Fact-Based Comments Carry The Day In Fremont

It’s often argued under the California Environmental Quality Act that personal opinion does not necessarily equal substantial evidence. For example, in a recent appellate case from the Town of Joshua Tree, a court ruled that the comments of a local business owner did not add up to expert opinion about the impact of a Dollar General store on the decay of a small downtown area. So it’s interesting that the First District Court of Appeal, in a recent case from Fremont, concluded that comments from both the public and from historic preservation commissioners can add up to substantial evidence if they are – with apologies to the president – “fact-based”. The case involved a proposal by developer Valley Oaks to build an 85-unit townhome project on 5.5-acre vacant parcel along the Niles corridor in Fremont. (The project’s initial study can be found here.) Although the city’s Historic Architecture Review Board, or HARB, recommended raised significant concerns about the project in the context of Fremont’s historic overlay district for the Niles corridor, and the project generated significant public opposition, the project was approved – and a mitigated negative declaration certified – by the Fremont City Council in 2015. A group called Project Niles subsequently sued and won a favorable trial court ruling, which concluded that there was substantial evidence that a fair argument could be made regarding a potentially significant impact on both traffic and aesthetics, which would trigger an EIR. The developer Valley Oaks, though a real party in interest, appealed the ruling. Interestingly, Project Niles sought to dismiss the city appeal in May of 2018 because the city subsequently prepared a draft EIR. But the appellate court rejected that argument, saying that Valley Oaks’ original development proposal was still in play and a voluntary attempt to abide by the trial court ruling did not mean the 2015 approval was moot. The appellate court affirmed the trial judge’s ruling, relying heavily on the notion that both public and HARB comments on the issues at hand were not merely opinions but in fact were “fact-based”. On the aesthetics issue, significantly, the court ruled that “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.” Rhe court acknowledged that aesthetic judgments are “inherently subjective.” However, the court was not persuaded by Valley Oaks’ argument that the project was inherently more aesthetically pleasing than a vacant lot nor by the argument that the project’s design, which reflected the sites industrial past, was appropriate. “Here, the comments about incompatibility were not solely based on vague notions of beauty or personal preference, but were grounded in inconsistencies with the prevailing building heights and architectural styles of the Niles HOD (historic overlay district) neighborhood and commercial core. “ On traffic, the court quoted a number of residents who testified to the potential danger that would be created by the project’s street pattern. For example, one resident said: “I travel down Niles in the direction of the every day. Many mornings traffic is already backed up past the border of the nearly to downtown. . . . waiting 5 minutes to get just from the underpass to Mission Boulevard most mornings.” As with the aesthetics issues, the court concluded that these are not mere opinions but “fact-based comments” that add up to substantial evidence that a fair argument can be made for a potential significant impact, thus triggering an EIR. Subsequent to the court’s ruling, local press reports indicated that the city would move forward with the draft EIR, while Project Niles advocates would pressure the city to re-think the entire project. The Case: Project Niles v. City of Fremont, A151645 (July 16, 2018) The Lawyers: For Project Niles: Susan Brandt-Hawley, Brandt-Hawley Law Group, susanbh@preservationlawyers.com. For City of Fremont: No appearance in appellate court. For Valley Oaks et al (real parties in interest): Arthur J. Friedman, Sheppard Mullin, afriedman@sheppardmullin.com, and David H. Blackwell, Allen Matkins, dblackwell@allenmatkins.com

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