CITY COUNCIL
Darrell Steinberg, Mayor
Lisa Kaplan, District 1
Shoun Thao, District 2
Karina Talamantes, Mayor Pro Tem, District 3
Katie Valenzuela, District 4
Caity Maple, Vice Mayor, District 5
Eric Guerra, District 6
Rick Jennings, II, District 7
Mai Vang, District 8
CHARTER OFFICERS
Mindy Cuppy, City Clerk
Susana Alcala Wood, City Attorney
Farishta Ahrary, Interim City Auditor
Howard Chan, City Manager
John Colville, City Treasurer
City Council
Financing Authority
Housing Authority
Public Financing Authority
Redevelopment Agency Successor Agency
City Hall Complex
915 I Street, Sacramento, CA 95814
Published by the Office of the City Clerk
(916) 808-7200
Description:
SUPPLEMENTAL MATERIAL
Attached is supplemental material received after publishing the agenda, the attachment
of staff’s response to comments.
For the Meetin
g of: Tuesday, September 17, 2024 at 5:00 p.m.
Agenda Item:
Public Hearing Item 15
15. Third
-Party Appeals of the Planning and Design Commission’s Determination of Exemption under California Environmental Quality Act for American River One (DR22-238) [Noticed on 09/06/2024]
File ID: 2
024-01574
Location:
Location: APNs 001-0181-016-0000 & 001-0181-017-0000; 500 & 450 Bercut Drive, District 4, Represented by Mayor Steinberg Recomm
endation: Conduct a public hearing and upon conclusion pass a Resolution determining the project is statutorily exempt from review under the California Environmental Quality Act (CEQA) pursuant to Public Resources Code section 21155.4 for American River One; thereby denying the third-party appeals.
Contac
t: Armando Lopez Jr., Assistant Architect, Associate AIA, CPD, LEED AP, (916) 808-8239, [email protected]; Matthew Sites, Senior Architect, AIA, (916) 808-7646, [email protected]; Tom Buford, Principal Planner, (916) 799-1531, [email protected]; Community Development Department City of Sacramento Page 1
City of Sacramento
City Council - 5PM Report
915 I Street Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2024-01574 9/17/2024 Public Hearing Item 15.
Third-Party Appeals of the Planning and Design Commission’s Determination of Exemption under California Environmental Quality Act for American River One (DR22-238) [Noticed on 09/06/2024]
File ID: 2024-01574
Location: APNs 001-0181-016-0000 & 001-0181-017-0000; 500 & 450 Bercut Drive, District 4, Represented by Mayor Steinberg
Recommendation: Conduct a public hearing and upon conclusion pass a Resolution determining the project is statutorily exempt from review under the California Environmental Quality Act (CEQA) pursuant to Public Resources Code section 21155.4 for American River One; thereby denying the third-party appeals.
Contact: Armando Lopez Jr., Assistant Architect, Associate AIA, CPD, LEED AP, (916) 808-8239, [email protected]; Matthew Sites, Senior Architect, AIA, (916) 808-7646, [email protected]; Tom Buford, Principal Planner, (916) 799-1531, [email protected]; Community Development Department Presenter: Tom Buford, Principal Planner, (916) 799-1531, [email protected], Community Development Department
Applicant: Julian Watt & Francesca Redetzke, LPA Design Studios, 431 I Street, #107, Sacramento, CA 95814
Appellants:
1) Save the America River Association; Matthew Chalmers, Birch Citadel PC, 103 Cardini Lane, Lincoln CA 95648
2) Laborers International Union of North America, Local Union 185; Rebecca Davis, Lozeau Drury LLP, 1939 Harrison Street, Suite 150, Oakland, CA 94612 Property Owner: 500 Bercut, LLC and IM Investment Inc., PO Box 3001, Sacramento, CA 95812 Attachments:
1-Description/Analysis
File ID: 2024-01574 9/17/2024 Public Hearing Item 15.
2- Background
3- Resolution
4- CEQA Appeal Documents Project Plans, July 19, 2024
5- CEQA Appeal Documents Project Plans, June 18, 2024
6- Building Design Documents
7- SACOG Consistency Letter
8- EMAIL from SACOG, June 13, 2024
9- 2020 MTP-SCS Existing and Planned Major Transit Stops 10- 2020 MTP_SCS_Appendix A_Trans Project List
(Partial)_Highlighted
11- SacRT DNA Greenline Route and Stations
12- Environmental Noise Assessment
13- Public Resources Code section 21155.4
14- Remy Moose Manley Response Letters
15- Staff's Response to Comments
Description/Analysis
Issue Detail: The proposed project involves construction of a mixed-use high-rise development on a
3.06-acre project site within the General Commercial (C-2-SPD) zone and River District Special Planning District (SPD).
On April 18, 2024, the Design Director approved the entitlements for the proposed project including a determination that the project is statutorily exempt from further review under the California Environmental Quality Act (CEQA) pursuant to Public Resources Code (PRC) section 21155.4. This exemption, added to the PRC chapter implementing sustainable communities strategies by Senate Bill 743, exempts from further CEQA review projects that are located in a transit-priority area, are consistent with the Sustainable Communities Strategy adopted by the Sacramento Area Council of Governments (SACOG), and are consistent with a specific plan for which an environmental impact report (EIR) was certified, here, the River District Specific Plan. The exemption permits additional environmental review only in limited circumstances detailed in PRC 21166. The text of PRC section 21155.4 is included as Attachment 13. Save the American River Association (SARA) filed a third- party appeal of the Design Director’s decision.
