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Commission upheld the appeal, resulting in the denial of the Project.3 The City Council appealed this Planning Commission decision on May 29, 2024.4
The Planning Commission upheld the appeal on the basis of Finding B (the General Plan and any operative plan or policies the City has adopted) that it does not meet the General Plan in regards to Urban Neighborhood Residential Planned Land Use because it does not meet the General Plan due to it being completed in 2015 and does not take into account the significant growth within the City of Fresno, especially the traffic that will be detrimental to the public if this Project was approved.5
Northwest Neighbors for Safe Development hereby opposes the City Council’s appeal of the Planning Commission’s approval of an appeal where the Planning Commission overturned the Director’s approval of the Development Permit Application, Findings and Conditions of Approval, and where the Director determined that the Project is exempt from the CEQA pursuant to a Class 32 categorical exemption NOA dated March 25, 2024.
The reasons for the opposition to this appeal are set forth herein. Our opposition is supported by technical comments provided by air quality and hazards expert James Clark, Ph.D,6 and noise expert Derek Watry.7
As explained herein and in the attached expert comments, the Planning Commission’s decision was correct because the Director abused its discretion and failed to proceed in the manner required by law by approving the Project in reliance on a categorical exemption and without substantial evidence to support the approval findings. 8 To qualify for a categorical exemption, a lead agency must provide substantial evidence that the Project will not have a significant effect. 9 However, as explained below, the Project may have potentially significant impacts on public health and noise. Specifically, the Project’s construction may result in emissions of toxic air contaminants (“TACs”) that would increase health risks to significant levels. The Project’s construction includes noise-generating activities that may result in significant noise impacts on nearby receptors. These impacts are especially 3 City of Fresno Planning Commission Meeting May 15, 2024 Meeting Minutes, available at City of Fresno - Meeting of Planning Commission on 5/15/2024 at 6:00 PM (legistar.com). 4 City of Fresno Letter from Fresno Mayor and Councilmember of District 2 Appeal the Planning Commission decision, dated May 29, 2024. Attached here as Exhibit A. 5 City of Fresno Planning Commission Meeting May 15, 2024 Meeting Minutes, available at City of Fresno - File #:
ID 24-651 (legistar.com).
6 Dr. Clark’s technical comments and curriculum vitae are attached hereto as Exhibit B (“Clark Comments”). 7 Mr. Watry’s technical comments and curriculum vitae are attached hereto as Exhibit C (“Watry Comments”). 8 Code Civ. Proc. § 1094.5(b); Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.
9 Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 269.
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severe due to the proximity of residential receptors – residential buildings are located within 25 feet of the Project site.
As a result, an EIR is the correct form of environmental review for the Project, not a categorical exemption. Due to these significant environmental and public health impacts, and the related failure to prepare the correct form environmental review, the Director also abused its discretion in approving the Project under the Housing Accountability Act because there are specific adverse impacts from the Project which are not mitigated in the Project’s current form.
Because the Director abused its discretion and failed to proceed in the manner required by law, including, but not limited to, a failure to comply with CEQA, Northwest Neighbors for Safe Development respectfully requests that the City Council uphold the Planning Commission’s appeal decision of the Project, on the basis the Planning Commission approved the appeal due to inconsistencies with the General Plan and traffic impacts. Additionally, the City Council has the independent authority to deny the Project because there is substantial evidence in the record via this letter that the Project will cause specific adverse impacts on public health and safety that justify the continued vacation of the Director’s approval of the Project, and would require the City Council to direct staff to prepare an EIR for the Project should the City Council not wish to deny the Project altogether.
I. STANDING AND STATEMENT OF INTEREST
Northwest Neighbors for Safe Development is an unincorporated association of individuals that may be adversely affected by the potential public health and safety hazards, and the environmental and public service impacts of the Project. The coalition includes City of Fresno residents Matt Nutting, Brandon Smittcamp, Kirk Cernigli, J.T. Contrestano, Pat Cornaggia, Rodney J. De Luca, Gary H. Rushing, Peter Nunez, David Scott, Mike Shirinian, Vicki Allen-Westburg, Debbie Nard, Dennis Nard, Rick Martin, along with their families, and other individuals who live and work in the City of Fresno.
Individual members of Northwest Neighbors for Safe Development live, work, recreate, and raise their families in the City of Fresno and surrounding communities. Accordingly, they would be directly affected by the Project’s environmental, health, and safety impacts.
