Harrington Files Suit Challenging Legality of Nishi (UPDATED)

Michael Harrington speaking at council in 2015
Michael Harrington filed a lawsuit against Nishi
Michael Harrington filed a lawsuit against Nishi

Former Davis City Councilmember Michael Harrington filed a lawsuit on March 18 challenging the legality of the Nishi-Gateway project approval. The lawsuit was filed by attorneys Michael Harrington and Don Mooney of Davis on behalf of their client, Davis Citizens Alliance for Responsible Planning.

Mr. Harrington and company have named the defendants in their lawsuit as the City of Davis, the Davis City Council, and Nishi Gateway, LLC, as the developer of the proposed Nishi Gateway project. The lawsuit alleges that the City of Davis and the city council improperly approved a Final Environmental Impact Report (FEIR) for the Nishi Gateway Project. It also alleges violations of the City of Davis Affordable Housing Ordinance by the City, the Davis City Council and Nishi Gateway, LLC.

“This is a desperate attempt to disrupt the Measure R process and remove voters’ rights. The facts are contained in the EIR – the Plaintiffs just prefer to ignore them to obstruct the process. After eight years of collaboration, Davis voters deserve an opportunity to finally weigh in on this community plan,” said Tim Ruff, managing partner of the Nishi Gateway in a statement this morning.

The Nishi Gateway project is a proposed mixed-use development project composed of two distinctly separate but adjoining areas, totaling approximately 57.7 acres; 10.8 acres are within the City of Davis and 46.9 acres are immediately west of the city limits. The project site is adjacent to downtown Davis and the University of California at Davis’ campus but is separated by the existing Union Pacific Railroad (UPRR) track.

The 46.9-acre area is referred to as the Nishi site and is evaluated at a project-level within the EIR, the press release states. “Vehicle access to the site will be from an extension of West Olive Drive in Davis and a new grade-separated crossing of the railroad tracks to Old Davis Road on the UC Davis campus.

“The City of Davis is responsible for preparation of an EIR that describes the Project and its impacts, and, if necessary, evaluates mitigation measures and/or alternatives to lessen or avoid any significant environmental impacts. The EIR evaluated the environmental impact of the proposed development of 440 rental housing units, 220 for-sale condominium units, 325,000 sq. ft of office/research and development space, and 20,000 sq. feet of retail space on the Nishi site.

“Because the 46.9 acre portion of the site is not currently within the City of Davis boundaries and the City desires to annex the land and change the zoning from Agricultural to urban uses, the approval of Davis voters is required under local law (Measure J/R -Davis Municipal Code Chapter 41) and the matter was placed on the June 7 General Municipal Election ballot as Measure A by the Davis City Council.”

According to Mr. Harrington’s press release, “the lawsuit alleges that the EIR was deficient with respect to the traffic analysis performed and analysis of air quality impacts of the project and thus should not have been certified by the Davis City Council on February 16, 2016.”

The lawsuit makes three critical claims:

1) The Project includes traffic mitigation measures that are inconsistent with mitigation measures for a previously approved project.

2) Documented evidence to support the traffic study’s analysis was not made available.

3) The Project also fails to adequately analyze, discuss and mitigate the air quality impacts and significant health impacts to residents of the Nishi Project due to the location of the Project sandwiched between the congested Interstate 80 freeway and heavily used railways.

The lawsuit also claims that “the City, City Council, and Nishi Gateway LLC violated the requirements of the City’s Affordable Housing Ordinance (Davis Municipal Code, Article 18.05) which requires that developers of certain sized residential housing projects in Davis either construct a prescribed number of below-market, affordable rental or for-sale housing units or pay prescribed in-lieu fees to the City’s Affordable Housing Trust Fund.”

Mr. Harrington and company allege that “the City improperly and arbitrarily exempted the Nishi project from affordable housing requirements and failed to require affordable housing as required by law.”

“The City has basically tripped all over itself to rush this to the June ballot for no discernible reasons and given away over $11.0 million USD of value to the rich developer extended families who own or optioned the Nishi site,” Mr. Harrington’s suit alleges.

When the council passed Nishi Gateway and put the measure before the voters, they put into the project baseline feature requirements on the timing of construction.

