Protect Niles v. City of Freemont, Doug Rich, Real Party in Interest and Appellants

The City of Fremont (City) approved a residential and retail development (Project)

in its Niles historical district over considerable neighborhood opposition. The City

adopted a mitigated negative declaration after finding the Project as mitigated would have

no significant adverse environmental impact. Protect Niles1 petitioned for a writ of

mandamus ordering the City to overturn the project approvals and prepare an

environmental impact report. The trial court granted the petition after finding substantial

evidence supported a fair argument of significant adverse impacts on aesthetics

(incompatibility with the historical district) and traffic. We affirm.



1 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.)].”

2

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 a 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),2

and adopted design guidelines and regulations for commercial

properties in the core area of the district (HOD Guidelines; Fremont Mun. Code,

§ 18.135.010 et seq.). The district has a distinctive character with large unusual trees

lining the streets, and its seven-block-long commercial main street and surrounding

neighborhood feature historic buildings with diverse architectural styles and details.

According to a planning staff report on the Project before us, the HOD Guidelines also

offer “general guidance . . . for maintaining compatibility with the unique characteristics”

of the HOD for areas outside the commercial core. The HOD Guidelines’ “vision” for

the Niles HOD is in part to preserve the district’s “small town character.” The City’s

Historical Architectural Review Board (HARB) is charged with reviewing exterior

features of proposed developments in the Niles HOD and advising the planning

commission and city council regarding project approvals. (Fremont Mun. Code,

§ 18.135.050.)

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



2 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.

3

“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 in the northern portion. The density of the

townhouse area would be 15.6 units per acre (85 homes on 5.43 acres), with a maximum

height of 35 feet (three stories). A new street (New Street) in the Project would be built

to connect with Niles Boulevard. Valley Oak’s “vision for this site is the establishment

of an iconic development that enhances the historic character of Niles’ town center, the

sense of arrival to the Alameda Creek Trail, and most importantly, the reinforcement of

the vitality and eclectic nature of the Niles community.”

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 the aesthetic issue, the

City found the Project would not “[s]ubstantially degrade the existing visual character or

4

quality of the site and its surroundings” because it “would be visually compatible with

surrounding development and consistent with the vision for Niles, as outlined in the

[HOD Guidelines] . . . . The proposed buildings and landscapes reinforce the gateways

and the strong sense of place found in Niles.” Moreover, the visual appearance of the site

would improve from its existing “dilapidated, unsightly visual appearance.” On the

traffic issue, the City relied on an expert traffic study and found the Project would not

have significantly adverse traffic impacts with the addition of a single mitigation measure

requiring Valley Oak to ensure adequate sight distance at the intersection of the proposed

New Street and Niles Boulevard intersection (New Street/Niles intersection).

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 planning 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

5

similar to the staff report and reported plans to change some exterior and roof designs in

response to HARB’s concerns. When pressed on the density issue, Valley Oak said the

Project would not be economically feasible if the density were significantly reduced.

Public comments submitted in writing and those presented orally at the hearing reflected

the same concerns expressed during the HARB hearing.3

The commissioners voted six to

zero (with one member recused) to recommend that the city council approve the Project

and adopt the draft MND subject to conditions including height reduction of some

townhouses; ensuring high windows did not provide views into adjacent homes; reduced

use of metal siding; and improved traffic flow at the New Street/Niles intersection with a

turnaround.

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.

4

The City issued a “Notice

of Determination,” finding the Project as mitigated would not have a significant effect on

the environment. It separately found the Project was “functionally and aesthetically

compatible with the building styles, materials, colors and significant features . . . with the

Niles HOD.” One of the City’s “conditions of approval” dealt with traffic issues: “The

applicant shall work with the Public Works Department to include a north[/west]bound

left-turn pocket lane on Niles Boulevard at the new intersection of Street A and Niles

Boulevard if the Public Works Department determines the adequate right-of-way will

accommodate a left-turn pocket lane.”



3 Residents presented commissioners with a petition purportedly signed by

175 citizens asking them to consider the Project’s impacts before allowing “this highdensity

project” to move forward. Commissioners were later presented with a petition in

favor of the Project signed by eight Niles business owners.

4 The council again voted three to two to approve the Project and adopt the draft

MND after a second reading on March 17, 2015.

