We conclude the Project's compatibility with the historical district is properly analyzed as aesthetic impacts, and we find substantial evidence in this record supports a fair argument of a significant aesthetic impact of the Project on the Niles historical district. We also conclude the record contains substantial evidence supporting a fair argument of significant traffic impacts, notwithstanding а professional traffic study concluding the anticipated adverse impacts fell below the City's predetermined thresholds of significance.
I. BACKGROUND
Niles Historical Overlay District
The City has designated certain areas of Niles as the Niles Historic Overlay District (Niles HOD),
The Project site lies entirely within the Niles HOD and abuts the Niles commercial core. Niles's main street, Niles Boulevard, borders the Project site at an acknowledged "gateway" to the Niles HOD and westbound motorists on Niles Boulevard encounter a large "NILES" sign as they pass under a railroad trestle just before the Project site. The site was used for foundry, manufacturing, and machining purposes in the early 1900's, cannery activities from the 1920's to the 1940's, and varied chemical manufacturing thereafter. After a 2008 fire destroyed a historic office building, HARB took steps to allow demolition of buildings remaining on the site, and environmental remediation has made the site suitable for residential construction.
Project Description
In June 2014, developers Doug Rich and Valley Oak Partners (collectively Valley Oak) submitted a planning application for the Project. The six-acre Project site was vacant except for building foundations, piles of debris, and some trees. The irregular shaped site is bordered on the south by Alameda Creek and the Alameda Creek Trail; on the west by a neighborhood of single family homes; on a northwest diagonal by the Niles HOD commercial core; and on the north and east by Niles Boulevard.
Valley Oak proposed building 85 residential townhomes in the southern portion of the site and mixed residential and retail
Environmental Review
Following an initial study, City planning staff prepared a draft mitigated negative declaration (MND) in lieu of a full environmental impact report (EIR). The draft MND found the Project would have no impact or a less than significant impact (with or without mitigation) in all environmental areas studied, including as relevant to this appeal "Aesthetics, Light and Glare" and "Transportation/Traffic." On thе aesthetic issue, the City found the Project would not "[s]ubstantially degrade the existing visual character or quality of
The draft MND was referred to HARB for advisory review. Specifically, HARB was asked to review the historical resources section of the draft MND and review the Project overall for compatibility with the HOD Design Guidelines. In a report to HARB, City staff recommended that HARB find the Project compatible because it reflected the architectural styles of former industrial buildings on the site and reduced heights of buildings on the Project's periphery preserved views and softened the interface with adjacent areas. At a January 2015 HARB hearing, several Niles residents argued the Project was not consistent with the HOD: they objected to the height of some three-story buildings (particularly on the Project site periphery), which might block hill views; the density in the townhouse area; the architectural style of the buildings; and the choice of colors and materials on building exteriors. They also objected to the Project's density as a generator of traffic and parking problems in and around the Niles HOD. Most HARB members echoed these sentiments, while a distinct minority of speakers and HARB members spoke in favor of the Project and its consistency with the HOD Guidelines. HARB voted four to one to recommend denial of the Project because it "would be incompatible in terms of siting, massing, scale, size, materials, textures, and colors with existing development in the Niles [HOD]."
The Project and draft MND were next referred to the plаnning commission for approval. A staff report again recommended Project approval and adoption of the draft MND. At the February 2015 hearing, Valley Oak defended the Project design in terms similar to the staff report and reported plans to change some exterior and roof designs in response to HARB's
At a March 3, 2015 city council meeting, residents continued to object to the Project despite some modifications. Some councilmembers echoed these concerns. The New Street/Niles intersection was discussed extensively, specifically regarding the need for a left-turn pocket lane to ensure safety and traffic flow. However, the council voted three to two to approve the Project and adopt the draft MND.
The only relevant CEQA mitigation measure required a specified sight distance at the New Street/Niles intersection. As approved, the Project still included 98 residеntial units.
Trial Court Proceedings
On April 3, 2015, Protect Niles and Niles resident Julie A. Cain (collectively, Protect Niles) petitioned for a writ of mandamus ordering the City to set aside the Project approvals and prepare an EIR. Protect Niles argued substantial evidence supported a fair argument of significant aesthetic/land use impacts (consistency with the Niles HOD), traffic impacts, hazardous materials impacts, and impacts on the Alameda Creek Regional Trail.
