Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690
LAMPHIER-GREGORY
Memo
TO: Marc Cleveland, Associate Planner
City of Fremont Community Development
via email at: [email protected]
FROM: Rebecca Auld, Vice President, Lamphier-Gregory
SUBJECT: Response to Appeal of Ardenwood at Paseo Project and its CEQA Document DATE: December 12, 2024
At its public hearing on October 15, 2024, the City of Fremont Zoning Administrator approved a Discretionary Design Review Permit and a floor area ratio increase request in conjunction with 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, referred to as the Ardenwood at Paseo Project (PLN2022-00466). 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 October 23, 2024, the law firm of Adams Broadwell Joseph & Cardozo filed an appeal of this decision on behalf of East Bay Residents for Responsible Development (“EBRRD”). The basis for this appeal can be summarized as the assertion that the City's decision to rely on a streamlining provision pursuant to CEQA Guidelines Section 15183 violated CEQA, and was not supported by substantial evidence.
The three component documents of the appeal are referenced specifically in the discussion below, which include the following:
October 23, 2024 letter from Adams Broadwell Joseph & Cardozo on behalf of EBRRD. (“October 23 EBRRD letter”)
October 15, 2024 letter from Adams Broadwell Joseph & Cardozo on behalf of EBRRD. (“October 15 EBRRD letter”)
October 14, 2024 comments from SWAPE. (“SWAPE Comments”) Lamphier-Gregory has reviewed the basis of the appeal, the CEQA document and supporting technical studies prepared for the Ardenwood at Paseo 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.
Summary Basis for Appeal
Basis of the Appeal
The appeal asserts the following related to overall basis for the appeal of the Project:
“The basis for this appeal is set forth in East Bay Residents’ October 15, 2024 comments to the Zoning Administrator [October 15 EBRRD letter], as well as supplemental comments and evidence that will be presented to the Planning Commission on appeal.
Marc Cleveland, City of Fremont December 12, 2024 Page 2 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 “East Bay Residents’ comments explain that the City’s decision to rely on a streamlining exemption pursuant to CEQA Guidelines Section 15183 (Community Plan Exemption)[14 CCR § 15183(a)-(c).] and a CEQA addendum pursuant to CEQA Guidelines Sections 15162 violated CEQA and were not supported by substantial evidence because 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 site and were not known and could not have been known at the time of the EIR’s certification. These impacts are not fully mitigated by the General Plan EIR mitigation measures or the City’s Standard Development Requirements (“SDRs”) and therefore require disclosure and additional mitigation in a project-level EIR. The specific issues presented to the Zoning Administrator are summarized in Exhibit A.” - Page 4 of the October 24 EBRRD letter.
Response to the Appeal
The appeal confuses CEQA Guidelines Section 15162 related to criteria for determining when subsequent CEQA documents should be prepared with CEQA Guidelines Section 15062 related to Addendums. The CEQA Consistency Checklist references CEQA Guidelines Section 15162 (Subsequent Document Criteria) and not Section 15062 (Addendums) and Project approvals reflect filing as a project consistent with the General Plan under CEQA Guidelines Section 15183 and NOT as an addendum under CEQA Guidelines Section 15062. All references to filing as an addendum or under CEQA Guidelines Section 15162 are an error of the appeal and are not further responded to when mentioned under individual topics below.
The individual assertions of the appeal are addressed individually, 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:
“The City Lacks Substantial Evidence to Support Approval of the Project Under a Community Plan Exemption or Addendum
“CEQA Guidelines Section 15183 (Community Plan Exemption) may only be relied on if a Project is consistent with a previously approved land use plan for which an EIR was prepared, and where the project does not have any impacts that are peculiar to the proposed project or parcel, are new or more significant than previously analyzed, are potentially significant off-site or cumulative impacts, or cannot be substantially mitigated by uniformly applicable development policies or standards.[14 CCR § 15183(a)-(c).] Similarly, CEQA Guidelines Section 15162 (Addendum) prohibits an agency from foregoing preparation of a subsequent or supplemental EIR if there are substantial changes to a project, changed circumstances, or new information about project impacts that are more severe than previously analyzed. [14 CCR § 15162.]
“The City’s reliance on a CEQA Checklist to exempt the Project from further CEQA review under CEQA Guidelines 15183 and 15162 is improper and not supported by substantial evidence because the Project has significant project specific impacts that are peculiar to the Project, were not analyzed in the General Plan EIR, were not know and could not have been known when the 2011 General Plan EIR was certified, and are more severe than previously analyzed. These impacts are not fully mitigated by the General Plan EIR mitigation measures or the City’s Standard Development Requirements (“SDRs”) and therefore require disclosure and additional mitigation in a project-level EIR.” - Page 7 of the October 15 EBRRD letter.
