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HomeMy WebLinkAboutResponse to SAFER Appeal Comment Letter1905 Business Center Drive ● San Bernardino ● CA 92408 ● 909-890-1818 ● Fax 909-890-1809 September 2, 2026 Chantel Choice, Senior Planner Community Development & Housing Department City of San Bernardino 201 North E Street, 3rd Floor San Bernardino, CA 92401 SUBJECT:Response to SAFER Appeal Comment Letter for Initial Study (IS)/Mitigated Negative Declaration (MND) for Verdemont Heights Residential Development (Tentative Parcel Map No. 20707) Dear Chantel: This letter has been prepared at the City’s request for Lilburn Corporation to respond to the August 31, 2026 appeal comment letter submitted by Lozeau Drury LLP, which requests preparation of an Environmental Impact Report (EIR), asserting that the Initial Study/Mitigated Negative Declaration (IS/MND) does not adequately analyze or mitigate the Project’s potentially significant impacts on Air Quality and Green House Gas. Additionally, SAFER asserts that the Noise Impact Analysis is inadequate and unsupported by substantial evidence. Ganddini Group, Inc., the preparer of the Project’s Noise Impact Analysis, provided a response letter dated September 2, 2026, addressing the comments received regarding noise. The response letter is included as Attachment A. The Initial Study/Mitigated Negative Declaration (IS/MND) demonstrated that the Project is consistent with CEQA, and with implementation of the required mitigation measures, all potentially significant impacts would be reduced to less-than-significant levels. Comment 1-1 This is an introductory comment stating the law firm is providing comments on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”) and does not provide any CEQA-related comments. Response to Comment 1-1 The comment is noted for the record and no response is required. Chantel Choice September 2, 2026 Page 2 Comment 1-2 This comment states that SAFER maintains the Project does not comply with the California Environmental Quality Act because substantial evidence shows the Project will have significant adverse impacts related to air quality and noise resources and therefore the City cannot rely on the MND and requests preparation of an Environmental Impact Report (EIR), asserting that the Initial Study/Mitigated Negative Declaration (IS/MND) does not adequately analyze or mitigate the Project’s potentially significant impacts. Response to Comment 1-2 The Initial Study/Mitigated Negative Declaration (IS/MND) demonstrated that the Project is consistent with CEQA, and with implementation of the required mitigation measures, all potentially significant impacts would be reduced to less-than-significant levels. Comment 1-3 This comment states that SAFER’s review of the Project was assisted by Environmental engineer Patrick Sutton P.E. whose credentials and comments are submitted as Exhibit A attached to SAFER’s letter. Response to Comment 1-3 The comment is noted for the record and no response is required. Responses to the referenced Exhibit comments are provided in subsequent responses. Comment 1-4 Comment presents overview of the Project. Response to Comment 1-4 The comment is noted for the record and no response is required. Comment 1-5 SAFER cites Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, and Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, as well as PRC § 21068 and 14 CCR § 15382 and that under CEQA’s fair-argument standard, substantial evidence that a project may result in significant adverse environmental impacts requires preparation of an EIR. Response to Comment 1-5 Chantel Choice September 2, 2026 Page 3 The comment is noted for the record and no response is required. Comment 1-6 SAFER cites Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, and Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376, regarding the role of an EIR in identifying and evaluating potential environmental impacts, informing the public and decision-makers, and promoting informed governmental decision- making under CEQA. Response to Comment 1-6 The comment is noted for the record and no response is required. Comment 1-7 SAFER cites PRC §§ 21080(d), 21064.5, 21080(c)(2), 21082.2(a), 21100, and 21151(a), as well as Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, and League for Protection of Oakland’s Architectural and Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896. The commenter states that an EIR is required when substantial evidence indicates that a project may have a significant environmental effect, and that an MND is appropriate only when project revisions reduce potentially significant effects to a level where clearly no significant effect would occur. Response to Comment 1-7 The comment is noted for the record and no response is required. Comment 1-8 SAFER cites No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75; 14 CCR § 15064(f)(1); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144; and Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597. SAFER states that under CEQA’s “fair argument” standard, an EIR is required when substantial evidence in the record indicates that a project may have a significant environmental effect, even when contrary evidence supports a different conclusion. SAFER further characterizes the fair-argument standard as a low threshold favoring preparation of