FREMONT — A state appeals court has ruled that a full environmental impact report is needed before a nearly 100-townhouse development planned for the historic Niles district of Fremont can proceed.
The decision marks another victory for a small group of steadfast Niles residents who more than three years ago took legal action to halt the Niles Gateway project, proposed by developer Valley Oak Partners and approved by the City Council in March 2015.
“It means that we get another shot at getting a better project for the community,” Robert Daulton, a resident of the district and founding member of Protect Niles, said of the decision Thursday.
The ruling from a three-justice panel of the First District Court of Appeal in San Francisco, handed down Monday, affirms a March 2017 ruling from Alameda County Superior Court Judge Frank Roesch.
The original project proposed building 98 townhouses, including some live-work combined spaces, and more than 3,500 square feet of retail and community space on a former industrial site at 37899 Niles Blvd., at the southern entrance to the historic district’s main strip.
The city used what’s known as a “mitigated negative declaration” — a document that essentially says a project’s impact on the environment is not significant — to approve the project.
Roesch ruled the city should have required an environmental impact report, which would include a more comprehensive review of potential effects and possible solutions. Valley Oak then filed an appeal of Roesch’s judgment.
“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,” wrote Justice Terence L. Bruiniers in the panel’s ruling.
Although the City Council and Planning Commission approved the project in 2015, the Historical Architecture Review Board had recommended it be denied.
They said it was “incompatible in terms of siting, massing, scale, size, materials, textures and colors with existing development in the Niles Historic Overlay District.”
In making its ruling, the appellate court leaned on statements from the board as well as concerns from residents voiced at public meetings.
“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,’ ” the ruling noted.
While the court recognized “aesthetic judgements are inherently subjective,” it said that “personal observations on these nontechnical issues can constitute substantial evidence.”
One of the other main points of contention during public hearings was the lack of a left-turn pocket lane along Niles Boulevard, which would be used to access the proposed homes and shops.
It would be located just after westbound drivers had made a right turn onto Niles Boulevard after passing under a train trestle.The city ultimately did not require the pocket turn lane, even though a traffic engineer said it was warranted.
Some council members expressed concern westbound drivers “might run into cars queued up to turn left into the project,” the ruling said.
Councilman Vinnie Bacon, who later voted against approval, was quoted in the ruling calling it “a blind turn” and “pretty dangerous.”
Daulton, of Protect Niles, said the group is not opposed to developing the site along Niles Boulevard, but wants something much less dense that considers residents’ concerns.
“I think people are tired of development that doesn’t really make sense,” he said.
The developer, Valley Oak Partners, before the appeals process was complete, started an environmental impact report process with Fremont, according to city planner David Wage.
The report considers the impacts of a very similar project, though the total number of homes is reduced to 95, and a street connection to Chase Court in Niles was eliminated. A left-turn pocket lane on Niles Boulevard was also included, Wage said.
That draft report was published in May, and a public comment period on it has closed, he said. While there is no exact date, Wage said the report likely will be ready for the Historical Architecture Review Board by the end of the year. From there, it will again go before Planning Commission and City Council.
Daulton said he hopes Protect Niles being able to “put the brakes” on this development for the time being will make Fremont officials think twice before approving other developments.
“If you want to have a modern city, you can’t just infill every single lot that’s available. You have to plan it out and do it responsibly,” he said.
He said there’s no doubt in his mind Fremont has been “irresponsibly developed,” and the composition of the City Council needs to change to stem the tide.
“We can’t have a City Council that blithely rubber stamps developers’ projects all over town,” Daulton said. “Nobody likes it.”