Marc Cleveland, City of Fremont December 12, 2024 Page 3 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 “Further, the Project is zoned P-81-15 and P-81-15B within the Ardenwood Planned District. But the CEQA Checklist includes no analysis of the Project’s conformity with the Ardenwood Planned District zoning requirements. The CEQA Checklist does not provide clarification whether the Project is required to conform with the Ardenwood Technology Park Planned District Rezoning Environmental Impact Report (SCH No. 2015052052) nor the Ardenwood Technology Park Planned District Amendment Environmental Impact Report (SCH No. 2015052052). The Zoning Administrator must determine the Project substantially complies with these zoning requirements and community plans before the Project can lawfully be approved.” - Page 7 of the October 15 EBRRD letter.
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 October 15, 2024 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 (“GP EIR”). The Project is consistent with the development densities, bulk and land use 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 (see pages 4 through 7 of the October 15, 2024 Staff Report to the Zoning Administrator for a detailed assessment). The P-81-15 zoning dates back to the 1981 Ardenwood Forest – New Town project and the most recent amendment to that zoning in 2016, associated with the Ardenwood Technology Park Planned District Rezoning Environmental Impact Report (SCH No. 2015052052), tied those land use allowances to the I-T (Tech Industrial) zoning district, as set forth in Fremont Municipal Code Table
18.50.090, also consistent with the General Plan designation of the site (see pages 2 and 3 of the October 15, 2024 Staff Report to the Zoning Administrator for a detailed discussion).
The appeal misstates the requirements of CEQA Guidelines Section 15183 when it indicates use of this section is inappropriate because the Project had not yet been proposed when the 2011 GP EIR was certified. 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, but CEQA Guidelines Section 15183 does not contemplate or require such a scenario. Clearly, the specifics of the Ardenwood at Paseo Project, or any other currently contemplated individual development project, was not known and could not have been known when the GP 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.
Marc Cleveland, City of Fremont December 12, 2024 Page 4 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 See also response to Summary Basis for Appeal above regarding Addendum section 15062 not being applicable to this Project and all other responses below, which address specific individual points related to the basis above.
Programmatic vs. Project-Specific Effects
Basis of the Appeal
The appeal mentions “project-level” analysis in multiple places and specifically asserts the following related to the lack of analysis of this Project at a project-level in the GP EIR:
“As detailed herein … the Project was not contemplated in the 2011 General Plan EIR, and has new or more severe significant impacts than previously analyzed in the 2011 General Plan EIR which are peculiar to the Project site, were not analyzed at a project-level, 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 General Plan EIR was certified.” - Page 2 of the October 15 EBRRD letter.
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 Ardenwood at Paseo Project.
Pursuant to CEQA Guidelines section 15186, the Fremont GP 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 GP EIR did not, could not have, and was not required to previously analyze project-specific effects that are peculiar to the Ardenwood at Paseo 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 Ardenwood at Paseo Project has any significant impacts that are peculiar to the Project and its site that have not been previously analyzed. The CEQA Consistency Checklist prepared for the Ardenwood at Paseo Project did not find any such unique or peculiar significant impacts. Accordingly, the Ardenwood at Paseo Project appropriately qualifies for the CEQA exemption under CEQA Guidelines section 15183.
See also all other responses below, which address specific individual points related to the basis above.
Significant AQ Health Risk Impacts Not Disclosed and Standard Development Requirements (SDRs) Basis of the Appeal
The appeal asserts the following related to significant health risk impacts not disclosed for the Project:
“The City Cannot Rely on a Community Plan Exemption or Addendum to Approve the Project Because the Project May Result in Significant Health Risk Impacts that are Peculiar to the Project and More Severe than Previously Analyzed
“The CEQA Checklist states that the risk associated with project construction at the maximally exposed individual (MEI) would be 12.44 in one million, which would exceed the BAAQMD cancer risk of 10 in one million resulting in an admittedly significant impact which was not disclosed in the General Plan EIR.[CEQA Checklist, p. 24.] The CEQA Checklist attempts to dismiss the impact by Marc Cleveland, City of Fremont December 12, 2024 Page 5 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 stating that “all health risks would be reduced with implementation of FCM Section 18.218.050(a)(2), and the reduced cancer risk at the MEI would be 2.17 in one million, which would not exceed the BAAQMD cancer risk of 10 in one million. Therefore, with implementation of the supplemental construction measures identified in FMC Section 18.218.050(a), construction of the proposed project would not exceed BAAQMD thresholds and would not expose nearby sensitive receptors to substantial pollutant concentrations.”[Id.] However, this statement is not supported by substantial evidence because the City did not quantify the health risk from all Project emissions, including DPM exposure during Project operation, and SWAPE determined that reliance on FMC mitigation does not support the conclusion that the health risk impacts would be reduced below the level of significance. [SWAPE Comments p. 2.] In particular, SWAPE found that construction emissions may be more severe than analyzed in the 2011 General Plan EIR because the 2011 General Plan EIR did not contemplate the Project within 1000 feet of a daycare facility. “SWAPE 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. SWAPE identified the Child (2-6 years) excess cancer risk factor, over the course of the Project’s operation as 14.5 in one million. [SWAPE Comments p. 7.] The total excess cancer risk for all populations, including 3rd Trimester pregnant individuals, Infants (0-2), Child (2-16), Adults (16-30) over the lifetime of the Project is 54.3 in one million excess cancer risk.[Id.] The cancer risk associated with development of the Project so close to nearby sensitive receptors results in a significant cancer risk exceeding BAAQMD thresholds of 10 in one million. [Bay Area Air Quality Management District 2022 CEQA Guidelines, Thresholds of Significance, p. 3-4.]
