Brent R. McManigal
Director
[email protected]
550 E Hospitality Ln, Suite 350
San Bernardino, California 92408
PH (909) 723-1807 | FX (909) 890-9877
fennemorelaw.com
August 19, 2026
VIA E-MAIL AND U.S. MAIL
Honorable Mayor and Members of the City Council
City of San Bernardino
201 North E Street, 3rd Floor
San Bernardino, California 92401
[email protected]
Chantel Choice, Senior Planner
Community Development & Housing Department
City of San Bernardino
201 North E Street, 3rd Floor
San Bernardino, California 92401
[email protected]
Re: Verdemont Heights Residential Development (Tentative Tract Map No. 20707) - Response to SAFER Appeal and Request to Uphold Planning Commission Approval
Dear Honorable Mayor and Members of the City Council:
This firm represents the Project Applicant for the Verdemont Heights Residential Development, Tentative Tract Map No. 20707 (the "Project"). We submit this letter in support of the Project, in opposition to the appeal filed by Supporters Alliance for Environmental Responsibility ("SAFER"), and in support of the Planning Commission's July 14, 2026 approval of the Project.
The appeal should be denied. SAFER has not submitted any new information or any response to my July 13, 2026 letter that responded to their initial opposition letter. SAFER has simply reattached the same June 24, 2026 Lozeau Drury/Smallwood materials that were before the Planning Commission when the Project was approved.
For the Council's convenience, my July 13, 2026 response letter is attached as Exhibit A and incorporated by reference. That letter addresses SAFER's biological resource claims in detail. This appeal letter focuses on the dispositive point for the Council that SAFER has not provided any substantial evidence that supports its assertion that an EIR should have been prepared.
City of San Bernardino Mayor and City Council
August 19, 2026
I. SAFER's Appeal offers No Substantial Evidence to support their claim that an EIR should have been prepared.
SAFER's appeal application states that the City should have prepared an EIR because the IS/MND allegedly did not address biological impacts they claim are significant. Pursuant to their Appeal application form, the requested action is preparation of an EIR and the "additional information" is their June 24, 2026 letter that the Planning Commission received and rejected.
SAFER’s appeal does not identify any error in the Planning Commission's action, provides no new biological resource information about the Project footprint, no response to my July 13, 2026 response letter and no reason why the City cannot rely on the IS/MND and MMRP that staff prepared.
A repeated objection is not substantial evidence. Reattaching the same comment letter does not change the administrative record, and it does not transform unsupported assumptions into a fair argument for an EIR. The appeal instead appears designed to prolong the approval process and leverage CEQA objections toward labor-related objectives, rather than to identify any project- specific environmental impact.
II. The IS/MND and MMRP Are Supported by Project-Specific Evidence.
The record supporting approval remains project-specific and substantial. The IS/MND through the ELMT Biological Resources Assessment evaluate the Project site, vegetation and land cover, jurisdictional drainage features, special-status species potential, nesting birds, burrowing owl, and wildlife movement.
The MMRP then imposes enforceable biological mitigation. Mitigation Measure BR-1 requires preconstruction nesting bird surveys and avoidance buffers if active nests are found. Mitigation Measure BR-2 requires burrowing owl presence/absence surveys and coordination with the California Department of Fish and Wildlife ("CDFW") if burrowing owls are documented.
Mitigation Measure BR-3 requires a CDFW Streambed Alteration Agreement and Regional Water Quality Control Board authorization before grading for impacts to Drainage 1.
SAFER does not show that these measures are infeasible, unenforceable, or ineffective. Nor does SAFER identify any actual occupied biological resource in the Project disturbance area that the IS/MND failed to address. The City is not required to prepare an EIR simply because SAFER disagrees with the City's legally compliant CEQA document.
City of San Bernardino Mayor and City Council
August 19, 2026
III. SAFER's Biological Claims Are Not Substantial Evidence Under CEQA.
CEQA requires substantial evidence, not just disagreement. Public Resources Code section 21080(e)(1) defines substantial evidence to include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. Public resources Code section 21080(e)(2) and CEQA Guidelines section 15384 exclude argument, speculation, unsubstantiated opinion, and evidence that is clearly inaccurate or erroneous. SAFER's appeal fails that standard.
The Smallwood Report rests on a limited perimeter-based reconnaissance by Dr. Smallwood's associate, not an actual project-footprint survey. The report admits that species were recorded even when they flew over the site or were seen just off site. The photographs attached to the Smallwood Report do not provide reliable GPS locations, survey transects, or documentation tying the observations to the Project's disturbance area. They show blue sky and trees with no attempt to connect back to the Project site.