On June 13, 2024, the Planning and Design Commission considered SARA’s third-party appeal at a public hearing. At the conclusion of the hearing, the Commission made a determination that the project is exempt from CEQA and approved the site plan and design review and tree permit, thereby denying the third-party appeal, consistent with staff’s recommendation.
Pursuant to Sacramento City Code (SCC) 17.812.060.A.2, “a commission-level decision made on an appeal of a director-level decision may not be appealed.” As such the Planning and Design Commission’s decision on site plan and design review and tree permit are final and not subject to appeal. However, pursuant to PRC section 21151(c), when a CEQA determination is made by a non- elected body, an appeal of that determination is available to an elected body, in this case the City
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Council.
SARA (see Attachment 4) and Laborers International Union of North America, Local 185 (LIUNA) (see Attachment 5) filed third-party appeals of the Planning and Design Commission’s CEQA determination. The SARA appeal alleges the proposed project does not satisfy the requirements of the PRC section 21155.4; LIUNA asserts that the emission of formaldehyde from composite wood finishing materials used in the interior of the proposed makes the exemption inapplicable and requires additional CEQA review.
If the City Council determines that the proposed project is eligible for the statutory exemption pursuant to PRC section 21155.4 (thereby denying the third-party appeals), the project may proceed to construction. If the City Council determines that the project has not satisfied the exemption criteria, the project would be required to either demonstrate it can satisfy the exemption criteria, or satisfy the provisions of CEQA via another manner such as the preparation of an initial study that leads to adoption of a mitigated negative declaration (MND) or certification of an environmental impact report (EIR).
City staff has reviewed both appeals and concludes that substantial evidence supports the City’s determination that the proposed project is exempt pursuant to PRC 21155.4. Furthermore, as set forth below, staff has determined that neither SARA nor LIUNA has presented substantial evidence to permit the City to require additional environmental review. Therefore, staff recommends denial of both appeals, on the grounds set forth below. A Notice of Exemption would be filed if the City Council denies the appeals. A Notice of Exemption affects the period in which a party may file a suit challenging the City’s CEQA determination.
Appeal Detail:
Each of the two appeals challenges the City’s reliance on PRC section 21155.4 to exempt the project from CEQA review.
The SARA appeal alleges the project is not within a transit priority area and is not consistent with the River District Specific Plan. The SARA appeal further alleges the City must require additional environmental review pursuant to PRC 21166, incorporated into PRC 21155.4, because the height and location of the proposed buildings may cause alleged aesthetic, noise, and biological impacts.
Staff’s analysis of these allegations is set forth in the Environmental Considerations section below.
The LIUNA appeal alleges that the City must require additional environmental review pursuant to PRC 21166, incorporated into 21155.4, because new information of substantial importance, not available at the time the River District Specific Plan was adopted (PRC 221166 (c)), allegedly demonstrates that the proposed project would have a significant effect on the environment.
Specifically, LIUNA asserts the proposed project’s use of composite wood finishing materials for the project’s interior spaces would emit formaldehyde at levels resulting in cancer risks exceeding the
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Sacramento Metropolitan Air Quality Management District 10 in a million-cancer risk threshold for ambient air quality.
Staff’s recommendation to approve the project has not changed following review of the issues raised by the appellants. Staff recommends the City Council find that Public Resources Code section 21155.4 exempts the project from CEQA review and deny the appeals.
Public/Neighborhood Outreach and Comments: As part of the application review process, the proposal was routed to Preservation Sacramento, Civic Thread, Sacramento Area Bicycle Advocates, Region Builders, The River District (PBID), and Save the American River Association (SARA).
Additionally, the site was posted with project information at the time of application submittal. SARA expressed concern, met with staff, appeared at hearings, and has appealed the Planning and Design Commission reliance on PRC section 21155.4. On behalf of I.M. Investment, LLC, Remy Moose Manley LLP has submitted response letters to SARA’s appeal letter (Attachment 14).
Policy Considerations: In public hearings, both the Design Director and Planning and Design Commission determined that the project was consistent with the 2040 General Plan, the River District Specific Plan, and the requirements of the Planning and Development Code. These determinations are not subject to review as part of these appeals, which are limited to issues associated with the California Environmental Quality Act (CEQA).
Environmental Considerations: The American River One project (DR22-238) is located at 450 & 500 Bercut Drive within the City of Sacramento. The site is located within the River District Neighborhood at the southeastern corner of Interstate 5 and the American River. The project site was previously occupied by the Rusty Duck Restaurant, which was demolished on July 31, 2019.
The project site is located in the Sequoia Pacific Boulevard Area of the specific plan area. (Figure
3.6). The project is consistent with the vision for this area set forth in the specific plan:
The Specific Plan vision for the Sequoia Pacific Boulevard Area is one that takes advantage of the area’s proximity to a future Green Line light rail transit station located on Sequoia Pacific Boulevard.
The station is expected to be a gateway into the River District and Central City from the Sacramento International Airport. The station and its surroundings will be a defining feature of this Area, including a pedestrian plaza surrounded by a transit supportive mix of office and residential uses. The Area is also expected to include local and visitor-serving retail and commercial uses. Please note that Sequoia Pacific Boulevard will be changing its name to North 4th Street. (River District Specific Plan, page 25.) The Specific Plan makes reference to the American River Parkway Plan, which also anticipates development in the area.
American River Parkway Plan Policy 7.25 states: Between the confluence of the Sacramento and American rivers and the Capital City Freeway (Business-80) the Parkway context is the Sacramento
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downtown urban core for the Sacramento metropolitan region. Protection of the Parkway’s aesthetic values in this reach should be accomplished within the context of creating a vital urban area.