The trial court found substantial evidence supported a fair argument of significant impacts on aesthetics and traffic only. On aesthetics, the court cited "the testimony and views of members of the public and the opinions of the HARB members who were clear in their view that the project is incompatible with the Niles esthetic. ... [¶] [T]he opinions of the HARB members, charged with the duty to evaluate esthetics, must be considered in
II. DISCUSSION
A. CEQA Legal Standards
" 'The foremost principle under CEQA is that the Legislature intended the act "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." [Citation.] ... [¶] [The Supreme Court has] repeatedly recognized that the EIR is the "heart of CEQA." ( [Citations]; see also [Cal. Code Regs., tit. 14], § 15003, subd. (a)[
" 'With certain limited exceptions, a public agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed
"If there is substantial evidence in the whole record supporting a fair argument that a project may have a significant nonmitigable effect on the environment, the lead agency shall prepare an EIR, even though it may also be presented with other substantial evidence that the project will not have a significant effect. ( [Pub. Resources Code,] § 21151, subd. (a) ; [CEQA Guidelines], § 15064, subd. (f)(1), (2); [citations].) 'May' means a reasonable possibility. ( [Pub. Resources Code,] §§ 21082.2, subd. (a), 21100, 21151, subd. (a) ; [citation].)
" 'Substantial evidence' means 'enough relevant information and reasonable inferences
"The fair argument standard is a 'low threshold' test for requiring the preparation of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. Review is de novo, with a preference for resolving doubts in favor of environmental review . [Citations.] [¶] [H]owever, we must ' "giv[e] [the lead agency] the benefit of [the] doubt on any legitimate, disputed issues of credibility." ' [Citation.] ... [¶] Relevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence for a fair argument. [Citations.] ... [¶] On the other hand, mere argument, speculation, and unsubstantiated opinion, even expert opinion, is not substantial evidence for a fair argument. ( [Pub. Rеsources Code,] § 21082.2, subd. (c) ; [CEQA] Guidelines, § 15384, subd. (a); [citations].) 'The existence of public controversy over the environmental effects of a project shall not require preparation of an environmental impact report if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment.' ( [Pub. Resources Code,] § 21082.2, subd. (b) ; [citation].) Neither is the mere
B. Motion to Dismiss
On May 29, 2018, Protect Niles moved to dismiss this appeal on the ground it became moot with the City's May 25 publication of a draft EIR on a revised Project application by Valley Oak. Protect Niles argues Valley Oak voluntarily complied with the trial court judgment and the appeal accordingly seeks nothing more than an "advisory opinion that the [C]ity's approval of the [Project] did not require preparation of an EIR." We disagree. The City has voluntarily complied with the trial court's directive to prepare an EIR, but the City is not an appellant in this case. The appellant, Valley Oak, was not commanded to take any particular action by the trial court and thus cannot have voluntarily complied with the trial court's order. Valley Oak's alleged submission of a revised Project application is not tantamount to withdrawal of its original Project application or abandonment of its legal position in this appeal that the original application was properly approved by the City without preparation of an EIR. Dismissal of an appeal is discretionary ( Cal. Rules of Court, rule 8.244(c)(2) ; Fox Searchlight Pictures, Inc. v. Paladino (2001)
C. Aesthetic Impacts
1. Alleged Forfeiture of Land Use Guidelines Argument
As a preliminary matter, we address Valley Oak's contention that Protect Niles forfeited its argument that the Project is incompatible with HOD Guidelines because it did not appeal the trial court's rejection of an argument regarding violation of land use policies. In the trial court, Protect Niles argued еvidence of the Project's incompatibility with the Niles HOD supported a fair argument of significant impacts on both aesthetics and local land use policies-specifically, conflict with the HOD Guidelines. The City and
Valley Oak argues that, by failing to cross-appeal, Protect Niles forfeited an argument based on conflict with land use policies. Like the trial court, we need not address this argument because we conclude Protect Niles's arguments regarding the Project's incompatibility with the Niles HOD are properly analyzed as aesthetic impacts.
