Matthew D. Francois
Direct Dial: (650) 798-5669
E-mail: [email protected]
February 13, 2023
R u ta n & T uck e r, L L P | 4 5 5 Ma rk e t S tre e t, S u i te 1 8 7 0 S a n F ra n ci sc o , C A 9 4 1 05 | 6 5 0 -263 -7 9 0 0 | F a x 6 5 0 -263 -7 901 Ora n g e C o un ty | P a l o Alto | S a n F ra n c i s c o | w ww .ru ta n .c o m 2783/031881-0024
18662236.3 a02/13/23
VIA E-MAIL
Honorable Sonny Dhaliwal, Mayor
and Members of the City Council
City of Lathrop
390 Towne Centre Drive
Lathrop, CA 95330
Re: Response to Appeal of Planning Commission Approval of Lathrop Crossroads Industrial Project; Site Plan Review No. SPR-22-64
Dear Mayor Dhaliwal and Members of the City Council:
We write on behalf of our client, Richland Developers Inc. (“Richland”), to respond to the appeal (the “Appeal”) of the Lathrop Crossroads Industrial Project (the “Project”) filed by the DeltaSierra Group of the Sierra Club (“Appellant”). Relying on a comprehensive mitigated negative declaration (“MND”) supported by expert analysis showing no unmitigated significant environmental impacts, the City Staff, in a thorough and well-reasoned report, recommended approval of the Project. At its November 30, 2022 meeting, the Planning Commission adopted the MND and approved the Project on a 5-0 vote. Based on comments related to a much larger industrial project in another city, Appellant appealed the Planning Commission’s unanimous approval of the Project to the City Council. Because the Planning Commission’s approval of the Project fully comports with the California Environmental Quality Act (“CEQA”), and the Project, as conditioned, results in no significant environmental impacts, we urge the City Council to deny the Appeal and affirm the Planning Commission’s approval of the Project.1 I. Background and Overview
The approximately 25-acre Project site is located at 1101 D’Arcy Parkway (the “Property”).
The Property has long been planned and zoned for industrial uses. The Property is currently used for percolation of treated wastewater. Nearby land uses include warehouse uses, outdoor storage, manufacturing, and assembly plants.
The Property is located in the 528-acre Crossroads Commerce Center, formerly known as the Crossroads Industrial Park. The Property was included as part of the environmental analysis 1 Brian Cooley, Richland’s Senior Director of Land Entitlement, has submitted a separate letter to you responding to Appellant’s February 6, 2023 letter in which he details the several meetings Richland has had with Appellant and outlines the additional Project design features that Richland is willing to incorporate into the Project as a result of those meetings.
Item 5.3 Public Comment Provided by
Matthew D. Francois, Rutan and Tucker, LLP
Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
February 13, 2023
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that was done for the Crossroads Industrial Park Environmental Impact Report (“EIR”) in 1989 and Supplemental EIR prepared in 2001. Since its approval, the Industrial Park has been substantially developed, with the Property being one of the last remaining vacant spaces.
The Project seeks to develop either one 448,904 square foot warehouse building with 12,000 square feet of office space or three warehouse buildings totaling 386,179 square feet with 20,000 square feet of office space. Under either option, the Project buildings would be made available primarily for warehouse activities but also could be used for manufacturing purposes. The Project requires approval of Site Plan Review and a Lot Line Adjustment.
Project access will be provided through three driveways, which “are designed to accommodate truck traffic and turning movements and will provide access to the internal circulation system necessary to access dock bays and truck/trailer and vehicle parking areas.” (Planning Commission Staff Report [the “Staff Report”], p. 4.) Additionally, the parking lot is “designed to accommodate the safe movement of emergency vehicles and passenger vehicles” and pedestrian connections through the parking lots “are clear and conveniently located.” (Id.) In accordance with CEQA, the City hired Basecamp Environmental, an independent expert environmental consulting firm, to prepare the MND. The MND thoroughly evaluates the Project’s potentially significant environmental impacts and concludes that all significant impacts will be mitigated to a less than significant level. With respect to air quality, City Staff correctly observed:
The air quality and GHG analysis used SJVAPCD [San Joaquin Valley Air Pollution Control District] recommended methodologies; criteria pollutant emissions were estimated using the latest available CalEEMod [California Emissions Estimator Model] modeling program, and the potential health risks of the project were screened using SJVAPCD’s Facility Prioritization methodology . . . Using accepted assumptions also used for similar projects in San Joaquin County, the analysis found the project’s criteria pollutant emissions and health risks to be less than significant.
