Filed 7/16/18; Certified for Publication 8/9/18 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                                DIVISION FIVE


PROTECT NILES et al.,
         Plaintiffs and Respondents,
v.
CITY OF FREMONT et al.,                                            A151645
         Defendants and Respondents;                               (Alameda County
DOUG RICH et al.,                                                  Super. Ct. No. RG15765052)
         Real Parties 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.)].”


                                                          1
       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.


                                              2
“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


                                              3
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


                                              4
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 high-
density 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.


                                              5
         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


                                               6
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.


                                               7
§ 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



                                               8
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.)


                                             9
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



                                              10
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.)


                                             11
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


                                            12
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).)


                                              13
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,


                                             14
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 officially-
designated 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.


                                              15
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


                                             16
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


                                              17
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


                                             18
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

                                               19
       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.


                                              20
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).)


                                               21
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],


                                              22
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).”


                                              23
(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.


                                              24
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 already-
congested 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.


                                              25
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.
                                    III.   DISPOSITION
         The judgment is affirmed. Valley Oak shall bear Protect Niles’s costs on appeal.




         17
         The traffic study implies the thresholds of significance are generally applicable
to environmental review of development projects and were not adopted specifically for
the Project or for the Niles area.


                                              26
                                 _________________________
                                 BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




                            27
Filed 8/9/18
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                       DIVISION FIVE


PROTECT NILES et al.,
        Plaintiffs and Respondents,
                                                    A151645
v.
CITY OF FREMONT et al.,                             (Alameda County
                                                    Super. Ct. No. RG15765052)
        Defendants and Respondents;
DOUG RICH et al.,                                   ORDER CERTIFYING OPINION
        Real Parties in Interest and                FOR PUBLICATION
        Appellants.



THE COURT:
        The opinion in the above-entitled matter filed on July 16, 2018, was not certified
for publication in the Official Reports. For good cause appearing, pursuant to California
Rules of Court, rule 8.1105(b), (c), the opinion is certified for publication.


Date_____________________                         __________________________Acting P.J.




                                              1
Superior Court of Alameda County, No. RG15765052, Frank Roesch, Judge.

Sheppard Mullin Richter & Hampton, Arthur J. Friedman, Alexander L. Merritt; Allen
Matkins Leck Gamble Mallory & Natsis and David H. Blackwell for Real Parties in
Interest and Appellants.

Brandt-Hawley Law Group and Susan L. Brandt-Hawley for Plaintiffs and Respondents.

No appearance for Defendants and Respondents.




                                         2