Development immediately adjacent to the Parkway shall respect the intent of the Parkway goals by reducing visual impacts through context sensitive site planning and building design. (American River Parkway Plan 2008, page 32, accessed 8/5/2024 at
https://regionalparks.saccounty.gov/Parks/Documents/Parks/ARPP06-092617_sm.pdf) As set forth below, the Environmental Planning Services Manager has determined that the project is exempt from review under the California Environmental Quality Act (CEQA) pursuant to the statutory exemption provided in Public Resources Code (PRC) section 21155.4. This exemption is part of the Sustainable Communities Strategy applicable to transit priority projects.
Background
The American River One project proposes a residential mixed-use development on a 3.06-acre site located within the River District Specific Plan (RDSP), the General Commercial (C-2-SPD) zone, and the River District Special Planning District (SPD). The project requires Site Plan and Design Review, and Tree Permit; as such, is a “project” as defined by CEQA. The approval of the Site Plan and Design Review and Tree Permit are final. The appeal only challenges to the City’s CEQA determination.
The project qualifies for the statutory CEQA exemption in PRC 21155.4 The Environmental Planning Services Manager has concluded that the proposed project qualifies for a CEQA statutory exemption pursuant to Public Resources Code (PRC) section 21155.4 and CEQA Guidelines section 15182 (b). Section 21155.4 was added to the PRC by Senate Bill (SB) 743 and provides an exemption from additional CEQA review for projects that are located in a transit-priority area, are consistent with the Sustainable Communities Strategy adopted by the Sacramento Area Council of Governments (SACOG), and consistent with a specific plan for which an environmental impact report (EIR) was certified. The statutory exemption applies according to its terms, which are discussed in detail below. The proposed project qualifies for the exemption.
PRC section 21155.4 is part of a comprehensive legislative approach to reducing vehicle miles traveled and supporting the state’s efforts to reduce greenhouse gas emissions. The legislature included the following that applies to PRC section 21155.4:
With the adoption of…the Sustainable Communities and Climate Protection Act of 2008 [SB 375], the Legislature signaled its commitment to encouraging land use and transportation planning decisions and investments that reduce vehicle miles traveled and contribute to the reductions in greenhouse gas emissions required in the California Global Warming Solutions Act of 2006… (SB 743, section 1(a)(1); Stats. 2013, Ch. 386.) SB 743 builds upon the reductions mandated by SB 375. Under SB 375 mandated reductions may
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be achieved through a variety of means, including “smart growth” planning to maximize building densities at locations served by public transit and to locate residences near needed services and shopping to reduce automobile dependency, shifting investment toward mass transit, changing transportation pricing, and encouraging car sharing, walking, and biking. SB 743 built upon this, making use of specific plans in PRC section 21155.4 in particular, for even better alignment with environmental goals that include reduction of greenhouse gas emissions and promotion of infill development.
A Sustainable Communities Strategy is a coordinated land use and transportation plan designed to reduce greenhouse gas emissions. (Gov. Code, section 65080.) The four requirements of the PRC section 21155.4 are set forth below, together with SARA’s allegations related to the requirements
1. Requirement: The project must be a residential, employment center or mixed-use development project. (Gov. Code, section 21155.4 (a).)
Contention: SARA does not dispute that the project satisfies this requirement.
Response: The American River One Project proposes to construct a mixed-use development that would consist of 787 residential units and +4,114 square feet of retail space.
The 2040 General Plan defines mixed-use development as, “[p]roperties on which various uses, such as office, commercial, institutional, and residential, are combined in a single building or on a single site in an integrated development project with significant functional interrelationships and a coherent physical design. See also PRC section 21159.25(1). A “single site” may include contiguous properties.
Further, the American Planning Association defines mixed-use development is an alternative to single-use development. It places multiple uses within a site, such as street-level retail with residential units above (vertical mixed-use), or co-locates uses within a designated area, such as neighborhoods that offer residential, commercial, and civic spaces within walking distance (horizontal mixed use) (American Planning Association,
https://planning.org/blog/9227408/supporting-active-living-through-mixed-use-developments/).
The proposed project qualifies as a mixed-use development project, consistent with this requirement.
2. Requirement: The project must be located in a transit priority area, as defined in subdivision (a) of Section 21099. (Public. Resources Code, section 21155.4 (a).) Contention: SARA alleges the proposed project is not within a transit priority area because
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Contention: SARA alleges the proposed project is not within a transit priority area because SACOG has purportedly not adequately substantiated the conclusion that the light rail station within ½ mile of the project, qualifies as “planned.”
Response: Section 20199 definestransit priority area as including an area within ½ mile of an existing or planned major transit stop, if the planned stop is scheduled to be completed within the planning horizon included in a Transportation Improvement Plan or applicable regional transportation plan. Pursuant to PRC section 21064.3, amajor transit stop is a site containing an existing rail transit station or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.
SACOG has adopted the Metropolitan Transportation Plan/Sustainable Communities Strategy (MTP/SCS), the regional transportation plan for the Sacramento region. The MTP/SCS includes an extension of the light rail, the Green Line, from Township 9 to the Natomas Town Center, to be completed by 2030. The American River One project site is located one block away from (and within ½ mile of) from planned light rail stop at Richards Boulevard and North 3rd Street.The station is shown on SACOG’s GIS system mapping the transportation projects identified in the MTP/SCS, as confirmed by SACOG in a written concurrence letter and follow- up email (see Exhibits 6 through 10). The planning horizon for the MTP/SCS is 2040, therefore, the station is planned for completion within the planning horizon.