The IS/MND found the project would involve no conflict with the applicable SJVAPCD requirements.
The City’s proposed conditions of approval require project compliance with all applicable SJVAPCD rules and regulations; with required compliance, including participation in Rule 9510 Indirect Source Rule, the project’s less than significant impacts would be further reduced.
(See Staff Report, pp. 6-7.) The MND was circulated for public review and comment. Minor comments were received and did not result in changes to any of the environmental effects or mitigation measures identified in the MND.
Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
February 13, 2023
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18662236.3 a02/13/23
In approving the Project’s Site Plan Review application, the Planning Commission found that the Project complies with all applicable provisions of the Lathrop Municipal Code (“LMC”) pertaining to Site Plan Review, that Project improvements “are such that traffic congestion is avoided and pedestrian and vehicular safety and welfare are protected and there will not be adverse effects on surrounding properties,” and that the Project “is compatible with surrounding land uses and will not be detrimental to the health, safety and general welfare of the City.” (Planning Commission Resolution No. 22-16.) The Planning Commission also found the Project to be consistent with the City’s General Plan and Municipal Code and that the Project’s significant effects would be reduced to a less than significant level through the implementation of specified mitigation measures that were imposed as conditions of approval on the Project. (Id.) In addition to all of the mitigation measures contained in the MND, the following conditions of approval, among others, were imposed on the Project: (1) Comply with SJVAPCD rules and regulations, including Rule 9510, Indirect Source Review (ISR)2and Rule 9410, Employer Trip Reduction Implementation Plan (eTRIP);
3 (2) Ensure that landscaping and irrigation is consistent with the City’s Water Conservation Requirements and the State Water Efficient Landscape Ordinance; and (3) Conform Project design with energy conservation measures articulated in Title 24 of the California Code of Regulations (“CCR”) and address measures to reduce energy consumption such as flow restrictors for toilets, low consumption light fixtures, and insulation.
With this background in mind, we turn now to addressing the myriad legal and factual infirmities associated with the Appeal.
II. Response to Appeal Letter
We urge the City Council to reject Appellant’s unfounded and unsubstantiated claims regarding the Project, which are mostly based on the impacts of other larger industrial projects in other cities and thus completely irrelevant to the impacts of the proposed Lathrop Crossroads Industrial Project. We respectfully ask the City Council to uphold the Planning Commission’s unanimous approval of the Project as recommended by the City’s professional Planning Staff. 2 The ISR Rule requires developments like the Project to reduce their nitrogen oxide (“NOx”) and particulate matter (“PM”) emissions by incorporating clean air design elements into the project. Should the clean air design elements be insufficient to meet the required emission reductions, developers must pay a fee that ultimately funds incentive projects to achieve off-site emissions reductions.
3 The eTRIP Rule requires employers with 100 or more eligible employees at a worksite to establish an Employer Trip Reduction Implementation Plan that encourages employees to reduce single-occupancy vehicle trips, thus reducing pollutant emissions associated with work commutes.
Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
February 13, 2023
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A. The Project MND, a Subsequent MND, must be upheld as it is supported by substantial evidence.
As a preliminary matter, the MND is a subsequent environmental document to the EIR that was originally prepared for the Crossroads Industrial Park. In cases where an EIR was previously prepared, a subsequent MND, such as the MND, must be upheld if it is supported by substantial evidence in the record. (See, e.g., Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249, 264-266.) The fair argument test does not apply to such a document because “in-depth review already has occurred, the time for challenging the sufficiency of the original EIR has long since expired, and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” (188 Cal.App.3d at 265.) In Long Beach, the Court of Appeal upheld a subsequent MND for a mixed-use development, “reject[ing] the inference that the existence of factual controversy, uncertainty, conflicting assertions, argument, or public controversy can of themselves nullify the adoption of a negative declaration and require the preparation of an EIR when there is no substantial evidence in the record that the project as designed and approved will fall within the requirements of CEQA.” (188 Cal.App.3d at 266.)
