There have been a number of lawsuits filed against projects in Davis this year. Back on July 12, sources suggested that the suit against the hotel conference center would settle, but that settlement was apparently not agreed to during a closed session meeting of the city council, and there was “no reportable action” on that evening – and nothing new has emerged since.
It may be surprising for many to learn that a suit filed against Nishi by a group calling themselves “Davis Citizens Alliance for Responsible Planning” is still set to go forward. The suit, filed on March 18, 2016, is scheduled to be heard on January 26, 2017, at 9 am in front of Judge Timothy Fall.
The suit alleges, among other things, that the city violated CEQA (California Environmental Quality Act) and city requirements for affordable housing in connection with the city’s certification of an EIR (Environmental Impact Report). The question is, given that Nishi was defeated narrowly at the polls, why is this still a “live” dispute?
Michael Harrington, who initiated this dispute, declined comment on Monday evening. Mayor Robb Davis and City Manager Dirk Brazil did not comment on Monday evening, either.
Sources told the Vanguard, however, that part of the issue is the expectation that Nishi will come back at some point – some believe as a housing-only project but others are less certain about what form it would take.
Part of the issue is that, when the voters voted on Measure A, they were voting on the 47 acres of Nishi, but not the rest of the Nishi-Gateway project. That means that there is potential development on West Olive Drive, not covered under the Measure R vote, that can proceed if the EIR is certified.
That means that the redevelopment and zoning changes for West Olive Drive remain alive. It also means that businesses like Redrum Burger remain subject to the possibility that they could be evicted and the area redeveloped.
Some sources tell the Vanguard that the council “duped” the public by bifurcating West Olive Drive from the 47 acres under consideration for the Measure A vote. One of the votes that the council took in February amended the zoning of the Gateway/Olive Drive Specific Plan.
Two key features were, “Existing and Proposed Land Use Account shall be amended to reflect a potential additional 55,900 square feet of commercial service uses on West Olive Drive.” The commercial zoning shall be amended as follows: “The maximum floor area ratio shall be 50 percent, with the exception of a hotel conference facility between West Olive Drive and Interstate 80, which has a maximum floor area ratio of 1.35, subject to discretionary review through the Conditional Use Permit process. Vehicle parking requirements for uses on West Olive Drive shall be established through the Design Review process, using standards for the Mixed-Use Zoning District as a guide.”
These changes are again subject to CEQA, but separate from the Nishi consideration.
The resolution notes, “Final determination of roadway configuration and phasing of improvements shall be as established pending completion of improvement plans for Nishi Gateway, the Davis Arch, Richards Boulevard Interchange improvements, and the Richards Boulevard Corridor Plan.”
The only thing standing in the way of developers changing West Olive, sources tell the Vanguard, is certification of the final EIR – which is currently being held up in court. A critical component of that are the traffic studies, long in dispute by Mr. Harrington and his associates.
The challenge is under CEQA where the EIR is being challenged as laid out in the complaint.
Back in March, Michael Harrington noted, “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.”
According to Mr. Harrington’s press release, “[T]he 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.”
Sources tell the Vanguard that the Nishi EIR will be fought all the through the courts, with the full expectation that whichever side ends up losing will appeal to the appellate courts. The earliest that this would be heard would be March 2017 and, effectively, Nishi cannot do anything until the issues surrounding this case are resolved.
—David M. Greenwald reporting
Just a guess, but would the resolution of this case have any bearing on the affordability requirements of the Lincoln development which is undoubtedly an issue?
No because Lincoln is using the in-lieu fees as laid out in the ordinance
If this story is accurate, the City Counsel has already approved an additional 55,900 square feet of commercial service uses on West Olive Drive without requiring any money to improve the Richards, Olive I80 interchange. Now developers are proposing to add over 700 bedrooms with Lincoln 40 on East Olive without contributing anything to improve the Richards, Olive I80 interchange. These 2 projects combined are going to turn a bad situation into a complete traffic disaster. It will be very interesting to see how the Lincoln 40 EIR deals with this.
