When the voters approved Measure J back in 2000, it required voter approval of changes to land use designations – from agricultural uses to urban land use designations. However, there had to be provisions in the law that meant that any substantial changes had to go back to the voters.
As such, section (2) subsection (A) calls for “Establishment of baseline project features and requirements such as recreation facilities, public facilities, significant project design features, sequencing or phasing, or similar features and requirements as shown on project exhibits and plans submitted for voter approval, which cannot be eliminated, significantly modified or reduced without subsequent voter approval.”
This provision is critical because it prevents the developer from getting a project approved and then getting council to make major changes to the project down the line.
The Nishi project has adopted a number of baseline project descriptions that were presented to the Planning Commission last week that will have be finalized by the city council – should the city council choose to put the project on the ballot.
The language of Measure J did not give a tremendous amount of direction for when baseline feature changes require additional voter approval.
In Section C it states, “Once the voters have approved a land use map designation or land use entitlement for a property, additional voter approval shall not be required for,” and then subsection (1) states, “[s]ubsequent entitlement requests that are consistent with the overall approved development project or land use designation and entitlements including the baseline project features and required provision of open space, recreational amenities, design features and public facilities, as specified in the exhibits and plans approved by the voters.”
Subsection 2 adds, “Any requested modification to a land use designation or development project entitlement that does not increase the number of permitted dwellings or units or the intensity of commercial/industrial development and does not significantly modify or reduce the baseline project features and required provision of open space, recreational amenities, design features and public facilities, as specified in the exhibits and plans approved by the voters. The city council may adopt procedures for the hearing of a request for modification.”
When the city renewed Measure J, the city developed “Parameters for Evaluating Proposed Project Modification for Consistency with Baseline Features and Master Plan.” These examples were intended “to be illustrative only and to provide guidance for possible future circumstances.”
Examples of proposed changes and project refinements that would not trigger a subsequent Measure J vote:
- Shifting of approved land uses from one location to another, provided that such changes retain project character. Particularly, changes that increase the diversity of housing types and mix of uses may be permitted, as long as the maximum number of units and the number of affordable units as required under the City’s ordinances does not change.
- A change of land use, if determined consistent with the range of land uses, the density and intensity of land uses, and the maximum number of housing units and non-residential development square footage as established in the Base Line Project Features and the Master Plan.
- Changes to lot widths, dimensions and sizes of the residential lots within subareas of the project, provided that the overall distribution of lot sizes for housing units within the project is consistent with the Base Line Project Features and the Master Plan.
- Adjustments to street locations and widths that do not substantially change the project as defined in the Base Line Project Features and the Master Plan.
- Changes to the phasing plan for the housing units that do not increase the number of units permitted per year above the specified maximum in the Base Line Project Features.
- Design review applications affecting the design aspects of the project, such as building setbacks and height, building façade design, and on-street and off-street parking.
- Proposed modifications to the quantity and type of nonresidential uses, as long as such changes maintain the mix and intensity of land uses consistent with the Base Line Project Features and the Master Plan.
Examples of Project Changes That Would Trigger a Subsequent Measure J Vote:
- A reduction or increase in the density or total number of housing units within the overall project below or in excess of the established minimum or maximum number of units set out in Base Line Project Features.
- Elimination of parks or open space features specified in the Base Line Project Features and/ or as shown on the Master Plan.
- Changes in the greenbelt and pedestrian circulation system by location or reduction in acreage that are determined to be potentially detrimental to the quality, quantity, or nature of the project as established under the Base Line Project Features.
- Changes in a phasing plan that increase the number of housing units permitted per year above the specified maximum.
- A reduction in total acreage of agricultural mitigation, or a change in the location of that acreage that is less consistent with the City’s Open Space Priority Plan or inconsistent with any such location described in the Base Line Project Features.
- Elimination of public infrastructure improvements as shown in the Base Line Project Features.
- A reduction in the number of affordable or middle income units that would be less than what was specified in the Base Line Project Features.
Summary and Conclusion: There is some question as to whether the baseline project features in Nishi are specific enough. Given their draft status and the fact that the planning commission only received these a few hours prior to their meeting, it would seem logical that these are not in final form. That will undoubtedly fall into the realm of the city staff.
i’ve heard from someone that people think the baseline features are too loosy goosey and they expect a law suit. shocking i know.
The baseline project features:
(1) Do not insure that the UCD connection gets built
(2) Gives the developer 130 more units w/o another public vote or full environmental review
The project is not fiscally sustainable, requires a CFD larger than the Cannery, and is currently so full of holes that the City Council doesn’t have enough information to take a legally defensible action.
In the interest of transparency and accountability, here’s some eye-opening reading about how the Development Agreement (which includes the baseline project features) negotiation has been structured:
http://cityofdavis.org/home/showdocument?id=4881
The key negotiating terms:
(1) An assigned staff team (including the City Attorney) will be the principal negotiators with the applicant. The main focus of this team will be the community benefit deal points.