A challenger has the burden of demonstrating that the agency’s determination is not supported by substantial evidence. (Committee for Re-Evaluation of the T-Line Loop v. San Francisco Mun. Transp. Agency (2016) 6 Cal.App.5th 1237, 1253; Mani Bros. Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1397.) Substantial evidence has been defined as evidence of “ponderable legalsignificance . . . reasonable in nature, credible, and of solid value.” (Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 142.) Substantial evidence includes “fact, a reasonable assumption predicted upon fact, or expert opinion supported by fact.” (Public Resources Code § 21080(e).) It does not include argument, speculation, unsubstantiated opinion or narrative, generalized concerns and fears, and evidence that is clearly inaccurate or erroneous. (Public Resources Code § 21080(e)(2); see also Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 906 [court observes that “dire predictions by non-experts regarding the consequences of a project do not constitute substantial evidence.”] and Friends of “B” Street v City of Hayward (1980) 106 Cal.App.3d 988, 1002 [court observes that “[c]onflicting assertions do not ipso facto give rise to substantial fair argument evidence.”].)
Appellant’s assertions are not supported by any evidence, let alone by substantial evidence, as required. Instead, the Appeal is based on hyperbole and speculative and unsubstantiated assertions. For instance, Appellant claims that San Joaquin County is experiencing an “explosion” of very large warehouse developments that have the potential for contributing to adverse air quality conditions. Appellant cites to only one other development in Stockton and does not mention the state regulatory environment focused on conversion to low- or zero-emission trucks and vehicles.
Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
February 13, 2023
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B. Mitigation measures imposed by another city on another project are not part of the record and are irrelevant.
Appellant cites to and relies heavily on a recent settlement agreement entered into by the City of Stockton with the developer of a large warehouse project known as the Mariposa Industrial Park Project (the “Mariposa project”). The Mariposa project is not part of the record before the City Council and is both factually and legally irrelevant.
As a preliminary matter, Appellant did not submit any information regarding the Mariposa project to the Planning Commission.4 While Appellant attempts to improperly submit such documents now, LMC Section 17.125.060 explicitly states that “only such evidence and plans as were submitted to and ruled upon by the approving authority may be provided to the appeal authority for review.” An appeal is not an opportunity to present new evidence that was not submitted to the Planning Commission, which was the original fact finder and approving authority here. Even if the City Council could consider information related to the Mariposa project, it is factually and legally irrelevant.
The Mariposa project consisted of seven warehouse buildings totaling 3.6 million square feet, i.e., approximately eight times larger than the Project. It was located outside the city on a 200- plus acre site in a disadvantaged unincorporated community.5 The Mariposa project required annexation and pre-zoning from agricultural to industrial. By comparison, the Project has long been planned and zoned for industrial uses and the Property is located in the Crossroads Industrial Park, which is not a disadvantaged community.
Further, Stockton had prepared an EIR for the Mariposa project which disclosed that it would result in significant unavoidable impacts to, among others, air quality emissions, exposure of sensitive receptors to criteria pollutants, greenhouse gas emissions, and vehicle miles traveled. In stark contrast, the Project MND shows that no such impacts will occur here. Under CEQA, an agency is required to avoid or lessen significant impacts to the extent feasible.6(Public Resources Code §§ 21002, 21002.1, 21081; Sierra Club v. County of Fresno (2018) 6 Cal.5th 524-525; King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.4th 814, 866.) The State Attorney General’s office had raised concerns about the significant air quality impacts of the Mariposa project 4 Appellant likewise did not submit the Attorney General guidance document nor related agreements cited in the Appeal concerning a warehouse project located next to a high school in Fontana.
5 Per state law, such areas are a top priority for reductions in air emissions and improvements in air quality due to extremely high levels of air pollution. 6 “Feasible” is defined by CEQA Guidelines Section 15364 as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.” Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
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and claimed that additional feasible mitigation measures could be imposed to address those impacts.
In response, Stockton and the developer agreed to impose enhanced mitigation measures on the project and Stockton agreed to consider incorporating such measures into its development code so as to apply to other future industrial warehouse developments.
Unlike the Mariposa project, the Project at issue here does not result in any significant unavoidable impacts to air quality or any other resource. And, the State Attorney General has not commented that additional mitigation measures need to be imposed on the Project.
Substantial evidence supports the Planning Commission’s conclusion that the Project will not result in significant air quality impacts. This evidence consists of the MND analysis based on a sophisticated computer modeling program recommended by the SJVAPCD and used for projects throughout the State to estimate air emissions. Appellant has not (and cannot) meet its burden of showing that substantial evidence does not support the Planning Commission’s finding by citing to another much larger project in another location with admittedly greatly increased environmental impacts. (Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877 [reliance on noise impacts for a different project in a different location did not constitute substantial evidence that the project would result in significant noise impacts]; Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1352 [evidence of traffic impacts at other intersections did not constitute substantial evidence of traffic impacts at the project intersection]; and Citizens for Responsible Development v.
