Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Fact-Based Residents’ Comments Substantial Evidence Meriting CEQA Review, Special Commission’s Findings Substantial Evidence Meriting CEQA Review


The Niles Historic District’s distinctive style is clear on the building facades of the District’s downtown area. (Craig Miyamoto)

In Protect Niles v. City of Fremont (2018) 2018 Cal.App.LEXIS 700, the First District Court of Appeal held the Niles Historical Architectural Review Board’s (HARB) factual findings and members’ collective opinions about the compatibility of a project with the Niles Historic Overlay District rose to the level of substantial evidence when given by a special commission with particular knowledge. Further, fact-based comments in the record by residents, city officials and staff, and professional consultants, notwithstanding a traffic impact study to the contrary, amounted to substantial evidence supporting a fair argument of a significant traffic impact.

Niles Historic Overlay District (HOD) is an officially-designated historic district within the City of Fremont subject to guidelines and regulations to maintain the distinctive look and character of the area. Projects in the HOD area are initially proposed to HARB for review in light of HOD guidelines. HARB then recommends approval or denial of the project to the city council.

In 2014, Real Parties in Interest Doug Rich and Valley Oak Partners (Valley Oak) submitted an application to build 80-90 residential townhouses on a vacant six acre lot; HARB recommended the Project be denied. Taking this into consideration, and amidst ample critical comments, the city approved the Project with a mitigated negative declaration (MND).

Community action group Protect Niles petitioned the trial court for a writ of mandamus to set aside the Project approval and prepare an EIR analyzing a handful of environmental impacts. The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic only and set aside the Project approval until an EIR was complete on these issues. Valley Oak appealed this decision.

The Court established that, despite Protect Niles’ claims to the contrary and the Court’s discretion to determine either way, the appeal was not moot. The Valley Oak had already submitted a revised Project application and the city had published a draft EIR therefore “voluntarily complied.” However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims so the Court continued.

The Court set out that CEQA is interpreted to afford the fullest possible protection to the environment. Because of this, an EIR is required where there is any substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect. Public participation is an essential element of that determination.

There were numerous comments within the record that the Project did not fit the aesthetic of the neighborhood. Per the CEQA Guidelines, an aesthetic impact is where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Within that framework, aesthetic impacts are highly context-specific. Here, the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, massing, and architectural style were inconsistent with the Niles HOD. These comments “differed sharply as to the Project’s aesthetic compatibility with the historic district.” The comments were not conjecture or speculative but grounded in inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of an adverse impact on the unusual setting of the Niles HOD as mapped and officially recognized by the city and the city’s reliance on a MND was improper.

Briefly, the Court established that this analysis does not undermine CEQA environmental review of historical resources as that is a more comprehensive analysis, focusing on “direct physical changes to historical resources themselves that materially impair those resources’ historical significance, not a project’s aesthetic impact on its historical setting.”

The Court then criticized the traffic impact analysis. The city had conducted a professional traffic study concluding the impacts would fall below the city’s threshold of significance. Despite this, the Court found the study was shortsighted for operating under the presumption drivers follow the speed limit. The city was also culpable for failing to implement the study’s recommendation to establish a left-turn pocket lane. The record contained critical comments by residents, city officials and staff, and professional consultants based on their personal experiences driving in the area. The Court found, notwithstanding the traffic study, these fact-based comments constituted substantial evidence supporting a fair argument the Project will have significant adverse traffic impacts.

The Court affirmed, awarding costs to Protect Niles and directing the city to prepare an EIR if it were to go through with the original project design.

Key Point:

Personal observations on nontechnical issues can constitute substantial evidence of a fair argument of a significant environmental impact. Specifically, residents’ observations of environmental conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a professional study.

Tags: , , , ,



dateAugust 22nd, 2018byby


Comments are closed.