site).
Soil Contamination: According to the Closure Request, approximately 770 cubic yards of soil and pea gravel were removed when the UST at the former Texaco station was removed, and approximately 510 cubic yards of this soil was disposed off-site in 1997. The Closure Report recognized then-current plans to redevelop the parking lot immediately to the southeast of the former Texaco site as a commercial/residential building (then proposed to include subterranean parking) and a slab-on-grade commercial building. That Closure Request found that “groundwater had not been encountered within the upper 25 to 30 feet of soil below grade, and boring logs for off-site wells showed little to no indication of soil impacts above groundwater.”4 According to the 2022 Summary Report, the “likelihood of residual naphthalene or PAHs concentrations in the soil (if any) are minimal.”5 Accordingly, soil contamination from the former Texaco leaking underground storage tank is not a significant impact on the currently proposed Project. Moreover, the California Environmental Quality Act requires only an analysis of the impacts of a project on the environment, not the impacts of the environment on a project. (California Building Industry Assn. v. Bay Area Air Quality Management Dist., 62 Cal.4th 369, 392 (2015) (holding that CEQA does not require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents).
Petroleum Vapor Intrusion to Indoor Air: Chevron’s December 2022 Closure Request addressed potential petroleum vapor intrusion to indoor air at the then-proposed redevelopment at the Project site. The Closure Request found that proposed project would have has at least a 10- to 30-foot bio-attenuation zone from the groundwater, and that soils in the area contain less than 100 mg/kg of TPH. The Water Board’s 2022 Summary Report, which now addresses the currently prosed Project, found that the Project (i.e., Off-Site Development) would meet Case Closure criteria. The Project would provide, “a minimum of five vertical feet between the soil vapor measurement and the foundation of the building or ground surface for future construction. Concentrations of benzene, ethylbenzene, and naphthalene in soil gas are less than the soil gas criteria. Concentrations of total petroleum hydrocarbons (TPH) as gasoline and diesel combined are less than 100 milligrams per kilogram (measured in at least two depths within the five-foot zone.) Oxygen is greater than or equal to four percent measured at the bottom of the five-foot zone.”6 Accordingly, petroleum vapor intrusion into indoor air within the Project is not a
1 Roux Associates, Inc., Phase I Environmental Site Assessment (Phase I ESA), January 2018 2 GHD, Site Concept Model and Low-Treat Closure Request, Former Texaco Station (Closure Request), May 11, 2018
3 State Water Resources Control Board, Review Summary Report - Additional Work, Third Review (Summary Report), December 2022
4 GHD, May 2018, page
5 State Water Resources Control Board, December 2022, page 3 6 State Water Resources Control Board, December 2022, page 3 Mark Hungerford, City of Fremont February 8, 2024 Page 6 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 significant impact, and a vapor barrier is not required for the Project.7 Moreover, the California Environmental Quality Act requires only an analysis of the impacts of a project on the environment, not the impacts of the environment on a project. (California Building Industry Assn. v. Bay Area Air Quality Management Dist., 62 Cal.4th 369, 392 (2015) (holding that CEQA does not require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents).
Groundwater Contamination: Chevron’s December 2022 Closure Request presented data pertaining to current conditions in an effort to clarify that the former Texaco site met Low-Threat Closure policy criteria. However, the Water Board’s 2022 Summary Report concluded that the former Texaco site, “does not meet the Low-Threat Closure Policy criteria. The contaminant plume that exceeds the Water Quality Objectives is greater than 250 feet in length, free product (also known as light non-aqueous phase liquid [or LNAPL, e.g., gasoline and diesel]) is present in on-site (i.e., within the former Texaco gas station site) monitoring wells, and the dissolved concentration of benzene is greater than 1,000 micrograms per liter (μg/L).” The Water Board concluded that, “a feasibility study is necessary that identifies applicable remedial technologies and selection of a cost-effective and robust technology to remove free product to the maximum extent practicable so that it is not a significant source of dissolved constituents to groundwater.” 8 Various remedial technologies could be considered.