6

The only relevant CEQA mitigation measure required a specified sight distance at

the New Street/Niles intersection. As approved, the Project still included 98 residential

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 the same category as ‘expert’ testimony.” On traffic, the court cited “a

plethora of commentary by members of the public . . . [describing] an already low level

of service and asserting that the reduction in the level of service will be more significant

than is reflected in the Initial Study/MND. [¶] . . . [¶] Respondents are incorrect that the

Initial Study/MND data does not demonstrate a traffic impact. Respondents are also

incorrect that a change in level of service from ‘E’ level to ‘F’ level is not substantial

evidence of a significant traffic impact, and that conclusion is particularly true in

combination with the relevant personal reservations from the community members who

describe the actual impacts of the Initial Study/MND’s statistics on the level of service.

[¶] [T]he City is [also] incorrect that [an adopted threshold of significance] trumps a fair

argument that a project may cause a significant impact. (Communities for a Better

Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 111–114.)

[¶] The record also reflects commentary regarding the safety, or lack thereof, of the

proposed left turn for vehicles traveling northward on Niles Boulevard at the street

7

proposed to be built as the primary entrance to the project. That commentary was

validated by the city councilman, who has traffic engineer expertise . . . .” The court

ordered the City to vacate its Project approvals and refrain from approving the Project

“absent compliance with CEQA in the preparation of an EIR.” Valley Oak appeals.

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)[5]

.) “Its purpose is to

inform the public and its responsible officials of the environmental consequences of their

decisions before they are made. Thus, the EIR ‘protects not only the environment but

also informed self-government.’ [Citation.]” [Citation.] To this end, public participation

is an “essential part of the CEQA process.” ([CEQA] Guidelines, § 15201; [citation].)

“ ‘With certain limited exceptions, a public agency must prepare an EIR whenever

substantial evidence supports a fair argument that a proposed project “may have a

significant effect on the environment.” ([Pub. Resources Code,] §§ 21100, 21151, 21080,

21082.2 [fair argument standard]; [CEQA] Guidelines, §§ 15002, subd. (f)(1), (2), 15063;

[citation].) “ ‘Significant effect on the environment’ means a substantial, or potentially

substantial, adverse change in the environment.” ([Pub. Resources Code,] § 21068; see

also [CEQA] Guidelines, § 15382.)’ [Citation.]

“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,]



5 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.

8

§ 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 from this information that a fair argument can be made to support a

conclusion, even though other conclusions might also be reached.’ ([CEQA] Guidelines,

§ 15384, subd. (a).) Substantial evidence ‘shall include facts, reasonable assumptions

predicated upon facts, and expert opinion supported by facts.’ ([Id.], § 15384, subd. (b).)

‘Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly

erroneous or inaccurate, or evidence of social or economic impacts which do not

contribute to or are not caused by physical impacts on the environment does not

constitute substantial evidence.’ ([Id.], § 15384, subd. (a).)

“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. Resources 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 possibility of

adverse impact on a few people, as opposed to the environment in general.” (Pocket

9

Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 926–929, fns. omitted

(Pocket Protectors).)

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) 89 Cal.App.4th 294, 300, fn. 4.) We decline to do so at this late date.

Moreover, the appeal is not truly “moot.” Were Valley Oak to prevail in this appeal, the

City’s 2015 Project approval would be restored regardless of the status of the revised

application and EIR.

6



6 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) 7 Cal.4th 1057, 1063 [judicial notice

taken only of relevant material], overruled on other grounds in In re Tobacco Cases II

(2007) 41 Cal.4th 1257, 1276.)

10

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 evidence 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 responded to both theories. In its written order on the merits, the trial

court accepted the aesthetic impact theory and did not address the land use policy issues.

Valley Oak appealed and Protect Niles did not file a cross-appeal.

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

id., § 21060.5 [defining “ ‘environment’ ” to include “objects of historic or aesthetic

significance”].) Thus, “aesthetic issues are properly studied under CEQA.” (Preserve

Poway v. City of Poway (2016) 245 Cal.App.4th 560, 577 [reviewing cases].) As

guidance for evaluation of aesthetic impacts, the CEQA Guidelines suggest agencies

consider whether a proposed project would “[s]ubstantially degrade the existing visual

character or quality of the site and its surroundings.” (CEQA Guidelines, appen. G, § I,

subd. (c), italics added [environmental checklist form].) The CEQA Guidelines

specifically note that “the significance of an activity may vary with the setting.” (CEQA

Guidelines, § 15064, subd. (b); North Coast Rivers Alliance v. Marin Municipal Water

11

Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 624 [lead agency may find impact

significant “ ‘depending on the nature of the area affected’ ”].)