The Report also relies on off-site assumptions. It extrapolates from the Altamont Pass Wind Resource Area in Alameda and Contra Costa Counties (Northern California), nest-density estimates from locations such as Murrieta, San Jacinto, and Rancho Cordova, roadkill studies from Vasco Road and north Davis, and generalized bird-window collision literature. None of those studies was conducted on the Project site, on the Project’s street network, or under the same San Bernardino foothill conditions. More importantly, those materials do not demonstrate a significant impact from this residential subdivision.
The species-specific claims have the same defect. A claimed monarch butterfly observation does not establish that the site is "vitally important" monarch habitat. Acoustic bat detections do not establish an occupied roost in the development footprint. Generalized roadkill and window- collision calculations do not establish significant Project-specific impacts. SAFER identifies no occupied resource in the disturbance area and no unmitigated impact that the IS/MND failed to address.
These issues are addressed in more detail in Exhibit A. The core CEQA point is straightforward:
SAFER has not connected its alleged observations, photographs, and generalized literature to a substantial adverse environmental effect caused by this Project. CEQA does not require an EIR on that showing.
IV. The Council Should Deny the Appeal and Uphold the Planning Commission's Approval.
The Planning Commission approved the Project after SAFER's objections were submitted and after the Commission had the IS/MND, MMRP, and my July 13 response letter before it. SAFER now asks the Council to reverse that approval without adding any new material into the record for the City Council to consider.
City of San Bernardino Mayor and City Council
August 19, 2026
The Council can confidently deny the appeal. The appeal does not present substantial evidence supporting a fair argument that the Project may cause a significant unmitigated environmental impact. It repeats objections already answered in the record and considered by the Planning Commission.
For these reasons, the Project Applicant respectfully requests that the City Council deny SAFER's appeal, find that an EIR is not required, uphold the Planning Commission's July 14, 2026 approval, and allow the Project to proceed under the IS/MND and MMRP.
Very truly yours,
FENNEMORE LLP
Brent R. McManigal
BMCM
Enclosure – Exhibit A - July 13, 2026 Fennemore LLP Response Letter
cc: Client
EXHIBIT A
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Brent R. McManigal
Director
[email protected]
550 E Hospitality Ln, Suite 350
San Bernardino, California 92408
PH (909) 723-1807 | FX (909) 890-9877
fennemorelaw.com
July 13, 2026
VIA E-MAIL
Chair and Members of the Planning Commission
City of San Bernardino
201 North E Street, 3rd Floor
San Bernardino, California 92401
[email protected]
Chantel Choice, Senior Planner
Community Development & Housing Department
City of San Bernardino
201 North E Street, 3rd Floor
San Bernardino, California 92401
[email protected]
Re: Verdemont Heights Residential Development (Tentative Tract Map No. 20707) - Response to June 24, 2026 SAFER/Lozeau Drury Comment Letter Regarding the Initial Study/Mitigated Negative Declaration
Honorable Chair and Members of the Planning Commission:
This firm represents the Project Applicant for the Verdemont Heights Residential Development, Tentative Tract Map No. 20707 (the "Project"). We submit this letter in response to the June 24, 2026, comment letter submitted by Lozeau Drury LLP on behalf of Supporters Alliance for Environmental Responsibility ("SAFER") (the "SAFER Letter"), including the attached report prepared by Dr. Shawn Smallwood (the "Smallwood Report").
At the outset, the Planning Commission should understand what the SAFER Letter does and does not do. The IS/MND was circulated from March 18, 2026 through April 16, 2026, and SAFER submitted its letter on June 24, 2026, more than two months after the close of the public review period. The SAFER Letter does not present new information, identify a new environmental impact, or disclose any biological issue that was not already thoroughly reviewed in the IS/MND and supporting biological record. It does not provide a project-specific survey of the development footprint, identify an occupied special-status species resource that would be substantially affected,
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or show that any mitigation measure in the IS/MND is infeasible or ineffective. Instead, it repackages familiar CEQA allegations with generalized biological opinions, unsupported extrapolations, and a perimeter-based site visit. That is not substantial evidence of a fair argument and does not require the City to prepare an EIR.
The City has before it a legally sufficient and well-supported IS/MND and a Biological Resources Assessment prepared by ELMT Consulting (“ELMT”), a qualified Southern California biological resources firm.. The IS/MND identifies the Project, analyzes the existing conditions, evaluates biological resources, and incorporates enforceable mitigation for nesting birds, burrowing owl, and jurisdictional waters. SAFER may disagree with those conclusions, but disagreement alone is not substantial evidence, and the Smallwood Report does not supply the missing factual foundation.
