Chapter 18.218


18.218.010    Purpose and intent.

18.218.020    Legislative findings.

18.218.030    Definitions.

18.218.040    Applicability.

18.218.050    Standard development requirements.

18.218.010 Purpose and intent.

The purpose of this chapter is to ensure the universal application of standard development requirements for resource protection to development projects that have the potential to adversely disturb or impact (a) special-status species; (b) cultural resources; and (c) air quality due to construction activities such as grading, demolition, and tree and shrub removal. Pursuant to Cal. Pub. Res. Code § 21083.3(d) and California Environmental Quality Act (CEQA) Guidelines Section 15183(f), the intent is to establish development standards consistent with legislative requirements and resource agency protocol to ensure protection of limited or endangered resources, in particular when a proposed project is not subject to or may be exempt from CEQA. (Ord. 27-2016 § 37, 12-6-16.)

18.218.020 Legislative findings.

This chapter is enacted in recognition of the following:

(a)    Air Quality. Since 2006, the state has enacted key pieces of legislation focusing on the regulation and reduction of greenhouse gas (GHG) emissions to curtail the serious threat of global warming to the economic well-being, public health, natural resources, and the environment of California.

(1)    Assembly Bill (AB) 32 (2006) focuses on reducing GHG emissions in California to 1990 levels by 2020 and Senate Bill (SB) 375 (2009) also targets climate protection and emission reduction through smart growth.

(2)    SB 375 requires development of a sustainable regional strategy that focuses housing in concentrated growth areas near transit referred to as Priority Development Areas (PDAs).

(3)    The Bay Area Air Quality Management District (BAAQMD), which is the regional agency charged with regulating air quality in the Bay area, recommends basic construction management practices for all proposed projects that would help to reduce criteria air pollutants contributing to global warming.

(b)    Endangered Species. Both federal and state legislation provide a framework for protecting and facilitating the recovery of threatened and endangered populations of listed animal species.

(1)    The federal government regulates threatened animal species through the Endangered Species Act, which lists identified species and prohibits a “take” of any such species. The Federal Migratory Bird Treaty Act makes it unlawful to take (kill, harm, harass, etc.) any migratory listed bird.

(2)    The California Endangered Species Act establishes that it is the state’s policy to conserve, protect, and enhance endangered species and their habitats, and Cal. Fish & Game Code §§ 3503, 3503.5, and 3800 prohibit the “take, possession, or destruction of birds, their nests or eggs.” Disturbance that causes nest abandonment and/or loss of reproductive effort (killing or abandonment of eggs or young) is considered a take.

(3)    The general plan identifies potentially occurring special-status species in the city of Fremont. Nesting or roosting burrowing owls (commonly found on vacant or agricultural habitat with burrows of California ground squirrels) are a listed species, as are other birds with propensity to nest in local trees, and also various bat species that may be found in existing or abandoned structures on property slated for development.

(4)    The general plan also includes policies and implementation measures for the protection of rare, threatened, endangered and candidate species and their habitats consistent with state and federal law. However, the general plan program EIR does not contain specific project-level mitigation measures to address the occurrence of burrowing owls on vacant sites, nesting or special-status bird species, or nesting or special-status bat species that could occur in Fremont.

(c)    Protection of Cultural Resources. The California Public Resources Code and AB 52 (2014) both recognize the need for notification and evaluation procedures to protect cultural resources that may be located in areas considered sacred lands or that may be accidentally discovered during construction activities.

For all these reasons, and in the interest of the public health, safety and welfare of the people of the city of Fremont, recognizing the private rights to develop and use property in a manner that is not prejudicial to the public interest, it is the purpose of this chapter to provide standard development requirements that would reduce potential significant impacts to natural resources. (Ord. 27-2016 § 37, 12-6-16.)

18.218.030 Definitions.

“Cultural resources” generally refers to or encompasses resources that are considered “cultural” in nature such as historic properties, tribal cultural resources as defined in Cal. Pub. Res. Code § 21074, archaeological, and paleontological resources, and burial sites.

“Special status species” is a term used primarily in the California regulatory community for species that are considered sufficiently rare that they require special consideration and/or protection.

“Take” is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap capture, or collect, or to attempt to engage in any such conduct. (Ord. 27-2016 § 37, 12-6-16.)

