Fremont City Council Meeting: 11/04/25 07:00 PM
3300 Capitol Avenue Div/Dept: Planning
Fremont, CA 94538 Category: Appeals
SCHEDULED
Sponsors:
COUNCIL STAFF REPORT (ID # 5562) DOC ID: 5562
Updated: 10/31/2025 8:40 AM by Dina Lewis Page 1
LOPES ROAD MULTIFAMILY DEVELOPMENT APPEAL - Public Hearing (Published Notice) to Consider a First-Party (Project Proponent) Appeal of the Planning Commission’s Decision To Uphold Staff’s Determination Regarding the Use of a Concession Under State Density Bonus Law to Lower an Adopted Minimum Residential Density Below That Required by the City’s General Plan, Warm Springs/South Fremont Community Plan, and Corresponding Zoning Ordinance for a Housing Project Proposed Within the Transit-Oriented Development (TOD) Overlay District Adjacent to the BART Station Submitted Under PLN2025-00253, and a Finding that No Environmental Review is Required For the Appeal Action As, In Isolation, It Is Not Considered a “Project” Under CEQA Guidelines Section 15378; and, Without Limitation, CEQA Guidelines Section 15270 (Projects Which Are Disapproved), As CEQA Does Not Apply to Projects Which a Public Agency Rejects Or Disapproves; And/Or CEQA Guidelines Section 15061(b)(3) (Review For Exemption), In That There is No Possibility That Action On the Appeal Would Have a Significant Effect On the Environment. Each Of the Foregoing Provides an Independent Basis For Exemption.
Contact Persons:
Name: Kevin Lee Joel Pullen
Title: Planner I Community Development Director
Div/Dept: Planning Planning
Phone: 510-494-4521 510-494-4436
E-Mail: [email protected] [email protected]
Executive Summary: This item is to consider a first-party Appeal of the Planning Commission’s September 25, 2025 action to deny a previous first-party Appeal that upheld staff’s determination to deny the use of a concession under State Density Bonus Law to lower the adopted minimum residential density standard of 50 units per net-acre applicable to the 6.56-net-acre subject site located within a quarter-mile of the Warm Springs/South Fremont BART Station. Both the Appeal acted upon by the Planning Commission and the subject Appeal were filed by the project applicant.
Staff recommended the Planning Commission deny the first-party Appeal for the following reasons:
1) The request to lower the adopted minimum density via a concession is contrary to and inconsistent with Density Bonus Law and other state and local housing goals, policies, and laws.
2) The request to lower the adopted minimum density via a concession is inconsistent with the City’s General Plan, Warm Springs/South Fremont Community Plan, and Zoning Ordinance.
Council Staff Report (ID # 5562) Meeting of November 4, 2025 Updated: 10/31/2025 8:40 AM by Dina Lewis Page 2
3) Analysis under the California Environmental Quality Act (CEQA) is not required for a project that is recommended for denial pursuant to CEQA Guidelines Section 15270 (Projects Which Are Disapproved).
On September 25, 2025, the Planning Commission held a public hearing and voted 6 -0 to uphold staff’s determination and reject the first-party Appeal. Within the 10-day appeal period, the applicant filed an Appeal of the Planning Commission’s decision to the City Council. Subsequent to the Appeal of the Planning Commission’s decision, on October 29, 2025, staff received a technical assistance letter from the California Department of Housing and Community Development (HCD) with a conclusion that is consistent with staff’s determination that a concession may not be used to reduce density under State Density Bonus Law.
City staff recommends that the City Council deny the subject Appeal and uphold the Planning Commission’s action.
BACKGROUND: The subject site is a relatively flat and under-developed 6.72-gross-acre site with several habitable structures and a barn of unknown historic significance or date of construction. The subject site is immediately adjacent to the City’s Warm Springs Plaza and West Side Pedestrian & Bicycle Access Bridge that connects to the Warm Springs/South Fremont BART Station.
