On Friday, Attorney Don Mooney filed a lawsuit on behalf of Michael Harrington, and Supporters of Responsible Planning in Davis, an unincorporated association, against the city of Davis, challenging the Davis City Council’s September approval of a Mitigated Negative Declaration for the Embassy Suites Hotel and Conference Center.
On September 15, the Davis City Council approved the project that will tear down the existing hotel and neighboring restaurant, Caffé Italia, and build a new six-story hotel and conference center on 2.83 acres located at the southwest corner of the intersection of Richards Boulevard and the westbound Interstate 80 onramp in the city of Davis.
The project would replace the existing single-story 43-room University Park Inn & Suites hotel – five buildings totaling 21,817 square feet (sf) – and the 4,000 square-foot Caffé Italia restaurant, with a new six-story 132-room/suite hotel. This would included a breakfast room/restaurant and 13,772 sf (aggregate) conference center. All existing structures would be demolished and the site would be cleared for the proposed use.
According to city officials, the city has not been formally served with the lawsuit. However, an October 19 letter from Don Mooney to City Clerk Zoe Mirabile, indicated, “On behalf of our clients, Supporters of Responsible Planning in Davis, we filed a Petition for Writ of Mandate in Yolo County Superior Court challenging the City of Davis’ approval of a Mitigated Negative Declaration, Conditional Use Permit and Ordinance for the Embassy Suites Hotel and Conference Center.”
In the suit, the plaintiffs argue, “Respondents’ action in adopting the Mitigated Negative Declaration constitutes a violation of CEQA in that Respondents failed to proceed in the manner required by law and their decision not to prepare an Environmental Impact Report is not supported by substantial evidence. Based upon substantial evidence in the record, a ‘fair argument’ exists that the Project may have a significant impact on the environment.”
City Planner Katherine Hess reaffirmed her comments from the September 15 city council meeting, that they went the route of a Mitigated Negative Declaration as opposed to a full EIR, because the traffic and environmental impacts came up with zero effect.
The Vanguard has learned that this was the call of the city staff over the objections of the project applicant. Ms. Hess confirmed to the Vanguard that, ultimately, this is the call of the city and that the city is the defendant in this matter.
While being careful to not say anything new due to the lawsuit, she indicated that she has not seen any evidence to cause her to doubt the finding.
The Vanguard has also learned that the applicants have been asked to fund the defense of the lawsuit.
In a letter dated September 15, Attorney Don Mooney, on behalf of Michael Harrington, argues that “approval of the project would violate the requirements of the California Environmental Quality Act (‘CEQA’), Public Resources Code, section 21000 et seq. as substantial evidence in the record of proceedings supports a fair argument that the Embassy Suites Hotel and Conference Center Project may have significant environmental impacts to traffic and other matters such as historical resources.
“The Initial Study must provide the factual basis and the analysis for the determination that a project will not have a significant impact on the environment,” Mr. Mooney writes. They then present an “expert opinion” provided by Dan Smith of Smith Engineering & Management, who argues that “a ‘fair argument’ exists that the Project may have significant impacts regarding traffic and circulation.’”
Mr. Mooney continues, “Mr. Smith identifies significant flaws in the Transportation Impact Study for the Embassy Suites Hotel and Conference Center. Mr. Smith’s comments result in conflicting claims regarding the Project’s impacts to traffic and historic resources. It is the function of an environmental impact report, not a negative declaration, to resolve these conflicting claims.”
City Attorney Harriet Steiner said they have gone over the issue of using a “Neg Dec” versus an “EIR.” She said, “Staff went through an initial study to determine what impacts this project would cause based on the baseline. As we went through that and as we did the analysis we did not feel that there was a fair argument that the project itself would cause an impact that required preparation of the EIR. That is why staff recommended and the city went forward with a ‘Neg Dec.’”
She added, “We have not heard anything through the public hearing or tonight that would provide substantial evidence that that was the wrong conclusion and the city should have done an EIR. So we’re comfortable with (the decision).”
Katherine Hess also responded to some of the comments at the onset of her presentation. She addressed some of the points raised by the letter from Dan Smith of Smith Engineering & Management.
