Title
Staff Report for APL21-0001, a Resolution of the City of San Leandro City Council to Affirm the City of San Leandro Board of Zoning Adjustments Decision to Approve a Conditional Use Permit, Parking Exception and Site Plan Review and Finding No Additional Review is Required under the California Environmental Quality Act (CEQA) Pursuant to Public Resources Code Section 21094.5 and CEQA Guidelines Section 15183.3 for the Callan & East 14th Street Project Application and Denying the Appeals by East Bay Residents for Responsible Development and Laborers International Union of North America, Local 304, Case Number PLN18-0036.
Staffreport
SUMMARY AND RECOMMENDATIONS
Two different parties have filed an appeal challenging the Board of Zoning Adjustments’ May 6, 2021 approval of the Callan & East 14th Street Project (PLN18-0036), a 196-unit five-story mixed-use residential development with ground floor retail, a two-story parking garage and 196 residential units located on a 1.6 acre site at 1188 E. 14th Street. Both Appellants submitted written statements in support of their positions (attached). Although the statements and reasons for their appeal differ, both parties have requested the City Council reject the Board of Zoning Adjustments’ adopted environmental determination for the Project and return the item to have an environmental impact report prepared. Staff reviewed the two appeals and found them to lack merit for the reasons identified in this report and the attached resolution with findings.
No new information was presented in either appeal that meets the substantial evidence test to require additional analysis through an EIR. Staff recommends that the City Council deny the appeals and uphold the decision of the Board of Zoning Adjustments (BZA) by adopting a resolution affirming the BZA decision.
BACKGROUND
The 1188 E. 14th St. Project reflects the culmination of over a decade of planning efforts originating from the Downtown San Leandro Transit-Oriented Development Strategy adopted in 2007. The Project fully conforms to the General Plan, Special Policy Area 3 Zoning Overlay, the Zoning Code, the Downtown TOD Strategy’s development criteria, the Downtown Design Guidelines, and the strategies identified in Plan Bay Area 2040.
Further background summarizing the 1188 E. 14th St. Project, the environmental determination, supporting technical information, conditions of approval and findings of fact can be found in the Board of Zoning Adjustments’ May 6, 2021 agenda packet. Zoning Code Section 5.20.116 specifies that the scope of the City Council’s decision is limited to the same application, plans, and related project materials that were the subject of the original decision and only the issue(s) raised by the appeal.
The two appeals were filed in a timely manner within the 15-day appeal window specified in Zoning Code Section 5.20.108. Accommodations were provided to the Appellants to receive their documentation and for Appellants to pay their appeal fees due to the COVID-19 emergency closure of City Hall at the time of filing. Both appeals have been attached to this report.
Analysis
Appeal filed by East Bay Residents for Responsible Development
This Appellant has filed an appeal under the premise that the Project includes new and more significant effects that were not addressed in prior environmental reviews, that uniformly applicable development policies do not mitigate such effects, and that additional review is required. The 125-page appeal covers a number of claims which are summarized and refuted in order here.
Applicant’s Rebuttal Statement
In response to the Appeal filed by the East Bay Residents for Responsible Development, the Applicant submitted a letter report prepared by Trinity Consultants dated June 21, 2021 with supporting data (attached). The letter reviews and rebuts the Appellant’s claims related to air quality, health risk impacts and greenhouse gas emissions. In their review and response, Trinity finds no new information which meets the substantial evidence test to require additional analysis through an EIR. Trinity further finds there is legally sufficient substantial evidence provided in the Infill Environmental Checklist, as supported by the Air Quality Technical Report, its supporting references, and review of its emissions workbook to meet CEQA Guidelines requirements as supported by case law. Staff concurs with Trinity Consultants’ analysis, assessments, and conclusions.