The appellant’s proposed project (filed under PLN2025-00253) consists of a Discretionary Design Review Permit, Tentative Tract Map, and other entitlements to facilitate the construction of 127 townhome units within 21 three-story buildings on the station-adjacent site. Because of the proposal to deed-restrict at least 10 percent of the project units to low-income households and five percent to moderate-income households, the project would appear to qualify for a density bonus and thus be eligible for consideration of one concession (or incentive) and an unlimited number of waivers under Density Bonus Law (DBL).
The fundamental issue in this appeal is applicant’s disagreement with the City’s interpretation of a specific provision of the DBL, Government Code Section 65915, et seq.
Specifically, under the DBL, an applicant is entitled to request concessions or reductions in development standards in exchange for building affordable housing. These concessions are separate from, and in addition to, a density bonus, and can include things like modifications to zoning or design rules, which result in "identifiable and actual cost reductions" to make the project financially feasible. For a qualifying project, such concessions must be granted unless certain findings can be made, including, but not limited to, that the concession would be contrary to state or federal law.
As part of the proposal, the appellant has requested a novel concession under DBL to reduce the required minimum density applicable to the project site from 50 units per net acre to approximately 19.4 units per net acre. City staff responded that the use of a concession to reduce a site’s minimum density requirement is contrary to DBL, the General Plan, the Warm Springs/South Fremont Community Plan, and the Zoning Ordinance, and therefore would not be supported, prompting the appellant’s Appeal filing. This Appeal was reviewed and denied by the Planning Commission at a public hearing held on September 25, 2025. The appellant filed an Appeal (Informational Item 1) to the Planning Commission’s action on September 26, 2025.
Council Staff Report (ID # 5562) Meeting of November 4, 2025 Updated: 10/31/2025 8:40 AM by Dina Lewis Page 3
On October 29, 2025, staff received a technical assistance letter from the California Department of Housing and Community Development (HCD) regarding the use of a concession to reduce the established minimum density under State Density Bonus Law.
Staff had previously engaged with HCD during the earlier stages of project analysis, consisting of email correspondence and virtual meetings through HCD’s technical assistance program. A formal determination from HCD was not provided until receipt of the attached letter on October 29, 2025 (Informational Item 5).
HCD affirms staff’s position, as upheld by the Planning Commission, that State Density Bonus Law is “clear that the intent of the law is ‘to include more total units in a project than would otherwise be allowed by the local zoning ordinance’ and to ‘produc[e] the maximum number of total housing units,’” consistent with staff’s understanding. Furthermore, staff concurs with HCD in that reducing the minimum density requirement would result in less housing and is contrary to the intent and purpose of the law as stated in the technical assistance letter. The technical assistance letter clarifies that the proper application of DBL involves first establishing the base density for the project site which requires identification of the land use and zoning designation and any applicable specific plan or overlay.
Consequently, because minimum lot area per unit (or if converted, dwelling unit per acre), is used to determine base density as the first step of DBL application, HCD states that it cannot be modified by a concession for the purpose of calculating base density.
HCD’s recent technical assistance letter supports staff’s original reasoning and determination to deny the applicant’s request to reduce minimum density under State Density Bonus Law. The following section further expands on the two matters under Appeal.
DISCUSSION/ANALYSIS: The Appeal is a response to two comments provided by staff to the project applicant via a formal comment letter issued on August 6, 2025. The two comments subject to the Appeal are as follows:
1) Project plans present a 127-unit development on the 6.7-acre project site, which equates to a density of roughly 18.9 dwelling units per acre. This proposed density is below the minimum 50 dwelling units per net acre density standard—an objective standard applicable to residential projects within ¼-mile of the Warm Springs-South Fremont BART Station (FMC Table 18.49.070). Consistent with early feedback shared during the project's SB 330 Preliminary Application process (PRP2025-00035), the City does not recognize the proposed use of a concession under State Density Bonus Law as a means to reduce the minimum required density required by the zoning and community plan. Should the applicant choose to proceed with such a proposal, staff is not inclined to support the project, as a reduction below City-adopted minimum density requirements appears inconsistent with State mandates that laws and regulations should be broadly construed so as to maximize the development of housing within the state.
