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December 20, 2022 SAFER Appeal No. 2022-01 of Garry Avenue Business Park Planning Commission Approval City Council Agenda Item 41 (Amendment Application No. 2022-01; Conditional Use Permit No. 2022-14) Page 2 of 5 The City has prepared streamlined review for the Project pursuant to 14 CCR § 15183, which applies to certain projects consistent with a community plan or zoning for which an environmental impact report ("EIR") has been certified. ("Section 15183 Review"). The City states that the Project is consistent with the Program Environmental Impact Report ("PEIR") prepared for the City of Santa Ana's 2022 General Plan Update Amendment (hereafter, "2022 GPU PEIR") and has prepared an Environmental Analysis ("EA") to support its findings. However, as discussed below, the proposed Project does not meet the requirements of Section 15183 Review, and the City must prepare either a Negative Declaration ("ND") for less than significant impacts or an EIR which adequately assesses the Proj ect's potentially significant environmental impacts. SAFER's comment letter is supported by expert comments submitted by environmental consulting firm Soil/Water/Air Protection Enterprise ("SWAPE"). SWAPE's comment and the consultants' curriculum vitae are attached as Exhibit A hereto and are incorporated herein by reference in their entirety. I. LEGAL STANDARD Section 15183 of the CEQA guidelines allows a project to streamline environmental review if it is "consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified...." (14 CCR § 15183). The section then states that an agency utilizing the provision must analyze certain environmental effects, the following of which are relevant here: environmental effects that: (1) "[a]re peculiar to the project or the parcel on which the project would be located"; (2) "[w]ere not analyzed as significant effects in a prior EIR on the zoning action, general plan, or community plan, with which the project is consistent"; or (3) "[a]re potentially significant off -site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action." (14 CCR § 15183 (b)(1), (2), (3).) The fair argument standard applies to the review of environmental effects mandated by Section 15183. (See Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.AppAth 273, 287, citing Gentry v. City ofMurrieta, supra, 36 Cal.AppAth at pp. 1373, 1406, fn. 24, [suggesting fair argument standard applies to determination under § 21083.3].) Thus, in reviewing a project's environmental effects under these sections, if an agency finds that the project may have a significant impact with respect to one or more of the effects, they must prepare an EIR to assess those impacts. As the California Supreme Court has held "[i]f no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR." (Communities for a Better Env't v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-320.) The "fair argument" standard creates a "low threshold" favoring environmental review through an EIR rather than through issuance of negative declarations or notices of exemption from CEQA. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.AppAth 903, 928.)