Trust me, they’ve been trying to convert the entirety of Olive Drive for a while now. That’s been the plan all along…the gentrification of Olive Drive (while forcing those of us who can’t afford to live elsewhere, out of Davis). Lincoln 40 is a student luxury resort on Olive Drive on a street already composed mostly of affordable living apartments and trailers. 800 rich kids who are expected to come without cars and who aren’t expected to impact Richards/Olive or the community on Olive. Give me a break. We’re screwed.
I don’t think it’s fair to characterize it as rich kids.
David wrote:
> I don’t think to characterize it as rich kids.
Do you know any poor kids that live in the (nice but expensive) Lexington apartments on Olive Drive?
The Lincoln 40 will be newer, nicer and even more expensive than the Lexington so Odin is probably correct that most of the kids that live there will come from families that his neighbors (and people like me) characterize as “rich”…
They don’t have to be “rich” if you crowd enough of them into each unit.
Don wrote:
> They don’t have to be “rich” if you crowd enough of them into each unit.
When you have a nice place in high demand you don’t rent to the poor kids who “crowd in to the unit”. The newer apartments in the West Village costs over $1,000/month per “bedroom” and almost all have one person per bedroom. So two kids renting in West Village are EACH paying more per month than the average American FAMILY pays for their mortgage each month. Sure kids paying an extra $6-$7K a year for a “newer and nicer” apartment than they could get in East Davis are not “Bill Gates Rich” but “most people” would define someone who thinks $6-$7K is not a big deal as rich…
Your information is a little flawed and out of date. Before this year only 1 person per room was allowed to live in West Village. This year the University is allowing shares.
I agree with Odin and SoD.
The reality of all new apartment construction in Davis is that it has higher construction labor costs, higher construction materials costs, higher land acquisition costs, higher property taxes and higher entitlement costs than any existing apartment in Davis. Therefore, the monthly rents will have to be high enough to cover those high costs if the rents are high, then the tenants who rent there will be fiscally able to afford the high rent payments.
Grok is correct. the University is allowing shares in West Village now, and the rent for a shared bedroom start at $625 per month per person. That means the room rent is $1,250 for that shared room. (see LINK)
quielo, that is just offensive. Dirtbags is not the opposite of rich kids.
In fact, I have definitely known some rich dirt bags.
Grok wrote:
> In fact, I have definitely known some rich dirt bags.
Davis has a lot of trustafarians (but not as many as UCSC)
http://www.urbandictionary.com/define.php?term=trustafarian
Quielo, have you ever considered that you may be the dirtbag for thinking such way?
Funny how David defends the use of rich kids but stays silent when we are referred to as dirt bags
“have you ever considered that you may be the dirtbag” Odin, you started it. Maybe refrain from negative characterization of other people because from recent police reports on Olive your neighbors have some issues.
You’re are right. Sorry I offended. I shall now refer to them as “wealthy students”. There, feel better?
Also, now we get to the meat of the matter. You’ve always shown your disdain for my neighborhood, yet I bet you’ve really spent nothing more than a few minutes over here.
I’m really about done with this DV stuff. You guys on here seem seriously messed up.
“You’ve always shown your disdain for my neighborhood, yet I bet you’ve really spent nothing more than a few minutes over her” No actually I was just there yesterday. I don’t have disdain for your neighborhood. I do however think Olive Drive is the most underutilized area of Davis and with it’s access to the 80, proximity to both downtown and UCD, is an ideal location for high density and transient housing.
The housing stock there is old and generally in poor condition. If it were to be replaced the current residents likely could not stay anyway so what is the point? Why not build a grade separated access to the core and the train station and put hotels and high density there?
Odin – I am just about there too.
The way you equate poor people with dirtbags is so revealing of your predilections and your lack of empathy.
As John Bradford intones “There but for the grace of god, go I.”
This shows why Measure R should be substantially changed or eliminated when it expires. The stupidity of an ordinance that provides the basis for such litigation is beyond ridiculous. This would be a farce if it wasn’t so expensive.
Measure R is not basis of this litigation.
Grok is correct, this is a CEQA issue not a Measure R issue
Only because Measure A lost. If Measure A won the plaintiffs would likely be seeking an injunction until the CEQA issues are resolved and be asking that the vote be nullified because the CEQA issues were not finalized before the election.