(2) The Council Subcommittee will provide guidance and feedback but not be directly involved in the negotiations nor have direct contact with the applicant regarding the negotiations.
(3) Other Council members will not be directly involved in the negotiations nor have direct contact with the applicant regarding the negotiations.
The two Council members that are assigned oversight responsibility for this process are:
(1) Robb Davis
(2) Rochelle Swanson
The rest of the CC was frozen out, and it’s not clear how much input, if any, Swanson and Davis provided (we need to understand if they were active, passive, or non participants).
Hopefully, given the incredibly incomplete mess that Staff (Steiner, Tschudin – a contract planer on Covell Village, Hess, Webb, Brazil) has dropped on the City Council, Swanson and Davis will find a third vote to slam on the brakes tonight.
With the earliest possible occupancy of Nishi delayed until 2022, the City Council members better have a pretty compelling and cogent reason to advance this to the ballot on 1/19 with only eight days of deliberation.
Punting to the voters to decide doesn’t cut it. From my perspective, the CC members that vote for this are giving their personal endorsement to the project in its current form, and will bear full responsibility for any negative outcomes.
CalAg, last night the Finance and Budget Commission (FBC) unanimously passed a motion made by Ray Salomon that “advised” the Council that an infrastructure financing study be done with a 70% loan to value ratio so as to limit (ideally eliminate) the use of a community facilities district (CFD).
The FBC also unanimously passed a second motion also made by Ray Salomon that “advised” the Council financing study be done looking at what impact a small second mortgage would have in the financing of the project, furthering the efforts to eliminate the use of a CFD.
The FBC also passed, by a 6-1 vote with Dan Carson dissenting, a motion recommending that the Council not approve development or innovation center projects until the economic analyses are materially complete and accurate.
Finally, the FBC passed, by a 6-1 vote with Dan Carson dissenting, a motion”advising” Council that the FBC does not consider the current EPS report to be materially complete and accurate until the concerns contained in Ray Salomon’s handout submitted at the January 2016 FBC meeting and additional questions from Matt Williams are answered.
Thanks for the update.
I hope a majority of the City Council will accept all the recommendations of the F&BC and send this back to the consultants for more work. This will also buy the City time to negotiate a resolution to the various deficiencies in the baseline project features (and maybe even complete a development agreement in time to allow some legitimate public review). Maybe Davis and Swanson will step up tonight and rein in staff. Are they even at the table during the DA negotiations?
The members of the FBC hope our recommendations and advice are accepted by the Council as well.
Did the FBC look at the infrastructure estimates as well? I’m hearing there are some serious omissions and low-ball estimates.
CalAg asked . . . “Did the FBC look at the infrastructure estimates as well? I’m hearing there are some serious omissions and low-ball estimates.”
The staff presentations by Andy Plescia and Susan Goodwin addressed the upward changes in the infrastructure estimates (increased just over $5 million as a result of the replacement of surface parking with a parking structure, construction of a bridge over the Putah Creek Corridor, and the increase of the amount of open space/habitat by approximately 5 acres), and provided supporting tables indicating the impact of those increased costs on project funding alternatives. FBC very actively engaged and discussed the funding alternatives. That discussion resulted in the motions that were passed (posted above).
There were no questions from the FBC members to Plescia or Goodwin about the infrastructure cost estimates themselves.
I am counting six stories on those buildings. Expecting opposition for that too.
At that site, I doubt if building height will be an issue accept as a tactical complaint to try and stop the project.
Cal Ag: “The project is not fiscally sustainable, requires a CFD larger than the Cannery, and is currently so full of holes that the City Council doesn’t have enough information to take a legally defensible action.”
Correct: putting the current mess on the ballot will violate Measure R’s requirements to specify baseline features. Hopefully the CC will clean it up, and make things tight so the voters know reasonably accurately what they are voting for.
Any significant contingencies will certainly violate Measure R. The act of putting it on the ballot is the violation; no need to wait for the election for the issue to be ripe for legal action.
I think protecting the will of the voters as expressed in J and overwhelmingly affirmed by Measure R would be worth the fight in court.
Any CC member who votes to put the currently described baseline features proposal on the ballot would be demonstrating contempt for Measure R and our fair City’s voters.
I would hope the City Council demands better planning from the Staff because it’s good public policy and the right thing to do – not because of the threat of litigation.
To repeat a question I’ve asked repeatedly …
Why is the City fast-tracking an incomplete Nishi proposal with minimal scrutiny?
I want both Nishi and MRIC to get approved. That said I can’t help but feel we’ve been bait and switched on both projects, first Nishi was supposed to be a revenue generator and MRIC wasn’t supposed to include any housing. As it stands now I’ll vote no on both projects unless the council comes through and does the right thing.
I would also ask WHAT constitutes a “significant” change to the Baseline? Since the graphic above has a 10% reduction in parking spaces and a CAP on Traffic, I wonder what is a suitable percentage to changes, and since this project seems to have something for everyone, ANY change may trigger a vote clause? Of the CC may 10% the project to death?