18.218.040 Applicability.

These universal development standards for resource protection are applicable to all temporary project sites, new development project sites, and on sites being redeveloped where there may be a potential adverse impact to special-status species, cultural, archeological and/or paleontological resources, possible burial sites associated with indigenous cultures, and/or to air quality resulting from the elimination of trees, site grading, ground disturbing construction activities, and/or demolition of buildings. (Ord. 27-2016 § 37, 12-6-16.)

18.218.050 Standard development requirements.

(a)    Air Quality.

(1)    Construction Related Emissions. The following construction measures, as periodically amended by BAAQMD, are required for all proposed development projects to reduce construction-related fugitive dust and exhaust emissions:

(A)    All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times daily.

(B)    All haul trucks transporting soil, sand, or other loose material off site shall be covered.

(C)    All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited.

(D)    All vehicle speeds on unpaved roads shall be limited to 15 miles per hour.

(E)    All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.

(F)    Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to five minutes (as required by the California airborne toxics control measure Title 13, Section 2485 of California Code of Regulations (CCR)). Clear signage shall be provided for construction workers at all access points.

(G)    All construction equipment shall be maintained and properly tuned in accordance with manufacturer’s specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation.

(H)    A publicly visible sign shall be posted with the telephone number and person to contact regarding dust complaints. This person shall respond and take corrective action within 48 hours. BAAQMD’s phone number shall also be visible to ensure compliance with applicable regulations.

(2)    Construction Related Emissions – Supplemental Measures. The following supplemental construction measures, as periodically amended by BAAQMD, are required for all proposed development projects that would exceed the thresholds of significance for construction criteria air pollutant and precursors provided in the most recent BAAQMD CEQA Guidelines:

(A)    All exposed surfaces shall be watered at a frequency adequate to maintain minimum soil moisture of 12 percent. Moisture content can be verified by lab samples or moisture probe.

(B)    All excavation, grading, and/or demolition activities shall be suspended when average wind speeds exceed 20 mph.

(C)    Wind breaks (e.g., trees, fences) shall be installed on the windward side(s) of actively disturbed areas of construction. Wind breaks should have at maximum 50 percent air porosity.

(D)    Vegetative ground cover (e.g., fast-germinating native grass seed) shall be planted in disturbed areas as soon as possible and watered appropriately until vegetation is established.

(E)    The simultaneous occurrence of excavation, grading, and ground-disturbing construction activities on the same area at any one time shall be limited. Activities shall be phased to reduce the total area of surfaces disturbed at any one time.

(F)    All trucks and equipment, including their tires, shall be washed off prior to leaving the site.

(G)    Site accesses to a distance of 100 feet from the paved road shall be treated with a six- to 12-inch compacted layer of wood chips, mulch, or gravel.

(H)    Sandbags or other erosion control measures shall be installed to prevent silt runoff to public roadways from sites with a slope greater than one percent.

(I)    Idling time of diesel-powered construction equipment shall be limited to two minutes.

(J)    The project shall develop a plan demonstrating that the off-road equipment (more than 50 horsepower) to be used in the construction project (i.e., owned, leased, and subcontractor vehicles) would achieve a project-wide fleet-average 20 percent nitrogen oxide (NOx) reduction and 45 percent particulate matter (PM) reduction compared to the most recent Air Resources Board fleet average. Acceptable options for reducing emissions include the use of late model engines, low-emission diesel products, alternative fuels, engine retrofit technology, after-treatment products, add-on devices such as particulate filters, and/or other options as such become available.

(K)    Low volatile organic compound (i.e., reactive organic gas) coatings beyond the local requirements (i.e., BAAQMD Regulation 8, Rule 3: Architectural Coatings) shall be used.

(L)    All construction equipment, diesel trucks, and generators shall be equipped with best available control technology for emission reductions of NOx and PM.

(M)    All contractors shall use equipment that meets the Air Resources Board’s most recent certification standard for off-road heavy-duty diesel engines.

(b)    Biology, Special-Status Species.

(1)    Burrowing Owl. New development projects with the potential to impact burrowing owl habitat through grading, demolition, and/or new construction shall implement the following measures prior to grading or ground disturbing activities:

(A)    Preconstruction Surveys. Preconstruction surveys for burrowing owls shall be conducted prior to the initiation of all project activities within potential burrowing owl nesting and roosting habitat (i.e., agricultural habitat with burrows of California ground squirrels) to determine if suitable burrowing owl habitat is present. Surveys shall be conducted by a qualified biologist in conformance with the most recent requirements and guidelines of the California Department of Fish and Wildlife (CDFW). The biologist shall determine the number and time frame (prior to construction) of surveys to be conducted.