City of West Hollywood (1995) 39 Cal.App.4th 490 [letters from a state historic preservation officer relating to a different site were not relevant to the project before the agency].) Appellant asks that the same measures imposed on the Mariposa project be imposed on the Project. But the measures imposed on the Mariposa project were imposed to address significant unavoidable air quality and greenhouse gas emissions and were agreed to by the developer. There are no significant unavoidable impacts here and Richland does not consent to the imposition of “mitigation” for non-impacts. The additional Project design features that Richland is willing to incorporate into the Project are detailed in Mr. Cooley’s February 13, 2023 letter to the City Council.
C. Certain facts related to the Planning Commission hearing on the Project were not accurately presented.
First, Appellant did not submit a “timely” comment letter on the MND. The comment period ran from September 28, 2022 through October 18, 2022. Appellant submitted its comment letter on November 30, 2022, the day of the Planning Commission hearing. Further while two persons identifying themselves as associated with Appellant spoke at the Planning Commission hearing, neither speaker attended the hearing in person.
Second, the Planning Commission did not “reject” Appellant’s arguments that other agencies had considered additional mitigation measures to reduce impacts related to air quality, greenhouse Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
February 13, 2023
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gas emissions nor say that the Lathrop would not require additional measures until other jurisdictions had acted. The Planning Commission members, two of whom used to serve on the City Council, cited the long planning history of the area, noted they take air quality issues “very seriously,” and asked detailed questions of City Staff and the City’s environmental consultant. Only when satisfied that the Project impacts had been thoroughly and accurately studied did the Planning Commission vote to adopt the MND and approve the Project.
Third, the Stockton City Council had not yet acted to approve the Mariposa project (and associated agreements with the Sierra Club and Attorney General’s office) when the Planning Commission approved the Project on November 30, 2022. This agreement was not submitted to the Planning Commission when it acted on the Project. And, as noted above, it cannot now be considered by the City Council when it acts on the Appeal. (LAMC § 17.125.060.) D. The MND fully comports with CEQA, including guidelines and methodologies for analyzing air quality impacts promulgated by the air district.
Appellant claims that the MND is inadequate in terms of its analysis and mitigation for air quality, greenhouse gas emissions, and transportation impacts and states that an EIR must be prepared to more fully analyze the impacts associated with the Project. Appellant’s claims are speculative, unsubstantiated, and/or directly contradicted by expert, factual analysis.
Based on air quality modeling results and recent traffic analysis for a similar warehouse project in the Industrial Park, the MND concludes that the Project will not result in significant greenhouse gas or transportation impacts. The analysis is thorough, well-reasoned, and supported by substantial evidence. The burden is on Appellant to support its position that this analysis is deficient. (LMC § 17.125.040.A [City Code requires that appeals “specifically stat[e] the basis or grounds of the appeal.”]; Buckhart v. San Francisco Residential Rent Stabilization and Arbitration Board (1988) 197 Cal.App.3d 1032 [“It is elementary that the burden is on an appellant to show sufficient basis for the reversal of the order or judgment from which he appeals . . ..”]; Young v. City of Coronado (2017) 10 Cal.App.5th 408, 427 [“An appellant challenging an agency’s findings has the burden to show that they are not supported by substantial evidence.”].) Appellant provides no explanation or discussion to support its claim that the MND’s analysis of greenhouse gas emissions and transportation impacts is inadequate.
As to air quality, Appellant claims that the MND “relies solely on questionable and undocumented calculations” under the SJVAPCD significant thresholds. In reality, “[t]he project’s construction and annual operational emissions were estimated using the California Emissions Estimator Model (CalEEMod) computer program, a modeling program recommended by SJVAPCD.” (MND, p. 3-9.) The air quality modeling results based on the CalEEMod program are included as Appendix A to the MND. CalEEMod is a recognized program used for most Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
February 13, 2023
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development projects throughout the State and is the one recommended for use by the SJVAPCD.
The air quality results are neither questionable nor undocumented.