Mr. Smith cites a statement by the city’s own consultant, in which he argues that “in simple terms means that actual conditions are much worse than the theoretical calculations at the subject locations, documents the fact that, in certain situations, professional observations are more relevant than theoretical calculations.”
Ms. Hess in effect argues that Mr. Smith takes this comment out of context. She said that the issue here is not whether Fehr & Peers used theoretical calculations, but rather that “these are real data and should not be dismissed in favor of occasional observation.”
Second, Mr. Smith complains that “the counts taken for the previously cited Hyatt Expansion study on April 26, 2011 show pm peak hour traffic on the critical outbound movement on Richards Boulevard through the railroad underpass is 7.6 percent higher than counted in October 2014. This is contrary to general observation that current traffic, because of growth and economic recovery, is greater, not less than traffic measured in 2011.”
Ms. Hess responds that there are many reasons why the traffic in 2014 might be less than in 2011, saying that “reasons that trips measured in 2014 might be lower than 2011 might also be changes in trip modes or alternative travel routes to various destinations. Ultimately CEQA cares about current conditions and data not older data based on less current conditions.”
Finally, Mr. Smith criticized the analysis for failing to “provide any indication of how successful or unsuccessful the simulation was in replicating existing queues (or whether data on existing queues was collected at all). Moreover, it is unknown whether the simulation analysis set parameters prohibiting traffic from entering areas blocked by queues or not (without the prohibition set, the simulation results would be useless).”
Ms. Hess said they in fact analyzed the details of “queuing and blocking” and noted “Fehr and Peers collected traffic counts over four hours and queue lengths during that time as well… calculating intersection delays for existing conditions. One of the things that they found was there was a very short period within the hour when queues are at their longest and then periods with much shorter queues.”
Michael Harrington spoke during public comment. He said, “I’m even more firmly convinced after researching it following the previous meeting, that this project is not appropriate to be sent through the abbreviated ‘Neg Dec’ process, it should have had a more complete EIR, it should have been sent to the appropriate city commissions and it wasn’t.
“It just wasn’t handled appropriately,” he said. “I think that the traffic study that was done here tonight was woefully incomplete, inadequate, and is just flat wrong. I think this will severely affect the tunnel, the historic subway tunnel, and I think the voters said, in 1996, that they like the tunnel, they want to keep it, and they want the city to work around it.”
Alan Pryor said that staff has not responded to a council request for more traffic options. “All they have done is give you a litany of reasons of why they think their legal analysis of their justification for their mitigated negative declaration [is adequate]. There’s nothing new that they presented.
“I think that’s problematic and speaks to the difficulties that you’re going to have with traffic issues on there,” he said.
Mr. Pryor added, “This project was rushed through the entitlement process without full citizen engagement.” He said, “This is absolutely unheard of, rushing through a project of this size in Davis. I don’t understand what they were thinking.” He said if they had done so, they would have a mitigated negative declaration “that could actually pass CEQA scrutiny. I don’t think that’s the case now.”
He concluded, “I really think you have to go back and embrace the Davis Way of doing things which is engage the citizens early on… which did not occur here. I think you may see the consequences of that.”
Council ultimately voted 5-0 to approve staff recommendations.
—David M. Greenwald reporting
That’s a heavy tactic to keep one’s favorite Italian restaurant open.
Firstly let me make it clear that even though I forcefully spoke against approval of this project when it was before Council for the first and 2nd hearings, I am not a party to this lawsuit in any shape, form, or fashion. I have absolutely no financial skin in this game one way or another and all the work I did quantitatively analyzing the deficiencies of the traffic study in the MND was done completely on my own time and given to the City without receiving any payments or any form of compensation from anybody. I actually would like to see the project done in the best manner possible and, toward that end, I even additionally made substantial constructive quantitative suggestions supported by detailed engineering calculations (again completely on my own unpaid time) to improve the sustainability of the project to which the applicant has subsequently agreed.
