Fremont City Council Meeting: 05/06/25 07:00 PM
3300 Capitol Avenue Div/Dept: Planning
Fremont, CA 94538 Category: Appeals
SCHEDULED
Sponsors:
COUNCIL STAFF REPORT (ID # 5398) DOC ID: 5398
Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 1
ARDENWOOD AT PASEO APPEAL – – Public Hearing (Published Notice) to consider a third-party Appeal of the Planning Commission's denial action of a separate third-party Appeal and uphold the Zoning Administrator’s approval action of a Discretionary Design Review Permit and Floor Area Ratio increase (under PLN2022-00466) to allow a proposed five-building light-industrial/R&D development consisting of 407,250 square feet of new floor area, plus renovation of an existing 43,172-square-foot light-industrial/R&D building, on the site bounded by Paseo Padre Parkway, Ardenwood Boulevard, and Commerce Drive in the North Fremont Community Plan Area; and to consider an exemption from the requirements of the California Environmental Quality Act (CEQA) per, without limitation, CEQA Guidelines Section 15183, as the project is consistent with 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. Each of the foregoing provides a separate and independent basis for CEQA compliance.
Contact Persons:
Name: Marc Cleveland Dan Schoenholz
Title: Planner II Community Development Director
Div/Dept: Planning Community Development
Phone: 510-494-4543 510-494-4438
E-Mail: [email protected] [email protected]
Executive Summary: This item is to consider a third-party Appeal of the Planning Commission’s February 13, 2025, action to deny a previous third-party Appeal and uphold the Zoning Administrator’s October 15, 2024 approval of a Discretionary Design Review Permit and a Floor Area Ratio (FAR) increase in conjunction with development of five new industrial buildings and the renovation of an existing industrial building on 24.2 acres of land in P-81-15, the Ardenwood Planned District. The project’s southern lot would have a
0.51 FAR that exceeds the maximum 0.35 FAR standard applicable to Tech Industrial - designated lots occupied by light-industrial/R&D uses. 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).
Staff has found the project consistent with the applicable policies of the General Plan and, with the exception of the requested FAR increase, consistent with the relevant statutes of the Fremont Municipal Code (FMC) and in substantial conformance with the Citywide Design Guidelines.
Council Staff Report (ID # 5398) Meeting of May 6, 2025 Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 2
BACKGROUND:
Zoning Administrator Hearing
On October 15, 2024, the Ardenwood at Paseo project (PLN2022-00466) was presented at a noticed Zoning Administrator public hearing. Following a presentation from staff that included a project approval recommendation, two members of the public spoke on the item.
Both speakers were opposed to the project. One speaker raised concerns about the project’s potential to negatively impact public safety, and Kelilah Federman, from Adams Broadwell Joseph & Cardozo representing East Bay Residents for Responsible Development (Appellant), challenged staff’s finding that the project is not subject to further environmental review pursuant to CEQA Guidelines Section 15183. After considering testimony and the whole of the record, the Zoning Administrator approved the project, as conditioned.
On October 23, 2024, 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 13, 2025, the Planning Commission held a noticed public hearing to consider the Appellant’s original Appeal (Informational Item No. 5 – Planning Commission Staff Report). Two members of the public spoke on the item, both in opposition to the project.
Questions of staff and the project applicant from the Planning Commissioners related to the scope of the project, adjacent uses, CEQA administrative matters, and future tenant modifications. A motion to uphold the Zoning Administrator’s approval action and deny the Appeal passed 6-1 (Informational Item No. 7 – February 22, 2024, Planning Commission Hearing Minutes).
On February 21, 2025, within the applicable 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 deny the prior Appeal and approve the project. As detailed in Informational Item No. 8, the Appellant makes several assertions that they believe justify reversal of the Planning Commission’s decision. These points are outlined below.
1. The City’s decision to not prepare a subsequent Environmental Impact Report (EIR) pursuant to CEQA Guidelines Sections 15162 and 15164 was not supported by substantial evidence;
2. The City lacks substantial evidence to support approval of the project under CEQA Guidelines Section 15183; and
3. The City cannot make the necessary findings to approve the project’s entitlements.
Council Staff Report (ID # 5398) Meeting of May 6, 2025 Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 3
Grounds of the Appeal:
The Appellant’s grounds for the Appeal and brief responses by the City are as follows. Staff’s responses are further detailed in Informational Item No. 6 – Consultant Appeal Response Letter, which was prepared by a staff-commissioned CEQA consultant.