Appellant next claims that the air quality analysis “fails to even mention” a document produced by the Attorney General’s Office related to mitigation measures for large warehouse projects. There are several fundamental reasons for this. First, the Project does not result in any significant air quality impacts. A discussion of mitigation measures is only required if there are significant environmental effects. (Public Resources Code § 21100(b)(3) [CEQA document to include mitigation measures to minimize significant effects on the environment]; CEQA Guidelines § 15126.4(a)(3) [“Mitigation measures are not required for effects which are not found to be significant.”]; North Coast Rivers Alliance v. Marin Municipal Water District (2013) 216 Cal.App.4th 614, 649 [EIR was not required to discuss green energy credits as a mitigation measure for energy impacts when EIR had determined that such impacts would be less than significant.].) Second, the Project like others in San Joaquin Valley is already subject to the air district’s indirect source rule requiring that emissions of NOx and PM be reduced substantially during both construction and operational phases. Third, the document in question does not provide recommended thresholds or regulatory mandates. Moreover, it was published in September 2022, the same date the MND was published. In comparable CEQA settings, amendments are deemed to apply prospectively only. (CEQA Guidelines § 15007.)
Appellant claims that the air quality impacts associated with diesel trucks was not considered.
Again, this is not accurate. As the City’s environmental consultant explained at the Planning Commission hearing, the air quality analysis assumed worst case scenario conditions of Refrigerated Warehouse-No Rail. The vehicle trips and fleet mix assumed in the air quality modeling were consistent with other warehouse projects. (MND, Appendix A., pp. 1, 24-25.) It specifically included, among others, heavy-heavy, medium-heavy, and light-heavy duty trucks. (MND, Appendix A, p. 25.)
While diesel particulate matter is not a criteria pollutant, associated criteria pollutant emissions such as NOx and PM2.5 were evaluated.
7 The Project emissions are substantially less
than the significance thresholds for both pollutants as established by the air district. (See Table 3-2 at page 3-10.) No mitigation is required.
Emissions for transport refrigeration units were likewise not ignored. At the Planning Commission hearing, the City’s environmental consultant specifically mentioned that transport refrigeration units were assumed and included in the analysis. This conforms with the Refrigerated Warehouse-No Rail land use assumed in the air quality modeling. 7 Diesel particulate matter is a subset of fine particulate matter that is 2.5 microns or less in diameter. (https://ww2.arb.ca.gov/resources/inhalable-particulate-matter-and-health) Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
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Appellant speculates that there is an impact requiring mitigation due to the Project’s parking lot size. The parking lot is for parking of cars and light duty trucks. There is also parking for truck/trailers in the rear of the building where trucks are waiting to be loaded or off-loaded. State law prohibits trucks from idling for more than 5 minutes. (13 CCR § 2485.) The Project will comply with state law. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 416 [“Compliance [with the law] can be reasonably presumed.”].) Appellant claims that the trip distances used in the modeling must be explained and trip numbers supported with a traffic study. The trip data was based on a traffic study for a similar warehouse development and data consistent with other warehouse projects, again conservatively assuming that all Project buildings are used for Refrigerated Warehouse-No Rail. (MND, pp. 3-9, 3-53, Appendix A, pp. 1, 24-25.)
Appellant next claims that the MND fails to include a health risk assessment (“HRA”). The MND specifically identifies diesel particulate matter as a toxic air contaminant and includes a screening level health risk analysis as explicitly recommended by the air district. (MND, pp. 3-8, 3- 10 to 3-12.) The district recommends that a HRA be performed for any project resulting in a screening level score of 10 or more. (MND, p. 3-11.) The Project resulted in a screening level score of 1.66. (MND, p. 3-12.)
It should also be noted that there is one sensitive receptor (a single family residence) and it is located 650 feet southeast of the Project site. (MND, p. 3-11.) Loading docks will be located on the north of the buildings (opposite direction) from the receptor. (MND, p. 2-2.) The distance between the docks and the sensitive receptor is more than twice that recommended by the air district.
In addition, the residence is not on any roadways on which Project traffic would travel, so the residence would not be exposed to emissions from Project traffic. (MND, p. 3-11.) In regard to health risk, Appellant also claims that the Project is inconsistent with the City’s General Plan, updated in September 2022. Among others, the General Plan contains policies requiring that new development be compatible and complementary to existing development, promoting industrial uses that create limited noise and odors near existing and planned sensitive receptors, and ensuring that industrial projects mitigate any adverse impacts to nearby residential and related land uses. (General Plan, Policies LU-5.1, LU-5.4, and LU-5.5.) Implementation actions call for screening development proposals for land use compatibility, preparing a HRA and implementing best management practices for warehouse projects that generate “high volumes of truck trips and/or air quality emissions” within 1,000 feet of existing or planned residential uses.