The Baseline Project Features require phasing the construction based on the approval of the grade-separate crossing, as well as the Richards Corridor study. First, “The Baseline Project Features call for all backbone infrastructure, including the grade-separated crossing to UC Davis and the improvements to the Richards Boulevard interchange, be completed prior to any occupancy on the Nishi site. Construction on the Nishi site could begin only after construction has begun on the interchange and the grade-separated crossing.”

Second, “The Baseline Project Features also include commitments for backbone infrastructure to the R&D properties with the first phase of development, to ensure ‘permit-ready’ sites when prospective purchasers or buildings are identified.”

City staff believes that air quality concerns “can be substantively addressed by planting trees near I-80 earlier than previously planned and by planting larger trees. The Nishi Gateway is already designed to place trees and R&D [Research and Development] space as a buffer to residential units, with for sale units furthest back from the highway.”

However, the planning commission was concerned about the plan. Commissioner Cheryl Essex expressed real concern about the air quality issue. “I am really concerned that this is going to be a real unhealthy place to live, work, and play,” she said. “I wonder about that residential component more than anything. We need more residential – because if we don’t have more residential close to campus… then people are driving on Interstate 80 and creating more pollution as they come to town.”

She noted that tree planting “is not something that’s going to work right away, so the outdoor air quality may take some time to improve. It may never improve – it’s not a proven mitigation measure.” She noted that this might be possible if they delayed for sale housing until the tree mitigation is proven effective.

Likewise, Thomas Cahill expressed concerns about the health impacts of particulate matter, and opposed development of housing on the Nishi site.

Dr. Cahill, in his report in October, concluded that “in present conditions, it is my opinion that causing people, and especially vulnerable populations spending much of their time on the Nishi property, to move into a situation of such great potential harm is simply not supportable.”

Mayor Pro Tem Robb Davis, however, pushed back on the issue, stating, “I’m really frustrated about this one.” He argued that “we need a basic course in risk analysis.”

For instance, he noted that 1 in 3500 farmworkers in this country will die on the job this year. “That’s an acceptable risk to us,” he stated. “We live with that. We consume the food that they produce.”

The mayor pro tem explained, “What we’re hearing about this property is 1 in 4500 people will over the course of an entire lifetime contract a certain form of cancer. That’s not annually, that’s 1 in 4500 over the course of lifetime. We’re talking about magnitudes of difference.”

He said, “These are minuscule risks compared to the risks that we face every day in our lives.” He noted that people who drive their car their entire lives will have three accidents on average. “That’s the risk we live with,” he said.

The Baseline Project Features establish “[d]eveloper commitments of $1 million for the affordable Housing Trust Fund and an additional $200,000 for the City Council to allocate amongst on-site civic arts, establishment of a local carbon offset program, and implementation of the Downtown Parking Management Plan, for a total of $1.2 million.”

—David M. Greenwald reporting

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  • David Greenwald

    Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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89 comments

  1. Complains about health impacts on a a relatively short-term residential population, then complains that there is not housing for potentially longer-term low income residents. Why don’t they support building low income housing elsewhere with money from the developer?

    Essentially,  their environmental concerns are about the existing air quality of the site and seems to claim that this makes the site undevelopable.  Harrington obviously believes that he can’t win this at the ballot.

    They have no solution for housing the number of students that are coming and seems to prefer that they live elsewhere and drive their cars here to attend school.  I’m sure this would have a positive impact on Harrington’s rental income.

     

  2. “The City has basically tripped allover itself to rush this to the June ballot for no discernable reasons and given away over $11.0 million USD of value to the rich developer extended families who own or optioned the Nishi site,” Mr. Harrington’s suit alleges.”

    Where does the $11M figure come from ?

    1. As I understand it, there is a portion of a given development that is set aside for affordable housing. I think it’s one-quarter, but I’m not in a place to look it up. That number is then multiplied by the in-lieu fee and I think if I recall from the article in February, it ends up somewhere between $6 million on the low end and $10 million on the high end.

    2. The City of Davis has an Affordable Housing Ordinance (Article 18.05 AFFORDABLE HOUSING) that requires developers of certain sized residential housing projects in Davis to either construct a prescribed number of below-market, affordable rental or for-sale housing units or pay prescribed in-lieu fees to the City’s Affordable Housing Trust Fund.