I. CEQA Does Not Require an EIR Based on Speculation, Unsupported Assumptions, or Generalized Expert Disagreement.
SAFER correctly recites that the fair argument standard is protective of environmental review. But the standard is not a free pass for unsupported speculation. Public Resources Code section 21080(e)(1) defines substantial evidence to include facts, reasonable assumptions predicated on facts, and expert opinion supported by facts. The statute expressly excludes argument, speculation, unsubstantiated opinion, and evidence that is clearly inaccurate or erroneous. (Pub. Resources Code, § 21080(e)(2); CEQA Guidelines, § 15384.)
Accordingly, an expert’s letter can support a fair argument only when it is tied to project-specific facts and reasoned analysis. An expert may not simply list species from regional databases, rely on generalized literature, extrapolate from unrelated sites, or assume impacts without showing why those assumptions apply to the project before the agency. CEQA also does not require an EIR where mitigation measures reduce potentially significant effects to a less-than-significant level and the record contains no substantial evidence that the project, as mitigated, may still cause a significant effect. (Pub. Resources Code, §§ 21064.5, 21080(c).) That is the case here. The City analyzed biological resources and incorporated mitigation tailored to the Project. The SAFER letter and Smallwood Report do not undermine that analysis because they are not grounded in a reliable, project-specific evaluation of the development footprint or the Project mitigation.
II. The IS/MND and ELMT Biological Assessment Provide Substantial Evidence Supporting the City's Determination.
The Project is a low-density residential subdivision on approximately 107.7 acres, proposing 105 single-family residential lots and five lettered lots. The City's IS/MND evaluates biological resources based on the ELMT Biological Resources Assessment, which included a literature and database review, a field investigation, vegetation mapping, special-status species habitat assessment, and review of drainage and jurisdictional features.
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Contrary to SAFER's characterization, the biological record does not ignore the Project's setting.
The IS/MND identifies the relevant vegetation and land cover types as Riversidean sage scrub, chaparral, sycamore woodland, and disturbed areas. The IS/MND also acknowledges that the Project site is located near open space and Meyers Canyon, but explains that the Project has been designed to avoid encroachment into Meyers Canyon and that no long-term interference with wildlife movement is expected.
The IS/MND includes mitigation measures that directly address the biological issues raised by the Project: Mitigation Measure BR-1 requires preconstruction nesting bird surveys and avoidance buffers if active nests are found; Mitigation Measure BR-2 requires burrowing owl presence/absence surveys consistent with CDFW guidance, including a survey 14 days before ground disturbance and a second survey within 24 hours before ground disturbance; and Mitigation Measure BR-3 requires the Project applicant to obtain a CDFW Streambed Alteration Agreement and Regional Water Quality Control Board authorization before issuance of grading permits for impacts to Drainage 1.
The IS/MND further explains that the Project site is not within federally designated critical habitat, with the nearest critical habitat for San Bernardino Merriam's kangaroo rat located approximately
0.61 miles west of the site, beyond Meyers Canyon and existing residential development. These are not conclusory statements; they are project-specific findings supported by ELMT's biological assessment and the City's environmental review.
III. The Smallwood Report Is Not Substantial Evidence Because It Is Not a Reliable Project-Specific Biological Survey.
The foundation of the SAFER letter is a site visit performed by Dr. Smallwood's associate, not by Dr. Smallwood. The report states that Noriko Smallwood walked the perimeter of the site where accessible, used binoculars, and later conducted nocturnal observations using a bat detector and thermal imaging equipment. That limited method matters. This is a large 107.7-acre hillside/foothill property. A perimeter-only survey, performed for a few hours on a few days, is not a reliable substitute for the site-access field investigation, vegetation assessment, desktop review, and project-specific analysis prepared for the IS/MND.
The Smallwood Report also admits that it recorded species flying over the site or seen just off-site.
That admission substantially undercuts SAFER's argument. A bird flying over a property, a bird photographed on a fence, a call from a retention pond, or an observation "just off site" is not proof that the Project footprint contains occupied habitat, breeding habitat, roosting habitat, or a resource that will be substantially adversely affected by the Project. Yet SAFER repeatedly treats these types of observations as if they establish Project-site occupancy and significant habitat loss.
