General Info - Decisions of the Planning Commission may be appealed to City Council.
Deadline to File - This appeal application must be submitted within fifteen (15) calendar days of the decision, and within ten (10) calendar days of a Tentative Map approval. If the appeal period ends on a weekend or holiday, the appeal period ends the next business day.
Fees - An appeal by the project applicant requires either a Planning Deposit (if the appeal is made by the project applicant) or a fixed Planning Fee (if the appeal is made by any other party). Planning fees also includes a tech fee. Appeals are also subject to a City Clerk Fee. Credit/Debit Card fees apply, if any fees are paid by credit/debit card.
How to Submit an Appeal Application -
1) Appeals must be filed in person at San Leandro City Hall, 83 S East 14th Street, during business hours. To file an appeal, please bring:
a) Payment for Planning and City Clerk appeal fees
b) Signed and completed Appeal Application Form (front side). c) Signed and completed Agreement for Payment of Planning Fees (back side) (for appeals filed by the project applicant only).
2) Check in at the Permit Center on the 1st floor and indicate you are filing an appeal. A planner will assist you in verifying your appeal application is complete. 3) Pay the City Clerk Fee and the Planning Deposit/Fee. Obtain a copy of both receipts. 4) Planning staff will escort you to the City Clerk's Office, at 835 E 14th St, 2nd floor to complete the process. Do not go directly to the City Clerk's Office.
I wish to appeal the decision of the Planning Commission.
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APPEAL RECEIVED BY:
CITY CLERK FEE RECEIPT NUMBER:
PLANNING FEE RECEIPT NUMBER:
□ DEPOSIT (FY 2024-2025 amount $5,000)
□ FIXED FEE (FY 2024-2025 amount $604.13)
□ TECH FEE (FY 2024-2025 amount: 6% of fees)
AGREEMENT FOR PAYMENT OF PLANNING FEES:
□ SIGNED □ NOT REQUIRED
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I am: □ The Project Applicant (fill out back side too) □ A Resident □ A Business Owner a Other: A(,l#~,£l)B)b P-+ttr V The decision I am appealing was made on: 2/~/ 2() 2G' , and the decision was to .Qif Approve O Deny the project below:
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Project Number: Project Address (or APN if address has not been issued):
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Appeal Application - Appeal to City Council V. 2/12/25
February 14, 2025
City Clerk's Office
San Leandro City Hall
835 E 14th Street
San Leandro, CA 94577
Advocates for the Environment
A non-profit public-interest law firm
and environmental advocacy organization
Via in-person submission to the City Clerk's Office
Re: Appeal Justification for PLN 22-0039, 880 Doolittle Drive Industrial Project, SCH No. 202311059
Dear City Staff:
Please consider this letter as a formal notice and request for an appeal to the City Council of the Planning Commission's decision on February 6, 2025 to approve the 880 Doolittle Drive Industrial Project (Project) and certify the Environmental Impact Report (EIR) for the Project.
The Project Site is located near Davis Street and Doolittle Drive in the City of San Leandro (City). The Project proposes to develop the 14.14-acre Project Site by constructing a 244,573 square-foot warehouse.
Advocates for the Environment submits the comments in this letter to provide specific reasons why the Project's Environmental Determination, including the Greenhouse-Gas (GHG) analysis, was legally inadequate and not in compliance with the California Environmental Quality Act (CEQA). The Planning Commission abused its discretion in approving the Project because the City violated CEQA by failing to include sufficient mitigation of the Project's significant GHG impact.
Background and Interest of Advocates for the Environment Advocates for the Environment is a non-profit public-interest environmental law firm and advocacy organization, and part of its mission is to use appropriate legal tools to reduce GHG emissions of development projects. We reviewed the EIR prepared in June 2024, and submitted comments regarding the sufficiency of the EIR's GHG analysis on July 29, 2024. We also reviewed the Final EIR which was prepared in January 2025, which we provided further comments on in our letter dated February 4, 2025. During the public hearing on February 6, 2025 at the City of San Leandro Planning Commission, the Project was approved.