The proposed project is located in a transit priority area, consistent with this requirement.
SARA disputes this conclusion, asserting that the proposed station is not “planned” and that the Green Line must still undergo environmental review. The extension of the Green Line from Township 9 to the Natomas Town Center, as shown on the map in SACOG’s GIS mapping of the line, includes a planned stop at Richard’s Boulevard and North 3 rd Street, to be completed
within the planning horizon. The statutory criteria is therefore satisfied and SARA’s speculation does not constitute substantial evidence to the contrary.
Requirement: The project is undertaken to implement and is consistent with a specific plan for which an environmental impact report has been certified. (Pub. Resources Code, section 21154.4 (a)(2)) Contention: SARA contends the project is not consistent with the River District Specific Plan because a portion of the project is located on a parcel with a height limit of 35 feet.
Response: The proposed project’s land use is consistent with the River District Specific Plan.
The City prepared and certified an EIR for the Specific Plan. The Specific Plan EIR was certified, and the Specific Plan adopted, on February 15, 2011 (State Clearinghouse #2009062023).
The City determines a proposed project’s consistency with the Specific Plan. Consistency is
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The City determines a proposed project’s consistency with the Specific Plan. Consistency is achieved if a project will further the overall objectives and policies of the Specific Plan and not obstruct their attainment, recognizing that a proposed project may be consistent with the overall objectives of the Specific plan, but not with each and every policy. In all instances, in making a determination of consistency, the City may use its discretion to balance and harmonize policies with other complementary or counter prevailing policies in a manner that best achieves the Specific Plan’s overall goals.
The policies and development standards established within the Specific Plan are implemented (see River District Specific Plan chapter 9) through the River District Special Planning District (SPD) (SCC chapter 17.436) and the River District Design Guidelines. Pursuant to SCC chapter 17.808, through site plan and design review, deviations from applicable development standards and guidelines may considered and granted in order to meet the purpose and intent of the applicable development standards and design guidelines.
The proposed height of the development on APN 001-0181-016-0000 is 152 feet (not counting mechanical screening and PV array on all towers which are in conformance with SCC §17.600.145.A), exceeding the 35 foot height shown in the River District Specific Plan.The Specific Plan allows for height variation in certain circumstances. The Specific Plan states under section 3.3 thatdevelopment regulations including land use and zoning, density and height standards, building setbacks and parking regulations will be implemented under the River District Special Planning District codified in SCC chapter 17.436. In turn, SCC §17.436.040.B.1.a, governs height standards in the River District area. The section provides that design review or preservation review conducted at the director or commission level under chapter 17.808 may address and modify the required height to achieve the intent and purposes of the River District Urban Design Guidelines.
Through the site plan and design review process, the Planning and Development Commission found the design, layout, and physical characteristics of the proposed development are consistent with all applicable design guidelines and development standards, and the deviations for height, tower separation, and bulk control are consistent with the purpose and intent of the applicable design guidelines and development standards of the C-2-SPD zone, the River District SPD, and the architectural design standards within the River District Design Review guidelines. The increased height meets the purpose and intent of the development standards by serving as a transitioning height to adjacent towers, the height proposed correlates with adjacent parcels maximum height allowances, and the increased height takes advantage of riverfront views in accordance with the River District SPD.
The Planning and Design Commission further found that thetowers’ decreased separation meets the purpose and intent of the River District guidelines by staggering the towers to mimic
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meets the purpose and intent of the River District guidelines by staggering the towers to mimic the curvilinear nature of the river to increase the view shed and creating full glass enclosures to increase visual permeability. The design of the project meets the purpose and intent of the goals and policies set forth in the bulk control standards as the development intensifies the density of the project yet steps down the towers to create a varied and defined skyline. Moreover, the design of the buildings and site seeks to balance urban uses with activities and design appropriate to the river setting. For example, vertical elements of the buildings terrace down toward the river and enable views through the development towards the other bank of the river. In addition to terracing down to the river, the building massing is broken into four main forms creating river facing, open-ended courtyards, minimizing the building frontage adjacent to the river. The project will encourage increased access and activity along the riverfront bike trail and appreciation of the ecological setting.
Finally, the Planning and Design Commission found the design, layout, and physical characteristics of the proposed development are visually and functionally compatible with the surrounding neighborhood and the intent of future development planned within the River District SPD in that the proposed project will result in the construction of housing and commercial space that will serve to activate the west portion of the River District. The project meets the intent of the scale, massing, and setbacks regulations and is in keeping with the allowed height restrictions within the Sequoia Pacific Boulevard Area and the wider context of the River District neighborhood.
The project is consistent with the River District Design Guidelines. The proposal steps the height down towards the east in accordance with River District Design Guidelines for Bulk Controls - Tower Separation and Height Differentiation. Guideline 3 Height Differentiation explains that,… any new high rise should be at least 50’ shorter or taller than the two towers closest to it (measured in plan as a radius from the center of the diagonal). The taller towers (towers 1 and 2) are approx. 194 feet, which is a drop of 42 feet and meets the intended design criteria of the guideline. The River District Framework adds that buildingheights along the American River will transition from high-rise along Interstate 5 to mid-rise heights at North 5th Street (page 2-37). Moreover, the parcel across the street is zoned for 150 feet height maximum which will give the development context to the adjacent parcels and the surrounding neighborhood.
The River District Design Guidelines (page 4-1) notes that not all design principles will be met on any given project but can be mitigated with Alternative Design methodswhen the proposed design provides equal or greater amenities and benefits to compensate for areas of the project design not in compliance. The project design locates much of the tower massing to the south of the parcels to create public amenity spaces including an urban plaza on the ground floor and public open space on the podium level, and rooftop sky terrace on tower 1, 2, and 4.