The photographs attached to the Smallwood Report likewise do not cure the problem. Many photographs are close-up images of birds, a butterfly, lizards, and sonograms. They do not provide reliable location data, survey transects, GPS points, or documentation tying the observations to the
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Project impact area. For photographs allegedly taken from a perimeter inspection of a 107.7-acre site, the record does not demonstrate where the subject species were located, whether they were on the Project site, whether they were in the disturbance area, whether they were flying over, or whether they were on adjacent land. That is not substantial evidence of a significant biological impact.
The report then compounds this field-method problem by extrapolating from unrelated studies and unrelated geography. Dr. Smallwood relies on modeling derived from the Altamont Pass Wind Resource Area in Alameda and Contra Costa Counties and other studies from areas such as Rancho Cordova, Murrieta, and San Jacinto. He even states that the location of the Altamont study is "largely irrelevant" because he believes the detection pattern is what matters. That is precisely the problem. CEQA requires project-specific evidence. A statistical pattern from a Northern California wind resource area does not establish that this Southern California residential subdivision will cause significant impacts to the specific species, habitat, and disturbance footprint at issue here.
The Planning Commission should give the Smallwood Report little weight. It is a litigation-driven critique that uses an abbreviated perimeter reconnaissance and broad regional extrapolations to manufacture uncertainty. CEQA does not require an EIR merely because an expert prepares a long report filled with assumptions. The report must contain facts and reasoned analysis tied to the Project. This one does not.
IV. SAFER's Specific Biological Claims Do Not Establish a Fair Argument.
1. Existing Setting: SAFER argues that the IS/MND mischaracterizes the existing environmental setting. The record does not support that claim. The Biological Resources section of the IS/MND describes the Project site's Riversidean sage scrub, chaparral, sycamore woodland, and disturbed areas, and explains that the sycamore woodland associated with Drainage 1 is outside the proposed limits of disturbance. To the extent an introductory sentence elsewhere in the IS/MND refers to "creosote bush scrub," the City can correct or clarify that wording through an errata to conform to the biological analysis. A clerical or shorthand vegetation reference in the project description does not render the biological analysis inadequate or require an EIR.
2. Species Counts: SAFER relies heavily on the assertion that ELMT observed fewer species than Noriko Smallwood. That is not the CEQA test. CEQA does not require an EIR because one observer reports a longer species list, particularly where the list includes flyovers, adjacent observations, common wildlife, and species detected by calls or instruments without evidence of occupied habitat in the disturbance area. The relevant question is whether the Project, as mitigated, may cause a substantial adverse effect on candidate, sensitive, or special-status species. The IS/MND answers that question with project-specific mitigation.
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3. Burrowing Owl: The Project is already subject to Mitigation Measure BR-2, which requires preconstruction burrowing owl surveys consistent with CDFW guidance and requires avoidance or passive exclusion in coordination with CDFW if burrowing owls are found.
SAFER's assertion that additional work should have been performed earlier does not show that the adopted mitigation is ineffective or that the Project will cause a significant impact.
4. Crotch Bumble Bee and Rare Plants: The Smallwood Report claims ELMT should have performed additional detection surveys for Crotch bumble bee and rare plants. However, the report does not identify any actual Crotch bumble bee observation on site, any rare plant population in the Project impact area, or any project-specific facts showing that the IS/MND's conclusions are wrong. A demand for more surveys, without evidence of a significant unmitigated impact, is not substantial evidence requiring an EIR.
5. Monarch Butterfly: The Smallwood Report claims two monarchs were roosting on a pine tree and then leaps to the conclusion that the Project site "must be vitally important" to monarchs. That conclusion is unsupported. The report does not establish the location of the tree relative to the disturbance area, does not show that the site contains a recognized overwintering grove or breeding resource, does not document milkweed or nectar plants in the impact area, and does not demonstrate that the Project would eliminate any significant monarch resource. The conclusion also conflicts with the way monarch habitat is treated by the federal wildlife agency charged with administering the Endangered Species Act. In its 2024 proposed rule for the monarch, the U.S. Fish and Wildlife Service proposed critical habitat only at western migratory population overwintering sites in coastal California - approximately 4,395 acres in Alameda, Marin, Monterey, San Luis Obispo, Santa Barbara, Santa Cruz, and Ventura Counties. 89 Fed. Reg. 100662, 100662 (Dec. 12, 2024). FWS expressly did not propose critical habitat in breeding or migratory areas because that habitat is expansive, variable from year to year, and used opportunistically. Id. at 100691. The Project site in inland San Bernardino County is not within that proposed critical habitat, and Smallwood provides no project-specific basis to treat a claimed perimeter observation as evidence that the site is "vitally important" monarch habitat. The claim is speculative and does not support a fair argument.