2. CEQA Review of Aesthetic Impacts
Under CEQA, it is the state's policy to "[t]ake all action necessary to provide the people of this state with ... enjoyment of aesthetic , natural, scenic, and historic environmental qualities." ( Pub. Resources Code, § 21001, subd. (b) ; italics added; see
Several courts have recognized that a project's impact on the aesthetic character of a surrounding community is a proper subject of CEQA environmental review. In Citizens for Responsible & Open Government v. City of Grand Terrace (2008)
In Eller Media Co. v. Community Redevelopment Agency (2003)
Courts have cautioned that CEQA aesthetics review should not be used to protect the views of particular persons versus the general public. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007)
Courts also emphasize that context is crucial in determining the appropriateness of CEQA aesthetic review. In Bowman v. City of Berkeley (2004)
The court in San Francisco Beautiful v. City and County of San Francisco (2014)
In Eureka Citizens for Responsible Government v. City of Eureka (2007)
Second, appellants in Eureka had made a "historical resources" impact аrgument not supported by the record. Although 53 locally-listed historic structures were in the 30-block neighborhood of the project, the appellants failed to show the neighborhood itself had been designated a historic resource or that the project would adversely impact any specific historic resource in the neighborhood. We noted that CEQA defines a significant impact on a historical resource as a change to the physical condition of the resource. ( Eureka, supra, 147 Cal.App.4th at pp. 374-375,
Third, in Eureka we rejected the appellants' aesthetic impact argument because "nothing was presented in the record that established an аesthetic impact on any of" the historic structures in the neighborhood or established that the playground was "located in a 'particularly sensitive' context. (See [CEQA] Guidelines, § 15300.2.)" ( Eureka, supra,
Finally, in Eureka we rejected the appellants' argument that the "playground structure was 'enormous and garish' and 'wholly inappropriate for
In sum, we conclude a project's visual impact on a surrounding officially-designated historical district is appropriate aesthetic impact review under CEQA. We do not believe this view undermines the separate scheme for CEQA review of environmental impacts on historical resources. (See Pub. Resources Code, § 21084.1 ;
3. Substantial Evidence of Aesthetic Impact on Niles HOD
Here, substantial evidence clearly supported a fair argument the Project would have an adverse aesthetic impact on the Niles HOD.
As noted ante , the initial study concluded the Project is aesthetically compatible with the Niles HOD because it reflects the architectural style of the industrial buildings that previously occupied the site and the HOD Guidelines recognize eclectic architecture within the district. During public hearings on the Project, Valley Oak defended the Project's aesthetics in similar terms and cautioned that "false historicism is the worst way to honor the past." Some City officials echoed these sentiments.
Despite Valley Oak's promises to modify the Project, residents and some City officials nevertheless continued to find the Project incompatible with the Niles HOD. Planning Commissioner Leung said the design was "really contemporary" and "too far away from where Niles is" aesthetically.
Valley Oak argues the Project cannot plausibly result in an adverse aesthetic impact on its surrоundings because it is being upgraded from a dilapidated vacant lot to attractively landscaped new construction. On this theory, construction of
Valley Oak suggests the Project's impact on the HOD cannot be significant because the Project site is on the edge of the district and outside its commercial core. However, "[t]he significance of an environmental impact is not based on its size but is instead ' "measured in light of the context where it occurs." ' " ( Friends of College of San Mateo Gardens v. San Mateo County Community College Dist., supra,
Valley Oak also argues "the mere conclusion of an advisory body like HARB does not by itself constitute substantial evidence to support a fair argument of a significant environmental impact. ( Perley v. Board of Supervisors (1982)
We recognize few if any comments during hearings on the Projects specifically argued an MND was inappropriate and an EIR was necessary. However, Valley Oak
D. Traffic Impacts
Valley Oak argues the trial court erred in ruling substantial evidence supports a fair argument of significant traffic impacts from the Project. In the trial court, Protect Niles's argument on the traffic issue consisted almost entirely of quotes from the record-comments made by residents, City officials or staff, and professional consultants-expressing concerns about traffic impacts caused by the proposed New Street/Niles intersection.
1. Background
The Niles HOD is bordered by Alameda Creek to the south and west and by Mission Boulevard to the north and east (a four- to six-lane major arterial, traveling in an east-west direction). Niles Boulevard (a two-lane minor arterial street) traverses Niles, connecting with Mission Boulevard (Niles/Mission intersection) east of Niles and becoming Alvarado-Niles Road west of the Niles commercial core on the way to Union City.