“The impact of Project operation on sensitive receptors, including those at the daycare were not known at the time the 2011 General Plan EIR was certified and are determined to have more severe adverse impacts than discussed in the prior EIR. The 2011 General Plan EIR makes no mention of analysis of impacts of development under the General Plan on daycares within the Project vicinity.
Therefore, SWAPE’s health risk calculations constitute significant new information demonstrating a health risk impact which is more severe than analyzed in the 2011 General Plan EIR. Reliance on a Community Plan Exemption or Addendum is therefore misplaced, and the Zoning Administrator lacks substantial evidence to approve the Project, absent preparation of a project-level EIR.” - Pages 7 and 8 of the October 15 EBRRD letter.
Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and the administrative record.
In response to the appeal’s assertion that project level air quality health risk impacts need to be studied for the project, it is noted that a project-specific Emissions Study was indeed already completed and presented in the CEQA Consistency Checklist.
1 The GP EIR discussed diesel exhaust with respect to health effects on page 4-141, concluding that emissions from construction activities could result in significant impacts on sensitive receptors if measures to reduce emissions were not implemented for larger construction projects. Related mitigation measures from the GP EIR were MM AIR-2 and AIR-3, which as shown in the CEQA Consistency Checklist (page 16) have been superseded by Fremont Standard Development
1 LSA, Air Quality, Energy, and Greenhouse Gas Emissions Analysis for the Fremont Ardenwood at Paseo Padre Project, Fremont, California, February 7, 2024 (“Emissions Study”) Marc Cleveland, City of Fremont December 12, 2024 Page 6 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Requirements, required basic and supplemental measures to reduce construction related emissions below significance levels, SDR FMC 18.218.050(a)(1) and SDR FMC 18.218.050(a)(2).
The 2011 General Plan and associated GP EIR make no assertions that construction activities would be disallowed in proximity to residential areas. In fact, applying such constrictions would invalidate much of the potential growth assumed in these documents. Similarly, since the proposed use is consistent with the General Plan and zoning, as is the proximate residential neighborhood, it does not stand to reason that this proximity of construction to existing residential areas was somehow not anticipated in the General Plan. The Project proposes standard construction activities that are not outside the norm for this type of development under General Plan designations. Given the extremely common situation that construction activities could occur in proximity to a residential area as well as the clear indication of allowed proximity by the General Plan designations and zoning of these areas, the proximity of the proposed use or its construction activities to a residential area cannot reasonably be found to be peculiar to this Project or its location. See the discussion under the header, “Applicability of CEQA Guidelines Section 15183 (Projects Consistent with a Community Plan and Zoning)” earlier in this memo related to appropriate CEQA criteria under Section 15183.
The appeal presents the modeled risk levels prior to application of Standard Development Requirements (the 12.44 in one million referenced above) as if those are the basis for impact conclusions.
Consideration of a project’s impacts factor in compliance with regulations and requirements prior to making an impact determination. As indicated on pages 24 and 25 of the CEQA Consistency Checklist, this preliminary modeling step was used to determine applicability of Fremont’s Standard Development Requirement FMC 18.218.050(a)(2) Construction-Related Emissions – Supplemental Measures, and that it is the further modeling with application of the Standard Development Requirements that is used in determination of impact significance, which was found to be below threshold levels and therefore a less-than-significant impact.
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 Marc Cleveland, City of Fremont December 12, 2024 Page 7 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 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.
This response is focused to impact disclosure in the General Plan and CEQA Consistency Checklist. See also discussions below related to Alternate Emissions Results - SWAPE Comments, Operational Health Risk and Warehouse Use, Assessment of the Nearby Day Care, and Requiring Additional Air Quality Mitigation, which address the other considerations of the basis above.
Alternate Emissions Results - SWAPE Comments
Basis of the Appeal
The appeal incorporates a document referred to as SWAPE comments, which is referenced numerous locations in the appeal as evidence of greater health risk and air quality impacts than disclosed, including the following:
“SWAPE 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. SWAPE identified the Child (2-6 years) excess cancer risk factor, over the course of the Project’s operation as 14.5 in one million.31 The total excess cancer risk for all populations, including 3rd Trimester pregnant individuals, Infants (0-2), Child (2-16), Adults (16-30) over the lifetime of the Project is 54.3 in one million excess cancer risk.[Id.] The cancer risk associated with development of the Project so close to nearby sensitive receptors results in a significant cancer risk exceeding BAAQMD thresholds of 10 in one million. [Bay Area Air Quality Management District 2022 CEQA Guidelines, Thresholds of Significance, p. 3-4.]” -
Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and the administrative record.