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and public open space on the podium level, and rooftop sky terrace on tower 1, 2, and 4.
Additional public areas include a dog park on the northeast side of the property and a new public right of way access point to the Two Rivers Bike Trial running along the top of the American River levee. The inclusion of these public spaces nearly double what was required are intended to complement the buildings and provide needed relief from the hardscape and intensity of the denser land use patterns within the project site and the overall River District fabric.
The River District Specific Plan makes reference to the American River Parkway Plan. The project site is adjacent to, but not within the American River Parkway Plan area. The American River Parkway Plan was adopted in 2008, prior to the adoption of the Specific Plan in 2011; the American River Parkway Plan influenced the development of the Specific Planand the Specific Plan was found to be in conformance with the Parkway Plan. The Parkway Plan divides the plan area into distinct sub-units, intended to provide a comprehensive description of the individual areas. The area plans contain a detailed description of current and/or proposed future activities, location of natural and man-made features, facilities, opportunities, and constraints. The Planning and Design Commission found, and staff believes the design, layout, and physical characteristics of the proposed project are consistent with the American River Parkway Plan goals and policies.
The Parkway Plan acknowledges that buildings will be seen from the Parkway, stating,this area of the City of Sacramento provides a more urban context that is distinctly different than other areas of the Parkway. On the south side of the river is the downtown core of the Sacramento metropolitan region. Since views of downtown high-rise buildings and urban infrastructure already exist in this portion of the Parkway, the aesthetic values are different.
Here, views of the river and the Parkway, juxtaposed against high-rises in the distance, remind the visitor of the Parkway’s context-an open space greenbelt preserved in the urban core.
Views from the Parkway toward adjacent land uses in this area are expected to include some visible urban structures. (Parkway Plan, pg. 113)
The City has concluded that the project is consistent with the River District Specific Plan, a finding clearly within the City’s purview as it has unique competence to interpret its own Specific Plan and implementing policies. (Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 155.)
3. Requirement: The project is consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in a sustainable communities strategy for which the State Air Resources Board (ARB) has accepted a metropolitan planning organization’s determination that the sustainable communities CEQA review strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emissions (GHG) reduction targets.
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Contention: SARA does not dispute this finding.
Response: The proposed project is consistent with the MTP/SCS adopted by SACOG.
SACOG certified a final EIR for the MTP/SCS (State Clearinghouse #20119049139). The ARB has accepted SACOG’s determination that the plan would achieve GHG reduction targets. AB 350 (See Government Code 65080 (d)(G)(3)(A) and (B)) extended the applicability of SACOG’s MTP/SCS. The written concurrence and follow-up email from SACOG regarding the City’s determination of consistency with the MTP/SCS is included as Exhibits 6 through 10.
The proposed project is consistent with the MTP/SCS, consistent with this requirement.
4. Requirement: Further environmental review shall be conducted only if any of the circumstances set forth in PRC 21166 have occurred.
Contention: The appeal asserts that project impacts for aesthetics, lighting, and biological resources are new information requiring further environmental review.
Response: PRC 21155.4 provides that “Further environmental review shall be conducted only if any of the events specified in Section 21166 have occurred.” PRC section 21166 and its implementing CEQA Guidelines section 15162, provide that once a lead agency has completed its environmental review of a project, as is the case here with the RDSP, CEQA, a lead agency may conduct further environmental review only if specific events have occurred.
Those events are:
“(a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report.
(b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.” The limitations of PRC section 21166 and the CEQA Guidelines provisions in section 15162 are designed to balance CEQA's central purpose of promoting consideration of the environmental consequences of public decisions with interests in finality and efficiency and effectuate other legislative goals such as CEQA streamlining and statutory exemptions.
The River District Specific Plan was adopted as part of the planning process intended to encourage the “…evolution of the Plan area from a primarily light-industrial, low-intensity district, to a cohesive district with a mix of residential, commercial, industrial, public, and open space uses…The Specific Plan would serve to guide future decisions regarding land use, intensity of development, circulation, public spaces, urban design, and the necessary infrastructure improvements to support future development.” (Specific Plan EIR, page 3-1.)
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As noted throughout the Specific Plan and Specific Plan EIR, development along the south side of the American River was contemplated, and the EIR included such plans in its analysis. (See, for example, Specific Plan EIR Figure 4-2, showing urban zoning for parcels along the American River.)
The American River One project presents no outstanding or unique site issues that would not have been considered in the Specific Plan EIR review.
Biological Resources. Height limits along the south side of the American River range from 35 feet to 200 feet. There is no substantial evidence that height limits affect biological resources, and the height limits were not adopted as mitigation for any such impacts. The presence of varying height limits along the river is indicative of planning concerns, subject to deviations where appropriate, and not CEQA issues. Impacts to biological resources resulting from development consistent with the specific plan were considered. Mitigation measures 5.2-2 (nesting birds), 5.2-3 (bats), 5.2-4 (elderberry longhorn beetle) addressed such impacts. The generalized claims of the appeal present no new issues of significance.
Aesthetics. The appeal asserts that significant effects would occur with regard to aesthetics and lighting. The City is prohibited from requiring analysis of alleged aesthetic impacts for the project pursuant to PRC 21099, subd. (d)(1). Nonetheless, the site plan and design review process, addresses these issues, which are inevitably involved in urban development, through design and location. These are not new issues that were not known or could not have been known at the time of the approval of the Specific Plan and certification of the associated EIR as complete as provided in PRC section 21166. The project site is identified as an appropriate location for urban development in the General Plan, Specific Plan, and the Planning and Development Code, and the City’s review process addresses relevant issues inherent with project development. The appeal points to no unusual factors that would support a finding of significant environmental effect.