Northwest Neighbors for Safe Development and its members are aggrieved by the City Council's appeal of the Planning Commission's decision overturning the Director’s decision to approve the Project and adopt unsupported approval findings in reliance on a CEQA exemption, without analyzing and mitigating the Project’s potentially significant impacts in an EIR.
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II. THE PROJECT DOES NOT QUALIFY FOR A CLASS 32 CATEGORICAL
EXEMPTION FOR INFILL DEVELOPMENT PROJECTS
CEQA requires that an agency analyze the potential environmental impacts of its proposed actions in an EIR, except in certain limited circumstances.10 The EIR is the very heart of CEQA.11 “The foremost principle in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”12
CEQA has two primary purposes. First, CEQA is designed to inform decision makers and the public about the potential, significant environmental effects of a project.13 “Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’”14 The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.”15 Second, CEQA requires public agencies to avoid or reduce environmental damage when “feasible” by requiring “environmentally superior” alternatives and all feasible mitigation measures.16 The EIR serves to provide agencies and the public with information about the environmental impacts of a proposed project and to “identify ways that environmental damage can be avoided or significantly reduced.”17 If the project will have a significant effect on the environment, the agency may approve the project only if it finds that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns.”18 Under CEQA, mitigation measures must be fully enforceable through permit conditions, agreements or other legally binding instruments.19 A CEQA lead agency is precluded from making the required CEQA findings to approve a project unless the record shows that all uncertainties regarding the mitigation of impacts have been resolved. For this reason, an agency 10 See, e.g., PRC § 21100.
11 Dunn-Edwards v. BAAQMD (1992) 9 Cal.App.4th 644, 652. 12 Communities for a Better Env. v. Cal. Res. Agency (2002) 103 Cal.App.4th 98, 109 (“CBE v. CRA”). 13 14 Cal. Code Regs. § 15002(a)(1).
14 Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564. 15 Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal.App.4th 1344, 1354 (“Berkeley Jets”); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.
16 14 CCR § 15002(a)(2) and (3); see also Berkeley Jets, 91 Cal.App.4th at 1354; Citizens of Goleta Valley, 52 Cal.3d at p. 564.
17 14 Cal. Code Regs. §15002(a)(2).
18 PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
19 CEQA Guidelines, § 15126.4, subd. (a)(2).
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may not rely on mitigation measures of uncertain efficacy or feasibility.20 This approach helps “ensure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug.”21
CEQA identifies certain classes of projects which are exempt from the provisions of CEQA, called categorical exemptions.22 Categorical exemptions apply to certain narrow classes of activities that generally do not have a significant effect on the environment.23 “Thus an agency’s finding that a particular proposed project comes within one of the exempt classes necessarily includes an implied finding that the project has no significant effect on the environment.”24 “It follows that where there is any reasonable possibility that a project or activity may have a significant effect on the environment, an exemption would be improper.”25 CEQA exemptions must be narrowly construed and are not to be expanded beyond the scope of their plain language.26 They should not be construed so broadly as to include classes of projects that do not normally satisfy the requirements for a categorical exemption.27 Erroneous reliance by a lead agency on a categorical exemption constitutes a prejudicial abuse of discretion and a violation of CEQA.28 “[I]f the court perceives there was substantial evidence that the project might have an adverse impact, but the agency failed to secure preparation of an EIR, the agency’s action must be set aside because the agency abused its discretion by failing to follow the law.”29 To qualify for a categorical exemption, a lead agency must provide “substantial evidence to support [its] finding that the Project will not have a significant effect.”30 “Substantial evidence” means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the Project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency.31 If a court locates substantial evidence in the record to support the agency’s conclusion, the agency’s 20 Kings County Farm Bureau v. County of Hanford (1990) 221 Cal.App.3d 692, 727-28 (a groundwater purchase agreement found to be inadequate mitigation because there was no record evidence that replacement water was available).
21 Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935. 22 PRC § 21084(a); 14 CCR §§ 15300, 15354.
23 PRC § 21084(a); 14 CCR §§ 15300, 15354; Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380.
24 Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 115. 25 Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1191 (“Azusa Land Reclamation”), quoting Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205– 206. 26 Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App.4th 1257. 27 Azusa Land Reclamation (1997) 52 Cal.App.4th 1165, 1192. 28 Azusa, 52 Cal.App.4th at 1192.