From Emissions Study p. 21: “Dispersion modeling varies from a simpler, more conservative screening- level analysis to a more complex and refined detailed analysis. This refined assessment was conducted using the CARB exposure methodology with the air dispersion modeling performed using the USEPA dispersion model AERMOD. The model provides a detailed estimate of exhaust concentrations based on site and source geometry, source emissions strength, distance from the source to the receptor, and meteorological data.”
As the SWAPE comments acknowledge numerous times, they presented “screening level” health risk calculations. As indicated in the Emissions Study (quote above), screening level analyses are more conservative than the more complex and refined detailed analysis. This means that a screening level analysis is fully expected to show greater impacts than a more refined analysis. The expectation is that a conservative screening level analysis would be completed to determine whether a more refined analysis should be performed. If even a conservative screening level analysis indicates no potential for a significant impact, then the project would screen out of the need to perform a more refined analysis. In the case of the Emissions Study for the Project, there was no attempt to screen out the need to perform the refined analysis. Rather, the more complex and refined detailed analysis was completed. In any situation, a less detailed screening level analysis such as the one in the SWAPE comments would not appropriately be used to refute the results of a more complex and refined detailed analysis such as that in the Emissions Study.
The CEQA Consistency Checklist and Emissions Study relied upon analysis methodology that meets Air District recommendations and industry standards for refined and detailed analysis. While the information in this response and those below are adequate to refute the assertions of the appeal with Marc Cleveland, City of Fremont December 12, 2024 Page 8 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 respect to emission health risk without refuting every detail in the SWAPE comments, the validity of the SWAPE calculations are questioned with respect to incorrect characterization of the proposed use as “warehouse” use, improper assignment of all operational traffic emissions to the Project site, improperly equating screening-level calculation estimates to detailed modeling results, improperly applying a broad 10% screening procedure increase to detailed modeling concentrations, picking and choosing methodology recommendations from various federal and state agencies and other entities rather than focusing on recommendations specific to the local Air District and project and modeling details, etc.
Operational Health Risk and Warehouse Use
Basis of the Appeal
The appeal asserts the following related to operational health risk impacts for the Project:
“The CEQA Checklist states that … construction of the proposed project would not exceed BAAQMD thresholds and would not expose nearby sensitive receptors to substantial pollutant concentrations.”[Id.] However, this statement is not supported by substantial evidence because the City did not quantify the health risk from all Project emissions, including DPM exposure during Project operation...
“SWAPE identified the Child (2-6 years) excess cancer risk factor, over the course of the Project’s operation as 14.5 in one million. [SWAPE Comments p. 7.] The total excess cancer risk for all populations, including 3rd Trimester pregnant individuals, Infants (0-2), Child (2-16), Adults (16-30) over the lifetime of the Project is 54.3 in one million excess cancer risk. [Id.]” - Pages 7 and 8 of the October 15 EBRRD letter.
Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and the administrative record.
The Emissions Study indicated (page 33) that the specific of the proposed project does not represent a source of substantial operational emissions. The environmental setting for the CEQA Checklist Air Quality section (page 16) further specifies that the Project does not propose operational use of diesel emergency generators or diesel fire pumps, which are two sources of operational diesel emissions that can sometimes be proposed in development projects of this type but are not proposed for the Project.
The appeal does not suggest any other particular component of the Project that could be a substantial source of operational diesel emissions except to cite California Department of Justice (DOJ) recommendations that warehouse projects should quantify health risk. It is unclear why this DOJ document is referenced, as the project would not be classified as a warehouse project by either the City of Fremont or by the definition in the appeal-referenced DOJ recommendations. A “warehouse” or “logistics facility” is a facility that primarily stores cargo, goods, or products on a short or long term basis for later distribution to businesses and/or retail customers. Warehouse uses are defined by their focus on truck trips for goods movement, and it is this high volume of truck traffic that is the basis for enhanced environmental concerns. The Transportation Analysis 2 specifies (Table 2 on page 11) that
anticipated Project trips are consistent with a Research and Development Center (R&D) - not a more truck-focused warehouse use.
2 Hexagon Transportation Consultants, Transportation Analysis for the Ardenwood R&D Industrial Development in Fremont, February 16, 2024 (“Transportation Analysis”) Marc Cleveland, City of Fremont December 12, 2024 Page 9 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 While there are multiple concerns regarding the validity of the calculations in the SWAPE comments (see Alternate Emissions Results - SWAPE Comments discussion above), perhaps most importantly for the operational estimates, the SWAPE calculations appear to have taken all modeled operational vehicular emissions for the Project - which were modeled to provide estimates of contribution to regional emissions and reflect the entire length of all trips to and from the project site for all vehicle types - and applied them as if all Project vehicle trips occurred entirely at the Project site instead of coming and going. In reality, only a small fraction of each trip would occur at the Project site. This error in the SWAPE calculations would of course grossly overestimate on-site operational emissions, only compounded with other issues discussed above.