The cumulative effects have been evaluated in the General Plan Master EIR and the specific plan EIR. The asserted project-specific effects for aesthetics, lighting, and biological resources do not constitute significant effects. Instead, they are inevitable features of urban development. The City design process ensures the project will be developed in a manner that respects the natural features of the site, as well as the biological resources in the area.
The site plan and design review process, followed here with this project, includes a detailed review of the project design, and minimizes the potential for significant effects. The discussion below highlights relevant aspects of the site plan and design review process.
The project was developed in accordance with the River District Design Guidelines for Façades which will have the most impact on a city’s urban and architectural character.
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Façades which will have the most impact on a city’s urban and architectural character.
Categories in this section address a range of issues - ground uses, transparency, articulation, fenestration, sunshades, projections, & materials - that will ultimately give the building its look and feel.
Aesthetically, the layout of the towers is juxtaposed over the podium which breaks up the façade as you pass by the site or walk through it. The scale is in keeping with the allowed height restrictions within the zone and the wider context of the neighborhood. The design employs varying exterior sunshade treatments to the different elevations allowing the fenestrations to morph depending on the vantage point while utilizing balconies to create negative space and shadow play, further breaking down the massing of the towers.
To minimize adverse visual and lighting impacts on the aesthetic resources of the Parkway the development design has evolved to offset the towers towards the southern portion of the site allowing a podium level courtyard to exist and be better utilized facing the riverfront. The towers will range from approximately 33’-6” and 168’-0” away from the northern property line.
The towers will use a variety of screening devices - perforated metal paneling, sunshades, shading louvers, frosted glass - to mitigate light spillage onto the Parkway. Additional perforated metal panel screening with vegetation will be provided on the podium level garage structure to address light spillage onto the parkway and building.
Rooftops will provide additional landscaping to soften the verticality of the towers facing the Parkway. The color palate will consist of earth and gray tones with frosted glass paneling. The project has selected shielded fixtures with full cutoff optics that are dark sky compliant of zero up light to reduce light pollution with additional conditions for light levels to remain at zero-foot candles at the property line. Lastly, the project will be prohibited from adding signage on the Parkway side on the development. Staff believes the design, layout, and physical characteristics of the proposed project are consistent with the American River Parkway Plan goals and policies.
Noise. Pursuant to the 2040 General Plan Goal ERC-10, The City shall require noise mitigation for all development where the projected exterior noise levels exceed those shown in Table ERC-1, to the extent feasible (70 dBa). The development team consulted with I.M.
Investment, LLC to prepare an Environmental Noise Assessment report. Recommended mitigation measures to satisfy interior and exterior noise criteria can be found on page 13 (Attachment 12). Given that the project has addressed the required noise mitigation measures and provided an assessment report with recommended solutions, staff has no concerns that the proposed project will negatively impact the public health or welfare of individuals using the affected exterior open spaces of the development.
PRC 21166 and CEQA Guidelines section 15162(a) do not allow new CEQA review
File ID: 2024-01574 9/17/2024 Public Hearing Item 15.
The LIUNA appeal asserts that new information of substantial importance requires supplemental CEQA review of the River District Specific Plan (RDSP) EIR. As stated above, PRC 21155.4 incorporates PRC 21166 which provides that once a lead agency has completed its environmental review of a project, as is the case here with the River District Specific Plan, a lead agency may conduct further environmental review only if specific events have occurred. One of those events is “…[n]ew information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:
(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration….” (CEQA Guidelines section 15162)
The River District Specific Plan EIR was certified, and the Specific Plan adopted, on February 15, 2011. There have been no substantial changes in the RDSP or in the circumstances in the specific plan area or with respect to the American River One Project that would affect the EIR analysis and conclusions. The appellant asserts that the new information cited in the appeal requires new CEQA review pursuant to PRC section 21166.
LIUNA asserts that proffered evidence of allegedly potentially significant indoor air quality impacts from formaldehyde in building materials constitutes new information of substantial importance which could not have been known with the exercise of reasonable diligence at the time of the previous EIR.
LIUNA and its retained Certified Industrial Hygienist and Professional Mechanical Engineer, Francis J. Offermann, fail to present evidence of new information of substantial importance which could not have been known in February of 2011, when the River District EIR was certified.
First, the appeal acknowledges that exposure to formaldehyde in building materials is not new information.
While the appeal is correct in stating that the substantial evidence standard applies, the result of applying the standard is to uphold the staff analysis and conclusions.
Formaldehyde has many applications, including use as a building material. Concerns regarding formaldehyde, and potential health effects, are long-standing. The California Air Resources Board (CARB) recounts some of this history on its web site:
CARB identified formaldehyde as a toxic air contaminant (TAC) in March 1992.
According to section 39655 of the California Health and Safety Code, a TAC is "an air pollutant which may cause or contribute to an increase in mortality or an increase in serious illness, or which may pose a present or potential hazard to human health." Following its identification, CARB evaluated formaldehyde exposure in California and
File ID: 2024-01574 9/17/2024 Public Hearing Item 15.
found that one of the major sources of formaldehyde exposure is from inhalation of formaldehyde emitted from composite wood products that contained formaldehyde resins. These emissions resulted from the release of unreacted formaldehyde from the resins in the composite wood products and from chemical degradation over time.