29 Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644, 656). 30 Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 269.
31 CEQA Guidelines § 15384.
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decision will be upheld.32 If, however, the record lacks substantial evidence, as here, a reviewing court will not uphold an exemption determination.
Section 15332 of the CEQA Guidelines provides an exemption from CEQA for projects characterized as in-fill development meeting the conditions:
(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.
(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value as habitat for endangered, rare or threatened species.
(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. (emphasis added) (e) The site can be adequately served by all required utilities and public services.
CEQA also contains several exceptions to categorical exemptions. In particular, a categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to “unusual circumstances,”33 or where there is a reasonable possibility that the activity will have a significant effect on the environment, including (1) when “the cumulative impact of successive projects of the same type in the same place, over time is significant.”34 An agency may not rely on a categorical exemption if to do so would require the imposition of mitigation measures to reduce potentially significant effects.35
Here, the Class 32 Exemption and any other CEQA exemption are inapplicable to the Project due to its significant effects on air quality, health risk, noise, and transportation.36 32 Bankers Hill Hillcrest, 139 Cal.App.4th at 269.
33 14 CCR § 15300.2(c).
34 14 CCR § 15300.2(b).
35 Salmon Pro. & Watershed Network v. County of Marin (“SPAWN”) (2004) 125 Cal.App.4th 1098, 1198-1201. 36 The Project’s significant effects also create exceptions to an exemption under 14 CCR § 15300.2(b), (c).
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A. A CEQA Exemption is Inapplicable Because the Project may Result in Significant Effects Related to Air Quality and Health Risk
1. The City Lacks Substantial Evidence to Conclude That the Project’s Health Risk Impacts From air Emissions are Less Than Significant The City lacks substantial evidence to support its reliance on an exemption because the City failed to analyze the health risk impacts of Project construction and operation on nearby sensitive receptors. To qualify for a categorical exemption, a lead agency must provide “substantial evidence to support [its] finding that the Project will not have a significant effect.”37 Here Dr. Clark has presented substantial evidence there will be significant effects on public health.
The Project would increase health risks in the surrounding community by contributing TACs such as Diesel Particulate Matter (“DPM”) during construction.38 During the Project’s construction, heavy equipment and diesel trucks would emit DPM. DPM has been linked to a range of serious health problems including an increase in respiratory disease, lung damage, cancer, and premature death.39 The Project’s emissions of DPM would impact numerous sensitive receptors, including residents in residential buildings located within 25 feet of the Project site.40 CEQA requires an 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 require an EIR if the environmental effects of a project will cause a substantial adverse effect on human beings.41 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.42
For development projects like this one, the Office of Environmental Health Hazard Assessment’s (“OEHHA”) risk assessment guidelines recommend a formal health risk analysis (“HRA”) for short-term construction exposures to TACs lasting longer than 2 months and exposures from projects lasting more than 6 months should be evaluated for the duration of the project.43 In an HRA, lead agencies must first quantify the concentration released into the environment at each of the sensitive receptor locations through air dispersion modeling, calculate 37 Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 269
38 Clark Comments, pg. 5.
39 Clark Comments, pg. 6.
40 Clark Comments, pg. 9.
41 14 CCR § 15065(a)(4); PRC § 21083(b)(3), (d).
42 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516, 523. 43 Office of Environmental Health Hazard Assessment (OEHHA), Risk Assessment Guidelines: Guidance Manual for Preparation of Health Risk Assessments, February 2015 (OEHHA 2015), Section 8.2.10: Cancer Risk Evaluation of Short Term Projects, pp. 8-17/18; https://oehha.ca.gov/air/crnr/notice adoption air toxics hot spots program guidance manual preparation-health-risk-0
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the dose of each TAC at that location, and quantify the cancer risk and hazard index for each of the chemicals of concern.44 Following that analysis, then the City can make a determination of the relative significance of the emissions.
The City did not conduct this analysis. Here, the City concludes that the Project would not result in significant health risk impacts without conducting any of the above analytical steps. The City fails to disclose or analyze that the Project’s construction and operation would result in emissions of TACs. Next, the City fails to disclose or analyze the health impacts of exposure to certain concentrations of TACs. Then the City fails to quantify the magnitude of TACs emitted by the Project. Lastly, the City fails to model the concentration of TACs at sensitive receptors.45 In sum, there is no evidence in the Environmental Assessment performed by the City on February 9, 2024 (“Environmental Assessment”)46 that the City considered health risks from TACs when determining that the Project qualifies for a categorical exemption.