      “18.05.060 Rental development affordable housing standards
       
      A developer of rental housing developments containing twenty or more units shall provide, to the maximum extent feasible, at least twenty-five percent of the units as affordable housing for low income households and at least ten percent of the units as affordable housing for very low income households.”
      So 440 total units of rental housing at Nishi times 35% = 154 units that should have been built for affordable housing.
      Under some circumstances, a developer may pay an in-lieu fee to the City’s Affordable Housing Trust Fund instead of building the prescribed number of affordable housing.
      The City’s current schedule for such in-lieu payments to the Fund is $75,000 per affordable housing unit not otherwise built by the developer.  So 154 units times $75,000 = $11,550,000.
      I am guessing that is where the $11,000,000 figure comes from.

      1. Is that how the Cannery got their allotment of “affordable Housing”? The big housing is for families, and the apartments are “equivalent” affordable housing?

        What if we put them all up for sale, the same houses, and then whoever is qualified for “affordable” gets it? Fairly, and honestly? Nah, never happen.

  3. Oh NO!  There are health affects from living near the freeway and the railroad!  Evacuate Olive Drive!  Evacuate South Davis!  Evacuate East Davis!

    Cahill proved there are health effects from brake lining, and from sources many tens of miles from Bakersfield that means trains, buses, electric cars — all these transportation alternatives are sources of this toxin as well as the the evil oil driven car . . . so really all of Davis is far too close to transportation and needs to moved up into the hills . . . but then we’d need horses and bicycles (no brake-lining sources of transporation) to get to jobs . . . SO WHAT THE F__K DO WE DO???!!!???

    1. Cahill actually said it is the low-lying nature of the Nishi parcel between the freeway and railroad tracks that makes it particularly susceptible to trapping pollutants. It is like a mini-valley between the two pollution sources. It is not just the proximity to the freeways and tracks that make it problematic. And this is actually shown with topographical computer modeling of pollutant dispersion from point (or linear) sources.

      SO WHAT THE F__K DO WE DO???!!!???

      Try believing in the science.

    2.  SO WHAT THE F__K DO WE DO???!!!???”

      Perhaps a good place to start would be to not double down on environmental hazards that already exist by not exposing still more people to them.

      This from a woman who does not oppose Nishi on the basis of the concerns of Dr. Cahill. His evidence when weighed epidemiologically against the known pattern of respiratory illnesses in our region is not ( in my opinion) sufficient to ban development on this site. True, Nishi is not optimally located, but all sites will have their disadvantages and with appropriate mitigation, I believe that the health concerns of the Nishi site do not outweigh its positives.

  4.  

    David wrote:

    > Harrington Files Suit Challenging Legality of Nishi

    Has anyone added up all the money Harrington has made from Davis taxpayers by suing the city?

  5. ***Response for developer***
    “This is a desperate attempt to disrupt the Measure R process and remove voter’s rights. The facts are contained in the EIR – the Plaintiffs just prefer to ignore them to obstruct the process. After eight years of collaboration, Davis voters deserve an opportunity to finally weigh in on this community plan,” said Tim Ruff, managing partner of the Nishi Gateway.”

    1. “This is a desperate attempt to disrupt the Measure R process and remove voter’s rights.”, Tim Ruff

      …said the guy who just received a waiver of over $11,000,000 in affordable housing in-lieu fees from the City Council.

        1. Actually I am the guy who formed the political campaign, “No on Measure A, No on Nishi”.

          As the developer said above, “Davis voters deserve an opportunity to finally weigh in on this community plan”…so I am weighing in.

  6. Well clearly its time to do away with Measure R. I’ve been saying this for years but now, when the process is shown to not work and become a legal nightmare, instead of a process designed to provide direct voter input, the unworkability of Measure R should be apparent for all to see.

        1. These lawsuits have nothing to do with Measure R.

          Then why do they cite it in the complaint?

          The reason a possible violation of the City’s Affordable Housing Ordinance and possible CEQA violations are important in a Measure J/R election is because the Measure J/R ordinance mandating such a vote to expand the City borders specifically require any project to be in compliance with CEQA and “all applicable laws and regulations”. If the Measure J/R vote is not in such compliance, it is an illegal vote.

          But don’t blame me…I didn’t write the law.

