Bryan W. Wenter
925.708.9055
[email protected]
3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.226.8247 |www.hsw-legal.com Exhibit A
September 26, 2025
VIA HAND DELIVERY
Raj Salwan, Mayor
City Council
City of Fremont
3300 Capitol Ave., Building A
Fremont, CA 94538
Email: [email protected]
Re: Appeal of City’s Decisions Regarding Warm Springs – Lopes Grimmer Housing Development Project (PLN2025-00253)
44960 Lopes Road, Fremont
Dear Mayor Salwan and Honorable Council Members:
We represent Newport Equities, LLC (“Newport”), in connection with its development of a 127 - unit housing development project, 15% of which will be affordable, known as “Warm Springs – Lopes Grimmer” (“Project”) , at 44960 Lopes Road (APN 519 131004900) (“Project Site”) in the City of Fremont (“City”). We hereby appeal the Planning Commission’s September 25, 2025 denial of Newport’s August 25, 2025 appeal of City staff’s determination regarding 1) whether an incentive/concession under the Density Bonus Law can be used to reduce the minimum density from 50 to approximately 19 dwelling units per acre, and 2) whether CEQA review should or must proceed notwithstanding staff’s determination not to support the requested incentive/concession.
We submitted a Preliminary Application for the Project pursuant to Senate Bill 330 on March 19, 2025, and we submitted a Formal Application electronically on June 27, 2025, for which we delivered payment on July 2, 2025. The City responded to the Formal Application on August 6, 2025 , declaring the Formal Application incomplete and stating that it requires 14 additional items , and including a 27-page Development Review Comment letter. As noted above, we submitted an appeal to the Planning Commission on August 25 regarding City staff’s decision on two matters. The first decision is that “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.” The second decision is that “Environmental review pursuant to the California Environmental Quality Act (CEQA) will not be performed if the project is recommended for denial by staff.” The Planning Commission denied our appeal on September 25, 2025.
By way of brief background, the Project was filed pursuant to the provisions of Senate Bill 330 (“SB 330”), the Housing Accountability Act (“HAA”), and the Density Bonus Law (“DBL”). Under the Density Bonus Law, because 15% of the Project units are affordable, it is eligible for one incentive or concession (Gov. Code § 65915(d)) and unlimited waivers or reductions of development standards (Gov Code § 65915(e)) . With respect to the former, the Project seeks an incentive or concession to reduce the City’s 50 unit per acre minimum density standard. The applicant provided substantial evidence with the Formal Application demonstrating that the minimum density standard is a “development standard,” as defined and contemplated in the DBL (Gov. Code § 65915(k)), and Informational Item 1 - Appeal Letter
LOPES RD MULTIFAMILY DEVELOPMENT APPEAL
City Council Hearing
November 4, 2025
September 26, 2025 – Page 2
Re: Lopes Ranch
3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.226.8247 |www.hsw- legal.com
that obtaining an incentive or concession to lower that density standard would result in identifiable and actual cost reductions, as required by the DBL (Gov. Code §§ 65915(d)(1) and (k)).
On June 4, 2025, we provided a letter to the City—to which we never received any response — in which we explained in detail the provisions of the DBL, under which the City’s 50 unit per acre minimum density standard is plainly a “development standard” as defined by state law , along with substantial evidence that the requested incentive or concession would result in identifiable and actual cost reductions . Indeed, the DBL broadly defines “development standard” as “a site or construction condition, including, but not limited to , a height limitation, a setback requirement, a floor area ratio, an onsite open -space requirement, a minimum lot area per unit requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation.” (Gov.
Code section 65915(o)(2) (emphasis added)) . A minimum density standard is inarguably a “development standard” as broadly defined and contemplated under the DBL.
Moreover, the DBL defines “incentives and concessions” in relevant part as a “reduction in site development standards” (Gov't Code § 65915(k) (emphasis added )). And that is precisely what Newport is seeking to do: reduce the minimum density that would otherwise be required at the Project Site.
The DBL prescribes the only circumstances under which a city can lawfully disapprove an incentive or concession, as follows:
(A) The incentive or concession does not result in identifiable and actual cost reductions to provide for affordable housing costs or for rents.
(B) The incentive or concession would have a specific, adverse impact upon public health and safety or an any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low -income and moderate-income households.
(C) The concession or incentive would be contrary to state or federal law. (Gov. Code § 65915(d)(1))
Newport has met its burden for requesting a reduction in the 50 unit per acre minimum density development standard, including demonstrating that a minimum density standard is a development standard under the DBL and that a reduction of the standard is the very definition of an “incentive or concession.” Newport has also provided substantial evidence to show that this incentive or concession is consistent with the DBL and would result in identifiable and actual cost reductions.
Because the above-referenced DBL’s disapproval findings cannot be made , the City must approve the requested density incentive or concession.
The second basis for this appeal is the City’s decision is that “Environmental review pursuant to the California Environmental Quality Act (CEQA) will not be performed if the project is recommended for denial by staff. ” W e note that there is no provision in the law that allows an agency to fail to initiate and complete a project’s CEQA process because agency staff are prepared to recommend that the relevant decisionmakers disapprove the project. The decisionmakers may or may not follow such a staff recommendation, and if the recommendation is not followed, then CEQA compliance is September 26, 2025 – Page 3
Re: Lopes Ranch
3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.226.8247 |www.hsw- legal.com
required but will have been avoidably delayed . Thus, if CEQA review is not completed but the decisionmakers elect to approve the project there is an exceedingly high chance that the Permit Streamlining Act’s (“PSA”) approval time limits (Gov. Code § 65950) will not be met. This would be an independent violation of the PSA. Moreover, it would also separately violate the HAA, which defines the failure to meet the PSA’s time limits as a disapproval of a project (Gov. Code § 65589.5(h)(6)(B)). The failure t o meet the PSA’s time limits would expose the City to all of the remedies provided in the HAA. Such a failure to complete the CEQA process in the face of an impending negative recommendation by staff would also potentially amount to another violation of the HAA, as an effective disapproval of the project, because it would needlessly cause unnecessary delay and increases in the cost of the Project (Gov. Code § 65589.5(h)(6)(D)). These issues are all easily avoided if the City simply initiates and completes the CEQA process regardless of what staff is presently recommending.
For the foregoing reasons, we respectfully ask the Fremont City Council to grant this appeal by approving the requested incentive or concession to reduce the 50 unit per acre minimum density development standard and by directing staff to initiate and complete the required CEQA process.
Sincerely,
BRYAN W. WENTER
ENCLOSURES: $5,700 APPEAL DEPOSIT
JUNE 4, 2025 LETTER TO CITY
CC: SUSAN GAUTHIER, CITY CLERK
KEVIN LEE, PLANNER II
TIM RAMM, SENIOR VICE PRESIDENT – PROJECT MANAGEMENT