Housing Impacts
The Zoning Code contains provisions that enable the Board of Zoning Adjustments to consider and approve alternative inclusionary housing proposals from developers. Following its review of the Project, the BZA further strengthened and approved the Project’s alternative inclusionary housing plan in accord with the discretionary authority granted to them under Zoning Code Section 6.04.132(B) by requiring an additional five inclusionary housing units. This approval helps the City meet its above-moderate income (market rate) regional housing needs allocation (RHNA) goals because San Leandro is in compliance with meeting its very low- and low-income housing production goals per HCD, but the City does not meet its market rate housing production goal. For these reasons, the Project will not cause new significant and unmitigated housing impacts, does not violate the inclusionary housing requirements of the City’s Zoning Ordinance, the Project provides sufficient inclusionary housing, and the Project as approved complies with existing policies established in the General Plan Housing Element.
Air Quality Impacts
The Infill Checklist prepared for the Project adequately analyzed the Project’s construction and operational air quality as well as public health risks to the surrounding community. The Project’s extensive air quality analysis determined that the Project will not generate toxic air contaminants that are new or more severe than previously analyzed. This Appellant has made an assumption in its argument that the City’s uniformly applicable development standards are inadequate and not enforceable, when in fact the City and the Bay Area Air Quality Management District (BAAQMD) are authorized and routinely and actively engaged in the inspection and enforcement of air quality compliance during all grading and construction activities and are further authorized and engaged with enforcement post-construction. The transit-oriented Project was designed and constructed in a way that reduces the potential for future air quality impacts by reducing reliance on vehicle trips and promoting active transportation options. Furthermore, the Conditions of Approval reflect and reinforce the uniformly applicable development standards imposed by the City, the United States Environmental Protection Agency, and the Bay Area Air Quality Management District, among other agencies.
The Applicant’s letter from Trinity Consultants dated June 21, 2021, provides additional supporting facts that refute and rebut this Appellant’s claim that the project would Cause New Significant and Unmitigated Air Quality Impacts and those areas where the claims were not supported by substantial evidence. In its review of the Appellant’s comments, the Trinity Consultants found no new information that meets the substantial evidence test to require additional analysis through an EIR. Staff concurs with the analysis and the findings.
Health Risk Impacts
The Appellant argues that the Project exceeds an allowable cancer risk threshold based on a temporary decrease in air quality during construction and grading and delivery traffic under the assumption that the City’s uniformly applicable development standards do not adequately address air quality impacts for those activities. The Infill Checklist directly and appropriately addresses this topic and the Project’s Conditions of Approval contain the U.S. Environmental Protection Agency’s (EPA) Tier 4 regulations that reduce the project’s localized emissions below BAAQMD’s threshold for cancer risk.
The Applicant’s letter from Trinity Consultants dated June 21, 2021 further provides additional supporting facts that refute the Appellant’s claim that the project would exceed allowable cancer risk levels and identifies those areas where the claim is not supported by substantial evidence. Staff concurs with the analysis and the findings.
Hazardous Materials Impacts
Site investigation and the Project’s initial study did not establish that there would be a significant impact from hazardous materials. The Applicant is proactively engaged in the investigation and remediation of the Project site. The Applicant entered into an agreement with the Alameda County Department of Environmental Health (ACDEH) to provide oversight during site investigation and remediation activities (ACDEH Site Cleanup Program Case No. RO0003472). The applicant prepared a Corrective Action Plan (CAP) for the Project site that was publicly noticed by ACDEH and posted online for public review on the State Water Resources Control Board’s GeoTracker website (“Cortese-listed”), as referenced by the current status “Open - Site Assessment.” The site investigation and subsequent clean-up measures are in accord with established uniformly applicable development standards and are in compliance with existing policy as part of the necessary steps to clean up residual hazardous materials on a site proposed for redevelopment. An EIR is not required for every project proposed on a Cortese-listed site. These steps would be required and taken prior to redevelopment of the site regardless of a discretionary approval. With these efforts and other measures in place, the potential for impacts from hazardous waste and hazardous materials will be less than significant.
