At the January 19 meeting, Mayor Pro Tem Robb Davis suggested that the city simply increase the number of residential units in the Nishi project to 780, rather than the proposed 650 units with the option to increase the number to 780 later.
However, city staff likely believes that such an increase now would necessitate a new Environmental Impact Report (EIR), which would undoubtedly delay the project. Instead, they write, “The Baseline Project Features also allow potential increase in residential units, or addition of a hotel, as a potential subsequent action by the City, but without a requirement for subsequent voter approval.”
What would be required is: “Discretionary review, public hearing, and environmental analysis would be required for a proposal to increase densities or add a hotel to be considered.”
Staff notes that two possible amendments are identified in the Baseline Project Features, which would require a full environmental review as required under CEQA (California Environmental Quality Act), and city council consideration of the necessary General Plan and planned development amendment (but not an additional vote). These are the additional 130 units of residential which would increase the total to 780, and the construction of a hotel not to exceed 125 rooms.
Staff maintains, “City Council may approve, modify and approve, or deny, any submitted application, but subsequent voter approval would not be required.”
In our view this move is risky, at best. First, it will practically invite someone to sue the city for allegedly violating the spirit, if not the letter, of Measure J/R. Second, it would seem to be a very risky political move, as well as inviting uncertainty.
This piece will take up the legal issue and leave the politics of it to others.
Under Municipal Code second 41.01.020, “Voter approval”, the provision created by Measure J requires the establishment of “baseline project features… which cannot be eliminated, significantly modified or reduced without subsequent voter approval.”
There is not a lot of guidance in the language of the municipal code, though section (c) stipulates, “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: (1) Subsequent 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.”
Moreover, “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.”
The reason for these provisions is obvious, lest someone attempt to slip a proposal by the voters and then attempt to change it later with a more sympathetic city council.
The question before us is something different. How specific must the guidelines be? Can they put a whole provision into the baseline features, allowing for an additional 130 units, upon approval and a new EIR?
There is nothing in the text of the municipal code and the ordinance that appears to prevent such contingencies.
When Measure J came up for renewal, there was an attachment to the resolution, written by the city attorney, which attempted to assess for “illustrative” purposes only and “to provide guidance for possible future circumstances” those “proposed changes and project refinements that would not trigger a subsequent Measure J vote.”
These included, “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.”
Given that the project baseline feature would allow for the request for the additional 130 units, that would seem covered in this example.
On the other hand, examples that would trigger a new vote include, “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.”
But again, because the project baseline feature would allow for this possibility, it would seem to fit the former and not the latter example.
Therefore, I would argue that, from the perspective of legal requirements, there is nothing that would preclude there being contingencies in the baseline project features, and therefore the additional 130 units with requirements for CEQA review seem to be permissible under Measure J.
However, there is also the political consideration here. Will the voters approve a project that has a number of contingencies including: the number of housing units, the hotel, the requirement for the second UC Davis crossing and the requirement for the Richards Boulevard Corridor plan?
Those are political questions rather than legal ones. The council and developer will have to weigh the advantages of going in June versus the risk of waiting to resolve some of the uncertainties.
—David M. Greenwald reporting
The illustration attachment to the resolution you cite seems to be in direct opposition to the language of Measure R in terms of size/density ; how can they be compatible? Who is staff recommending this?
Adaptability must now be sacrificed to the righteousness of ballot box planning. Are contingencies the right thing to do? You seem to think so but worry that they won’t pass Measure R muster. Add one more failure to the list of the negative unintended consequences created by Measure R.
I doubt the supporters of Measure R consider that unintended or negative.
“Analysis: Will Baseline Features Pass Legal Muster?”
No
As a reference for comparison, here (see http://community-development.cityofdavis.org/Media/Default/Documents/PDF/CDD/Planning/Special-Projects/Covell-Village/36-Applicant-Proposal-for-Baseline-Project-Features-20050527-Covell-Village.pdf) are the May 27, 2005 Baseline Features for Measure X – Covell Village
Great post. The contrast between Covell vs Nishi is striking.
Covell – transparent and to the point. Nishi – not so much.
Here’s the link to the baseline project features for Nishi –
http://cityofdavis.org/home/showdocument?id=5149
And as a second reference for comparison here are (see this LINK) the Baseline features for Measure P – Wildhorse Ranch
I disagree. The language is pretty clear. In my opinion, a “contingency” does meet the legal bar of a “project feature.” This needs to be tested in court if the council is foolish enough to approve the baseline project features with contingencies on density, land use, and/or traffic circulation.
The bottom line is that the planning is incomplete and staff is trying to create a work-around so that the project can prematurely go to the ballot. The issue here is not the contingencies but the fact that staff never seems to be able to get the job done in a timely manner.
This was a problem with Wilhorse Ranch, Cannery, and now Nishi.