According to the report, “Historical and Current Environmental Conditions - Fremont Hub Redevelopment (Roux, December 19, 2022) as cited in the CEQA Document, all of the remedial technologies, as required by the Water Board, “could be implemented within the footprint of the former Texaco station. The Project’s proposed new buildings would not interfere with or impede implementation of potential remedial technologies to address the LNAPL present in the groundwater”.9 PCE in Groundwater
Basis of the Appeal
The appeal asserts the following related to potential groundwater remediation that would be necessary at the Project site to reduce PCE concentrations:
“The Phase I Report indicates that the Project will require mitigation to reduce significant hazards and water quality impacts. According to the results from previous soil investigations . . . PCE was detected at concentrations above the respective RWQCB ESLs in both groundwater and soil vapor (RWQCB, 2016). . . . The performance monitoring results indicated that HRC injections were effective at reducing PCE concentrations in groundwater. However, PCE concentrations were still detected above the ESLs.” The appeal asserts that, “additional groundwater remediation would be necessary to further reduce PCE concentrations and subsequent daughter compounds below the RWQCB ESLs.” Response to the Appeal
These assertions of the appeal are incorrect, as they do not apply to the Project or its site.
The information cited in this appeal was prepared for a different site located at 39226 through 39300 Argonaut Way, which is located on the opposite side of the Fremont Hub shopping center and over 1,000 feet from the Project site (Roux Associates, Inc., Enhanced Reductive De-Chlorination Pilot Study Report, 39226 through 39300 Argonaut Way, June 16, 2017). This Pilot Study Report does not pertain to the Project site. PCE concentrations are not a Recognized Environmental Concern (REC) for the Fremont
7 Roux Associates, Inc., Historical and Current Environmental Conditions, Fremont Hub Redevelopment at 4020 Fremont Hub, December 19, 2022, page 2
8 State Water Resources Control Board, December 2022, pages 3-4 9 Roux Associates, Inc., December 19, 2022, page 2
Mark Hungerford, City of Fremont February 8, 2024 Page 7 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Hub Mixed Use Project at 39150 Argonaut Way, and no groundwater remediation for PCE is recommended or identified as necessary at the Project site.
Contamination of Drinking Water
Basis of the Appeal
The appeal asserts the following related to potential effects of the Project on drinking water:
“The Phase I Report also fails to provide substantial evidence that the Project will not result in significant contaminant migration on nearby drinking water wells.” Response to the Appeal
These assertions of the appeal are incorrect and directly contradicted by facts contained in the CEQA document and its environmental record.
There is no evidence to indicate that the Project will have any adverse effects on groundwater. The adjacent former Texaco gas station site had a petroleum release that has adversely affected groundwater, but this is an existing baseline condition and not related to or caused by the Project.
According to the Water Board’s 2022 Summary Report, “the former Texaco station’s petroleum release is limited to the soil and shallow groundwater. The affected groundwater is not currently being used as a source of drinking water, and it is highly unlikely that the affected groundwater will be used as a source of drinking water in the foreseeable future.”10
Speculative potential contaminant migration on nearby drinking water wells is not a significant effect of the Project, and does not present an exception to the Project’s CEQA streamlining.
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 would result in excavation of soil and potential groundwater disturbance or dewatering which can lead to chemical releases. These impacts, which are peculiar to the Project, were not analyzed in a prior project-level CEQA document, and could not have been analyzed in the prior General Plan EIR because the Project had not yet been proposed, and it was therefore unknown that construction of the Fremont HUB Project could result in potentially significant releases of contaminants. The City's own evidence demonstrates that these impacts may be significant and that remediation may be required to reduce potentially significant hazards impacts.” Response to the Appeal
These assertions of the appeal are incorrect and directly contradicted by facts contained in the CEQA document and its environmental record.