My sole interest in doing this work was to try to make sure the project has a minimal impact on the environment and we don’t completely screw up the Richard’s Blvd – Olive Dr. interchange. And Mike has also repeatedly said he is not against the project but rather that he is simply trying to get it done right. The simple fact is that the process the City followed for the approval of the MND in terms of traffic analysis was in clear violation of CEQA standards and they received abundant warnings about these problems beforehand. Instead of taking just a few extra months to work them out, however, the City Staff and Council instead choose the short-cut path of expediency vs following the the law. To those of us knowledgable about CEQA, this was not even a close call and the City received abundant and detailed warnings of these CEQA deficiencies weeks before their final approval. Had the City followed the advice of the project applicant (the Patels) and naysayers such as Mike and myself and done a full EIR instead of an MND, this lawsuit would have never been filed.
So blame Mike if you want to have a scapegoat and like bad-mouthing lawyers (except, of course, when YOU need them). But it was the arrogance of senior City Staff and the Council in trying to ram through an MND instead of taking a few extra months to do a full EIR and engage the public that is the cause of this problem. Mike is simply trying to force the City to correct itself and do what the Patels wanted to do in the first place – do a full EIR with a complete and accurate traffic analysis. You can demonize Mike and lawyers with snitty little anonymous remarks in this blog all you like. But to many in the Community, Mike became a hero for standing up and making sure due process is followed and Staff and the Council are not ramming through massive developments simply to get the millions in fees and occupancy taxes that will flow into the City coffers.
And I would also like to suggest to the naysayers that instead of just taking the easy route and carping about lawyers and the CEQA process that you actually dig into the Staff reports and look into the traffic studies themselves and then present to this blog your own quantitative analysis as to why this project’s traffic analysis holds water. Every single comment posted here whines either about 1) the evil Mike Harrington is doing, or 2) he is just looking out for his own pocketbook, or 3) he just wants to be an obstructionist because he hates the City. I have not seen a single comment here that actually addresses the traffic study deficiencies that are pointed out in Mike’s lawsuit. C’mon folks! Please put some facts and figures in your posts if you really want to be taken seriously.
Many in the Community have also taken notice of the bigger picture here which is how senior City Staff and the Council have conducted themselves when approving these stand-alone project entitlements. There has never ever been a project of this magnitude in Davis in which the approval process was rammed through from the Planning Commission to Council approval in only 45 days in the dead of summer…and without even taking it to a single Commission! It did not even go to the Traffic Commission to discuss the traffic problems around which the whole lawsuit revolves! This was crazy and has never ever been done before in Davis. It is certainly NOT “the Davis way” which dictates full community engagement.
This whole process begs the question if this is how the City will evaluate all of the future individual projects that will come before them if the Nishi Innovation Center and Mace Business Park initiatives are approved by the voters. Can we trust the Staff and Council to make rational, informed, community-driven long-term decisions when they are instead drooling over the propects of short-term fees and income into the City coffers.
Getting the Nishi and and Mace projects passed next year will revolve around the trust the population has that the Council and senior City Staff will protect the City’s broader interests and ot just ram things through to get future fees or taxes when evaluating the individual project entitlements that will come after the passage of any Measure J/R votes by the citizens. For me, this whole Conference Center process conbined with the horrific give-aways the City made to the Cannery developers says we have to watch them very, very carefully to make sure their new motto, ” Davis is now Open for Business” does not just mean “Davis is now for Sale”.
Alan, you lost me when you said the project needed a “full EIR”. BS. If I had a say, it would have been a “focussed EIR” on traffic/circulation. If you think a “full EIR” is warranted, please justify your reasons (other than obstruction/delay). Am listening.
The rest of your ‘rant’ goes on about future considerations, on other projects, and is “off-topic”, although it might make you feel better about questioning the motivations/qualifications of “senior City staff”, and development in general. Look at the negative adjectives you used, and I suggest you evaluate whether you have your Pryor-ities straight.
Your right in that I should have more careful with my terminology and specified that a “project” EIR should have been initially done rather than a “full” EIR. “Full” is an ambiguous term and only generically used. Alternatively, a “focused” EIR could have been initially done as you suggest. The only currently viable after-the-fact option, though, is for the City to do a “supplemental” EIR .