The City reasons that because of the scale and scope of the Project done under the Small Project Analysis Level (“SPAL”), there would be no contributions to air quality impacts. The City relied on the Guidance for Assessing and Mitigating Air Quality Impacts (“GAMAQI”) put forth by the San Joaquin Valley Air Pollution Control District (“SJVAPCD”).47 This guidance though notes that:
When a project falls under the SPAL, the Lead Agency should use the information in the initial study checklist, or whatever format used, to justify a finding of less than significant air quality impacts. The initial study should also verify that no sensitive receptors would be exposed to substantial pollutant concentrations as a result of the project. Project size, as identified in the SPAL, is not a threshold of significance. SPAL is a screening tool. The Lead Agency has the responsibility to identify and avoid potential land use conflicts, such as potential exposure of sensitive receptors to sources of toxic air contaminants, sources of hazardous materials, and potential odors. (emphasis added).48
The City clearly ignored the guidance’s recommendations on TACs and therefore its conclusions are not supported by substantial evidence and do not mitigate the specific adverse 44 Id.
45 The City’s failure to analyze the magnitude and concentration of the Project’s TACs also conflicts with the OEHHA recommendations for HRAs. The OEHHA guidelines recommend an HRA be prepared for this Project’s construction and operation because its 24-month construction schedule exceeds 2 months, and its operations would last over 6 months.
46 City of Fresno Planning Department, Categorical Exemption Environmental Assessment for the Project (February 9, 2024), p.6, available at ID 24-651 - Exhibit J - Environmental Assessment P21-00989 [2-9-2024] (legistar.com) . 47 Id at p. 6.
48 Guidance for Assessing and Mitigating Air Quality Impacts, San Joaquin Valley Air Pollution Control District, p. 86, available at https://www.valleyair.org/transportation/GAMAQI-2015/FINAL-DRAFT-GAMAQI.PDF#page=86 July 24, 2024
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impacts identified below. As SJVAPCD notes, just because a Project qualifies as a SPAL, does not mean the Project will have no environmental impacts. GAMAQI notes that the Lead Agency is responsible for identifying and avoiding potential exposure of TACs to sensitive receptors.
Therefore, the City failed to analyze health risk impacts from exposure to TACs during the Project’s construction and thus failed to support its finding of a less-than-significant health risk impact.
2. The Project has Potentially Significant Health Risk Impacts Dr. Clark calculates that the Project’s emissions of DPM would exceed applicable significance thresholds for health risk set by the SJVAPCD.
Using OEHHA’s HARP 2 Standalone Risk software, Dr. Clark calculated the cancer risk to the most sensitive population – infants less than 3 years old.49 The maximum risk for exposure during construction is 21.5 in 1,000,000, which is greater than the 20 in 1,000,000 threshold set forth by the SJVAPCD for the maximally exposed individual. Dr. Clark’s modeling even shows which receptors will be subject to these potentially significant impacts.50 As a result of these significant effects, the Project does not qualify for any CEQA exemption, including a Class 32 exemption. The Project’s significant impacts must be disclosed and mitigated in an EIR. Additionally, these significant effects constitute a “specific adverse 49 Clark Comments, pg. 10.
50 Id.
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impact” based on written public health or safety standards in existence at the time the Project’s application was filed as defined by the Housing Accountability Act.51 Thus, the City Council may uphold the Planning Commission’s appeal on an independent basis different from that which the Planning Commission ruled on because the Project may properly be denied under the Housing Accountability Act, or at least directed to prepare an EIR.
B. An Exemption is Inapplicable Because the Project may Result in Significant Construction Noise Impacts Which Require Mitigation
1. The City Lacks Substantial Evidence to Conclude That the Project’s Noise Impacts From Construction are Less Than Significant
To qualify for a categorical exemption, a lead agency must provide “substantial evidence to support [its] finding that the Project will not have a significant effect.”52 The City’s Environmental Assessment states that the Project would result in less-than-significant construction noise impacts, but according to the Environmental Assessment, the Project’s construction noise impacts are exempt under FMC section 10-109(a) and thus were never even analyzed.53 Courts have held that compliance with noise regulations alone is not substantial evidence of a less-than-significant impact.54 In Oro Fino Gold Mining Corp. v. County of El Dorado (“Oro Fino”),55 a mining company applied for a special use permit for drilling holes to explore for minerals.56 The mining company argued the proposed mitigated negative declaration prohibited noise levels above the applicable county general plan noise standard maximum of 50 dBA and, therefore, there could be no significant noise impact. The court rejected this argument: “we note that conformity with a general plan does not insulate a project from EIR review where it can be fairly argued that the project will generate significant environmental effects.”57 Thus, the court concluded an EIR was required.
