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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) 25 Cal.App.5th 1129, the First District Court of Appeal held that 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. 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 (City) 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 (Project). HARB recommended that the Project be denied because it “would be incompatible in terms of siting, massing, materials, textures, and colors with existing development in the Niles [HOD].” Amidst critical comments, the City approved the Project with a mitigated negative declaration (MND). Protect Niles, a community action group, filed suit alleging the City improperly relied on the MND.

The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic and set aside the Project approval until an EIR was completed. Valley Oak timely appealed.

The Appellate Court first established that, despite Protect Niles’ claims to the contrary, the appeal was not moot. Valley Oak had already submitted a revised Project application and the City had published a draft EIR therefore “voluntarily complied” with CEQA. However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims.

The Court reiterated extensive precedent that CEQA must be interpreted to afford the fullest possible protection to the environment. Further, the Court held that an EIR is required where there is substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect.

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 exists where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Aesthetic impacts are context-specific. Here the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, 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 observations of inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of a potential adverse aesthetic impact on the Niles HOD. The City’s reliance on a MND was improper.

The Court also criticized the traffic impact analysis and determined that substantial evidence of a fair argument required preparation of an EIR. 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 presuming that drivers follow the speed limit and criticized the City for failing to implement the study’s mitigation measure recommending 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 that the Project will have significant adverse traffic impacts.

The Court affirmed, 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.

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dateJuly 16th, 2018byby


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