Resins used to bond wood materials typically contain formaldehyde. CARB, in its evaluation, proposed a regulation to reduce emissions of formaldehyde from hardwood plywood, particleboard, and medium density fiberboard panels, and finished goods, such as furniture and cabinets fabricated with those materials.
On April 26, 2007, CARB approved an airborne toxic control measure to reduce formaldehyde emissions from composite wood products that are sold, supplied, used, or manufactured for sale in California. (Source: https://ww2.arb.ca.gov/our- work/programs/composite-wood-products-program/about, accessed July 23, 2024) The issues surrounding formaldehyde in building materials have been known and were known at the time of the certification of the specific plan EIR. Once an EIR is finally approved, even a court cannot compel an agency to perform further environmental review for any known or knowable information about alleged impacts, even if omitted from analysis in the EIR.
The appeal agrees that CARB approved a regulation entitled Composite Wood Products Airborne Toxic Control Measure in 2007 - prior to the specific plan’s 2011 EIR - to regulate and reduce formaldehyde emissions from composite wood products that are sold, supplied, used, or manufactured for sale in California. The appellant’s own argument refers to a study from 2009 on formaldehyde, demonstrating that the issue of formaldehyde in composite wood products does not constitute significant new information.
LIUNA’s citation to it proffered expert’s more recent studies do not constitute the type of new information contemplated by section 21166. The state was aware of formaldehyde use and formaldehyde emissions from composite wood products, based on published reviews and studies, well before the specific plan EIR was circulated for public comment; the issue of formaldehyde in building materials and its potential effects had been discussed in literature for years before the specific plan EIR was certified.
Second, LIUNA has not provided any substantial evidence to support their claim that the project will be constructed with building materials with significant amounts of formaldehyde.
Third, Mr. Offermann’s analysis is not credible because LIUNA’s claim regarding a threshold of significance, and reliance on the Offerman report, is misplaced. LIUNA relies on a threshold that is not applicable. That threshold is designed to evaluate the increase in risk above ambient air quality conditions, i.e., outdoor air, not indoor. The appellant is challenging the interpretation and application of rules, not presenting new information of substantial importance. (See letter from Applicant dated
File ID: 2024-01574 9/17/2024 Public Hearing Item 15.
June 12, 2024.)
Fourth, LIUNA and Mr. Offermann demand the City to consider the environmental impact of the project on itself, rather than the environmental impact of the project on the environment, as CEQA requires. CEQA requires the examination of effects to “be limited to . . . adverse changes in physical conditions which exist within the area as defined in Section 21060.5.” (Public Resources Code, § 21151 (b).) The “environment” is, as defined in Public Resources Code § 21060.5, “the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.” (Emphasis added). ).
Health and safety law outside of CEQA - the highly specialized CARB and its regulations and the California Building Standards Code - uniformly and comprehensively address the issue in keeping with state policy and preempt local agency regulation of such consumer products.
Fifth, regulation of building materials falls squarely within health and safety laws outside of CEQA.
CARB, CARB regulations, and the California Building Standards Code uniformly and comprehensively address building materials, enforced at the building permit stage through CALGreen requirements. Local agencies are without jurisdiction to interfere with this comprehensive regulatory scheme.
The specific plan has been in effect without challenge since its adoption. There have been no major land use changes in the specific plan since its adoption, and no new major transportation infrastructure projects that would substantially change the anticipated circulation system. Continued development of Township 9, construction and operation of the state facility on Richards Boulevard (May Lee State Office Complex), construction and operation of the Twin Rivers residential development, and approval of the Grower’s District project on North 16th Street are each consistent with the character of development anticipated in the specific plan.
The proposed project does not request an amendment to the specific plan. As discussed in this staff report, the project complies with objective requirements of the specific plan and is consistent with the goals and objectives of the specific plan as well.
None of the circumstances set forth in PRC section 21166 or CEQA Guidelines section 15162 that would require new CEQA review have occurred.
The proposed project is, therefore, exempt from additional CEQA review.
Commission/Committee Action:
On April 18, 2024, the Design Director considered the project at a Director Hearing and approved the project entitlements, including the use of a CEQA exemption pursuant to PRC section 21155.4, consistent with staff’s recommendation. A third-party appeal of the Design Director Decision was filed on April 29, 2024 by SARA.
File ID: 2024-01574 9/17/2024 Public Hearing Item 15.
On June 13, 2024, the Planning and Design Commission considered the third-party appeal at a public hearing. At the conclusion of the hearing, the Commission made a determination that the project is exempt from CEQA and granted the project entitlements, thereby denying the third-party appeal, consistent with staff’s recommendation. Third-party appeals of the Commission’s decision were filed on June 18, 2024, by LIUNA, and on July 19, 2024 by SARA.
Rationale for Recommendation:
Staff recommends the City Council determine that the project satisfies the statutory criteria for the CEQA exemption pursuant to PRC section 21155.4, thereby denying the third-party appeals, based on the findings of fact listed in Attachment 3. Staff supports the use of this exemption because the project, as designed and as conditioned, is consistent with the provisions of PRC section 21155.4 in that the project is a mixed-use development within a transit priority area, is consistent with a specific plan for which an EIR was certified, is consistent with an adopted MTP/SCS, and no circumstances set forth in PRC section 2116 or CEQA Guidelines section 15162 have occurred that require new CEQA review. Further, the project is required to satisfy California Building Code and CALGreen requirements related to formaldehyde limits which will be confirmed at the time of building permit submittal.
Financial Considerations: Not applicable.
Local Business Enterprise (LBE): No goods or services are being purchased under this report.