In Citizens for Responsible & Open Government v. City of Grand Terrace (“Grand Terrace”),58 the city approved a 120-unit senior housing facility based on a mitigated negative 51 Gov. Code section 65589.5(j)(1)(A)-(B).
52 Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 269.
53 See FMC Section 10-109(a).
54 King & Gardiner Farms, LLC v. Cnty. of Kern (2020) 45 Cal.App.5th 814, 865. 55 (1990) 225 Cal.App.3d 872.
56 Id. at pg. 876; see also Keep our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714; Citizens for Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1338; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1416 (project’s effects can be significant even if “they are not greater than those deemed acceptable in a general plan”); Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354, (“CEQA nowhere calls for evaluation of the impacts of a proposed project on an existing general plan”).
57 Id. at pp. 881–882.
58 (2008) 160 Cal.App.4th 1323.
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declaration.59 The noise element of the city’s general plan stated exterior noise levels in residential areas should be limited to 65 dB CNEL.60 The initial study concluded the facility's air conditioner units would cause noise impacts, but with mitigating measures the project would operate within the general plan's noise standard. But the court cited Oro Fino for the principle that “‘conformity with a general plan does not insulate a project from EIR review where it can be fairly argued that the project will generate significant environmental effects.’”61 A citizen’s group provided substantial evidence supporting such a fair argument. This evidence included testimony from an individual in the HVAC industry that the type of air conditioning units proposed by the project “sound like airplanes.”62 And at a city council public hearing, community and city council members expressed concern that the air conditioners would be noisy.63 The court considered the testimony about the noise generated by the proposed air conditioners, took into account the mitigation measures, and concluded “there is substantial evidence that it can be fairly argued that the Project may have a significant environmental noise impact.”64
Here the City’s conclusions regarding impacts from Construction Noise are not supported by substantial evidence because the City did not perform any analysis to reach said conclusions.
Mr. Watry notes that it is possible for a project to cause significant environmental noise impacts regardless of whether the Fresno Municipal Code makes this type of noise a violation.65 The City merely assumed that compliance with the City’s noise ordinance means it is impossible for there to also be construction noise impacts. This conflation is wrong and violates CEQA.
2. The Project has Potentially Significant Construction Noise Impacts To further demonstrate this, Mr. Watry performed a construction noise analysis and found that construction noise would exceed the residential noise thresholds of 55 dB from 7:00 p.m. to 10:00 p.m. and 60 dB from 7 a.m. to 7 p.m.66 Mr. Watry recites the City’s noise ordinance which describes what noise levels are usually prima facie noise violations:
Any noise or sound exceeding the ambient noise level at the property line of any person offended thereby, or, if a condominium or apartment house, within any adjoining living unit, by more than five decibels shall be deemed to be prima facie evidence of a violation of Section 8-305.67
59 Id. at 1327.
60 Grand Terrace, 160 Cal.App.4th at 1338.
61 Grand Terrace, supra, at pg. 1338.
62 Id. at 1338-1339.
63 Id. at 1338.
64 Id. at p. 1341.
65 Watry Comments, p. 2.
66 Watry Comments, p. 5.
67 FMC sec. 10-106.
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Mr. Watry uses this value combined with a significant buffer of an additional 5 dBA to determine what level of noise impacts could constitute potentially significant noise impacts.68 Using the Environmental Protection Agency’s values for Residential Construction Noise, Mr. Watry concluded that every phase of construction would exceed the residential thresholds by at least 10 dBA significance threshold for residential. While every phase of construction will exceed 70 dBA, some will significantly exceed this based on the average EPA Noise Levels for each phase of construction:69
As such the City’s conclusions regarding impacts from Construction Noise are not supported by substantial evidence because the City failed to analyze construction noise impacts or present substantial evidence that there will not be potentially significant construction noise impacts.