Correct, but it’s still a CEQA issue not a Measure R issue.
the lawsuit was filed before the election. your statement as to what would have happened if A won is beyond speculative.
It is not just a CEQA issue. It is also a City of Davis Affordable Housing Plan Ordinance issue.
I’m not sure the affordable issue is a live one since the project was defeated.
My personal opinion is that until and unless the lawsuit is withdrawn the issue is legally live. The Council took an action on the record, and the legal validity of that action is in question regardless of the outcome of Measure A.
I also believe that the City would be very wise to get a precedent-setting decision on the record. Such a decision would reduce uncertainty going forward.
In order for the court to be able to weigh in, it has to be a live issue, and affordable housing isn’t.
David, did the Council rescind its Affordable Housing Ordinance decision? That decision was made from the dais, and until it is rescinded, it is (as you put it) active.
I suspect the CEQA issues are also active, until and unless the shelf life of the EIR expires.
In Moss v. County of Humboldt, et al (2008) 162 Cal.App.4th 1041, the Court of Appeal (1st Appellate District) held that a project previously studied under CEQA need not undergo supplemental CEQA review upon reapplication of the same project unless new information (supported by substantial evidence in the record) indicates there will be potential environmental impacts.
The City is using the same defective traffic data and reports for the projects at Nishi, West Olive Drive, Embassy Suites, and Lincoln 40.
How much money did Harrington and Eileen demand?
It’s a CEQA lawsuit and Eileen wasn’t part of it.
I thought it was her created group that was suing. Is this another?
So many usual suspects so little time.
It is not Eileen’s group that is suing. She has not filed any lawsuits. This is Harrington.
Who is “Davis Citizens Alliance for Responsible Planning?” Are you saying that this is Harrington only and a means to protect his assets if he loses the lawsuit?
As I recall Nancy Price is a plaintiff.
Is there more than one “Citizens for Responsible Planning” group? This was Eileen’s post on another thread:
Eileen Samitz
September 4, 2016 at 1:14 pm
ryankelly,
Looks like you don’t always read Op-eds. Our Citizen’s for Responsible Planning group started addressing this issue around a year ago. I formed it and we have invited like- minded community members to join numerous times.
There seems to be Davis Citizens Alliance for Responsible Planning (CARP), involved in this lawsuit, with only Nancy Price identified in news stories, and Citizens for Responsible Planning which Eileen and others formed to fight Covell Village and which remains active, with a FPPC listing.
This really would benefit from clarification.
OK – We should change this to avoid confusion. I’m going to start calling CARP -Harrington. And Citizens for Responsible Planning – Eileen.
David asks:
> Nishi Lost, So Why Is the Lawsuit Against It Going Forward?
The reason is simple, if you are an attorney (Hi Mike) and think it is fun to sue a city (or big company) you know that eventually they will get tired paying huge amounts of money to their attorneys and offer to settle. Once you get the cash you laugh about how you got taxpayer (or shareholder) money for nothing and think of another reason to sue and get even more money…
I think that, believe it or not, this is actually about the principles and precedents involved.
Agreed Don.
Don wrote:
> I think that, believe it or not, this is actually
> about the principles and precedents involved.
I have no idea “why” anyone does anything but I’ve noticed that most lawsuits that just try and stop something are about stopping something while lawsuits that ask for money are about money.
If “Davis Citizens Alliance for Responsible Planning” was really a group that cared about “responsible planning” the people in the group would make their names public and they would not be trying to get taxpayer cash.
SOD:
I haven’t seen the complaint. Does this lawsuit seek monetary relief or primarily injunctive relief?
Correct Don
Thank you, No on A voters.
When can we talk about fiscal irresponsibility and not paying fair share?
Lets talk. voting no on A was the fiscally responsible thing to do.
Not what I was referring to, but I disagree. This lawsuit, like the other ones, is all about money for Harrington so he can meet his personal obligations. Don’t be deceived by his baiting of people.
Its not “beyond speculative.” You only need to go back and look at what was being said by the plaintiffs and their lawyers at the time the suit was filed. David knows it too which is why he acknowledged as much above.