2) Environmental review pursuant to the California Environmental Quality Act (CEQA) will not be performed if the project is recommended for denial by staff. However, if action is taken by the approving body (i.e., the Planning Commission, or City Council on appeal) to allow the project to proceed, environmental review must be performed, and the project will need to be reviewed for compliance with CEQA and exposure- related environmental policies of the City's General Plan. Applicant is responsible for Council Staff Report (ID # 5562) Meeting of November 4, 2025 Updated: 10/31/2025 8:40 AM by Dina Lewis Page 4
any fees of City-retained consultants, including peer reviews and administrative handling of documents.
The Planning Commission Staff Report containing staff’s full analysis of the Appeal is provided as Informational Item 2. The salient points of analysis are provided in the following discussion section of this report.
Appeal Elements
Minimum Density Is a Development Standard
The appellant argues that denial of the proposed concession to reduce the minimum required density is in direct violation of Density Bonus Law.
As was upheld by the Planning Commission on September 25, 2025, staff determined that the proposed concession to reduce the minimum required density was contrary to State law and therefore should be denied pursuant to Government Code Section 65915(d)(1)(C). DBL is intended to maximize the production of housing and should be interpreted in favor of providing more units than what is established. The applicant’s project is contrary to DBL in proposing 127 homes where 328 homes would be required under the adopted minimum density requirement for the site. The proposal to reduce density also creates a significant shortfall in the development of affordable housing with 19 affordable homes proposed where 49 affordable homes would be required using the same low-income density bonus qualification.
As discussed in more detail in the Planning Commission staff report (Informational Item 2), the proposal concession is inconsistent with and contrary to State law and should be denied pursuant to Government Code Section 65915(d)(1)(C). The proposal would conflict with host of state law provisions, including the DBL that make clear a city’s obligation to encourage the maximum production of housing. This is supported by Government Code Section 65915(r), which states that the chapter “shall be interpreted liberally in favor of producing the maximum number of total housing units.” Government Code Section 65915(u) further emphasizes the intent of DBL to ensure benefits to developers in exchange for the public benefit of receiving adequate levels of affordable housing. Under the State’s Regional Housing Needs Assessment (RHNA) and “no net loss” under Senate Bill 166, the City is obligated to meet its housing production numbers and has worked diligently to apply the highest available density standard, particularly for projects located near transit. This effort has been guided by State law as well as past California Housing and Community Development (HCD) advisories that have consistently promoted policies that allow for higher densities and higher production of housing.
The request is also inconsistent with City ordinances, regulations, and development goals.
The site is located within the City’s Transit-Oriented Development Overlay District (TOD) as established by the General Plan and implemented by the zoning ordinance. The goal of the TOD is to create an urban mix of uses surrounding the Warm Springs/South Fremont BART Station that maximizes development intensities and housing densities. This vision is also effectuated by the Warm Springs/South Fremont Community Plan. Minimum density for the project site is 50 dwelling units per net acre, which is aligned with the goals and specific development policies of the City.
Council Staff Report (ID # 5562) Meeting of November 4, 2025 Updated: 10/31/2025 8:40 AM by Dina Lewis Page 5
Accepting the appellant’s argument that density is a development standard eligible to be considered a concession under DBL not only creates an inherent conflict with the City’s requirements but sets a dangerous precedent that would conflict with State law and the City’s obligations to facilitate housing development, enabling developers to bypass established density minimums across the entire City. This could result in the significant loss of development potential to bring higher density affordable housing regardless of location, including those areas in which such development would be most necessary to fulfill the City’s obligations under state housing law. Consequently, this could severely impair, if not completely derails longstanding efforts to meet housing goals set by the General Plan and other state laws.
Environmental Review Not Performed
The appellant is requesting that City Council reverse the Planning Commission’s denial to direct staff to perform environmental review for the proposed project under the California Environmental Quality Act.
Pursuant to CEQA Guidelines Section 15270, the lead agency is not required under the law to conduct environmental review of a project that is recommended for denial. CEQA applies only to projects that an agency proposes to carry out, support, or approve; therefore, projects that are rejected or disapproved are exempt from CEQA. Case law has held that CEQA does not require a lead agency to commit resources to environmental review of a proposed private project that is slated for rejection (see e.g., Las Lomas Land Co. v. City of Los Angeles, 177 Cal. App. 4th 837 (2009)).