As a result of these significant effects, the Project does not qualify for any CEQA exemption, including a Class 32 exemption. The Project’s significant impacts must be disclosed and mitigated in an EIR. Additionally, these significant effects constitute a “specific adverse impact” based on written public health or safety standards in existence at the time the Project’s application was filed as defined by the Housing Accountability Act.70 Thus, the City Council may uphold the Planning Commission’s appeal on an independent basis different from that which the Planning Commission ruled on because the Project may properly be denied under the Housing Accountability Act, or at least directed to prepare an EIR.
C. An Exemption is Inapplicable Because the Project may Result in Significant Transportation Impacts
To qualify for a categorical exemption, a lead agency must provide “substantial evidence to support [its] finding that the Project will not have a significant effect.” The City’s 68 Watry Comments, p. 4.
69 Watry Comments, p. 3.
70 Gov. Code section 65589.5(j)(1)(A)-(B).
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Environmental Assessment states that the Project would result in less-than-significant transportation impacts, but the City failed to perform an actual transportation analysis.
Here the City did not perform a transportation analysis based on screening out the Project based on a projected 461 trip-per-day vehicle metric. Additionally, the City also failed to review the Project’s pedestrian and bicycle safety impacts, given the Project’s density and proximity to the Tatarian Elementary School and Orchard Park. Many existing neighbors, with eye-witness experience, and the Fresno Unified School District President Susan Wittrup have commented regarding the present traffic and pedestrian safety issues that would be exacerbated by the Project and must be analyzed.71 As such the City’s conclusions regarding Transportation impacts are not supported by substantial evidence and do not support the use of an exemption.
III. THE CITY COUNCIL MAY DENY THE PROJECT UNDER THE HOUSING ACCOUNTABILITY ACT BECAUSE “SPECIFIC ADVERSE IMPACT ON THE PUBLIC HEALTH” ARE FOUND BASED ON OBJECTIVE CRITERIA
The City Council may deny a housing development project, or impose a condition that the project be developed at a lower density, after making written findings, based on a preponderance of the evidence in the administrative record, that the Project would have a specific, adverse impact on the public health or safety, and there is no other feasible method to satisfactorily mitigate or avoid the adverse impact.72 A “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.73 Objective standards are defined as those that involve no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.74 As discussed above the Air Quality and Noise impacts were measured against external and uniform benchmarks or criteria available and knowable by both the development applicant or proponent and the public official, had the Project merely performed an EIR. This means under Gov. Code section 65589.5(j)(1)(A) the Project could be denied or at least required to perform an EIR before the City Council ultimately looks to approve the Project. 71 Fresno City Council Agenda for July 25, 2024 Meeting Agenda Item ID 24-899, Exhibit O, pg. 8-9, available at ID 24-899 - Exhibit O - Correspondence Received (legistar.com). 72 Gov. Code section 65589.5(j)(1)(A)-(B).
73 Id.
74 Department of Housing and Community Development, Division of Housing Policy Development, Housing Accountability Act Technical Assistance Advisory (Government Code Section 65589.5) (September 15, 2020), https://www.hcd.ca.gov/community-development/housing-element/housingelement- memos/docs/hcd-memo-on-haa-final-sept2020.pdf (“HCD Advisory”).
EXHIBIT A
CITY OF FRESNO
May 29, 2024
Jennifer Clark, Director
Planning and Development Department
2600 Fresno Street
Fresno, CA 93721
Re: 7056 North Prospect Avenue – Development Permit Application #P21-00989
We understand that as Planning and Development Department Director, you approved Development Permit Application #P21-00989 on March 25, 2024, which proposed an 82-unit market-rate apartment complex at 7056 North Prospect Avenue. The City of Fresno (City) received eight appeals of that decision, which was then heard by the Planning Commission on May 15, 2024. The Planning Commission overturned the Director’s approval of the permit.
Decisions of the Planning Commission may be appealed by the district Councilmember and/or the Mayor. On May 22, 2024, we received a request from the applicant seeking an appeal of the Planning Commission’s determination, which would allow the matter to be reviewed by the City Council. Further, the applicant suggested the action taken by the Planning Commission may have violated the California Housing Accountability Act. Subsequently, on May 23, 2024, a second request for appeal was provided by several members of the Greenfield Coalition, also suggesting the Planning Commission’s action may have violated state law, and the City would be in a “vulnerable position to defending such an action.”