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) 160 Cal.App.4th

1323, the court ruled an EIR was required where evidence showed a two- and three-story

120-unit senior housing facility might cause significant “changes to the physical and

aesthetic conditions and character of the surrounding low-density, single-family

residential neighborhood” due to the proposed facility’s density and height. (Id. at

p. 1335; see id. at pp. 1327–1329, 1337.) In Pocket Protectors, the court ruled an EIR

was required where a proposed development on narrow parcels within a larger planned

residential development might cause significant aesthetic impacts due to the proposed

development’s limited green space, minimal setbacks, and parallel rows of houses

creating a tunneling or canyoning effect. (Pocket Protectors, supra, 124 Cal.App.4th at

pp. 908–910, 936–939; see id. at pp. 929–936 [on similar grounds finding substantial

evidence of fair argument of conflict with local land use policies].)

In Eller Media Co. v. Community Redevelopment Agency (2003) 108 Cal.App.4th

25, an agency’s decision to prepare a supplemental EIR on a proposal to erect a billboard

was affirmed in part because it “could potentially affect the visual environment” in a

Hollywood redevelopment area. (Id. at p. 35; see id. at pp. 29–30, 44.) The agency

further found the billboard’s height and massiveness and its support structure might be

incongruent with an historic building on the project site or provide an inappropriate

backdrop for the scenic vista of Sunset Boulevard, a major scenic highway in the

neighborhood. (Id. at pp. 35–36.) Similarly, the agency found the billboard’s scale and

character might be inappropriate in proximity to residences, a church, and playground.7



(Id. at p. 35 [also finding incompatibility with adjacent land uses]; see Friends of College



7 The agency made similar findings based on conflict 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.)

12

of San Mateo Gardens v. San Mateo County Community College Dist. (2017)

11 Cal.App.5th 596, 609–611 [demolition of building and surrounding gardens might

have significant adverse aesthetic impact on college campus].)

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) 157 Cal.App.4th 885,

900–903 [no EIR required where neighbors urged city to preserve beauty of area but

provided no evidence housing development would cause substantial adverse impact on a

public view]; Taxpayers for Accountable School Bond Spending v. San Diego Unified

School Dist. (2013) 215 Cal.App.4th 1013, 1042 [complaints that high school stadium

lights would disturb peace and calm of neighborhood were evidence of aesthetic impacts

only on particular persons].) Similarly, CEQA aesthetics review should not be used to

secure social or economic rather than aesthetic environmental goals. (See Porterville, at

p. 903 [concerns that project’s construction quality could reduce neighboring property

values was not a legitimate CEQA issue]; Preserve Poway v. City of Poway, supra,

245 Cal.App.4th at pp. 565–566 [objections that housing development would replace a

popular horse boarding facility raised psychological or social concerns, not CEQA

environmental concerns].)

Courts also emphasize that context is crucial in determining the appropriateness of

CEQA aesthetic review. In Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, our

colleagues in Division Four upheld a city council’s decision to adopt an MND for an

urban infill senior housing project and rejected an argument that an EIR was required to

assess the project’s aesthetic impact on the neighborhood. (Id. at pp. 576–577.) “[W]e

do not believe that our Legislature in enacting CEQA . . . intended to require an EIR

where the sole environmental impact is the aesthetic merit of a building in a highly

developed area. [Citations.] To rule otherwise would mean that an EIR would be

required for every urban building project that is not exempt under CEQA if enough

people could be marshaled to complain about how it will look. . . . The aesthetic

difference between a four-story and a three-story building on a commercial lot on a major

13

thoroughfare in a developed urban area is not a significant environmental impact, even

under the fair argument standard.” (Id. at p. 592.) “[A]esthetic issues like the one raised

here are ordinarily the province of local design review, not CEQA.” (Id. at p. 593.)