(B)    Implement Buffer Zones. Areas currently occupied by burrowing owls shall be avoided for the duration of residing on site and/or the nesting period (February 1st through August 31st). The biologist will recommend a suitable buffer zone distance for avoidance of nesting or roosting habitat.

(C)    Passive Relocation. If burrowing owls cannot be avoided by the proposed project, then additional measures, such as passive relocation during the nonbreeding season, may be utilized to reduce any potential impacts. Measures for successful relocation shall be recommended by a qualified biologist in conformance with CDFW requirements and guidelines.

(D)    Initiation of Construction Activities. When a qualified biologist is able to determine that burrowing owls are no longer occupying the site and passive relocation is deemed successful, construction activities may continue. The applicant shall submit the determination of the biologist to the planning manager for authorization to continue.

(2)    Nesting Birds. New development projects with the potential to impact nesting birds through tree or shrub removal shall implement the following measures prior to removal of any trees/shrubs, grading, or ground disturbing activities:

(A)    Avoidance. Proposed projects shall avoid construction activities during the bird nesting season (February 1st through August 31st).

(B)    Preconstruction Surveys. If construction activities are scheduled during the nesting season, a qualified biologist shall conduct a preconstruction survey to identify any potential nesting activity. The biologist shall determine the number and time frame (prior to construction) of surveys to be conducted.

(C)    Protective Buffer Zone(s). If the survey indicates the presence of nesting birds, protective buffer zones shall be established around the nests. The size of the buffer zone shall be recommended by the biologist in consultation with the CDFW depending on the species of nesting bird and level of potential disturbance.

(D)    Initiation of Construction Activities. The buffer zones shall remain in place until the young have fledged and are foraging independently. A qualified biologist shall monitor the nests closely until it is determined the nests are no longer active, at which time construction activities may commence within the buffer area.

(3)    Roosting Bats. New development with potential to impact special-status or roosting bat species through demolition of existing structures or removal of trees on site shall conduct the following measures prior to demolition:

(A)    Preconstruction Surveys. A qualified biologist shall conduct a preconstruction survey during seasonal periods of bat activity (mid-February through mid-October) to determine suitability of structure(s) or trees as bat roost habitat.

(B)    Protective Buffer Zone(s). If active bat roosts are found on site, a suitable buffer from construction shall be established per the biologist. The biologist shall determine the species of bats present and the type of roost.

(C)    Mitigation and Exclusion. If the bats are identified as common species, and the roost is not being used as a maternity roost or hibernation site, the bats may be evicted using methods developed by a qualified biologist. If special-status bat species are found present, or if the roost is determined to be a maternity roost or hibernation site for any species, then the qualified biologist shall develop a bat mitigation and exclusion plan to compensate for lost roost. The site shall not be disturbed until CDFW approves the mitigation plan.

(4)    California Tiger Salamander. New development projects with the potential to impact California tiger salamander habitat through grading, demolition, and/or new construction shall implement the following measures prior to any grubbing, grading, or ground disturbing activities:

(A)    Exclusion fencing shall be installed around the perimeter of the two fields to deter tiger salamanders from accessing the fields. The fencing should be regularly maintained, especially during the rainy season when salamanders could traverse onto the fields.

(B)    A qualified biologist shall conduct preconstruction surveys prior to grubbing and grading activities within the two fields. The biologist shall determine the number and time frame (prior to construction) of surveys to be conducted.

(C)    A qualified biologist shall monitor initial grubbing and grading activities to ensure no California tiger salamanders are present.

(c)    Construction Management Plan.

(1)    Prior to the issuance of the first construction-related permit for a new development project, the project applicant and his/her general contractor shall submit a construction management plan (CMP) for review and approval by the planning and building divisions and other relevant city departments, such as the fire department and the public works department, as directed. The CMP shall contain measures to minimize potential construction impacts including measures to comply with all construction-related conditions of approval (and mitigation measures if applicable) such as dust control, construction emissions, hazardous materials, construction days/hours, construction traffic control, waste reduction and recycling, erosion and sedimentation control, storm water pollution prevention, noise control, complaint management, and cultural and tribal cultural resource management as applicable. The CMP shall provide project-specific information including descriptive procedures, approval documentation, and drawings (such as a site logistics plan, fire safety plan, construction phasing plan, proposed truck routes, traffic control plan, complaint management plan, construction worker parking plan, and litter/debris clean-up plan) that specify how potential construction impacts will be minimized and how each construction-related requirement will be satisfied throughout construction of the project.