Additionally, we received countless phone calls, e -mails and letters from concerned residents and households in the Prospect Avenue neighborhood. Many of the residents expressing concern were not in opposition to housing in this area and recognized that Fresno is in the midst of a housing crisis. They were, however, concerned with understandable items such as traffic congestion, parking, and the four- story height of one section of the proposed complex. It was reported that some of the neighborhood concerns were addressed, such as removal of windows facing adjacent housing, but many remain unsatisfied with the applicant’s unwillingness to meet and further discuss the community concerns.
When considering the pleas to both appeal and not appeal this decision, as elected officials we must take into account both the responsibility to protect the City’s financial interests, as well as act in the best interest of our residents, and not lose the trust of our community.
It is with this in mind; we have heavily considered the following items:
1. The City Attorney’s Office has advised that the findings made by the Planning Commission fall short of the required criteria to deny the project. As a result, the City has been placed at substantial risk of litigation that will likely result in substantial fines and the courts approving the project as it stands proposed today by the developer.
2. It is logical to presume that if the Planning Commission’s decision is not appealed, the applicant could litigate, and has a strong likelihood of winning, resulting in the proposed development being approved as is.
Prospect Avenue – Development Permit Application #P21-00989 May 29, 2024
3. In addition to the time and resources involved in litigation, there are also fines for violating the Housing Accountability Act. These fees range from a minimum of $10,000 to $50,000 per unit. This could equate to a City fine between $820,000 - $4.1 million.
4. Nearby residents continue to express opposition to elements of the proposed multi -family housing development, concerns ranging from traffic congestion, parking, and the four -story height of one section of the proposed complex.
5. Insufficient community dialogue has been reported by residents, indicating the applicant refused to meet with the community to discuss concerns. It is clear the community desires an opportunity to meet with the applicant.
6. Last, and certainly not least, it is our understanding that should the applicant apply for a new housing development, the 3.7 acre lot allows density for up to 111 units. Should a new application include a percentage of units reserved for affordable housing, the City would have no other option but to approve within a 90-day time period. Depending on income levels and unit counts proposed under this potential scenario, density bonuses can also be applied which range from 20-40 additional units. As part of the density bonus program , which could allow up to 151 units, additional parking reductions plus other concessions like height, setbacks and landscaping can also be made.
Therefore, it is with considerable thought and deliberation that we have come to a decision we hope will honor the concerns raised by residents, that will provide quality housing for Fresno residents, and that will not put the City at unnecessary financial risk.
In this instance, we are confident a “do nothing” posture would be an even greater disservice to all involved. We are advised by the City Attorney that doing nothing by foregoing our appeal rights will result in great risk to the City. Doing nothing would create delays in housing production and potential litigation, all with a high likelihood the courts would eventually uphold the development as proposed in the long run, costing the City millions, and ultimately putting this decision in the hands of the court system versus the City Council.
Of even greater concern is the risk of losing the trust of the community. We are sympathetic to those who live in close proximity, and understand the residents desire an opportunity to discuss the proposed project with the applicant. By doing nothing, we believe the residents would ultimately be unsatisfied with the final outcome, and the needs of the community outweigh all other considerations.
Therefore, we are exercising our authority to appeal the Planning Commission’s determination related to Development Permit Application #P21-00989. The appeal will protect our right to bring this item to Council for further review in a reasonable period of time. During this time, we encourage the applicant to come to the table with neighboring residents in productive dialogue around the c oncerns raised, including but not limited to parking, the height of the proposed building, and traffic congestion.
Sincerely,
Jerry P. Dyer Mike Karbassi
Mayor Council Vice President, District 2
EXHIBIT B
EXHIBIT C
Lincoln Park Apartments Project
Review of Cat Ex Noise Assessment
2 standards and, therefore, is incapable of causing any sort of environmental impact. The fallacy of this argument is plain when one considers that it would allow noise levels that could cause hearing loss and still lead to the conclusion that those levels do not cause a significant environmental noise impact. CEQA is not focused on the application of local regulations.
Rather, it is focused on the determination of actual environmental degradation and disclosure of any degradation that is reasonably found to cause a significant impact on the environment.
While the CEQA Appendix G guidelines for noise assessment do call for comparison of project noise levels to local standards, they also call for comparison to the existing ambient, specifically stating:
Would the project result in . . . [g]eneration of a substantial temporary or permanent increase in ambient noise levels in the vicinity of the project . . .