The Project complies with all of these policies and actions. It results in no significant air quality or transportation impacts. The MND included a screening level analysis which concluded that health risks to the one residence within 1,000 feet would be far less than the air district standards to prepare a HRA. The Project also includes best management practices recommended by the air district with respect to location and distance of loading docks and truck travel.
Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
February 13, 2023
2783/031881-0024
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In approving the Project, the Planning Commission found it to be consistent with the City’s General Plan. An agency’s determination that a project is consistent with its general plan is accorded “great deference” and can be reversed “only if it is based on evidence from which no reasonable person could have reached the same conclusion.” (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563; A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630, 648.) The party challenging a city’s determination of general plan consistency has the burden “to show why, based on all the evidence in the record, the determination was unreasonable.” (California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 639.) Appellant has failed to achieve this high burden here.
E. The fair argument standard does not apply to a subsequent MND, like the MND.
While the fair argument standard applies to the initial preparation of an EIR, it does not apply to a subsequent environmental review determination. (See, e.g., Long Beach Sav. & Loan Assn., supra; Kostka & Zischke, Practice Under the California Environmental Quality Act (C.E.B. 2022), § 19.55.). Instead, the substantial evidence applies in such circumstances, and the burden is on Appellant to show that an agency’s finding of no significant unmitigated environmental impacts is not supported by substantial evidence. (Id.) As explained above, Appellant has failed to meet its burden here.
The MND and related reports, studies, testimony, and correspondence provide ample substantial evidence to support the conclusions that the Project will not have significant environmental impacts, including to air quality, greenhouse gas emissions, and health risk. As such, the City must adopt the MND and is legally precluded from requiring an EIR. (Public Resources Code § 21080(c)(1); CEQA Guidelines §§ 15063(b)(2), 15064(f)(2), 15064(f)(3).) Moreover, even assuming that the fair argument standard were relevant, Appellant misconstrues and misunderstands it. For instance, Appellant contends that an EIR is needed if there is a fair argument that the MND’s analysis is inadequate. This is not the legal test. The fair argument standard focuses on whether substantial evidence of a fair argument of significant environmental impacts has been presented. (CEQA Guidelines § 15064(f)(1); Citizens Comm. to Save Our Village v. Claremont (1995) 37 Cal.App.4th 1157, 1171; League for Protection of Oakland’s Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 904.) There is no such evidence here.8 Further, courts have explicitly rejected Appellant’s claim that “conflicting assertions” is sufficient to overturn an EIR. (Cf. Friends of “B” Street, supra and Long Beach Sav. & Loan Assn., supra, 188 Cal.App.3d at 266.)
8 And CEQA does not require an applicant to “do all that is possible” to minimize impacts, but rather to “avoid or substantially lessen” significant environmental impacts “whenever it is feasible to do so.” (Public Resources Code § 21002, 21002.1.)
Honorable Sonny Dhaliwal, Mayor
and Members of the Lathrop City Council
February 13, 2023
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18662236.3 a02/13/23
Appellant’s generalized claims that the Project will result in significant impacts to air quality, greenhouse gas emissions, and health risk are speculative, unsubstantiated, and/or directly contradicted by expert, factual analysis. As such, Appellant’s claims do not constitute “substantial evidence” of a fair argument of significant environmental impacts even if that inquiry were relevant.
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In closing, we respectfully urge the City Council to deny the Appeal and to uphold the Planning Commission’s unanimous approval of the Project. This is the only action that comports with the facts and the law. Thank you for your consideration of our client’s views on this important matter. Representatives of Richland will be in attendance at your February 13, 2023 hearing on the Appeal. In the meantime, please do not hesitate to contact me or Brian Cooley at (916) 705-8726 with any questions regarding this correspondence.
Very truly yours,
RUTAN & TUCKER, LLP
Matthew D. Francois
cc: Stephen Salvatore, City Manager, via email
Salvador Navarrete, City Attorney, via email
Mark Meissner, Community Development Director, via email Trent Dadalt, Assistant Planner, via email
Teresa Vargas, City Clerk, via email
Brian Cooley, Senior Director of Land Entitlement, via email Craig Cristina, Senior Vice President, Richland via email Julieann Martin, Project Manager, Richland via email