Greenhouse Gas Impacts
The Appellant claims that excessive greenhouse gas (GHG) emissions from the Project would be detrimental to the public health, safety and welfare of San Leandro residents and the general welfare of the City based on the premise that the Project would generate GHGs in excess of the levels previously analyzed. The Applicant counters this claim in its letter and attached report dated June 21, 2021, pointing out why and how the statements and methodology presented in the Appeal were incorrect, explaining the reasons behind its position and supporting the position with further data in the appendices. There is substantial evidence in the record that GHG emissions from the Project were adequately analyzed and considered and that there is no new information which meets the substantial evidence test to require additional analysis through an EIR.
It should be noted that, in its approval of the Project, the Board of Zoning Adjustments further reduced the Project’s GHG impacts by imposing conditions of approval requiring the use of solar panels and electric heating, ventilation, and air conditioning (HVAC) systems.
Noise Impacts
The Appellant claims that the Project will result in noise impacts that would be detrimental to the general welfare of the City and assumes the City’s uniformly applicable development standards to address noise impacts are inadequate. The General Plan provides clear thresholds of significance when it comes to evaluating noise impacts from projects and thoroughly addresses the topic in the Environmental Hazards element. Both the Zoning Code and Municipal Code contain specific provisions for addressing noise issues. These include Zoning Code Sections 2.12.324, 2.12.328, and 4.04.360 which contain provisions for noise attenuation during periods of construction, and Article 11 of the Municipal Code, which consists of the City’s Noise Ordinance. The California Building Code further contains noise threshold requirements for indoor ambient noise levels, mechanical equipment and other factors related to new construction. Furthermore, the City is actively engaged with noise compliance and enforcement during all grading and construction activities as well as after Project completion. These uniformly applicable development standards are reflected in the Project’s Conditions of Approval to ensure that noise from the Project will not result in a significant impact.
Traffic Impacts
Substantial evidence in the record supports the Board of Zoning Adjustments’ finding that the Project will not generate significant vehicle miles traveled (VMTs). A detailed transportation impact study dated October 2020 was prepared for the Project and the environmental determination. The Project is located in a high-quality transit corridor, a walkable neighborhood, is located within a major employment center, and provides active transportation options as an alternative to vehicle use. The truck loading areas for the Project were analyzed by the City’s Engineering and Transportation Department staff and CHS Consulting Group and found to be safe and adequate. The transportation impact study concluded that the proposed Project would not result in significant impacts with respect to the addition of the Project’s traffic, and no mitigation measures were required.
Payment of Appeal Fees
Only project applicants are held responsible for costs associated with their appeal. In this instance, neither of the two Appellants are the project applicant and are therefore not subject to the assumed requirements cited. In this instance, both Appellants were provided reasonable accommodation by the City to submit their appeal and pay the associated fees remotely during a declared State of Emergency for COVID-19 at a time when City Hall was closed to the public. The City accepted and processed their appeals regardless of the accompanying forms provided and will not hold them to the same standard as Applicants insofar as obligations for the payment of fees and costs associated with due process are concerned.
Appeal filed by Laborers International Union of North America, Local 304
This Appellant filed an appeal under the premise that the environmental review of the project was inadequate because significant effects relating to indoor air quality, specifically the impact on residents from formaldehyde in building materials, were not analyzed in the General Plan EIR and would not be substantially mitigated by the City’s uniformly applicable development policies.
There are a number of uniformly applicable development standards already established, including provisions imposed by State and Federal agencies, to regulate formaldehyde emissions in new construction to safe levels. The Project is required to comply with the 2019 California Green Building Standards Code (CALGreen), which specifies that composite wood products (such as hardwood plywood and particleboard) used for construction must meet all requirements for formaldehyde specified by the California Air Resources Board’s Airborne Toxic Control Measures, which do not allow added formaldehyde-based resins or ultra-low emitting formaldehyde resins. Given the existing regulatory measures in place, it is pure speculation and argument without supporting evidence to state that exposure to formaldehyde is directly applicable to new construction. Sources of formaldehyde cannot be linked to the Project and substantial sources of formaldehyde emissions from the Project have not been identified.