As presented in the CEQA Consistency Checklist and referenced Emissions Study and outlined above, Project operations do not propose substantial stationary sources of diesel emissions (such as diesel generators), is not a truck-focused use such as a warehouse, and would not otherwise represent a source of substantial operational emissions.
Assessment of the Nearby Day Care
Basis of the Appeal
The appeal asserts the following related to potential health risk impacts on the nearby day care:
“The CEQA Checklist also fails to support a CEQA exemption because it does not contain an HRA to adequately analyze impacts to nearby sensitive receptors within 1000 feet of the Project site. CEQA requires analysis of human health impacts. CEQA Guidelines Section 15065(a)(4) provides that the City is required to find a project will have a significant impact on the environment and prepare an EIR if the environmental effects of a project will cause a substantial adverse effect on human beings. [PRC § 21083(b)(3), (d).]
“The Supreme Court has also explained that CEQA requires the lead agency to disclose the health consequences that result from exposure to a project’s air emissions. [Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516, 523.]
“Courts have held that an environmental review document must disclose a project’s potential health risks to a degree of specificity that would allow the public to make the correlation between the project’s impacts and adverse effects to human health. [Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184.]
“The Bay Area Air Quality Management District’s (“BAAQMD”) 2022 CEQA Guidelines specifically recommends that a quantified HRA be prepared for projects within 1000 feet of a school:
“For proposed projects within 1000 feet of a school, the Air District recommends that a student analysis is included in the Health Risk Assessment (see Appendix E, Recommended Methods for Screening and Modeling Local Risks and Hazards). Additionally, for any project located within one- quarter mile of a school that involves the construction or alteration of a facility that might reasonably be anticipated to emit hazardous air emissions, or the handling of an extremely hazardous substance or mixture containing extremely hazardous substances in a quantity equal to or greater than the state threshold quantity specified in Health and Safety Code Section 25532(j), and that may impose a health or safety hazard to persons who would attend or would be employed at the school, the lead agency must consult with the affected school district or districts regarding the potential impact of the project on the school and notify the affected school district(s) of the project in writing, not less than 30 days before approval or certification of the negative declaration or EIR per State CEQA Guidelines Section 15186(b)(1)(2). [Bay Area Air Quality Management District, 2022 CEQA Guidelines, Section 5 Project-Level Air Quality Impacts, p. 5-1.] Marc Cleveland, City of Fremont December 12, 2024 Page 10 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 “The Project is within 738 feet of the Happy Memories Shri’s Licensed Daycare, an early learning school and daycare. An HRA with a student analysis should therefore be prepared to comply with CEQA and to accurately disclose and mitigate the Project’s significant health risk impacts.” - Pages 9 and 10 of the October 15 EBRRD letter.
Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and the administrative record.
The appeal indicated that the GP EIR and Emissions Study did not contemplate the Project within 1000 feet of a day care facility. This is with respect to the “Happy Memories Shri's Daycare” located at 34394 Livorna Terrace, within the residential neighborhood across Ardenwood Blvd to the east of the Project.
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 implicitly contemplated by the General Plan and cannot reasonably be found to be peculiar to this Project or its location.
The day care is within the area assessed as containing sensitive receptors in the Emissions Study. The day care is no closer to the Project than other residential uses and would not result in more sensitive refined modeling assumptions than that performed for the rest of the residential area – this analysis already assumes the most sensitive populations (young children and pregnant women) could be present in that area. To be clear, while a day care was not mentioned specifically as being part of the assessed residential area, the analysis of risks to that area would apply equally and fully to a day care use within it and no additional or different analysis would be required to assess potential impacts to the day care.
This response is focused to impact disclosure in the General Plan and CEQA Consistency Checklist. See also responses above and below related to Significant Health Risk Impacts Not Disclosed and Standard Development Requirements (SDRs), Alternate Emissions Results - SWAPE Comments, Operational Health Risk and Warehouse Use, and Requiring Additional Air Quality Mitigation, which address the other considerations of the basis above.
Requiring Additional Air Quality Mitigation
Basis of the Appeal
The appeal asserts the following related to air quality/health risk mitigation for the Project:
“SWAPE found that the SDRs under the Fremont Municipal Code and the General Plan EIR Mitigation Measures do not sufficiently mitigate health risk impacts to less than significant levels. [SWAPE Comments, p. 2] SWAPE found that additional mitigation is required to reduce the Project’s significant health risk impacts. In particular, SWAPE recommends the following:
“Require projects to use Tier 4 Final equipment or better for all engines above 50 horsepower (hp). In the event that construction equipment cannot meet to Tier 4 Final engine certification, the Project representative or contractor must demonstrate through future study with written findings supported by substantial evidence that is approved by SCAG before using other technologies/strategies.