This aspect of a thorough CEQA noise assessment is completely disregarded in the Environmental Assessment document.
An assessment based on the existing ambient is all the more important in this situation because the Fresno noise ordinance’s prima facia noise limit is itself based on the ambient noise level:
Any noise or sound exceeding the ambient noise level at the property line of any person offended thereby, or, if a condominium or apartment house, within any adjoining living unit, by more than five decibels shall be deemed to be prima facie evidence of a violation of Section 8-305. [F.M.C. Sec. 10-106. PRIMA FACIE VIOLATION] In this situation, comparison with the existing ambient must necessarily be the basis for a CEQA assessment.
There is nothing in the record for this project that suggests that ambient measurements have been made in the surrounding neighborhoods. However, the Fresno Noise Ordinance contains statutory minimum ambient noise levels for various zoning districts, and given a lack of any other information, it is reasonable to assume these for the areas surrounding the project site. For residential districts, these statutory ambient levels are:
7:00 am to 7:00 pm 60 dBA
7:00 pm to 10:00 pm 55 dBA
Construction is a noisy endeavor. The Environmental Protection Agency (EPA) has published typical ranges of noise levels at construction sites for a variety of building types.2 For domestic housing, the EPA noise levels for each major phase of construction with all pertinent equipment present at site are reproduced in Table I.
2 Noise from Construction Equipment and Operations, Building Equipment, and Home Appliances , U. S.
Environmental Protection Agency, NTID300.1, 31 December 1971.
Lincoln Park Apartments Project
Review of Cat Ex Noise Assessment
3 TABLE I EPA NOISE LEVELS FOR RESIDENTIAL CONSTRUCTION Phase Average Range‡
Ground clearing 83 dBA 75 to 91 dBA
Excavation 88 80 to 96
Foundations 81 71 to 91
Erection 81 71 to 91
Finishing 88 81 to 95
‡ The range is the average plus/minus one standard deviation. For a “normal” (bell-shaped) distribution, the noise level will be within the range 68% of the time and higher than the low end of the range 84% of the time.
The values given in Table I are based on the loudest piece of equipment being located at a distance of 50 feet. Construction equipment noise spreads as a point source (as opposed to roadway noise which is a line source), and point source noise attenuates at a rate of 6 decibels per every doubling of distance (which means it also increases 6 dB for every halving of distance). So, for example, if the noise is 88 dBA at 50 feet, it will be 82 dBA at 100 feet and 76 dBA at 200 feet. The noise level does not attenuate linearly with distance because the decibel scale is logarithmic (like the Richter scale for earthquakes).
According to F.M.C. Sec. 10-106, the prima facia noise limit for most noises is 5 dB over the ambient. Using the statutory daytime (7:00 am – 7:00 pm) ambient of 60 dBA, the prima facia limit is 65 dBA. However, as noted above, construction noise levels are exempted by the F.M.C. from the normal prima facia noise limit, so what is a reasonable threshold of significance? I believe a reasonable limit is the prima facia limit plus another 5 dB., i.e., the ambient plus 10 dB.
Given the statutory ambient, this is 70 dBA between 7:00 am and 7:00 pm.
Returning to Table I, one can see that not only is the average noise level for every construction phase well over 70 dBA, the lower end of the expected range is also over 70 dBA for every phase. This is direct evidence that unmitigated construction noise will cause a significant impact on residents immediately adjacent to the project site (namely, residents of the 11 homes between 7003 and 7063 Harmony Drive, inclusive).
Another way to look at this is to consider how far away the construction will have to be for the noise level to drop to 70 dBA. If the noise level at 50 feet is 88 dBA, the construction would have to be 400 feet away for the level to attenuate to 70 dBA. However, the width of the site from east to west is only 350 feet. So, if the average construction noise level is 88 dBA at 50 feet, it will be greater than 70 dBA for the entire period of the phase.3 Focusing on the first four phases of construction, Table II shows the percentage of the 350-foot wide site for which the noise level will be greater than 70 dBA.
3 This is strictly true for the Ground Clearing, Excavation, and Foundation phases. Potentially less so for the Erection phase if some built portions block noise from other portions being built. For the Finishing phase the noise levels would only match the levels shown in Table I for areas that have a direct line of sight to the off -site receptor.