Exhibit I – Appeal letters
November 9, 2022
Jennifer Clark, AICPDirector, Department of Resource Management & DevelopmentFresno City Hall 2100 Fresno StreetFresno, CA 93721-3604 Sent via E-Mail
RE: Appeal Director’s Approval of Development Permit ApplicationNo. P22-00565 Dear Ms. Clark:
The undersigned individuals and organizations appeal the decision of the Department ofPlanning and Director, Jennifer Clark, to approve Development Permit Application No.P22-00565.
The undersigned individuals and organizations have an interest in ensuring that this project’senvironmental and human impacts are fully mitigated in compliance with the CaliforniaEnvironmental Quality Act (“CEQA”), the Fresno Municipal Code, and other relevant laws andregulations, and that the project benefits and does not harm the residents of the City andCounty of Fresno, in particular, residents who live, work, worship, recreate, and attend school inthe vicinity of the project site.
The Director’s decision to approve the Development Permit Application P22-00565 should notbe upheld. While the City of Fresno Planning Department can state that this area should beapproved based on the current zoning of heavy industrial uses, that ignores the following facts:
● The South Central Specific Plan is currently incomplete and pending the completion ofEnvironmental Impact Reports that will change current zoning;● The data from both CalEnviroScreen 3.0 and 4.0 confirm that the location of thisproposed project is in the top 1% of the most pollution overburdened communities.● This proposed project will have significant negative impacts to the residents of the Cityand County of Fresno due to the increase of heavy industrial uses and increased heavyduty truck traffic.● The decision to approve this permit application will perpetuate the citing of heavyindustrial uses near communities of color.
Please notify us via email at [email protected] as soon as the City identifies ahearing date for this appeal. Please contact Ivanka Saunders at Leadership Counsel for Justiceand Accountability via email with any questions.
Sincerely,
Ivanka SaundersLeadership Counsel for Justice and Accountability Panfilo CerilloSouth Fresno Community Alliance
Rosa DepewSouth Fresno Community Alliance
Katie TaylorSouth Fresno Community Alliance
Via Email November 14, 2022 Thomas Veatch, Planner City of Fresno Planning and Development Department 2600 Fresno Street, Room 3043 Fresno, CA 93721
Re: Letter in Support of Appeal of Director’s Decision Approving P22-00565 Dear Mr. Veatch: I am writing on behalf of the Laborers International Union of North America, Local Union 294 (“LIUNA”), regarding Environmental Assessment No. P22-00565 for Development Permit Application No. P22-00565 (“Project”). LIUNA is appealing the approval of the Project by the planning director for the City of Fresno (“City”) and requests that the City remand the Project application back to staff to prepare and circulate an appropriate California Environmental Quality Act (“CEQA”) document for public review and comment. The City has prepared streamlined review for the Project pursuant to 14 CCR § 15183, which applies to certain projects consistent with a community plan or zoning (“Section 15183 Review”). The City states that the Project is consistent with the Program Environmental Impact Report (“PEIR”) prepared for the City’s 2021 General Plan Amendment (hereafter, “2021 GP PEIR”) and has prepared an Environmental Assessment (“EA”) to support its findings. However, as discussed below, the proposed Project does not meet the requirements of Section 15183 Review, and must prepare either a Negative Declaration (“ND”) for less than significant impacts or an Environmental Impact Report (“EIR”) which adequately assesses the Project’s potentially significant environmental impacts. I. LEGAL STANDARD Section 15183 of the CEQA guidelines allows a project to streamline environmental review if it is “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was November 14, 2022 Appeal of RCCB Fresno Distribution Director’s Approval Page 2 of 4 certified…..” (14 CCR § 15183). The section then states that an agency utilizing the provision must analyze certain environmental effects, the following of which are relevant here: environmental effects that “[w]ere not analyzed as significant effects in a prior EIR on the zoning action, general plan, or community plan, with which the project is consistent,” or environmental effects that “[a]re potentially significant off-site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action.” (14 CCR § 15183 (b)(2), (3)). The fair argument standard applies to the review of environmental effects mandated by Section 15183. (See Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal. App. 4th 273, 287, citing Gentry v. City of Murrieta, supra, 36 Cal.App.4th at pp. 1373, 1406, fn. 24, 43 Cal.Rptr.2d 170 [suggesting fair argument standard applies to determination under § 21083.3].) Thus, in reviewing a project’s environmental effects under these sections, if an agency finds that the project may have a significant impact with respect to one or more of the effects, they must prepare an EIR to assess those impacts. As the California Supreme Court has held “[i]f no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR.” (Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-320.) The “fair argument” standard creates a “low threshold” favoring environmental review through an EIR rather than through issuance of negative declarations or notices of exemption from CEQA. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.) If the agency finds that there is no significant impact, they must prepare an MND or an ND. An MND is proper only if the project revisions would avoid or mitigate the potentially significant effects identified in the initial study “to a point where clearly no significant effect on the environment would occur, and…there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (PRC §§ 21064.5 and 21080(c)(2); Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 331.) In that context, “may” means a reasonable possibility of a significant effect on the environment. (PRC §§ 21082.2(a), 21100, 21151(a); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927; League for Protection of Oakland's etc. Historic Res. v. City of Oakland (1997) 52 Cal.App.4th 896, 904–05.) II. DISCUSSION As explained below, the City has failed to adequately analyze the proposed Project with respect to air quality impacts, biological impacts, and energy impacts. The City must therefore prepare an EIR or an ND to adequately analyze these effects in accordance with Section 15183 Review.