Alternative applicable strategies may include, but would not be limited to, construction equipment with Tier 4 Interim or reduction in the number and/or horsepower rating of construction equipment and/or limiting the number of construction equipment operating at the same time. All equipment must be tuned and maintained in compliance with the manufacturer’s recommended maintenance schedule and specifications. All maintenance records for each equipment and their contractor(s) should make available for inspection and remain on-site for a period of at least two years from completion of construction, unless the individual project can demonstrate that Tier 4 engines would Marc Cleveland, City of Fremont December 12, 2024 Page 11 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 not be required to mitigate emissions below significance thresholds. Project sponsors should also consider including ZE/ZNE technologies where appropriate and feasible. … “The General Plan EIR concluded that air quality impacts would be significant and unavoidable, even with implementation of General Plan MM AIR-3. [ CEQA Checklist, p. 16.] The City therefore has a duty to consider and implement additional feasible mitigation to further reduce significant air quality impacts from the Project. [ Covington v. Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 883. 44 Id.] Moreover, SWAPE concludes that the combination of MM AIR-3 and Fremont Municipal Code Section 18.218.050 does not fully mitigate the Project’s air quality and health risk impacts. The City therefore cannot rely on CEQA exemptions and must prepare a project- level EIR to disclose and further mitigate these impacts. “The CEQA Checklist provides that “FMC Section 18.218.050(a) (which supersedes General Plan EIR Mitigation Measure AIR-3) would require the implementation of the BAAQMD’s Basic Construction Mitigation Measures to incorporate best management practices (BMPs) in order to ensure construction fugitive dust impacts would be at a less-than-significant level. Therefore, additional project-specific mitigation is not required. As such, construction of the proposed project would not result in a cumulatively considerable net increase of any criteria pollutant for which the project region is in nonattainment under an applicable federal or State AAQS.” [Id.] “However, the City’s exclusive reliance on Fremont Municipal Code Section 18.218.050(a) does not result in fully mitigated impacts. The City must therefore implement additional measures from General Plan EIR Mitigation Measure Mitigation AIR-3 as part of the Project’s Conditions of Approval, and must consider additional feasible mitigation... Mitigation Measure AIR-3 adds additional community public health and air quality protections above and beyond what Fremont Municipal Code Section 18.218.050(a). [text of Mitigation Measure Air-3 and FMC have been omitted.] Beyond these measures, the City must identify and implement additional mitigation to reduce the Project’s significant air quality and health risk impacts to the greatest extent feasible. “EBRRD recommends the Zoning Administrator revise the Conditions of Approval to add Mitigation Measure AIR-3 to adequately address the Project’s potentially significant construction air quality impacts.” - Pages 10 through 14 of the October 15 EBRRD letter.
Response to the Appeal
These assertions of the appeal are directly contradicted by facts contained in the CEQA document and the administrative record.
The appeal asserts that SDR FMC 18.218.050(a) does not mitigate Air Quality related impacts as effectively as MM Air-3 from the GP EIR. However, the appeal only considers measures from
18.218.050(a)(1). As indicated in the CEQA Checklist, SDR FMC 18.218.050(a)(1) and the supplemental measures in SDR FMC 18.218.050(a)(2) are also required of the project. The SDR measures that are missing from the appeal (but included in full in the CEQA Consistency Checklist on pages 24 to 25) include the following:
FMC 18.218.050(a)(2)
Construction-Related Emissions – Supplemental Measures. The following supplemental construction measures, as periodically amended by BAAQMD, are required for all proposed development projects that would exceed the thresholds of significance for construction criteria air pollutant and precursors provided in the most recent BAAQMD CEQA Guidelines:
(A) All exposed surfaces shall be watered at a frequency adequate to maintain minimum soil moisture of 12 percent. Moisture content can be verified by lab samples or moisture probe.
Marc Cleveland, City of Fremont December 12, 2024 Page 12 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 (B) All excavation, grading, and/or demolition activities shall be suspended when average wind speeds exceed 20 mph.
(C) Wind breaks (e.g., trees, fences) shall be installed on the windward side(s) of actively disturbed areas of construction. Wind breaks should have at maximum 50 percent air porosity. (D) Vegetative ground cover (e.g., fast-germinating native grass seed) shall be planted in disturbed areas as soon as possible and watered appropriately until vegetation is established. (E) The simultaneous occurrence of excavation, grading, and ground-disturbing construction activities on the same area at any one time shall be limited. Activities shall be phased to reduce the total area of surfaces disturbed at any one time.
(F) All trucks and equipment, including their tires, shall be washed off prior to leaving the site. (G) Site accesses to a distance of 100 feet from the paved road shall be treated with a six- to 12-inch compacted layer of wood chips, mulch, or gravel.
(H) Sandbags or other erosion control measures shall be installed to prevent silt runoff to public roadways from sites with a slope greater than one percent. (I) Idling time of diesel-powered construction equipment shall be limited to two minutes. (J) The project shall develop a plan demonstrating that the off-road equipment (more than 50 horsepower) to be used in the construction project (i.e., owned, leased, and subcontractor vehicles) would achieve a project-wide fleet-average 20 percent nitrogen oxide (NOx) reduction and 45 percent particulate matter (PM) reduction compared to the most recent Air Resources Board fleet average.