1 MEMORANDUM
Date: September 17, 2024
To: Mayor Steinberg and Members of the City Council
From: Tom Buford, Principal Planner, Manager, Environmental Planning Re: American River One (DR22-238): LIUNA Submittal dated September 13, 2024 City Council Agenda September 17, 2024, 5:00 p.m., Item 15 The C
ity Council is scheduled to hear the appeals of Save the American River Association (SARA) and Laborers International Union of North America, Local Union 185 (LIUNA) regarding the American River One project. The staff report includes a full discussion of the appeals, including substantial evidence supporting the staff recommendation for denial of the two appeals that have been filed.
As discussed in the staff report, the statutory exemption relied on throughout the project review was added as part of SB 743 and the Sustainable Communities Strategy. SB 743 had the following objectives:
Combat climate change
Reduce greenhouse gas emissions
Encourage infill development
Promote multi-modal transportation networks
On September 12, 2024, LIUNA submitted additional materials in support of its appeal. Its letter reiterated its assertion that new information was available that should be considered. LIUNA attached a report from Dr. Shawn Smallwood, Ph. D., supporting its assertion that potential specific plan impacts related to habitat destruction, interference with wildlife movement, bird- window collisions, and wildlife displacement were not contemplated or addressed when the EIR for the River District Specific Plan was certified.
This Memorandum provides staff response to LIUNA’s supplementary material.
2 As explained in the staff report, the Design Director, in approving the project, and the Planning and Design Commission, in denying SARA’s appeal, determined that the project was exempt from review under the California Environmental Quality Act (CEQA). The basis for each determination was project satisfaction of the requirements set forth in Public Resources Code section 21155.4, part of the Sustainable Communities Strategy. The project was found to satisfy each of the following requirements:
Residential or mixed use project;
Consistent with the Sustainable Community Strategy adopted by the Sacramento Are a
C
ouncil of Governments;
Consistent with a specific plan for which an EIR was certified, in this case the River District Specific Plan, EIR certified, and the specific plan adopted, on February 15, 2011; Located in a transit priority area.
As with its initial appeal filing, LIUNA presents what it asserts are new facts and information, supported by an expert’s report. As noted in its correspondence, LIUNA asserts that this information was not contemplated or addressed when the specific plan EIR was adopted. This, however, is not the standard that is applied to the Sustainable Communities Strategy exemption review.
LIUNA is correct in stating that section 21155.4 includes a provision for additional review, but “…only if any of the events specific in Section 21166 have occurred.” PRC section 21166 clearly identifies the standard that must be met:
“(c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.” Section 21166 restricts the City from requiring additional environmental review to three circumstances. Two of those address situations in which there are substantial changes in the project, or the circumstances under which the project is being undertaken. Staff have determined that the project is consistent with the specific plan, and no amendment is required.
There has been no project change.
Nor have the circumstances changed: development within the specific plan has proceeded generally as anticipated. Neither of these exceptions apply.
LIUNA relies on the third circumstance. The submittal by LIUNA dated September 12, 2024, claims that new information has been submitted that must be considered in the River District Specific Plan CEQA process, requiring a supplemental EIR.
As with LIUNA’s initial appeal filing, the information alluded to in its correspondence, and the report attached, concern matters that were known at the time of certification of the River District Specific Plan EIR. The project site is located within the Sequoia Pacific Boulevard Area of the specific plan, which is described as extending to the American River (Specific Plan, page 25); Figure 3.6, River District Areas, clearly shows the specific plan area’s proximity to the American River; Section 6.2 of the specific plan discusses River Parkways and Trails; and Section 6.3 discusses Development Adjacent to Levees.
3 Indeed, the specific plan highlights this feature: “The uniqueness of the River District is defined by its proximity to the American and Sacramento Rivers…These natural features will guide the framework for the new District—with increased access, parkland and development facing the rivers.” (page 61) Development adjacent to the American River was one of the key features of the specific plan, and comes as no surprise.
The Draft EIR included analysis of the specific plan’s potential effects on biological resources.
Appendix C to the Draft EIR is a Biological Resources Assessment completed by biologists at AECOM in December 2009. The report includes a description of habitat, special-status species, and sensitive plant species.
The specific plan Draft EIR identified a potential impact on special-status birds in Impact 5.2-2. (Draft EIR, page 5.2-8) This analysis, and mitigation measures 5.2-2(a) and 5.2-2(b) are substantial evidence that the information asserted by LIUNA as new was, in fact, both contemplated and discussed in the Draft EIR.
LIUNA points to the potential for habitat destruction, interference with wildlife movement, bird- window collisions, and wildlife displacement. This is not new information as required by Section 21166. Biological resources were identified and considered in the River District Specific Plan EIR, and Appendix C, Biological Resources Assessment. Identifying various components of potential effects on biological resources is not “[n]ew information, which was not known and could not have been known at the time the environmental impact report was certified as complete.”
For example, bird strikes are cited by LIUNA as negating the Sustainable Communities Strategy exemption. The issue of bird strikes, however, has been discussed for many years, and information regarding the issue was available and known at the time the River District Specific Plan EIR was certified. Audubon, for example, notes that concern, advocacy, legislation, and research relating to birds injured or killed by window strikes have been ongoing activities since at least 1967. (https://www.audubon.org/news/surprisingly-l ong-history-movement-make-
buildings-safer-birds, accessed online September 16, 2024) Conclusion
The supplementary materials submitted by LIUNA dated September 12, 2024, do not provide substantial evidence of new information of the sort referenced in Public Resources Code section 21166.
Staff recommends denial of the appeals.