November 14, 2022 Appeal of RCCB Fresno Distribution Director’s Approval Page 3 of 4 a. The Project May Have Potentially Significant Air Quality Impacts. The Project’s operational air quality impacts were not discussed as significant impacts in the prior EIR, and as such, they must be analyzed in an ND or supplemental EIR. Although the EA states that the proposed Project would emit 9 tons/day of nitrogen oxides (NOx), one ton under the San Joaquin Valley Air Pollution Control District threshold of 10 tons/day, LIUNA believes that the modeling estimating these NOx emissions may have underestimated these emissions, and that when calculated correctly, they may exceed the significance threshold. The City may therefore have to prepare an EIR to assess these impacts, pursuant to 14 CCR 15183(b)(2). Even if the City’s analysis is correct, and these NOx emissions are not significant impacts, the evaluation must be accompanied by a negative declaration including the requisite public participation requirements. b. The City Fails to Assess the Impact of Project-Generated Traffic on Wildlife Mortality. Neither the 2021 GP PEIR nor the Environmental Assessment prepared in support of the Project’s 15183 Review discuss the Project’s potential impacts on wildlife caused by project-generated traffic. According to the EA, the Project is anticipated to generate 481 daily trips during operation. However, the EA fails to consider how this increased traffic from the Project will lead to vehicle collisions with wildlife, potentially including special-status species of wildlife. This is an impact which was not discussed in the 2021 GP PEIR, and which is potentially significant. As such, the City is required to assess this impact and should prepare an EIR or an ND for the Project, pursuant to 14 CCR 15183(b)(3). c. The Project’s Energy Usage is Wasteful. CEQA requires analysis of whether a project would “result in potentially significant environmental impact due to wasteful, inefficient, or unnecessary consumption of energy resources, during construction or operation.” (CEQA Appendix G). The Project’s specific use of energy was not discussed or evaluated in the prior EIR as a significant impact or potential offsite or cumulative impact. The proposed Project has failed to adequately offset its energy usage through the implementation of solar panels, therefore its use of energy is wasteful. This is a significant impact which has not been addressed in the City’s Section 15183 Review, and either an EIR or an ND is necessary to adequately analyze energy impacts and appropriate mitigation. The Project proposes to install a minimum of 450 kW of rooftop solar. 450 kW of rooftop solar could be expected to generate approximately 50,000 – 70,000 kWh November 14, 2022 Appeal of RCCB Fresno Distribution Director’s Approval Page 4 of 4 of energy per month.1 The EA estimates that during operation, the Project will consume 2,492,730 kWh/year, which is equivalent to about 207,727 kWh/month. The anticipated rooftop solar would therefore only cover about one fourth of the Project’s anticipated monthly energy usage. The Project’s energy usage therefore remains wasteful. Additionally, the EA does not explain what amount of rooftop space the 450 kW of rooftop solar will occupy, and it is therefore impossible to ascertain whether the solar panels being used on the Project have been maximized. Assuming for the sake of argument that the Project proposes to use 370W panels to reach its 450 kW of rooftop solar, the solar panels will take up approximately 2,133.1 square meters of roof, or approximately 22,960 square feet.2 When compared to the Project’s proposed 205,000 square feet of warehouse space, plus the potential additional 40,300 square feet to be constructed in a later phase, the proposed quantity of solar paneling seems significantly lower than that which could presumably fit on the building’s roof. The City must prepare an ND or an EIR which adequately offsets the Project’s wasteful use of energy. III. CONCLUSION The City has failed to meet the requirements of Section 15183 Review and has failed to adequately review the environmental effects designated by that provision to address whether either an ND or EIR is required for those effects. The City must prepare either an ND or an EIR for the Project to adequately address the issues raised in this letter. Sincerely, Amalia Bowley Fuentes LOZEAU DRURY LLP
1 https://www.solarreviews.com/blog/how-much-electricity-does-a-solar-panel-produce. 2 https://quotes.solarproof.com.au/system-sizes/450kw-solar-system-information-facts-figures/.