Acceptable options for reducing emissions include the use of late model engines, low-emission diesel products, alternative fuels, engine retrofit technology, after-treatment products, add-on devices such as particulate filters, and/or other options as such become available. (K) Low volatile organic compound (i.e., reactive organic gas) coatings beyond the local requirements (i.e., BAAQMD Regulation 8, Rule 3: Architectural Coatings) shall be used. (L) All construction equipment, diesel trucks, and generators shall be equipped with best available control technology for emission reductions of NOx and PM. (M) All contractors shall use equipment that meets the Air Resources Board’s most recent certification standard for off-road heavy-duty diesel engines.
As indicated on pages 16 through 26 of the CEQA Consistency Checklist and the Emissions Study, the project-specific emissions modeling concluded that with implementation of the identified SDRs, Project Air Quality impacts would be less than significant, and no further mitigation would be warranted.
See also responses to Significant AQ Health Risk Impacts Not Disclosed and Standard Development Requirements (SDRs) related to implementation of SDRs.
Construction Period Noise
Basis of the Appeal
The appeal asserts the following related to potential construction noise impacts of the Project:
“The City Cannot Rely on a Community Plan Exemption or Addendum to Approve the Project Because the Project May Result in Significant Noise Impacts that are Peculiar to the Project and More Severe than Previously Analyzed
” An EIR must be prepared because the Project results in potentially significant noise impacts, precluding reliance on a CEQA exemption. The CEQA Checklist provides that noise and vibration Marc Cleveland, City of Fremont December 12, 2024 Page 13 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 impacts from Project construction will be less than significant. [CEQA Checklist, p. 67.] But, the General Plan provides that “[d]ue to the density of development anticipated in Fremont, notably in the Downtown of City Center and PDAs, some of these activities may take place near sensitive areas.
In these cases, the mitigation measures listed above may not be sufficient to reduce groundborne vibrations below to a level considered less than significant. Therefore, this impact would be significant and unavoidable.” [Fremont Draft General Plan Update EIR State Clearinghouse Number:
2010082060 (July 2011), p. 2-26.]
“Given the General Plan’s determination that noise and vibration impacts associated with development under the General Plan will be significant and unavoidable,[Id.] the City must disclose this as a significant Project impact in a project-level EIR and must implement all feasible mitigation to reduce the impact to the greatest extent feasible. [Covington 43 Cal.App.5th at 883.] [The City’s failure to implement Mitigation Measures NOI-1 through NOI-5 also results in nonconformance with the General Plan.]
“This will necessarily require implementation of General Plan Mitigation Measure NOI-1 through NOI-5 to reduce the Project’s potentially significant construction noise and vibration impacts, as well as consideration of additional mitigation to reduce noise and vibration impacts to the greatest extent feasible.
“General Plan Mitigation Measure Impact NOI-2 provides that “[m]ethods available to mitigate project-generated noise level increases would need to be studied on a case-by-case basis. Noise reduction methods could include the following: • New or larger noise barriers or other noise reduction techniques could be constructed to protect sensitive outdoor use areas and existing residential land uses where reasonable and feasible. Final design of such barriers should be completed during project level review.” [Fremont Draft General Plan Update EIR State Clearinghouse Number: 2010082060 (July 2011), p. 6-19.] This demonstrates that noise impacts under the General Plan EIR were not analyzed on a project level. Such analysis must be included in an EIR before the Project can lawfully be approved.” - Pages 14 through 15 of the October 15 EBRRD letter.
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.
In response to the appeal’s assertion that project level noise impacts need to be studied for the project, it is noted that a project-specific Noise Study was indeed already completed and presented in the CEQA Consistency Checklist.
3 As presented in the CEQA Consistency Checklist and the Noise Study, 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. 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 Noise Study (pages 16 through 19) modeled construction noise of the Project and found that average noise levels during construction at the nearest commercial uses to the south would approach 61 dBA Leq, while noise levels at the nearest sensitive uses to the east would approach 67 dBA Leq during
3 LSA, Noise and Vibration Impact Analysis for the Fremont Ardenwood at Paseo Padre Project, February 7, 2024 (“Noise Study”)
Marc Cleveland, City of Fremont December 12, 2024 Page 14 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 the site preparation and grading phases, which would take place for a duration of approximately 3 weeks, with average noise levels during other construction phases ranging from 53 dBA Leq to 66 dBA Leq. Construction activities were found to comply with the City’s Noise Ordinance and project-specific impacts were determined to be less-than-significant.
The Noise Study also modeled project-specific construction vibration (pages 19 and 20) and found that the Project’s construction vibration would be below both the thresholds for building damage and human annoyance and therefore less than significant.