(d)    Cultural and Tribal Cultural Resources.

(1)    Notification, Affiliated California Native American Tribes. Within 14 days of determining that an application for a project is complete or a decision by the city is made to undertake a project, the city shall provide formal notification to the designated contact or a tribal representative of traditionally and culturally affiliated California Native American tribes that have requested to receive such notice from the city. The written notification shall include a brief description of the proposed project and its location, project contact information, and a notification that the California Native American tribe has 30 days to request consultation pursuant to Cal. Pub. Res. Code § 64352.4.

(2)    Accidental Discovery of Cultural Resources. The following requirements shall be met to address the potential for accidental discovery of cultural resources during ground disturbing excavation:

(A)    The project proponent shall include a note on any plans that require ground disturbing excavation that there is a potential for exposing buried cultural resources.

(B)    The project proponent shall retain a professional archaeologist to provide a preconstruction briefing to supervisory personnel of any excavation contractor to alert them to the possibility of exposing buried cultural resources, including significant prehistoric archaeological resources. The briefing shall discuss any cultural resources, including archaeological objects, that could be exposed, the need to stop excavation at the discovery, and the procedures to follow regarding discovery protection and notification of the project proponent and archaeological team.

(C)    In the event that any human remains or historical, archaeological or paleontological resources are discovered during ground disturbing excavation, the provisions of CEQA Guidelines Sections 15064.5(e) and (f), and of subsection (c)(2)(D) of this section, requiring cessation of work, notification, and immediate evaluation shall be followed.

(D)    If resources are discovered during ground disturbing activities that may be classified as historical, unique archaeological, or tribal cultural resources, ground disturbing activities shall cease immediately, and the planning manager shall be notified. The resources will be evaluated by a qualified archaeologist and, in the planning manager’s discretion, a tribal cultural monitor. If the resources are determined to be historical, unique archaeological, or tribal cultural resources, then a plan for avoiding the resources shall be prepared. If avoidance is infeasible, then all significant cultural materials recovered shall be, as necessary and at the discretion of the consulting archaeologist, subject to scientific analysis, professional museum curation, and documentation according to current professional standards. Any plan for avoidance or mitigation shall be subject to the approval of the planning manager.

(E)    As used herein, “historical resource” means a historical resource as defined by CEQA Guidelines Section 15064.5(a); “unique archaeological resource” means unique archaeological resource as defined by Cal. Pub. Res. Code § 21083.2(g); and “tribal cultural resource” means tribal cultural resource as defined by Cal. Pub. Res. Code § 21074. Collectively, these terms describe “significant cultural materials.”

(3)    Archaeological Monitoring. New development projects with the potential to impact subsurface archaeological or cultural resources through grading, demolition, and/or new construction, if so determined by a site-specific study prepared by an archaeologist that meets the Secretary of the Interior’s professional qualifications standards for archaeology, shall implement the following measures prior to any grubbing, grading, or ground disturbing activities:

(A)    An archaeologist shall monitor construction-related ground disturbance within the vicinity of project site features identified as having the potential to include subsurface archaeological, cultural, or tribal cultural resources that could be impacted through ground-disturbing activities related to the construction of the project. Monitoring should continue until the archaeologist determines that there is a low potential for encountering subsurface archaeological, cultural, or tribal cultural resources. An archaeologist that meets the Secretary of the Interior’s professional qualifications standards for archaeology shall oversee the monitoring. Any compensation for time and expenses related to this activity shall be borne by the project proponent.

(4)    Tribal Cultural Monitoring and Training. Should the city receive a formal written request by the designated contact or a tribal representative of a traditionally and culturally affiliated California Native American tribe pursuant to Cal. Pub. Res. Code § 64352.4 to have a tribal cultural representative present at the project site before or during construction activities to identify or monitor sites or objects of significance to Native Americans or to provide construction worker tribal cultural resources awareness training including applicable regulations and protocols for avoidance, confidentiality, and culturally appropriate treatment, the project proponent shall honor that request and include tribal cultural monitoring or training as a component of their project. The tribal cultural representative shall have the ability to request that work be stopped, diverted, or slowed if sites or objects of significance to Native Americans are encountered within the direct impact area and shall be consulted for recommendations regarding the appropriate treatment of such sites or objects. Any compensation for time and expenses related to this activity shall be borne by the project proponent.

(e)    Geology and Soils.