Heading westbound from the Niles/Mission intersection, Niles Boulevard narrows, with a low speed limit, to pass under a railroad trestle before making a hard right along the eastern side of the Project site. Niles Boulevard continues west to the Niles commercial core. Valley Oak plans to add angled parking along the Project's Niles Boulevard frontage. Exit from the angled parking spaces would require drivers to back into the eastbound lane of Niles Boulevard.
On safety and traffic flow at the New Street/Niles intersection, the study concluded a left-turn pocket lane on westbound Niles Boulevard was warranted under national guidelines. However, City staff decided not to require a left-turn pocket lane for two reasons. First, "without a left-turn pocket, this intersection would operate much like the existing intersections in downtown Niles ... where left-turn vehicles on Niles Boulevard share a single lane with the vehicles traveling through. [One such downtown] intersection ... operates adequately, yet it has a greater numbеr of left turns than those estimated for the [New Street/Niles intersection]." Second, "[h]aving no left-turn pocket at the [New Street/Niles intersection] would help to slow down vehicles as they enter downtown Niles." The traffic study also assessed visibility at the intersection. Relying on the posted speed limit of 25 miles per hour on Niles Boulevard, it determined the minimum acceptable sight distance at the intersection would be 150 feet and recommended the City require the Project design ensure such sight distance. As noted ante , the MND included such a mitigation measure.
The traffic study also assessed whether the Project would cause increased congestion at nearby intersections. As relevant here, it concluded the level of service at the Niles/Mission intersection would deteriorate from an already "unacceptable" E level of service to a lower F level of service. However, the amount of deterioration would be less than the City's predetermined thresholds of significance for signalized intersections. (See CEQA Guidelines, § 15064.7.)
The initial study incorporated the traffic study's analyses and concluded the Project would have less than significant traffic impacts with mitigation to ensure adequate sight distance at the New Street/Niles intersection.
2. Left-Turn Pocket Lane
Residents and City officials expressed concern that, without a left-turn pocket lane at the New Street/Niles intersection, westbound drivers on Niles
These fact-based comments are substantial evidence supporting a fair argument that the New Street/Niles intersection will create traffic safety hazards due to excessive queueing in the westbound lane, a tendency of westbound drivers to exceed the posted speed limit, and limited visibility around the 90-degree curve. Significantly, even the traffic study's author acknowledged a left-turn pocket lane was warranted by engineering standards. Although he insisted the intersection was safe without the pocket lane, his analysis of the intersection was based at least in part on the posted speed limit despite ample evidence that speed limits were often exceeded in that area. Moreover, the reasons City staff did not require the left-turn pocket lane-a concern about the character of the district and a desire to slow traffic down as it entered the commercial core-reflected a balancing of the risks and benefits of the proposed safety measure in comparison to other goals. This is the sort of evaluation that should follow preparation of an EIR, not justify reliance on an MND. In any event, the city council added a Project approval condition (not a CEQA mitigation measure) that merely required
3. Congestion on Niles Boulevard and at Niles/Mission
Another traffic concern raised during the public review process was increased congestion on Niles Boulevard including the Niles/Mission intersection, which might arise due to both additional traffic from Project residents and interfеrence with traffic flow caused by drivers backing out of the angled parking places. Niles residents Renee Guild and Ken Morjig respectively reported the Niles/Mission intersection was already "a disaster waiting to happen" and "a bad issue." Niles resident Deni Caster stated that even without the Project, "I have been in stopped traffic that is backed [into the center of the commercial core] in the morning, trying to exit onto Mission Boulevard." Thus, Caster described a pre-existing traffic back-up on Niles Boulevard between the commercial core and Niles/Mission intersection directly affecting the Project's Niles Boulevard frontage. Niles resident Jennifer Emmett similarly stated: "I travel down Niles [Boulevard] in the direction of the [Project] every day. Many mornings traffic is already backed up past the border of the [Project site] nearly to downtown. ... [Drivers are] waiting 5 minutes to get just from the [railroad] underpass to Mission Boulevard most mornings." Another Niles resident Kimberly Harbin said, "I live on Niles Boulevard itself and backing out of the driveway in the morning, it's already difficult. I especially am thinking of people coming out from thаt are [sic
In any event, even assuming the traffic study's trip estimates are accurate, the study acknowledged an existing "unacceptable" level of service at Niles/Mission intersection and predicted it would further deteriorate
In sum, we conclude substantial evidence supports a fair argument that the Project would have significant adverse aesthetic and traffic impacts and therefore affirm the trial court.