Board of Zoning Adjustments Decision
The Board of Zoning Adjustments approved the Project (PLN18-0036) and environmental determination with conditions on May 6, 2021 under Resolution No. 2021-003 by a 4-3 decision. The motion to approve from Board Member Breslin and seconded by Member Santos included a condition of approval that the Project utilize electric heating, ventilation and air conditioning (HVAC), that the project utilize solar panels, and that the number of inclusionary housing units be increased from five (5) to ten (10). The Project’s public hearing had 11 public speakers and 4 written comments.
Environmental Review
An Infill Checklist was prepared for the Project in accordance with Public Resources Code Section 21094.5 and the CEQA Guidelines, California Code of Regulations Section 15183.3 and Appendices M and N. The Infill Checklist tiers off the 2035 General Plan Update Environmental Impact Report (2016). This prior EIR was prepared as part of enacting the City’s General Plan Update and zoning code which implemented the Downtown Transit-Oriented Development (TOD) Strategy (CEQA Guidelines 15183.3). This Infill Checklist demonstrates that any significant effects from the Callan & East 14th Street Project were analyzed in the prior EIR or would be substantially mitigated by the City’s uniformly applicable development policies. The Infill Checklist also incorporates information from the Downtown TOD EIR (2007), which also qualifies as a prior EIR. Based on these determinations, the Board of Zoning Adjustments found that no additional environmental review was required under CEQA for the Project as an infill project. Subsequently, a Notice of Determination (NOD) was filed with the Alameda County Recorder’s Office on May 13, 2021, prior to the filing and receipt of the two Appeals to City Council.
Errata
The Infill Checklist contains an error in the Project Description, Section 3.4.6, which states “The proposed project would have a density of 123 units/acre and floor area ratio (FAR) of 3.17”, but on the next page in Table 3-4, the Proposed Project FAR is correctly listed as 2.79.
Summary of Public Outreach Efforts
The City Council appeal hearing on July 6, 2021 was noticed in the same manner as the prior BZA public hearing held on May 6, 2021, including a legal advertisement in the East Bay Times - Daily Review newspaper, the posting of a hearing notice on the subject property, and mailing notifications to property owners and businesses within a 500-foot radius of the subject property. No public comments were received regarding the appeal prior to the filing of this report.
Fiscal Impacts
Both Appellants paid a fixed filing fee for this appeal in accord with the City’s adopted Fee Schedule. Although the Project Applicant did not file an Appeal, they are responsible for any fiscal impacts associated with the outcome of this decision as noted in their signed Agreement for Payment of Fees.
Legal Analysis
The City’s response to the Appeals were reviewed by the City Attorney and approved as to form.
ATTACHMENTS
Attachment(s) to Staff Report
Appeal filed by East Bay Residents for Responsible Development
Appeal filed by Laborers International Union of North America, Local 304
Applicant’s Appeal Response, Trinity Consultants, June 21, 2021
PLN18-0036 Exhibits A through D
Inclusionary Housing Plan
CEQA Infill Checklist Final PLN18-0036
Appendix A - Air Quality GHG
Appendix B - Community Health Risk Assessment
Appendix C - Geotechnical
Appendix D - Environmental Hazards
Appendix E - Noise
Appendix F - Transportation Impact Study
Appendix G - AB 52
Presentation
Attachment(s) to City Council Resolution
Exhibit A - Findings of Fact
Related Legislative Files
Board of Zoning Adjustments Staff Report, May 6, 2021 (21-241)
Board of Zoning Adjustments Resolution 2021-003, May 6, 2021 (21-242)
Minutes of the Board of Zoning Adjustments dated May 6, 2021 (21-336)
City Council Staff Report for Purchase and Sale Agreement (16-047)
City Council Resolution 2016-027, Purchase and Sale Agreement, February 16, 2016 (16-046)
PREPARED BY:
Andrew Mogensen, AICP
Planning Manager
Community Development Department