As indicated on page 67 of the CEQA Consistency Checklist, The GP EIR concluded a potential for a Significant and Unavoidable impacts with respect to noise and vibration related to buildout of the General Plan. The GP EIR (page 4-185) specified that although the construction noise impact would be reduced below significance levels for individual new development through implementation of construction noise reduction measures, the impact would remain significant and unavoidable where planned development is concentrated and includes phased construction with residential development, such as the Downtown Area of the City Center and urban development in PDAs, as a result of the extended period of time that adjacent occupants would be exposed to construction noise. Similarly, the GP EIR concludes that significant and unavoidable construction vibration impacts that cannot be reduced through vibration reduction measures have the potential to occur where development is in close proximity to sensitive uses.
That the GP EIR indicates a significant and unavoidable impact could occur does not mean that it does occur as a result of every individual project. The project-specific analysis presented in the Noise Study demonstrates that the construction period noise and vibrations of the Project are less than significant and therefore not one of those circumstances contemplated in the GP EIR where impacts would be significant and unavoidable.
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, with no additional mitigation warranted. Construction noise and vibration does not present an exception to the Project’s CEQA streamlining.
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 City Cannot Rely on A CEQA Exemption to Approve the Project Because the Project Has Significant Cumulative GHG Impacts
“An EIR must be prepared and an exemption is improper, where, as here, the Project and successive projects of the same type in the same place will result in cumulative impacts. [14 CCR § 15300.2.] SWAPE concludes that the Project may result in significant greenhouse gas (“GHG”) impacts and that the CEQA Checklist does not provide substantial evidence that the Project is consistent with the Climate Action Plan. [SWAPE Comments, p. 8.] SWAPE confirmed that the Project Design Features would not adequately reduce the Project’s greenhouse gas emissions impacts to less than significant levels. [Id.] Project GHG impacts may therefore be more severe than analyzed in the 2011 General Plan EIR and require analysis and mitigation in an EIR before the Project can lawfully be approved. “The 2011 General Plan EIR identifies potentially significant environmental impacts in the topics of Transportation and Circulation, Cultural and Archaeological Resources, Air Quality, Agricultural Marc Cleveland, City of Fremont December 12, 2024 Page 15 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 Resources, Noise, Utilities and Service Systems, Hydrology and Water Quality, and Global Climate Change. Mitigation were identified to reduce all potentially significant effects to a less-than- significant level, except for the following:
• Unacceptable levels of service at specified intersections and on specified roadway segments • Air quality emissions and Clean Air Plan consistency
• Noise increases related to traffic, and noise conflicts of incompatible uses and construction noise
• Potential demolition of cultural and historic resources • Loss or conversion of prime or unique farmland to urban uses, and • Cumulative greenhouse gas emissions [Fremont, Resolution 2011-68 – CEQA Findings, Statement of Overriding Considerations & Mitigation Monitoring and Reporting Program Adoption, (Dec. 2011).]
“As demonstrated in SWAPE’s comments, absent additional mitigation, the Project will contribute to and exacerbate impacts from cumulative greenhouse gas emissions. The 2011 General Plan concluded that development under the General Plan will result in potentially significant, unmitigated cumulative greenhouse gas emissions, for which no mitigation would fully reduce the significant impacts. [Id. at 13.] 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, was 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.” - Pages 15 through 16 of the October 15 EBRRD letter.
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 October 15, 2024 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 existing zoning. As a project that is consistent with the General 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.
As discussed in the CEQA Consistency Checklist (page 50), since the GP EIR, the City of Fremont has advanced city-wide climate planning with the adoption of the City’s most recent Climate Action Plan, Climate Ready Fremont in 2023. The Air District (BAAQMD) has determined that if a project is consistent with a local qualifying greenhouse gas reduction strategy, it will contribute its portion of what is necessary to achieve California’s long-term climate goals—its “fair share”—and an agency reviewing the project under CEQA can conclude that the project will not make a cumulatively considerable contribution to global climate change. Climate Ready Fremont meets the requirements for a Qualified Greenhouse Gas Reduction Strategy and is designed to streamline environmental review of future development projects in the City, consistent with State CEQA Guidelines Section 15183.5(b). Therefore, the proposed Project was evaluated for consistency with applicable GHG reduction measures in Climate Ready Fremont as demonstrated in Table F of the Emissions Study. Table F demonstrates the proposed project would be consistent with applicable strategies from the Climate Ready Fremont. Therefore, it can be concluded that the Project would not generate GHG emissions, either directly or indirectly, that may have a significant effect on the environment.
Marc Cleveland, City of Fremont December 12, 2024 Page 16 Lamphier-Gregory 4100 Redwood Road, Suite 20A #601, Oakland, CA 94619 Ph: 510-535-6690 The SWAPE comments (pages 8 and 9) indicate that they do not have enough information to confirm Project consistency with all GHG reduction measures and therefore suggest the Project should be determined inconsistent or mitigation applied to require consistency. Applicable requirements of Climate Ready Fremont do not need to be identified as mitigation because they are already requirements under that plan.
Required conformance with applicable requirements of Climate Ready Fremont is a standard requirement of all development projects and does not constitute an unusual circumstance.