The Commission determined that other factors outweighed the Project's environmental impact and approved the Project with a statement of overriding considerations. Yet, this decision was erroneous and an abuse of discretion because the City did not require mitigation of the significant GHG impact to the extent required by CEQA. 10211 Sunland Blvd., Shadow Hills, CA 91040 (818) 650-0030 X101 [email protected] Notice and Justification for Appeal to the San Leandro City Council 880 Doolittle Drive Industrial Project
Rationale for Appeal
February 14, 2025
The Planning Commission should not have approved this Project because the EIR violates CEQA. CEQA requires lead agencies to mitigate significant environmental impacts to the extent feasible when adopting a statement of overriding considerations. The City's determination that further mitigation would be infeasible is not supported by substantial evidence.
GHG Mitigation Measures were Insufficient Under CEQA
The original Draft EIR did not include any mitigation measures. Based on the comments on the Draft EIR, the City added mitigation measure GHG-1 as a new mitigation measure to the Final EIR. Mitigation measure GHG-1 is as follows:
The building and its appliances (space heating, hot water heating, office cooking facilities, etc.) shall be all electric. Natural gas plumbing shall be permitted, activated and operated only for specific industrial or manufacturing processes that require natural gas as a critical component to that process or processes. The final site plans shall note that building appliances must be all electric. Building tenants shall be made aware of the restricted use of natural gas through language in the leasing and/ or deed documentation.
(Final EIR, p. 41.)
The City proposes this mitigation measure as the maximum feasible mitigation for the Project's significant and unavoidable GHG impact. However, this mitigation measure is vague, unenforceable, and improperly deferred. Mitigation measures which postpone exact formulation should have specific performance standards, and here, the EIR does not define the circumstances in which natural gas will be permitted. It is not enforceable because there is no definition for when natural gas is a "critical component" or which manufacturing processes would "require" natural gas. Thus, there is no way to ensure that this mitigation measure will be implemented and it is not able to be monitored for compliance over time. The City should not delay or defer the decision-making for what constitutes an appropriate circumstance for permitting natural gas.
Infeasibility Finding Lacks Substantial Evidence
The conclusion that the Project will not be able to achieve any mitigation is not supported with substantial evidence. The EIR should have proposed mitigation measures to be applied to the maximum-feasible extent in order to justify the conclusion that the Project's G HG impact would be unavoidable due to lack of feasibility of mitigation. The EIR does not identify a single mitigation measure, beyond the Project features, nor explain why any mitigation whatsoever w<:uld be infeasible.
10211 Sunland Blvd., Shadow Hills, CA 91040 (818) 650-0030 X101 [email protected] Notice and justification for Appeal to the San Leandro City Council 880 Doolittle Drive Industrial Project
It Is Feasible to Adopt More Mitigation Measures
February 14, 2025
CEQA places the burden of proof of the infeasibility of mitigation on the City when it concludes the Project will have a significant and unavoidable impact. The City did not analyze any mitigation measures when concluding that the Project's GHG impact would be unavoidable. This not only fails to analyze and disclose adequate reasoning, to the detriment of the public and decision-makers, but also does not amount to substantial evidence to support the conclusion that the Project's impact would be significant and unavoidable.
The City and Applicant together can commit to design and technology specifications that reduce emissions, especially in the heavy-duty truck and transportation vehicle fleet. Further, the City can require the applicant to enter a contract with future tenants to use zero-emission commercial vehicles upon reasonable availability and maintain a charging system for the vehicle fleet that is powered by solar panels on the Project site. Thus, the conclusion that further mitigation is infeasible was not supported by substantial evidence.
The Project's GHG Impacts Must be Fully Mitigated
CEQA requires that the Project include fair-share mitigation for all significant cumulative impacts. (Napa Citizens for Honest Gov't v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 364.) Here, this means mitigation of the full extent of the Project's GHG impacts. The EIR claims that no mitigation measures are feasible. But that conclusion is incorrect, and not supported by substantial evidence.
The amount of GHG emissions that comprises the Project's fair share is unclear. The EIR acknowledges that the Project would result in a significant and unavoidable impact on GHG emissions. However, it did not quantify the Projects MTCO2e emissions, nor did it identify the project's reasonable life span. As a result, the starting point from which to subtract the effect of additional non-offset mitigation measures, before implementing offset purchases is unknown.
CEQA requires all feasible mitigation. Mitigation measures need not reduce the significant environmental impact to the level ofless-than-significance to be considered and adopted. Here, the City's responses demonstrate an erroneous interpretation of CEQA that would only require mitigation if it would reduce the Project's impact to a less-than-significant level, and because the City deemed that infeasible, they only adopted one mitigation measure aimed at reducing that single source of GHG emissions, and declined to adopt any mitigation measures that would reduce the Project's impact from the remaining sources of GHG emissions, including transportation and mobile sources from which the majority of the Project's em1ss10ns occur.