Soil Disturbance: The Phase I ESA prepared for the Project site was performed to identify recognized environmental conditions (RECs) at the property, indicating past, current, or material threats of the release of hazardous materials or petroleum hydrocarbons to the buildings, soil, groundwater or surface water at the property. “Based on the data reviewed and Roux Associates’ observations and understanding of the property’s use and conditions, [only] one REC was identified at the property”, that being “the presence of and likely continued migration of petroleum hydrocarbons onto the property.11
10 State Water Resources Control Board, December 2022, page 2 11 Roux Associates, Inc., January 2018
Mark Hungerford, City of Fremont February 8, 2024 Page 8 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 The presence of petroleum hydrocarbons is not in the soil at the Project site, but within the groundwater. The Phase I ESA finds no other soil-related contamination at the Project site. In fact, even the remaining soils at the former Texaco station “satisfy the Low-Threat Policy direct contact and outdoor air exposure criteria. The concentrations of benzene and ethylbenzene in the upper 10 feet of soil are less than the residential and commercial /industrial limits for direct contact and outdoor air exposure.”12 Maximum concentrations of petroleum constituents in soil are less than levels that a site- specific risk evaluation demonstrates will have no significant risk of adversely affecting human health.13 The Project’s grading and shallow excavations would not encounter or upset contaminated on-site soils, and does not present an exception to the Project’s CEQA streamlining.
Dewatering of Contaminated Groundwater
As identified in the Chevron’s 2022 Closure Request, “while the groundwater plume [from the former Texaco station site] extends off-site in a southerly direction, groundwater is not encountered within the upper 25 to 30 feet of soil below grade, and boring logs for off-site wells show little to no indication of soil impacts above groundwater. . . Given the depth to groundwater and lack of impacted soil off-site in these areas [i.e., at the Project site], potential exposure to impacted soil or groundwater by commercial/construction workers is not a significant concern.” 14 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. There is no evidence to indicate that the Project’s construction activity would disturb or encounter groundwater.
Accordingly, the Project is not expected to encounter or expose contaminated groundwater or result in a significant release of contaminants during construction. Disturbance of contaminated groundwater is speculative and not a significant effect of the Project and does not present an exception to the Project’s CEQA streamlining.
Air Quality
Basis of the Appeal
The appeal asserts the following related to potential air quality impacts during operation of the Project:
“The Air Quality Analysis omits key sources of emissions, including failing to analyze the back-up generator that will be required for the elevator that is required as part of the Project. The Air Quality Analysis analyzed only construction back-up generators, even though an emergency generator is legally required for the elevator system at the Project. 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 building must have an elevator with a standby power for the elevator equipment. The Air Quality Analysis fails to analyze the emissions associated with the Project's required back-up generator. The record omits critical information regarding air quality and GHG impacts on nearby sensitive receptors.” Response to the Appeal
These assertions of the appeal are incorrect and omit important exceptions to California Building Code (CBC) requirements pertaining to elevators and stand-by power, as addressed below.
The appeal is correct that the current CBC requires emergency standby power for elevators serving buildings of four or more stories above an exit discharge. However, the CBC also provides exceptions to
12 GHD 2018, page 22, and WQCB December 2022, page 3
13 State Water Resources Control Board, December 2022, page 3 14 GHD 2018, page 17
Mark Hungerford, City of Fremont February 8, 2024 Page 9 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 this requirement, including the following: “in buildings equipped throughout with an automatic sprinkler system installed in accordance with Section 903.3.1.1 or 903.3.1.2, the elevator shall not be required on floors provided with a Horizontal Exit and located at or above the levels of exit discharge” (emphasis added).15 A technical explanation of Horizontal Exit requirements as prepared by the Project’s architects further describes the applicable Horizontal Exit requirements:
i. Must be constructed as a firewall (per CBC Section 706), or fire barrier (per CBC Section 707) with a 2-hour minimum fire resistance rating. Construction Type of building determines which one is required.