  7. One of the biggest problems facing California is abuse of CEQA. Many agree it needs to be fixed but doing so requires moving the legislature to action. That is hard to do because of the difficulty in organizing the entire State of California with its 120 legislators representing 38 million people. Measure R is a local ordinance. It would be easy to let it die when it comes up for renewal or organize a petition drive for repeal. We would likely see better planning without measure R when the process can play out on its own timeline instead of being subject to the election calendar. Without measure R citizens would still have the referendum just as the rest of the state does. Measure R has failed, its time to put it out of its misery and allow Davis to deal with its growth issues in a responsible manner.

    1. Measure R has not failed and we all know it’s expensive and difficult to get a referendum on the ballot.

      Measure R is a great vehicle for the citizens to keep check on the city from over developing.

    2. We would likely see better planning without measure R…

      …and allow Davis to deal with its growth issues in a responsible manner.

      Cannery was not subject to a Measure R vote. We gave away $10,000,000 to the developer New Home Company in CFD financing on a 3-2 Council vote. The City approved the project on a 3-2 Council vote without a commitment for the 2nd bicycle below-grade crossing and with drastically reduced sustainability commitments from New Home Company. So I don’t think that turned out so well for Davis either.

       

      1. So I don’t think that turned out so well for Davis either.

        Great for  Davis, not for  the people who live there. I just wonder how many people who vote here and own houses have not been to this town in years?

        But then, when the Yolo County Elections Chief turns the office over to her Son in Law, to go work for Hillary, I guess it doesn’t really matter?

        1. Miwok

          I just wonder how many people who vote here and own houses have not been to this town in years?”

          I agree it would be interesting to compare how many people “own houses here and have not been to this town in years”, with those who own houses here in which they live. I suspect that, unlike your implication, there are more people here who live in their homes, and would like to maintain at least some sense of the community that they chose when they purchased those homes, than there are those who have simply acquired property solely on the basis of its economic value.

        2. “I suspect that, unlike your implication, there are more people here who live in their homes, and would like to maintain at least some sense of the community that they chose when they purchased those homes, than there are those who have simply acquired property solely on the basis of its economic value.”

          I recall a post here a few weeks back that stated that the majority of single family homes in Davis are rentals (>60%?). If that is true, then your supposition is incorrect.

  8.  
    How can anyone blame the City’s incompetence on Measure R?  How can anyone fault Harrington for suing over the City’s errors?
     
    Let’s consider the City’s own numbers.  They claim it costs $325,000 to build one multifamily unit, but they only collect an in-lieu fee of $75,000 per unit???  That is a shortfall of $250,000 per affordable unit.  What developer would pass on that deal?  Nishi has 660 units, and the City has a 20% affordable requirement.  So, 132 units at $250,000 per unit is a $33 million give away.  Using honest numbers, which are about $175,000 in per unit construction cost, yields a $13.2 million give away. 
     
    Can anyone explain how this is the fault of Measure R, or Harrington???
     

    1. skeptical wrote:

      > Let’s consider the City’s own numbers.  They claim it costs

      > $325,000 to build one multifamily unit, but they only collect

      > an in-lieu fee of $75,000 per unit???

      Remember the city that says it costs $325K to build a multifamily unit is the same city that pays over $800K to build a playground.

      Below is a nice looking 56 unit apartment building the city can buy for LESS than $75K/unit:

      http://www.loopnet.com/Listing/19691272/2526-Edison-Avenue-Sacramento-CA/

      P.S. a typical home developer could build TWO (2) 1,500sf homes and about a HALF DOZEN (6) apartment units for $325K (and a LOT more than one playground for $800K)…

  9. According to 12/16/-16 city staff report: “The City’s inclusionary housing ordinance exempts both stacked-flat condominiums and vertical mixed-use residential, so the Nishi proposal would not be required to provide affordable housing under current policies…”  See: http://documents.cityofdavis.org/Media/Default/Documents/PDF/CityCouncil/Planning-Commission/Agendas/20151216/05C-Nishi-Gateway-Intro.pdf

    Secondly, the burden is on Harrington to prove his case…

    Thirdly, I would not be surprised if Harrington tries to sue over MRIC as well. He clearly does not want either Nishi or MRIC to go to a vote of citizens, just as he tried to obstruct the surface water project through a lawsuit.