However, Bowman added an important caveat: “[T]here may be situations where . . . an

aesthetic impact like the one alleged here arises in a ‘particularly sensitive’ context

([CEQA] Guidelines, § 15300.2)[8] where it could be considered environmentally

significant . . . .” (Bowman, at p. 592, italics added.) The court held no EIR was required

“[b]ased primarily on the [proposed project’s] environmental context”—a single senior

housing facility in a mixed-use urban setting. (Id. at p. 576.) Here, Valley Oak proposes

building a 6-acre housing complex within a designated historical district—an area the

City itself has recognized as a particularly sensitive context.

The court in San Francisco Beautiful v. City and County of San Francisco (2014)

226 Cal.App.4th 1012, similarly emphasized context when it upheld application of a

categorical exemption to a project to add utility boxes to San Francisco sidewalks. (Id. at

p. 1017.) The court held an “unusual circumstances” exception to the exemption was not

merited based on the project’s aesthetic effects even under a fair argument standard. (Id.

at pp. 1023–1024 [applying CEQA Guidelines, § 15300.2, subd. (c)].) As in Bowman,

supra, 122 Cal.App.4th 572, the court emphasized that “ ‘[t]he significance of an

environmental impact is . . . measured in light of the context where it occurs.’ ” (San

Francisco Beautiful, at p. 1026, italics added.) The historic district setting at issue here is

readily distinguishable.

In Eureka Citizens for Responsible Government v. City of Eureka (2007)

147 Cal.App.4th 357 (Eureka), we rejected arguments that an EIR was inadequate



8 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).)

14

because it failed to analyze the impact of a school playground on the historical and

aesthetic character of the surrounding residential neighborhood. (Id. at pp. 374–376.)

Again, context among other factors distinguishes Eureka from this case. First and most

importantly, the city had prepared an EIR on the project in Eureka, so the question before

us was whether the city’s finding of no significant environmental impact after mitigation

was supported by substantial evidence, regardless of any substantial evidence to the

contrary; here, where the city relied on an MND, the question before us is whether there

was any substantial evidence in the record of a significant environmental impact,

regardless of substantial evidence supporting the city’s finding of no significant impact.

“[T]his distinction is crucial for purposes of our review.” (North Coast Rivers Alliance v.

Marin Municipal Water Dist. Bd. of Directors, supra, 216 Cal.App.4th at p. 627.)

Second, appellants in Eureka had made a “historical resources” impact argument

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; see Pub. Resources Code, § 21084.1

[defining “historical resource” and providing a “substantial adverse change in the

significance of an historical resource” may be a significant effect on the environment];

CEQA Guidelines, § 15064.5, subds. (a), (b); see also id., § 15064.5, subd. (b)(1), (2)

[defining “substantial adverse change in the significance of an historical resource” as

demolition or material alteration in the physical characteristics of the resource].) Here,

Protect Niles does not argue the City failed to comply with CEQA’s historical resource

provisions.

Third, in Eureka we rejected the appellants’ aesthetic impact argument because

“nothing was presented in the record that established an aesthetic 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,

15

147 Cal.App.4th at p. 375, fn. omitted; see Taxpayers for Accountable School Bond

Spending v. San Diego Unified School Dist., supra, 215 Cal.App.4th at pp. 1043–1045

[rejecting argument that project would have adverse aesthetic impact on alleged historical

district where district never was recognized by city and no evidence district would be

materially impaired].) Here, as discussed post, there was substantial evidence of an

adverse impact on the unusual setting of the Niles HOD, as mapped and officially

recognized by the City.

Finally, in Eureka we rejected the appellants’ argument that the “playground

structure was ‘enormous and garish’ and ‘wholly inappropriate for this site’ ” and thus

would have a significant adverse environmental impact. (Eureka, supra, 147 Cal.App.4th

at p. 376.) “[T]he CEQA issue of aesthetics is not the judging of the individual beauty of

the [playground], but rather the physical elements of the preexisting environment [it] may

significantly impact.” (Ibid.) Here, while many of public comments on the Project

criticized the aesthetics of the Project independent of its setting, Protect Niles’s litigation

argument rests on the Project’s aesthetic impact on the setting, i.e., the Niles HOD.

In sum, we conclude a project’s visual impact on a surrounding officiallydesignated

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; CEQA

Guidelines, § 15064.5(a), (b).) As noted, those rules focus 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.

9

(See Eureka,

supra, 147 Cal.App.4th at pp. 374–375.) We do not believe the Legislature intended

CEQA review to overlook a project’s aesthetic impact on a historical district where the



9 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.