Ground#1: The City lacks substantial evidence to support approval of the project under a community plan exemption or addendum and the project has significant project specific impacts that are peculiar to the project, were not analyzed in the General Plan EIR, were not known and could not have been known when the 2011 General Plan EIR was certified, and are more severe than previously analyzed.
The record does not contain substantial evidence indicating that the project will have new or more severe significant impacts that are peculiar to the project that were not analyzed, were not known or could not have been known with the exercise or reasonable diligence at the time the 2011 General Plan EIR was certified. As described in the CEQA Consistency Checklist (Informational Item No. 2) and prior staff reports (Informational Item Nos. 1 and 5), the project is consistent with the development intensity and land use characteristics established pursuant to the 2011 Fremont General Plan and as analyzed in the General Plan EIR (“GP EIR”). The Project is consistent with the standards of the Tech Industrial designation of the General Plan and P-81-15 zoning with respect to site planning, massing, architecture, and other urban design characteristics. The Appeal asserts that specifics of the project were not contemplated in the General Plan because the Project’s application was filed after it was adopted. The absence of such detail at the time of the prior EIR, however, does not necessitate the preparation of further environmental review under either CEQA Guidelines 15183 or 15162, et seq. These streamlining provisions of CEQA expressly limit the circumstances requiring further CEQA review and dictate that projects not meeting those requirements are exempt from such review. Here, the Ardenwood at Paseo Project clearly qualifies for the cited exemptions from further review under CEQA Guidelines Section 15183 and 15162, each as a separate and independent basis.
Ground#2: Significant air quality health risk impacts were not disclosed per the Appellant’s consultant’s analysis (Informational Item No. 8.)
No significant air quality health risk impacts have been demonstrated that would trigger the requirements for further environmental review. Aproject-specific Emissions Study was completed and presented in the CEQA Consistency Checklist (Informational Item No. 2). No additional mitigation was deemed necessary because of mandatory project compliance with the City’s standard development requirements (FMC Chapter 18.218), which include mandatory, universally applied measures related to project emissions and other air quality impacts.
Ground#3: SWAPE (Appellant’s consultant) conducted a quantified health risk analysis (“HRA”) of the Project’s toxic air contaminant (“TAC”) emissions, including DPM, and identified health risk impacts which are more severe than analyzed in the 2011 General Plan EIR and in the CEQA Checklist.
The appellant’s consultant, SWAPE’s analysis does not identify more severe significant impacts; rather, SWAPE’s documents reference “screening level” health risk calculations which are more conservative and less refined analysis than that conducted by the City for Council Staff Report (ID # 5398) Meeting of May 6, 2025 Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 4
the project. Such screening analyses are intended to identify whether a more detailed, refined and complex project-level analysis is warranted. Here, the City performed just such a detailed, refined and complex project-level analysis that presents a more accurate reflection of project’s emissions impacts than SWAPE’s screening-level analysis and concluded that there was nothing peculiar to the project or the site that would result in conclusions different from those found in the General Plan EIR, nor that more severe TAC emissions would result.
Ground#4: Potential health risk impacts on a nearby day care were not contemplated in the General Plan EIR.
Day cares are permitted throughout all residential zones in the City of Fremont (FMC
18.90.080) and can be allowed with Zoning Administrator approval in many other zones.
Since the proposed project use is consistent with the General Plan and zoning, as is the day care in the adjacent residential neighborhood, the proximity of these two uses was contemplated by the General Plan. As a result, they cannot reasonably be found to be peculiar to this project or its location and were both known and could have been known at the time of the prior EIR. Notably, the City’s emissions study for the project assessed potential impacts on sensitive receptors (which includes uses such as daycare) which a daycare would fall under, and concluded the proposed project would not cause significant impacts.
Ground#5: The project may result in new and significant construction and operational impacts, including those related to air quality, traffic, noise, and greenhouse gas emissions.
The record does not evidence that the project would result in new or significant construction or operational impacts that would necessitate further environmental review in accordance with CEQA. CEQA Checklist (Informational Item No. 2) details compliance related to each of these concerns, with conclusions supported by studies prepared by technical subject matter experts. Project implementation would be consistent with what the General Plan EIR envisioned for the site and does not constitute an unusual circumstance.
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:
(a) The proposed project is consistent with the general plan, any applicable community or specific plan, planning and zoning regulations, and any adopted design rules and guidelines.
Analysis: The proposed project is consistent with the General Plan, P-81-15 standards, and the applicable Design Rules of the Citywide Design Guidelines. The project will advance the vision of the site’s planned district, which has tabbed the property to be developed as an industrial campus dating back to its 1981 adoption.