    1.  

      The City’s inclusionary housing ordinance exempts both stacked-flat condominiums and vertical mixed-use residential, so the Nishi proposal would not be required to provide affordable housing under current policies…

       

      Better do a little more homework before you believe everything the City tells you. The Affordable Housing Ordinance defines “mixed use” as

       

      Section 18.05.020: Definitions

       

      Vertical mixed use development means mixed-use structures that vertically integrate residential dwelling units above the ground floor with unrelated non-residential uses on the ground floor, including office, restaurant, retail, and other nonresidential uses. For purposes of this article, vertical mixed use does not include structures that vertically integrate uses ancillary to residential units, such as resident parking, laundry rooms, community rooms, or common space on the ground floor with the residential units above.”

       

      So this means unless every single ground floor of every single one of the 3 large 5-story apartment building complexes is entirely non-ancillary space used exclusively as commercial space unrelated to the residential units above, then the Nishi units would NOT be exempt from the Affordable Housing Ordinance.

       

      The total square footage of the 440 rental units themselves is 494,500 not counting any common areas. Assuming the apartment units are 5 floors with the top 4 floors devoted entirely to residential, this would mean that each of the top four floors has a total footprint of 123,625 sq feet (494,500 sq. ft. / 4 floors) of devoted residential – not counting common areas. That means the first floor that is required to be entirely non-ancillary to residential must also be 123,625 sq ft of entirely commercial space for all of the residential buildings to be classified as “mixed-use”.

       

      Yet, the Baseline Features of the project as approved by Council for placing on the ballot stated “Retail uses to be located within proposed Residential or R&D buildings only allow 20,000 sq “. Because 20,000 sq ft of retail is substantially less than the 123,625 sq. ft., clearly the rental residential units are NOT exempted by the “mixed use” exemption and the development is otherwise required to provide the specified number of affordable housing units or pay appropriate in-lieu fees to the City’s Affordable Housing Trust Fund.

       

       

      1. “Yet, the Baseline Features of the project as approved by Council for placing on the ballot stated “Retail uses to be located within proposed Residential or R&D buildings only allow 20,000 sq “. Because 20,000 sq ft of retail is substantially less than the 123,625 sq. ft.”

        Zoning rules differentiate between commercial space and retail space, where all retail space is commercial, but not all commercial zoning allows retail.  Look around town and you will see that the vast majority of our commercially zoned buildings do not allow retail.  There is no conflict between 120,000 sf commercial but only 20,000sf of retail. Your logic is flawed.

        “That means the first floor that is required to be entirely non-ancillary to residential”

        The text you quoted does not say that.  It says that mixed use has non-related commercial below, with ancillary to residential not qualifying. Is says nothing at all about a mixture of the two. Unless there is another section of the ordinance the clarifies this situation then it is open to interpretation.  Either way, without the final plans for the buildings there is no way of knowing how the first floors will be laid out.  Your conclusion is not justified by the data presented.

         

        1. So are you saying the developer is going to put in an additional 103,625 sq ft of non-retail commercial space  to ensure the ground floor of every residential rental unit  is entirely non-residential? That was never mentioned in any Council or Commission discussion or published in any  City documents for the project thus far. And it is certainly not what is being sold to the voters where we are told ALL of the Office and R&D space is located in 2 distinct parcels separated completely from the residential parcels.

        2. I made no claim about what the Developer is going to do Alan, it is you that is making assumptions.  All I am doing is pointing out the inconsistencies in your arguments. The City determined that the project qualifies for an exemption and you have not presented sufficient data to definitively refute that assessment. I think it is fair to say that the City knows more about the details of the plans and the ordinances than either you or I.

           

           

        3. Alan wrote:

          > So are you saying the developer is going to put in an additional

          > 103,625 sq ft of non-retail commercial space

          From what I have been told you don’t need to have 100% retail on the ground level and the language is just to prevent someone from pretending an apartment with an office, clubhouse and parking on the ground level is “mixed use” just to avoid the low income units (or paying the fee for them).

          Three of the four corners of the block between 4th and 5th, F and G have apartments over retail/office, but none have 100% retail on the ground floor.  Does anyone have any idea if any of these has to include (or pay for) low income housing?