16

Legislature expressly provided that CEQA addresses projects’ aesthetic and historic

environmental impacts (Pub. Resources Code, § 21001, subd. (b)), specified that any

objects of historical or aesthetic significance are part of the environment (Id., § 21060.5),

and intended that CEQA be liberally construed to afford the fullest possible protection to

the environment (Laurel Heights Improvement Assn. v. Regents of University of

California (1988) 47 Cal.3d 376, 390).

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.

HARB, however, opined that the Project was inconsistent with the Niles HOD

because of its height, density and massing, as well as its architectural style. HARB

member Shaiq opined that the Project “did not compl[e]ment Niles because of its

density,” which would take away “the small town feeling” of Niles. HARB member

Adamson said “something ‘village-ie’ would be best,” with less density and more open

space. HARB chairperson Price said, “Architectural features should have some

significance with current historical features in Niles” but “[m]ost important” is “density

. . . in keeping with the HOD.” Niles residents echoed these views. One argued the

“[HOD] Guidelines emphasized scale and a view to the hills. The height of the buildings

should be both one and two stories. . . . Niles was about a small town feel.” Another said

the “modern, high-tech look” of the Project was not an “appropriate entrance to the core

of the current downtown Niles [HOD].” Still another resident agreed that “the gateway

should say that this is what you’ll get when you enter downtown.” Other resident

comments were that “the architecture was interesting, but not right for Niles”; “the

17

cannery design was actually beautiful, but the rest was not appropriate for Niles”; and a

“more traditional look should be used to blend” into the adjacent neighborhood.

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. Commissioner Bonaccorsi said the “sea of 30[-

foot] houses” was a different look from the former industrial buildings on the site. Niles

resident Scott Rogers said the Project “doesn’t look like Niles,” and Niles resident Deni

Caster said the Project’s “design factors in a historical area demand your attention.”

Even after the Project was modified in response to the planning commission’s conditions,

similar opinions were voiced. City Councilmember Bacon said the Project “failed to

relate the historic character of Niles” and “clearly does not match the character of what

we have in Niles.” He observed, “when you have 24 garages in a row and three-story

developments you have a canyon effect,” and reduced massing would “give it a much

different character.” Niles resident Al Menard said, “This is too modern of a site for a

historic district. . . . [P]eople when they come underneath the railroad tracks they see a

historic venue that they know . . . is part of the historic community of Niles. And if we

don’t do that we’ve lost a lot of our integrity and a lot of our history.” Niles resident

Dorothy Bradley urged the city council to “please downsize the project. It’s too much for

Niles.” Niles resident Kimberly Harbin complained “there doesn’t seem to have been

much of an effort at all to make the architecture fit into what we consider the small town,

Norman Rockwell charm that is Niles.” In short, opinion differed sharply as to the

Project’s aesthetic compatibility with the historic district.

We recognize that aesthetic judgments are inherently subjective. (See Ocean View

Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396,

402.) But “[p]ersonal observations on these nontechnical issues can constitute substantial

evidence.” (Ibid.) 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

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neighborhood and commercial core. (Cf. Leonoff v. Monterey County Bd. of Supervisors

(1990) 222 Cal.App.3d 1337, 1352 [“[u]nsubstantiated opinions, concerns, and

suspicions about a project, though sincere and deeply felt, do not rise to the level of

substantial evidence”].) HARB, the board specifically charged with assessing

compatibility with the Niles HOD and presumably comprised of persons with some

expertise in historic aesthetics, overwhelmingly voted to deem the design incompatible

based in part on its “massing, scale, size,” which was never significantly modified. (Cf.

Pocket Protectors, supra, 124 Cal.App.4th at pp. 931–932 [planning commissioners’

fact-based opinions based on planning expertise were substantial evidence for fair

argument].) Although the Project was modified somewhat following the HARB meeting,

the density and architectural style of the Project were never changed such that HARB’s

criticisms became irrelevant. (See Friends of College of San Mateo Gardens v. San

Mateo County Community College Dist., supra, 11 Cal.App.5th at p. 610 [“comments

remained relevant after the revised addendum” to an MND where relevant facts had not

changed].) Moreover, many of the conditions added to the Project approvals by the city

council were merely precatory and not added as required CEQA mitigation measures to

reduce an environmental impact to less than significant.