Under the Bay Area Air Quality Management District (BAAQMD) recommendations, the significance threshold chosen by the City, a project would have significant GHG emissions 10211 Sunland Blvd., Shadow Hills, CA 91040 (818) 650-0030 Xl 01 [email protected] Notice and Justification for Appeal to the San Leandro City Council 880 Doolittle Drive Industrial Project
February 14, 2025
unless it would have no natural gas infrastructure, which is related to GHG impact because burning natural gas releases GHGs. However, GHG impact as a category of CEQA analysis looks to the entirety of the GHG impact, cumulatively and over the lifetime of the Project from all direct and indirect sources of G HG emissions. Therefore, there are many measures that are unrelated to prohibiting natural gas that could serve to reduce the Project's GHG emissions, and ultimately, be effective and valid mitigation measures under CEQA.
The City determined that, other than banning natural gas infrastructure, there would be no measures that would reduce the Project's significant impact. The City's view of GHG impact as a binary choice between compliance with the BAAQMD equating to less than significance and non-compliance as significant-with no varying degree of impact in between-is contrary to logic, science, and contravenes the purpose of CEQA to fully disclose and mitigate significant impacts to the degree feasible. Even though the City declined to calculate the Project's quantitative contribution to GHG emissions, that does not change the fact that the Project's GHG emissions (and thereby GHG impact) would be reduced by GHG-reducing measures such as energy efficiency measures, solar panels, electric vehicle (EV) charging stations, transportation demand management plans, water conservation measures, idling limitations, and carbon offsets, among other feasible mitigation measures.
The City did not provide an explanation for why such measures would be infeasible.
CEQA defines feasible as a measure which can be completed in a reasonable time frame, considering various factors. Rather than address any factors which would make measures infeasible, the City instead determined that no measures were necessary because based on the City's significance threshold, implementing non-natural gas related measures would not impact the ultimate significance conclusion. This is an improper analysis of feasible mitigation measures and does not fulfill the City's mitigation responsibility as the CEQA lead agency, which is to reduce any significant environmental impacts to the extent feasible, even if unable to achieve full mitigation to the less-than-significant extent.
The City Can Prohibit Natural Gas Infrastructure in this Project as a GHG Mitigation Measure
The EIR determined that it is infeasible for this Project to comply with the recommendations of the BAAQMD because of the infeasibility of a natural gas ban.Yet, planning a Project which avoids natural gas infrastructure as a mitigation measure is not the same as passing a ban on natural gas infrastructure City-wide. Further, the City's interpretation and reliance on the 9th Circuit case, California Restaurant Association v. City of Berkeley, is flawed. The City asserts that, under its interpretation of the holding in California Restaurant Association v. City of Berkeley, the Energy Policy and Conservation Act (EPCA) preempts a City's ban of natural gas infrastructure because such infrastructure is necessary to support covered appliances under the EPCA. (See Final EIR, p. 39.) 10211 Sunland Blvd., Shadow Hills, CA 91040 (818) 650-0030 Xl 01 [email protected] Notice and Justification for Appeal to the San Leandro City Council 880 Doolittle Drive Industrial Project
February 14, 2025
However, the City misinterpreted the case. The court in California Restaurant Association v. City of Berkeley expressly noted that the EPCA' s preemption is a narrow holding regarding modifications to building codes:
Though EPCA's preemption prov1s10n is broad, it is not unlimited. For instance, our holding here has nothing to say about a State or local government regulation of a utility's distribution of natural gas to premises where covered products might be used. We only decide that EPCA's preemptive scope applies to building codes that regulate the gas usage of covered appliances on premises where gas is otherwise available.
(California Rest. Ass'n v. City of Berkeley (9th Cir. 2024) 89 F.4th 1094, 1103.) Overall, California Restaurant Association v. City of Berkeley is not controlling in this case, because it regards the legislative authority of a municipal corporation to enact building codes, rather than the authority granted under CEQA to mitigate significant environmental impacts of projects under its control. There is no legal authority holding that Federal preemption extends to mitigation measures required by CEQA. Further, it would not restrict any rights of individuals to use appliances covered under the EPCA if the City entered into an agreement with the applicant to restrict natural gas infrastructure as a matter of CEQA compliance and mitigation of the Project's significant GHG impact.