The judgment is affirmed. Valley Oak shall bear Protect Niles's costs on appeal.
WE CONCUR:
SIMONS, Acting P. J.
NEEDHAM, J.
Notes
Protect Niles is an unincorporated association formed after the Project's approval to "protect the Niles [historical district] neighborhood and ensure the City's compliance with [the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq. ) ]."
Niles hosted silent movie production in the 1910's and is home to historic mills, orchards, and nurseries from the mid-19th century, as well as an 1869 station on the first transcontinental railroad. Today, restored steam engines take visitors on excursions through Niles Canyon to the northeast, and the town hosts several events and fairs.
Residents presented сommissioners with a petition purportedly signed by 175 citizens asking them to consider the Project's impacts before allowing "this high-density project" to move forward. Commissioners were later presented with a petition in favor of the Project signed by eight Niles business owners.
The council again voted three to two to approve the Project and adopt the draft MND after a second reading on March 17, 2015.
Regulations implementing CEQA are codified at California Code of Regulations, title 14, section 15000 et seq. and are called the " 'State CEQA Guidelines.' " (Cal. Code Regs., tit. 14, § 15001.) These regulations are hereafter referred to as CEQA Guidelines.
We deny Protect Niles's May 29, 2018 request for judicial notice because, even assuming the attached materials are subject to judicial notice, they do not demonstrate the case has become moot. Accordingly, we also deny Valley Oak's June 13, 2018 request for judicial notice that was submitted in opposition to Protect Niles's motion to dismiss. (See Mangini v. R.J. Reynolds Tobacco Co. (1994)
The agency made similar findings based on сonflict with the redevelopment plan's broad goals and specific directives regarding historic buildings. (Eller Media Co. v. Community Redevelopment Agency, supra, 108 Cal.App.4th at pp. 32-34,
CEQA Guideline section 15300.2, subdivision (a) provides that some of CEQA's categorical exemptions "are qualified by consideration of where the project is to be located-a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant." (Italics added.) As noted ante , the CEQA Guidelines similarly counsel that an agency, when assessing a project's environmental impacts, should recognize that "the significance of an activity may vary with the setting." (Id. , § 15064, subd. (b).)
Although CEQA Guidelines section 15064.5, subdivision (b)(1) refers to physical change of "the resource or its immediate surroundings," subdivision (b)(2) defines material impairment only in terms of physical changes to the resource itself. The governing statute, Public Resources Code section 21084.1, does not refer to immediate surroundings.
Valley Oak also argues that relying on the views of HARB advisory board members to find substantial evidence of a fair argument would undermine the city council's authority to make the final decision on environmental impacts. This argument confuses the lead agency's authority to make the ultimate significant impact findings after appropriate environmental review with the agency's rеsponsibility to initially prepare an EIR if there is a fair argument of a significant environmental impact.
Tellingly, the planning commission and city council attempted to prematurely engage in this process by discussing the economic feasibility of Project alternatives based on informal discussions with Valley Oak.
Protect Niles incorporates most of these quotes into its respondents' brief on appeal as well.
We take judicial notice of the general geography of the Fremont area. (Evid. Code, § 452, subd. (h).)
Marshall apparently supported his critique with personal observations that are not in the record: "This afternoon I observed traffic conditions near the curve where Niles Boulevard goes under the [railroad trestle]. (See attached table)."
Harbin was apparently referring to the Project.
Valley Oak argues the trial court improperly "developed on its own initiative" the argument that the deterioration from level E to F itself constituted substantial evidence of adverse traffic impacts. Valley Oak contends the argument is foreclosed by the plaintiffs' failure to exhaust their administrative remedies by raising it in the administrative proceeding. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors, supra, 216 Cal.App.4th at pp. 623-624,
The traffic study implies the thresholds of significance are generally applicable to environmental review of development projects and were not adopted specifically for the Project or for the Niles area.