an EIR. Response to Comment 1-8 Chantel Choice September 2, 2026 Page 4 The comment is noted for the record and no response is required. Comment 1-9 SAFER explains that the CEQA “fair argument” standard differs from the typical deferential standard used in administrative decision-making. Citing Kostka & Zischke, Practice Under CEQA, § 6.29, and Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928, SAFER states that a lead agency may not weigh competing evidence to determine which position is more persuasive, but must determine whether substantial evidence supports a fair argument that the project may have a significant environmental impact. SAFER further states that whether a fair argument exists is a question of law subject to de novo judicial review, with doubts generally resolved in favor of environmental review. Response to Comment 1-9 The comment is noted for the record and no response is required. Comment 1-10 SAFER states that Mr. Sutton reviewed the MND and other relevant Project documents and concluded that the Project may result in significant adverse air quality and GHG impacts requiring further CEQA review through preparation of an EIR. Response to Comment 1-10 As documented in the MND, the Project’s air quality and GHG emissions, as modeled using CalEEMod, are below the applicable significance thresholds. Therefore, the Project is not anticipated to generate significant air quality or GHG impacts, and preparation of an EIR is not required. Comment 1-11 SAFER, through Mr. Sutton, challenges the MND’s analysis of construction emissions, specifically the construction schedule and equipment assumptions used in the CalEEMod modeling. Mr. Sutton asserts that a shorter construction schedule would result in higher daily emissions, particularly nitrogen oxides (NOx), and concludes that construction emissions could exceed SCAQMD significance thresholds. Response to Comment 1-11 Chantel Choice September 2, 2026 Page 5 The Project’s construction emissions were modeled using CalEEMod consistent with the standard methodology used to evaluate air quality impacts under SCAQMD guidance. The CalEEMod analysis accounts for the Project’s construction activities and associated equipment and emissions. Based on the modeled results, construction emissions are below the applicable SCAQMD significance thresholds. Therefore, significant construction-related air quality impacts are not anticipated. Comment 1-12 SAFER asserts that the MND does not adequately evaluate potential health risks to nearby sensitive receptors from construction-related diesel particulate matter (DPM). SAFER states that SCAQMD localized significance thresholds (LSTs) address criteria air pollutants and are not intended to evaluate localized health risks from DPM exposure. SAFER therefore contends that a health risk assessment (HRA) is necessary to adequately evaluate potential DPM impacts. Response to Comment 1-12 As shown in the MND, the Project’s construction emissions are below the applicable SCAQMD LSTs. In addition, the Project does not include or occur adjacent to a substantial DPM-generating land use, and the proposed residential development itself is not anticipated to generate substantial DPM emissions. Based on the Project characteristics and the emissions analysis, significant health risk impacts from DPM are not anticipated, and preparation of a separate HRA is not required. Comment 1-13 SAFER states that the Project is divided into three phases and asserts that construction and operation of different phases could overlap. SAFER contends that the MND does not adequately explain the phasing or evaluate potential combined emissions from overlapping construction and operational activities. SAFER therefore requests additional analysis and mitigation through an EIR. Response to Comment 1-13 The Project’s air quality emissions were evaluated using CalEEMod, consistent with the standard methodology and applicable SCAQMD significance thresholds. Because a detailed construction schedule was not available at the time of the analysis, the default CalEEMod construction schedule and parameters were used. The analysis demonstrates that the Project’s modeled emissions are below the applicable significance thresholds. Therefore, the Project is not anticipated to result in significant air quality impacts, including from the Project’s proposed phasing and associated construction and operational activities. Chantel Choice September 2, 2026 Page 6 Comment 1-14 SAFER, through Mr. Sutton, contends that the MND’s analysis of the Project’s greenhouse gas (GHG) impacts is deficient and that the MND does not provide substantial evidence to support its conclusion that the Project is consistent with the California Air Resources Board’s 2022 Scoping Plan. Mr. Sutton specifically identifies transportation electrification, vehicle miles traveled (VMT) reduction, and building decarbonization as areas where he believes the Project is inconsistent with the Scoping Plan’s long-term climate goals. Response to Comment 1-14 As shown in the MND, the Project meets the City’s applicable VMT standards and the Project’s modeled GHG emissions are below the applicable significance threshold. Therefore, the Project is not anticipated to result in significant GHG impacts. Comment 1-15 SAFER, through Mr. Sutton, identifies three areas in which it contends the