I otherwise think past performance of Council and Staff in development projects is a very good indicator of what to expect from them in future development projects and pertinent to this thread. And, as I state in my comments, their performance on the Cannery and this Conference Center certainly gives me cause to worry and suggest they may not be up to the task. If you don’t think so, then you are certainly free to eat the pabum or drink the Kool-Aid they serve up to you without question.
Because they ignore the harm that Mike does in the community, the many people he has screwed over. He seems to only want due process followed for others, not himself. I don’t care about his fans who have made it a sport to pick apart every effort by businesses to expand and improve in Davis. We couldn’t even upgrade the STEAC Food closet due to Mike’s meddling and opposition, for goodness sake. Maybe you think that this particular cause is a valid one, but taken as part of a whole of Mike’s activities, it is just appears as additional efforts toward obstruction and extortion.
That was meant to be a joke.
Does this stop the project from going foreward?
Well, the demolition can most likely proceed. Once they get those permits. Maybe this will result in more “open space”!
depends on whether they get an injunction and depends on whether they can get financing with pending litigation.
Uh, can’t imagine a legitimate injunction to prevent the demolition, based on the record. Am guessing this is outside the scope of your legal knowledge/expertise. Not sure what financing they would need for demo.
Oh… I re-read… you are absolutely correct about getting an injunction against BUILDING permits and the financing for BUILDING. I see no facts that would support an injunction against the demo.
I must apologize, in the past I’ve supported Mike Harrington on the Vanguard and I now realize what a fool I was.
Go with the feeling… we all make mistakes
and what do you mean by that?
Just meant we all make mistakes, and hopefully, learn from them. I know I make mistakes, and try to learn… No personal attack was intended towards you.
You are not a fool, but many are fooled by Mike Harrington. Look up the definition of Narcissism.
From the article, it appears that Mr H (and Don M’s) issue is based on “process”, not “fact”. It is not clear if the record would show that they adequately pursued ‘administrative remedies’. If they did not, suspect the suit will be thrown out, the expense borne by the applicant, and in my opinion, constitutes “harrassment”. The City could also defeat the suit by conducting a “focussed EIR”. That is a valid remedy to the process claim.
Ironically, time and effort (read, “cost”) needed to do a focussed EIR, as opposed to a MND, would, in my experience, have been trivial. I’m scratching my head as to why that was not done. I believe the “results” would have been the same. Except the questionable grounds for the lawsuit. Couple of ambulance chasers throwing their wooden shoes into “the works”? Perhaps.
If that’s the case and the city ends up ‘settling’ with him I’m going to be highly pissed off at the city.
Moi, aussi.
If that occurs, “harrassment” isn’t the operative term… that would be “extortion”…
we should really be blaming dan wolk. wolk decided he wanted to be a hero on the water deal and offered a settlement when the city fully believed that they would prevail on the lawsuit. this ended up giving harrington a lot of money and evidently planted in his mind that he could simply sue his way out of his financial problems. that’s not to say he won’t prevail here – the city may well have screwed up.
On WHO’s advice was the lawsuit settled?
i don’t know. we know that dan went behind the scenes with harrington to reach the settlement. probably seemed like a good idea at the time to take the issue off the table. but the result is where we are now.
Why blame Wolk? What was the vote of the CC approving the settlement? Co-conspirators?
Anon
October 20, 2015 at 9:47 am
On WHO’s advice was the lawsuit settled?
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Davis Progressive
October 20, 2015 at 9:51 am
i don’t know.
EXACTLY – YOU DON’T KNOW. Think about it, real hard…
“we should really be blaming …”
There’s plenty of blame to go around – Pinkerton, Steiner, and Krovoza for starters. The notion that Wolk orchestrated an empowering settlement to Harrington is ludicrous.
‘For the record’…
http://members.calbar.ca.gov/fal/Member/Detail/153721
https://members.calbar.ca.gov/search/site.aspx?q=michael+harrington&go_search.x=0&go_search.y=0
All in the name of “transparency”…
Wow! Managed to get on the “your comment is awaiting moderation” list. Must have done something very bad or very good…