(1)    New development projects with the potential to expose people or structures to substantial adverse effects, including the risk of loss, injury, or death due to seismic activity and potential seismic-related ground shaking including liquefaction, if so determined by a site-specific geotechnical study prepared to the satisfaction of the city engineer or his/her designee, shall implement the following measures prior to or during project construction, as applicable.

(A)    The project geotechnical consultant shall review all geotechnical aspects of the project building and grading plans (i.e., site preparation and grading, site drainage improvements, and design parameters for foundations, and retaining walls). The consultant shall verify that their recommendations, including those regarding the need for further evaluation for potential liquefaction and the presence and lateral extent of any undocumented fill as well as laboratory testing for corrosive soil, have been properly conducted and any necessary design measures are incorporated into the construction plans. The results of the plan review shall be summarized by the geotechnical consultant in a letter and submitted to the city engineer prior to issuance of building permits for the project.

(B)    The project geotechnical consultant shall inspect, test (as needed), and approve all geotechnical aspects of project construction. The inspections shall include, but not necessarily be limited to: site preparation and grading, site surface and subsurface drainage improvements, and excavations for foundations and retaining walls prior to the placement of steel and concrete. The results of these inspections and the as-built conditions of the project shall be summarized by the project geotechnical consultant in a letter and submitted to the city building official/city engineer for review prior to final (as-built) project approval.

To further address and reduce impacts related to potential seismic activity and liquefaction, all grading, foundations, and structures for the proposed project would be required to be engineered and designed in conformance with applicable geotechnical and soil stability standards as required by the California Building Code (CBC), as adopted by the city.

(f)    Hazardous Materials.

(1)    New development projects with the potential to create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment, if so determined by a site-specific environmental site assessment prepared to the satisfaction of the fire marshal or planning manager, shall implement the following measures prior to or during project construction, as applicable:

(A)    A soil management plan (SMP) shall be developed to provide guidelines for the appropriate handling and management of soil with known contaminants or recognized environmental condition (REC) concentrations above the applicable screening levels recommended in the California Department of Toxic Substances Control (DTSC) Office of Human and Ecological Risk (HERO) guidance document Human Health Risk Assessment or similar document provided by DTSC.

Prior to issuance of building and/or grading permits for site development, remediation work to remove known contaminants or RECs at the subject property shall be implemented to the satisfaction of the Alameda County Water District (ACWD), city of Fremont fire department, California Department of Toxic Substance Control (DTSC), or other appropriate agency having jurisdiction, depending on the location (e.g., depth) and the type of REC found and the jurisdictional purview of the agencies. Completion of the remediation work and procurement of an appropriate closure document or written statement that the remediation work has been satisfactorily completed and without further conditions or obligations shall be submitted to the satisfaction of the city of Fremont community development department. Compliance with this mitigation may require the applicant or their agent to complete a preliminary endangerment report, voluntary cleanup agreement or other documentation as determined by the appropriate agency and receive concurrence that the site’s RECs have been resolved.

(g)    Noise.

(1)    Construction Noise. To reduce the potential for noise impacts during construction, the following requirements shall be implemented:

(A)    Construction equipment shall be well-maintained and used judiciously to be as quiet as practical.

(B)    Construction, excavating, grading, and filling activities (including the loading and unloading of materials, truck movements, and warming of equipment motors) shall be limited as provided in Section 18.160.010.

(C)    All internal combustion engine-driven equipment shall be equipped with mufflers, which are in good condition and appropriate for the equipment.

(D)    The contractor shall utilize “quiet” models of air compressors and other stationary noise sources where technology exists.

(E)    Loading, staging areas, stationary noise generating equipment, etc., shall be located as far as feasible from sensitive receptors.

(F)    The contractor shall comply with Air Resource Board idling prohibitions of unnecessary idling of internal combustion engines.

(G)    Signs shall be posted at the construction site that include permitted construction days and hours, a day and evening contact number for the job site, and a contact number for the project sponsor in the event of noise complaints. The applicant shall designate an on-site complaint and enforcement manager to track and respond to noise complaints.

(H)    Temporary noise barriers, such as solid plywood fences, shall be installed around construction sites adjacent to operational businesses, residences or noise-sensitive land uses, unless an existing wall or other barrier provides equivalent noise attenuation. (Ord. 27-2016 § 37, 12-6-16; Ord. 23-2018 § 41, 10-2-18; Ord. 05-2021 § 52, 4-20-21.)