Project is inconsistent with the California Air Resources Board’s 2022 Scoping Plan. First, SAFER states that the Project has not committed to voluntary Tier 1/2 EV infrastructure requirements under the 2025 California Green Building Standards. Second, SAFER contends that the Project is inconsistent with the Scoping Plan’s VMT reduction goals based on the Project’s density, conversion of existing natural lands, and lack of a commitment to provide affordable housing. Third, SAFER states that the Project has not demonstrated a commitment to building decarbonization measures, including all- electric appliances and avoidance of natural gas, propane, and other fossil fuels. Response to Comment 1-15 Refer to General Response to Comments and Response to Comment 1-14. Comment 1-16 SAFER states that the Project’s alleged inconsistency with the California Air Resources Board’s 2022 Scoping Plan and its carbon neutrality goals would result in potentially significant GHG impacts. SAFER therefore contends that the City must prepare an EIR to further evaluate and mitigate the Project’s GHG emissions. Response to Comment 1-16 The Project’s GHG emissions were evaluated using CalEEMod consistent with the applicable methodology and the South Coast Air Quality Management District (SCAQMD) guidance. As documented in the MND, the Project’s modeled GHG emissions are below the applicable significance threshold. The Project was also evaluated under the City’s applicable VMT standards Chantel Choice September 2, 2026 Page 7 and meets those standards. Based on the Project-specific CalEEMod results and VMT analysis presented in the MND, the Project is not anticipated to result in significant GHG impacts. Therefore, preparation of an EIR is not required. Noise Related Responses The City of San Bernardino prohibits construction activities between 7AM and 8 AM. Further construction, repair or excavation work performed pursuant to a valid written agreement with the City which provides for noise mitigation measures is exempt from compliance with Section 8.54 of the Municipal Code. Secondly, implementation of the provided Best Management Practices would mitigate impacts associated with construction noise that may affect off-site receptors to the south. Regarding looking at impacts to later phases: Evaluating potential construction noise from one phase of the project to the next would be considered to be evaluation of "impacts to the project" The leading CEQA case is California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369. The California Supreme Court held that CEQA is generally concerned with a project's impacts on the environment, not the environment's impacts on the project or its future users. Thus, absent a specific statutory requirement, CEQA does not require analysis of existing environmental hazards affecting future project occupants. The FTA Transit Noise and Vibration Impact Assessment Manual was originally issued in 1995 and has been peer reviewed and updated since. It is one of the most referenced documents in the Environmental Industry to assess construction noise impacts for a wide variety of projects. Furthermore, the EIR reviewer uses FHWA methodology to redo the analysis provided in the Noise Study. Comment 1 In accordance with the FTA guidance, the project noise analysis assumed that all of the off-road equipment for each phase of construction would operate simultaneously at the geographic center of the project site, which was assumed to be 578 feet from the closest residential Receptor. Response to Comment 1 While the statement is correct it is misleading without the reason why FTA has developed this methodology. While some equipment may be stationary, the loudest and most sustained noise sources will be grading and paving equipment moving throughout the project site within any 8 hour period. The center of the site methodology captures all of the onsite equipment as it covers the entire site. Assuming construction equipment was operating at the southern property line would range between 85 and 86 dBA Leq (8-hr) at the property line of the nearest residence which by the way would be 50 not 30 feet away, (Verdemont Ave has a 50 ft row). The BMPs provided in the Noise Study would reduce these levels to below 80 dBA. Chantel Choice September 2, 2026 Page 8 Response to Comment 2 The fact that highways are linear is irrelevant. Highway rights-of-way can be quite large, and no evidence is provided that supports this statement. Furthermore, the FTA construction noise methodology was not only developed for linear projects as it also covers rail stations, rail yards, transit centers, etc. The Guidance gives specific instructions regarding methodology depending on if the noise source is linear or not. Response to Comment 3 There is no reason why the City of LA noise thresholds should be used for a project located within the City of San Bernardino. Response to Comment 4 Regarding loudest equipment...See RTC 1 Response to Comment 5 There would not be new impacts or mitigation if a noise study prepared for an EIR vs. an MND because the maximum noise levels are included in the technical noise study and the the same BMPs/Conditions of Approval would be required. If you should have any questions or require additional information, please do not hesitate to give us a call. Sincerely, Cheryl A. Tubbs Vice President