Following the Planning Commission’s action on the Appeal, on October 2, 2025, the appellant’s counsel provided a letter asserting the applicability of Assembly Bill No. 130 (AB 130, Committee on Budget. Housing.) to the project. AB 130 provides a new statutory exemption to CEQA for eligible “urban infill” housing development projects. In order to utilize this exemption, the lead agency must provide notification to any and all Native American tribes traditionally and culturally affiliated with the project site. The Planning Division responded on October 8, 2025, notifying the appellant and counsel that the request for tribal consultation would be accommodated with the understanding that staff’s determination that the project does not meet the minimum density requirement and the use of a concession to lower minimum density is contrary to State law has not changed, pending the Appeal before the City Council, and that the City does not concur with nor waive any objection to the applicability of AB 130. Requests for tribal consultation were prepared and sent via certified mail in accordance with state law by October 16, 2025.
Staff urges the City Council to deny the Appeal and uphold the Planning Commission’s denial of the appellant’s Appeal acted upon on September 25, 2025. The concession requested is inconsistent with and contrary to state law and should be denied in accordance with Government Code Section 65915(d)(1)(C). Granting the Appeal also would result in a fundamental inconsistency with the General Plan’s vision of sustainable, strategically urban growth and would conflict with its key goals and policies for creating higher density housing at all affordability levels near transit. The City’s effort to maximize housing density around the Warm Springs/South Fremont BART station aligns with local, regional, and State development policies and goals for urban development next to transit and should be upheld in full integrity.
Council Staff Report (ID # 5562) Meeting of November 4, 2025 Updated: 10/31/2025 8:40 AM by Dina Lewis Page 6
In addition, the Appeal should be denied with respect to the CEQA assertions, because (1) CEQA is not required to be performed for projects that are denied; and (2) the City’s accommodation to appellant’s request to proceed with tribal consultation under AB 130 effectively moots the appeal with respect to the Appeal’s CEQA assertions.
FISCAL IMPACT: None.
ENVIRONMENTAL REVIEW: This action is exempt from CEQA review because, without limitation, action on the Appeal is not considered a “project” per the definition contained in CEQA Guidelines Section 15378 (Project). In addition, each as a separate and independent basis,, the action on the Appeal is exempt pursuant to CEQA Guidelines Section 15270 (Projects Which Are Disapproved), as CEQA does not apply to projects which a public agency rejects or disapproves and/or CEQA Guidelines Section 15061(b)(3) (Review for Exemption), in that there is no possibility that action on the Appeal with have a significant effect on the environment.
ATTACHMENTS:
• Draft Resolution - Lopes Appeal
• Informational Item 1 Appeal Letter
• Informational Item 2 Planning Commission Staff Report • Informational Item 3 Draft Planning Commission Meeting Minutes - September 25 2025 • Informational Item 4 Public Correspondence
• Informational Item 5 HCD Technical Assistance Letter
RECOMMENDATIONS:
1. Hold public hearing.
2. Adopt the attached Resolution that:
a. Finds that the action on the Appeal is exempt from the California Environmental Quality Act (CEQA), pursuant to, without limitation, each as a separate and independent basis, CEQA Guidelines Section 15378 (Project), as the action on the Appeal is not considered a “project”; CEQA Guidelines Section 15270 (Projects Which Are Disapproved), as CEQA does not apply to projects which a public agency rejects or disapproves; and/or CEQA Guidelines Section 15061(b)(3) (Review for Exemption), in that there is no possibility that action on the Appeal would have a significant effect on the environment;
b. Finds the proposed concession to reduce the required minimum density is inconsistent with and contrary to State law and should be denied pursuant to Government Code Section 65915(d)(1)(C) the fundamental purpose, goals, and policies for the transit-oriented development outlined in the City’s General Plan and Warm Springs/South Fremont Community Plan; and standards of the Zoning Ordinance; and
c. Denies the Appeal and upholds the September 25, 2025 Planning Commission action to deny the initial first-party Appeal.