ii. Standpipes are required on both sides of the Horizontal Exit (per CBC Section 905.4) and must be provided on all floors (per CBC Section 905.3.1). Exception: If floor areas adjacent to the Horizontal Exit are reachable with a 100-foot hose with a 30-foot hose stream nozzle from a standpipe in an elevator exit stair (130’ measured along the path of travel). iii. Refuge Area (CBC Section 1026.4) of a Horizontal Exit shall be adequate to accommodate the original load of the Refuge Area plus the occupant load form the adjoining compartment. The capacity of the area (CBC Section 1026.4.1) shall be computed based on a net floor area of 3 sf per occupant. Corridors can be utilized as a refuge area and are typically large enough to accommodate the required space.16
The Fremont Hub Project’s application drawings provide a Code Analysis Diagram that demonstrates how the Project complies with the exception to the standby power requirements of the CBC by instead providing appropriate Horizontal Exits for all floors above the ground floor.17 The CEQA Consistency Checklist does not omit key sources of air quality of GHG emissions because the Project provides for an alternative means of compliance with CBC fire safety by using Horizontal Exits, and no generator is proposed.
Construction Period Noise
Basis of the Appeal
The appeal asserts the following related to potential construction noise impacts of the Project:
“. . . the City concludes, absent substantial evidence, that noise impacts can be reduced to less than significant levels through implementation of Standard Development Requirements ("SDRs") as part of the Fremont Municipal Code Chapter 18.218.42 However, compliance with existing noise regulations does provide substantial evidence foreclosing the possibility of significant impacts. The City's noise analysis lacks substantial evidence to conclude that the Project would not expose nearby sensitive receptors to excessive construction and traffic noise from the Project.” Response to the Appeal
These assertions of the appeal are incorrect and directly contradicted by facts contained in the CEQA document and the administrative record.
As presented in the CEQA Consistency Checklist and its technical study,18 the City of Fremont’s threshold for construction noise is a 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.
15 CBC, Section 1009.2.1
16 TCA Architects (Architect of record for the Project), January 2024 17 TCA Architecture, Fremont Hub Mixed Use Project, Discretionary Design Review Submittal, Sheets A7 and A8, August 18. 2023
18 LSA, Noise and Vibration Impact Analysis for the Fremont Hub Mixed-Use Project, October 31, 2023 Mark Hungerford, City of Fremont February 8, 2024 Page 10 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 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 a 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 CEQA Consistency Checklist for the Fremont Hub Project finds that construction noise will vary, that average noise levels during construction at the nearest commercial uses to the southwest would approach 74 dBA Leq, while noise levels at the nearest sensitive residential uses to the west would approach 64 dBA Leq during the site preparation phase, which would take place for a duration of approximately 2 weeks. Average noise levels at sensitive residential receptors during other construction phases would range from 60 dBA Leq to 74 dBA Leq. These construction noise impacts would be short term, generally intermittent depending on the construction phase, and variable depending on receiver distance from the active construction zone. The duration of impacts generally would be from 1 day to several weeks, depending on the phase of construction. Construction noise levels would cease once Project construction is completed.
While construction operations have the potential to generate audible noise at surrounding uses, construction noise levels generated during the permitted hours are exempt from compliance with City noise standards and are considered less than significant, provided that noise reduction measures are implemented. The Standard Development Requirements (SDRs) for construction-period noise reduction per Section 18.218.050(g) of the FMC includes:
Construction equipment shall be well maintained and used judiciously to be as quiet as practical Construction, excavating, grading and filling activities shall be limited to permitted construction hours
Internal combustion engines shall be equipped with mufflers The contractor shall utilize “quiet” models of air compressors and other stationary noise sources where technology exists
Loading, staging areas and stationary noise generating equipment shall be located as far as feasible from sensitive receptors
The contractor shall prohibit unnecessary idling of internal combustion engines The applicant shall designate an on-site complaint and enforcement manager to track and respond to noise complaints, and
Temporary noise barriers, such as solid plywood fences, shall be installed around construction sites adjacent to operational businesses, residences, or noise-sensitive land uses, unless an existing wall or other barrier provides equivalent noise attenuation.