Accordingly, it is feasible to increase the stringency of mitigation measure GHG-1 to create a full prohibition of natural gas infrastructure in this Project, based on the significant environmental impact that would otherwise occur.
Further Mitigation Is Required Beyond Prohibiting Natural Gas Infrastructure GHG impact is inherently cumulative, so when a lead agency finds a significant GHG impact before mitigation, it is required to mitigate to the fair-share extent, not just below the level of significance. Here, this means mitigation of the full extent of the Project's GHG impacts. Mitigation measure GHG-1 alone is insufficient to account for mitigation of the fairshare of the Project's emissions, even if modified to fully prohibit natural gas infrastructure and bring the Project into consistency with the BAAQMD recommendations.
The City should have considered the entirety of the Project's GHG emissions sources, whether quantified or not, and determined appropriate mitigation measures each potential source of GHG emissions to reduce the Project's GHG impact to the maximum degree feasible.
Operational Emissions Reductions are Feasible
There are several mitigation measures that are feasible, including renewable energy systems and batteries to power the facility during non-peak hours, solar water heaters, automatic light switches, among many other mitigation strategies that can be incorporated in 10211 Sunland Blvd., Shadow Hills, CA 91040 (818) 650-0030 X101 [email protected] Notice and Justification for Appeal to the San Leandro City Council 880 Doolittle Drive Industrial Project
February 14, 2025
the project as design features or as mitigation measures. Such features could be adopted individually or as part of a comprehensive goal of sustainable building certification, such as Leadership and Energy and Environmental Design (LEED), that extends further beyond CALGreen requirements.
Solar panel installation or incorporating renewable energy production on-site is also a feasible mitigation measure. The DEIR indicates that the Project will comply with Title 24 requirements. (DEIR, p. 4.1-11.) However, Tide 24 mandates only that a minimum of 15 percent of the roof area be solar-ready. Extending this requirement to cover the maximum available surface area, rather than just the minimum 15 percent required would be feasible.
Additionally, installing solar panels across the entire available roof surface would also be a feasible measure. Having solar panels capable of offsetting 100% of the buildings' energy demands would enhance the effectiveness and decrease GHG emissions overall.
Likewise, the DEIR specifies the installation of charging stations required by Title 24, in this case, 21 electric vehicle (EV) charging stations. (DEIR, p. 4.1-11.) There is no evidence that it would be infeasible to install more charging stations beyond the proposed 21 stations.
Overall, there are more options available to mitigate emissions to the full extent of project emissions.
Offsets Are Feasible
After requiring operational emissions reductions to the maximum feasible extent, the City could also require the Applicant to purchase offsets for the Project's remaining GHG emissions.
The City did not provide any evidence for why offsets would be infeasible. Offsets are acceptable mitigation measures under CEQA (See CEQA Guidelines§ 15126.4 (c)(3).) Overall, there are more options available to mitigate emissions to the full extent of project emissions, and the City failed to acknowledge or implement many mitigation measures that are feasible and could help reduce the Project's GHG impact to the fair share extent.
Conclusion
For the foregoing reasons, the EIR violates CEQA. In particular, the EIR fails to require all feasible mitigation, despite concluding that the significant GHG impact will be unavoidable.
The vast majority of the Project's emissions are from mobile sources, such as truck trips due to project operations. The adopted mitigation would not sufficiently address GHG impact because it is only focused on building-related GHG emissions.
The lead agency has not met its burden of showing that any further mitigation measures would be infeasible, and therefore the EIR should not have been certified without all feasible mitigation, including offsets incorporated. Thus, the Planning Commission should have 10211 Sunland Blvd., Shadow Hills, CA 91040 (818) 650-0030 X101 [email protected] Notice and Justification for Appeal to the San Leandro City Council 880 Doolittle Drive Industrial Project
February 14, 2025
rejected the Project and declined to certify the EIR, or at least should have continued the Project for another date if and until the EIR is amended in conformance with CEQA.
Sincerely,
~ca~~ Executive Director, Advocates for the Environment 10211 Sunland Blvd., Shadow Hills, CA 91040 (818) 650-0030 X101 [email protected]