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Alameda County Planning Department June 4, 2024 Page 5 #503315009_v1 However, because the Project is entitled to protections under the Builder’s Remedy, it technically does not need a density bonus to accommodate its proposed density (9.2 du/ac), or waivers from inconsistent development standards in the County’s General Plan or Zoning Code. However, Applicant reserves the right to request such a density bonus, incentives, or waivers to the extent such becomes necessary during the County’s processing and review of the Project. VI.CEQA Although HAA-covered projects are not automatically exempt from CEQA, the limited discretion agencies have in reviewing such projects has implications on the CEQA process. As one leading treatise states: “[w]hen the discretion a lead agency may exercise in granting an approval for a project is confined, CEQA review for that approval may be limited to match the scope of that discretion.”18 This legal principle was affirmed in Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700 (“Tiburon”), in which the court noted: “CEQA ... recognizes that an agency’s discretion is limited by its own legal obligations. Accordingly, where a legal obligation limits an agency’s discretion, the scope of environmental review likewise is limited. This is also consistent with CEQA’s requirement that an agency exercise its discretionary powers in a manner ‘consistent with express or implied limitations provided by other laws.”19 Applicant welcomes the opportunity to discuss (or present) potential CEQA pathways for the County’s consideration. Regardless of the scope of CEQA review for this Project, the County should ensure that environmental review is confined to those issues over which it possesses discretionary authority – specifically, potential public health and safety impacts.20 VII.Conclusion Applicant looks forward to collaborating with County Planning staff to ensure this much-needed housing Project comes to fruition. Should any questions arise as the process proceeds, please do hesitate to reach out to discuss this project further. 18 Kostka & Zischke, Practice Under the California Environmental Quality Act (2d ed. Cal. CEB 2023) § 12.8 19 See, Tiburon, 78 Cal.App.5th at 732-33 (internal quotations omitted) (emphasis added); see also San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 938 (“Where an agency has no authority to modify a project based on the analysis contained in the EIR, there is no basis for requiring the agency to prepare the EIR.”). 20 HAA, subdivision (d)(5) provides that local agencies ca nnot deny or render infeasible affordable housing development projects unless they make one of five enumerated findings, one of which is that “housing development … would have a specific adverse impact on public health and safety, and there is no way to mi tigate or avoid the impact without making the development unaffordable. The impact must be based on objective, written public health or safety standards in place when the application was deemed complete.” (Gov. Code 65589.5(d)(2).)