The project will transform an underutilized infill site with a development that’s consistent with the scale and design character sought for new industrial development within the North Fremont’s Tech Industrial-designated lands, and is consistent with the economic development objectives of the Ardenwood Technology Park.
Council Staff Report (ID # 5398) Meeting of May 6, 2025 Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 5
(b) When a proposed project is inconsistent with an adopted design rule, the purpose and intent of the design rule is met through alternative means.
Analysis: The proposed project is consistent with the applicable Design Rules contained within the Citywide Design Guidelines, is in substantial conformance with the same document’s Design Guidelines, and is compliant with the limited design language contained within the P-81-15 ordinance. No exceptions to adopted Design Rules are necessary for the project.
(c) The multifamily residential project’s architectural, site, and landscape design will not be detrimental to the public health or safety; or a non- multifamily project’s architectural, site, and landscape design will not unreasonably interfere with the use and enjoyment of adjacent development nor be detrimental to the public health, safety, or welfare; and
Analysis: The proposed project’s design would not interfere with the use and enjoyment of adjacent development, nor would it be detrimental to public health or safety because the project has been designed in a logical manner that comfortably fits within the site’s buildable envelope while providing significantly increased building setbacks from all street frontages and interior property lines. The project features high-quality architecture that enhances the appearance of the site, and significant landscaping within the site frontages’ landscape easements and the introduction of a Commerce Drive sidewalk connecting with the existing sidewalk network that wraps the site would create a safer, more pedestrian-friendly public realm. Furthermore, the proposed project will not be detrimental to the public health, safety, or welfare of persons or property in the vicinity owing to its conformance with applicable Building and Fire code regulations.
(d) Where HARB review is required, the proposed project is consistent with the applicable standards and findings required in Chapters 18.135 and 18.175.
Analysis: The proposed project does not involve a site within a historical overlay district or one that includes a Register or Register-eligible historic resource. As such, HARB review is not required for the project.
FAR Increase
Pursuant to FMC Section 18.250.070, the following findings are required prior to approval of an application for a FAR increase:
(a) The increase in floor area ratio will not cause the project to exceed the capacity of streets and will not adversely affect the privacy of properties in the vicinity of the project;
Analysis: A Transportation Analysis prepared for the project found that all of the signalized intersections studied in the vicinity of the project site would maintain current level of service goals and/or not increase current delay by more than 10 seconds with project implementation. As a result, project impacts on area roadways would not be considered to have an adverse effect and capacities of area streets Council Staff Report (ID # 5398) Meeting of May 6, 2025 Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 6
would not be exceeded. As part of project implementation, a traffic signal would be installed at the Paseo Padre Parkway / Commerce Drive intersection, which is currently unsignalized, in order to improve current level of service and reduce delays for project inbound and outbound vehicular movements. Though the project site is adjacent to existing residential uses located across Ardenwood Boulevard, privacy impacts on the residences would be nonsignificant owing to at least 200 feet of separation between those existing uses and the proposed project buildings.
(b) A deed restriction approved by the city attorney shall be recorded on the property to ensure that the use of the property remains limited to that presented to the approval authority; and
Analysis: As conditioned, project implementation will be subject to a restrictive covenant and notice of land use limitation for the subject floor area ratio increase.
(c) The proposed project would provide extraordinary benefits to the City.
Analysis: The proposed increase in floor area ratio is associated with an industrial project that constitutes the first viable development at the project site in the planned district’s 43-year history. At present time, demand for industrial space (including R&D and advanced manufacturing spaces, which project buildings are design to accommodate) in Fremont is strong, with limited availability of space and low vacancy rates. The project figures to deliver high-paying jobs in professional and technical occupations and increase the City’s industrial standing in the region, which would be aided by the site’s key location adjacent to State Route 84, which connects Fremont to the Bay Area’s primary cluster of innovation-oriented technology businesses. The project’s modern industrial buildings will better meet building configuration, access, and power needs of tenants compared to older building stock in the area. Additionally, the project will pay development impact fees and commercial linkage fees to offset the project’s potential impacts on City public facilities and affordable housing. The floor area ratio increase would result in a higher fee total than a project with a conforming floor area ratio.
Pursuant to FMC Section 18.250.070, the following findings are required prior to approval of an application for a FAR increase:
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 372 protected trees would be consistent with the City’s Tree Preservation Ordinance.