6. Western Spadefoot and Amphibians: The report states that western spadefoot and Baja California treefrog were detected by calls from a retention pond. Again, the report does not provide sufficient project-specific location information or demonstrate that the alleged calling location would be impacted. The IS/MND separately evaluates Drainage 1 and requires regulatory permits from CDFW and the Regional Water Quality Control Board before grading.
SAFER's amphibian claim does not establish a significant unmitigated impact.
7. Bats: The Smallwood Report relies on acoustic detections of bats to criticize ELMT's conclusion regarding roosting opportunities. Acoustic detections may indicate that bats are active in the broader area or flying through the airspace; they do not establish an occupied
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roost in the Project disturbance area. The report speculates that bats are "highly likely" to roost in sycamores, but the sycamore woodland is outside the proposed limits of disturbance and the Project is subject to mitigation and regulatory approvals for any impacts to Drainage 1.
Smallwood provides no evidence of an occupied bat roost within the Project’s development footprint, no roost survey, and no site-specific evidence that Project construction would remove or disturb an active bat roost. There is no project-specific evidence that the Project will remove an occupied bat roost or cause a significant bat impact.
8. Habitat Loss and Avian Nest Estimates: SAFER repeats Dr. Smallwood's estimate that the site supports up to 269 bird nests per year. That number is not based on a nest survey of the Project site. It is derived from estimates and assumptions from other locations, then applied to the Project. The City's mitigation addresses the actual CEQA issue by requiring preconstruction nesting bird surveys and avoidance buffers if active nests are present.
Hypothetical nest-density calculations from unrelated sites do not defeat that mitigation.
9. Traffic Impacts on Wildlife: The Smallwood Report estimates hundreds of construction- related wildlife deaths and more than 1,000 annual operational wildlife deaths from Project- generated traffic. Those numbers are not based on Project-specific roadkill data, site-specific wildlife movement analysis, or the Project’s actual residential street network. Rather, Smallwood derives his estimates by applying vehicle-miles-traveled fatality rates from studies conducted elsewhere — first from a 2.5-mile segment of Vasco Road in Contra Costa County, and then from his own one-year pedestrian survey of local, collector, and minor arterial roads in north Davis, California. He then applies those off-site rates to the Project’s estimated construction and operational VMT to predict 528 to 1,292 construction-period wildlife fatalities and 1,018 to 2,489 annual operational wildlife fatalities. Nothing in that exercise demonstrates that comparable roadkill conditions exist on Verdemont Drive, Little League Drive, Antique Street, the Project’s internal residential streets, or the actual travel routes that would serve this residential subdivision.
10. Bird-Window Collisions: The Smallwood Report estimates 187 annual bird-window fatalities by applying generalized bird-window collision literature to assumed residential window area. The Project is a conventional single-family residential subdivision, not a glass office tower, campus building, or uniquely hazardous reflective building. The report does not identify Project-specific architecture, window orientation, lighting, glass treatment, or site conditions that would create a significant bird-collision hazard. This is another generic calculation disconnected from the Project.
11. Wildlife Movement: The IS/MND addresses wildlife movement and concludes the Project will not substantially interfere with regional movement because it avoids encroachment into Meyers Canyon and does not impact the creek itself. SAFER's disagreement does not identify substantial evidence that the Project will block or substantially
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degrade a wildlife corridor, particularly where the Project is located at the urban edge and is designed to avoid the canyon linkage.
V. The City Can Adopt the MND and Approve the Project.
The SAFER letter asks the City to disregard the IS/MND and prepare an EIR based primarily on the Smallwood Report. The City is not required to do so. The Smallwood Report does not provide substantial evidence of a fair argument because its core opinions are based on limited perimeter observations, undocumented or poorly located photographs, observations of species flying over or adjacent to the property, and generalized extrapolations from unrelated study areas. Those materials do not overcome the project-specific biological analysis and mitigation in the IS/MND.
The City can conclude that the IS/MND, ELMT Biological Resources Assessment, mitigation measures, and supporting technical studies provide substantial evidence that the Project's potentially significant biological impacts will be reduced to less than significant levels. The City may also reasonably conclude that SAFER's late-submitted comments do not identify a significant unmitigated environmental impact and do not require preparation of an EIR.
For these reasons, we respectfully request that the Planning Commission reject the SAFER/Lozeau Drury comment letter, find that it does not present new information, new environmental impacts, or substantial evidence supporting a fair argument, adopt the IS/MND and Mitigation Monitoring and Reporting Program, and approve the Project as recommended by Staff.
Very truly yours,
FENNEMORE LLP
Brent R. McManigal
BMCM