Valley Oak argues the Project cannot plausibly result in an adverse aesthetic

impact on its surroundings because it is being upgraded from a dilapidated vacant lot to

attractively landscaped new construction. On this theory, construction of any nature or

character within the Niles HOD could not plausibly have an adverse aesthetic effect on

the historic district because the project would presumably be more attractive than a

vacant lot. We reject that categorical approach.

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,

11 Cal.App.5th at p. 610 [aesthetic impact of removing campus gardens potentially

19

significant because gardens were “unique,” even though loss of total landscaped and open

space would have been less than one-third of one percent].) The Project site is at a

recognized “gateway” to the Niles HOD, it abuts the commercial core and extends the

commercial strip, and it lies entirely within the historical district.

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) 137 Cal.App.3d 424, 435–

436.)” In Perley, the county planning commission had ordered preparation of an EIR, but

the board of supervisors overruled its decision on appeal and approved the project after

adopting an MND. (Id. at p. 429.) The Court of Appeal affirmed the denial of a petition

to overturn the board’s decision, noting that the plaintiff had failed to point to specific

evidence in the record that would support a fair argument of significant environmental

effects. The plaintiff had cited the fact that “the planning commission came to a different

conclusion tha[n] the board.” (Id. at pp. 434–435.) The court wrote, “The commission’s

conclusions from the evidence presented to it do not themselves constitute evidence of

such effects.” (Id. at p. 435.) Here, Protect Niles does not rely alone on the HARB vote

as evidence of a significant aesthetic impact, but also cites board members’ underlying

aesthetic judgments about the effect of the Project. Other courts have distinguished

Perley on similar grounds. (Architectural Heritage Assn. v. County of Monterey (2004)

122 Cal.App.4th 1095, 1115–1116 [advisory historic board’s fact-based determination of

historic status was substantial evidence supporting a fair argument project would destroy

historic resource]; Pocket Protectors, supra, 124 Cal.App.4th at p. 934 [planning

commission’s factual findings of conflict with land use policies was substantial evidence

of fair argument of significant impact].) In our view, HARB members’ collective

opinions about the compatibility of the Project with the Niles HOD are substantial

evidence in this record of the Project’s potentially significant aesthetic impacts.10



10 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

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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

does not contend the aesthetic impacts issue was not administratively exhausted. We also

recognize that because aesthetics is an inherently subjective assessment the City could

well act within its discretion if, after preparation of an EIR, it concludes the Project will

have no significant aesthetic impact on the historical district. Our role here, however, is

not to anticipate whether an ultimate evaluation by the City, one way or the other, might

be supported by substantial evidence. Our function is to ensure the CEQA environmental

review process serves its purpose of facilitating informed decision-making with public

participation on environmental issues. Preparation of an EIR will facilitate the informed

self-government process of evaluating the Project’s aesthetic impact on the Niles HOD.

An EIR will describe the Project’s compatibility with the Niles HOD, assess the

adequacy of proposed mitigation measures, discuss possible alternative designs, and

assess their feasibility.11

(1 Kostka & Zischke, Practice Under the Cal. Environmental

Quality Act (Cont.Ed.Bar 2018) §§ 11.9–11.13, pp. 11-7 to 11-8.)

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.12

We agree with the trial court that these fact-based



confuses the lead agency’s authority to make the ultimate significant impact findings

after appropriate environmental review with the agency’s responsibility to initially

prepare an EIR if there is a fair argument of a significant environmental impact.

11 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.

12 Protect Niles incorporates most of these quotes into its respondents’ brief on

appeal as well.

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comments constituted substantial evidence supporting a fair argument the Project will

have significant adverse traffic impacts.

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.13

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.

The traffic study analyzed traffic flow at the proposed location of the New

Street/Niles intersection and congestion at nearby intersections, including Niles/Mission.

Relying on trip generation rates for residences and quality restaurants taken from the

Institute of Transportation Engineers publication, Trip Generation (9th edition), the study

estimated the Project would generate 785 daily trips (including 569 generated by the

Project’s dwelling units). When rerouted traffic from the adjacent neighborhood was

factored in, the study projected 55 morning peak hour trips through the New Street/Niles

intersection and 78 during the evening peak hour.

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



13 We take judicial notice of the general geography of the Fremont area. (Evid.

Code, § 452, subd. (h).)