Analysis: The removal of 372 private protected trees from the site is necessary to enable reasonable and conforming use of the property as an industrial development in a campus-type setting. Redevelopment of the site with five new buildings with a combined ground floor footprint of 188,431 square feet, plus necessary parking, circulation, landscaping, storm water treatment, and other associated improvements Council Staff Report (ID # 5398) Meeting of May 6, 2025 Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 7
requires their removal. The remainder of the site’s private protected trees would remain in place, and new trees, both on-site and within the adjacent right-of-way, are proposed in accordance with the City’s Landscape Development Requirements and Policies (LDRP). Of the removed trees, 209 will be mitigated. A tree mitigation fee will be collected for the 163 trees scheduled for removal that cannot be mitigated with on-site tree plantings
CEQA
Pursuant to CEQA Guidelines Section 15162, when an EIR has been certified for a project no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in light of the whole record, one or more of the following:
1. Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:
(a) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;
(b) Significant effects previously examined will be substantially more severe than shown in the previous EIR;
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or
(d) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.
Analysis: As documented in the CEQA Environmental Consistency Checklist 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 Council Staff Report (ID # 5398) Meeting of May 6, 2025 Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 8
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.
FISCAL IMPACT: This project is consistent with the economic development objectives of the Ardenwood Technology Park and would be subject to citywide Development Impact Fees, including fees for fire protection, capital facilities, and traffic infrastructure. The project would also be subject to the commercial linkage affordable housing fees applicable to non-residential development. All applicable fees would be calculated and paid at the fee rates in effect at the time of building permit issuance. The applicant may elect to defer payment of the fees in accordance with the City’s Impact Fee Deferral Program.
ENVIRONMENTAL REVIEW: The proposed project is subject to no further environmental review pursuant to CEQA Guidelines Section 15183, Projects Consistent with a Community Plan, General Plan, or Zoning, as the project is consistent with the General Plan for which an Environmental Impact Report (EIR) (SCH#2010082060) was previously prepared and certified. Please see Informational Item No. 2 for more information.
Additionally, the project has been found to not require further environmental review under CEQA Guidelines Sections 15162 as no substantial changes are proposed in the project that would require revisions to the General Plan Update EIR, nor have substantial changes occurred with respect to the circumstances under which the proposed project would be undertaken require revisions to the General Plan Update EIR, nor has new information of substantial importance been identified that would indicate the project would have any new or more significant effects or require new or additional mitigation than what was included in the General Plan Update EIR. The programmatic mitigation measures from the General Plan Update EIR and/or the standard development requirements contained within FMC Chapter
18.218 will be implemented for the project, and 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 CEQA Environmental Consistency Checklist presents substantial evidence that the analyses conducted, and the conclusions reached in the 2011 General Plan Update EIR (SCH#2010082060) remain valid, and no supplemental environmental review is required for the proposed project. The proposed project would not cause new significant impacts that were not previously identified in the EIR or result in a substantial increase in the severity of previously identified significant impacts. No new mitigation measures would be necessary to reduce significant impacts. No changes have occurred with respect to the circumstances that would cause significant environmental impacts to which the proposed project would contribute considerably, and no new information has been put forward that shows that the proposed project would cause new or substantially worsened significant environmental impacts.
Therefore, no supplemental environmental review is required and an addendum to the 2011 General Plan Update EIR could be relied upon for CEQA clearance of the proposed project, in accordance with Public Resources Code Section 21166 and CEQA Guidelines Section 15164.
Link: PLN2025-00163 Exhibit A - Project Plans
ATTACHMENTS:
• Draft Resolution - Fremont at Paseo
• PLN2025-00163 Exhibit B - Findings and Conditions
Council Staff Report (ID # 5398) Meeting of May 6, 2025 Updated: 5/2/2025 1:51 PM by Susan Gauthier Page 9
• PLN2025-00163 Informational Item No. 1 - Zoning Administrator Staff Report • PLN2025-00163 Informational Item No. 2 - CEQA Environmental Consistency Checklist • PLN2025-00163 Informational Item No. 3 - Zoning Administrator Hearing Minutes • PLN2025-00163 Informational Item No. 4 - Zoning Administrator Appeal Letter • PLN2025-00163 Informational Item No. 5 - Planning Commission Staff Report • PLN2025-00163 Informational Item No. 6 - Appeal Response Letter • PLN2025-00163 Informational Item No. 7 - Planning Commission Hearing Minutes • PLN2025-00163 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, and Safety Chapters of the General Plan.
3. Adopt a Resolution denying the Appeal, adopting findings, and approving the project’s Discretionary Design Review Permit and FAR increase, 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 three hundred and seventy-two (372) private protected trees pursuant to the City’s Tree Preservation Ordinance.