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.
Mark Hungerford, City of Fremont February 8, 2024 Page 11 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 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.
“The [CEQA Checklist] conclusion is unsupported given that the CEQA Checklist omits project-specific sources of GHG emissions which were not known at the time the General Plan Update EIR was prepared. For example, the Project may result in operational GHG impacts that are new and more significant than those analyzed in the General Plan Update EIR because the Project may utilize an onsite diesel backup generator, as discussed herein, which may result in significant GHG emission impacts.”
Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and the administrative record.
As fully described in the CEQA Consistency 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 Consistency 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 2,538 metric tons of CO2e, resulting in a Project-specific GHG efficiency of 2.6 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.
Mark Hungerford, City of Fremont February 8, 2024 Page 12 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 As indicated above, the Project does not propose to utilize an on-site diesel backup generator, and no significant GHG emission impacts that might be attributable to such a generator would occur.
Basis for an Addendum to the GP EIR
Basis of the Appeal
The appeal asserts the following related to the applicability of a CEQA Addendum to the GP EIR for the Project:
“In this case, the City's decision not to prepare a subsequent or supplemental EIR for the Project is not supported by substantial evidence because of unanalyzed and/or unmitigated impacts. Here, the City has failed to demonstrate that the Project can be lawfully approved based on the CEQA Checklist provided. The CEQA Checklist does not simply provide "some changes or additions are necessary" to the EIR as is allowed under the Addendum provision. Rather, as explained above, it includes a new substantive analysis for a large development project which was not specifically analyzed in the General Plan Update EIR. Because the Project and its predicted impacts was not borne until May 2022, these impacts qualify as "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."
Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and the administrative record.
CEQA Guidelines section 15162 provides that, for a project covered by a previously certified EIR, preparation of a subsequent EIR or negative declaration is required only if one or more of the following conditions occur:
substantial changes are proposed in the project that 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 substantial changes occur with respect to the circumstances under which the project is undertaken that 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 the previously identified significant effects, or
new information of substantial importance, that was not known and could not have been known with the exercise of reasonable diligence at the time of the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:
o the project will have one or more significant effects not discussed in the previous EIR or negative declaration;
o significant effects previously examined will be substantially more severe than shown in the previous EIR or negative declaration;
o 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 o mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR or negative declaration would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measures or alternative.
Mark Hungerford, City of Fremont February 8, 2024 Page 13 KMCO-58573\2899718.1 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 The discussion above addresses the assertions of the appeal that suggest that the Project will have significant environmental effects or a substantial increase in the severity of previously identified significant effects related to the topics of soil and groundwater contamination and potential vapor intrusion, PCE in groundwater, contamination of drinking water, hazardous materials exposure during construction, air quality, construction period noise, and cumulative greenhouse gas emissions. The responses to these assertions of the appeal demonstrate that there is substantial evidence in the City’s CEQA Consistency Checklist and the administrative record to find that the Project will not result in any new significant environmental effects nor a substantial increase in the severity of significant effects previously identified in the GP EIR.
Preparation of a checklist under CEQA Guidelines Section 15183 and an Addendum to the GP EIR is an appropriate means of updating the GP EIR with the additional technical details and minor changes to the GP EIR as represented by the Project. The CEQA Consistency Checklist provides information to the lead agency (City of Fremont) to substantiate a determination that none of the conditions described in CEQA Guidelines section 15162 calling for the preparation of a subsequent EIR or Negative Declaration have occurred. The CEQA Consistency Checklist references and relies on the analyses completed in the Fremont General Plan EIR and incorporates the conclusions of the GP EIR by reference, as appropriate.
Accordingly, the City's decision not to prepare a subsequent or supplemental EIR for the project is supported by substantial evidence.