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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 number 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 Boulevard taking the

hard-right turn might run into cars queued up to turn left into the Project. As City

Councilmember Bacon said, “[I]f there were three or four vehicles queuing and trying to

make that left turn, . . . you’d have very little room for someone coming around that

corner . . . [V]isibility is quite bad.” He called it “a blind turn” and a “pretty dangerous”

situation. City Councilmember Jones observed that westbound drivers on Niles

Boulevard “have a tendency as they make the right turn [after the railroad underpass],

23

they hit the gas.” The City Community Development Director Jeff Schwob agreed that

speeds on Niles Boulevard generally are a concern: “I would say people drive way too

fast down Niles Boulevard. . . . Whether they’re going to pick up enough speed right

there around the corner, I don’t know. But once you [are into the commercial core], it’s

like ‘oh my gosh.’ ” Niles resident Dorothy Bradley stated: “I live on Niles Boulevard

. . . and they raised the speed limit from 35 to 40 miles an hour on a short strip and . . .

believe me, people go flying by my house at 45 and 50 miles per hour before they reach

the overpass into Union City,” apparently referring to a portion of Niles Boulevard to the

west of the Niles commercial core. Niles resident Roger Marshall criticized the traffic

study’s reliance on the downtown intersection, noting a substantial difference in the

westbound approaches to the two intersections, and faulted the study for not taking into

account the Project’s new angled parking would require motorists to back into Niles

Boulevard.14

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



14 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).”

24

(not a CEQA mitigation measure) that merely required Valley Oak to “work with” City

staff on the issue with a goal of adding the left-turn pocket lane if there was a sufficient

right-of-way—no alternative measures were considered or mandated if not.

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 interference 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 that are [sic15] and then nipping down through Niles Boulevard and getting

stuck [west of the commercial core].”

These fact-based comments by residents support a fair argument that the Project

would have a significant adverse impact on traffic congestion on Niles Boulevard in the

vicinity of the Project. Residents’ personal observations of traffic conditions where they

live and commute may constitute substantial evidence even if they contradict the

conclusions of a professional traffic study. (See Keep Our Mountains Quiet v. County of



15 Harbin was apparently referring to the Project.

25

Santa Clara (2015) 236 Cal.App.4th 714, 735–736 & fn. 13.) This is especially true

where, as here, residents cite specific facts that call into question the underlying

assumptions of a traffic study.

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 with the Project’s addition, but not

beyond the City’s predetermined thresholds of significance. Valley Oak argues the trial

court improperly ignored the thresholds of significance and held the deterioration of

service from level E to F itself supports a fair argument of traffic impacts. In concluding

substantial evidence supports a fair argument of significant traffic impacts, we do not rely

solely on the undisputed deterioration from level E to F.16

Rather, we do not agree with

Valley Oak that the significance thresholds necessarily shield the City from the EIR

requirement. Thresholds of significance may not be applied “in a way that forecloses the

consideration of any other substantial evidence showing there may be a significant

effect.” (Communities for a Better Environment v. California Resources Agency, supra,

103 Cal.App.4th at p. 114, disapproved on other grounds by Berkeley Hillside

Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1109, fn. 3.) By their very

nature, thresholds of significance address average congestion impacts at signalized



16 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.) Because we do not adopt the

trial court’s position, we need not address the exhaustion argument. However, we note

that the deterioration from level E to F was expressly mentioned by one speaker in the

administrative proceedings as one indication of adverse traffic impacts, and other

speakers described already-unacceptable levels of congestion in the approach to the

Niles/Mission intersection. In our view, these comments were sufficient to put the City

on notice as to the residents’ concerns about the Project’s possibly worsening alreadycongested

conditions on Niles Boulevard, as is reflected in the traffic study. (See id. at

p. 623 [comments must express concerns so lead agency has opportunity to evaluate and

respond].) These comments were cited in Protect Niles’s petition to the trial court.

26

intersections in the City.17

The fact-based comments of residents and City staff and

officials supported a fair argument that unusual circumstances in Niles might render the

thresholds inadequate to capture the impacts of congestion on Niles Boulevard extending

from the Niles/Mission intersection well into the Niles HOD commercial core. Residents

aptly described Niles as “geographically cut off from the rest of Fremont,” which might

cause congestion effects atypical of the City. Also, Niles Boulevard serves as the main

street of the commercial core of the Niles HOD, such that congestion arguably adversely

affects the character of the historical district, another unusual impact.

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.