The City Coucil has some explaining to do. Why would they approve a huge redevelopment of East Olive Drive without doing anything to fix the traffic at Richards?
HF wrote:
> Why would they approve a huge redevelopment of East Olive
> Drive without doing anything to fix the traffic at Richards?
I’m wondering if most of the people that complain about the traffic at Richards have moved from rural Wyoming and are nervous when they see more than a dozen cars at once. I just drove through the tunnel this morning a little after 8:00 am and went from south of I80 to under the tracks without stopping (when I stopped at the light behind three cars for about 20 seconds). I’ve lived in LA, NY & SF and while I agree that Richards is the “worst” intersection in Davis it is still better than “most” intersections in downtown SF, NY and LA. If I had to see 20 more care and wait 20 more seconds this morning life would still go on. For those that hate traffic Niobrara County,WY is about 100 times bigger than Davis with a population about the size of Davis High School and after moving there you won’t ever have to worry about a big student apartment or complain about traffic.
I was in a little town in NM shortly after they put in their first stop light and everybody was complain about the terrible traffic. Richards is not even in the top 1,000 in CA.
This is incorrect. We have put resources into dealing with signal timing and left turns into the coffee kiosk. The latter has created some other issues which, hopefully, we can fix. The bottom line is that we are pursuing in the current budget resources to move the interchange redesign forward without Nishi. We will be pursuing grant money and examining other fund balances to accomplish that goal.
Further, for those who claim we “duped” someone–as David quoted–I will only note that we held 4 public meetings on Nishi before voting to send it to the ballot. Each meeting reiterated the plans for West Olive.
In addition, our efforts to deal with traffic on Lincoln 40 have not even begun. I will, however, go on the record to state that I made it clear to the developers that the project cannot go forward without some type of grade-separated crossing into the downtown. I did NOT say they would have to pay for the whole thing, but we will not be able to deal with traffic challenges without it in my view.
Finally, in relation to Lincoln 40, much time was spent talking about parking yesterday. West Village (as noted elsewhere) is moving to doubling up on beds in the apartment units there. They are doing that without adding any additional parking. The parking ratios there will be, I believe, the lowest in the City (yes, I realize it is not “in” the City but you get my point). We can do as well or better at Lincoln 40 I believe. It is past time to stop talking about parking minimums and go to parking maximums instead.
Thanks Robb,
“grade-separated crossing” does this refer to bike/ped?
Bike/ped only. Car crossing is not going to happen in any foreseeable future.
Sure it will. Right through Richards/Olive. (Sorry, couldn’t resist.)
Thanks for the response Robb. It is very helpful information.
There is one thing that you said, which is not consistent with the City of Davis General Plan though. Specifically,
Robb Davis said . . . “The parking ratios there will be, I believe, the lowest in the City (yes, I realize it is not “in” the City but you get my point).”
Chapter Three of the General Plan (see LINK) reads as follows:
Rob,
I recognize that your intentions are good in this statement:
But I have to tell you that even this statement is unclear as to whether the plans for West Olive Drive were part of Measure A or not. The way you worded this, it sounds like the plans for West Olive were part of Nishi as it appeared on the ballot.
They were not but every meeting, every document, every discussion and decision about them was part of the Nishi discussion. What exactly is unclear about putting information in 4 staff reports and having the CC take separate action on the item?
I said we had 4 public meetings on Nishi, we did.
I said that at each meeting the plans for West Olive were part of the discussion. They were.
Thank you for your response Mr. Mayor. Forgive me if I don’t fully understand this, but based on this article it appears the City Coucil has approved “Existing and Proposed Land Use Account shall be amended to reflect a potential additional 55,900 square feet of commercial service uses on West Olive Drive.” What contribution will the developers of these new 55,900 square feet of commercial service use be making to the Cities efforts to improve Richards?
the things that have actually been done by the city that you mention sound like attempts to deal with Dutch Brothers and not really related to this new 55,900 square feet of commercial space. What contribution has Dutch Brothers made to those efforts?
I will have to check with staff for the exact funding sources for improvements made to date. It is my understanding that they came from various mitigation funds related to development in South Davis and around the city but cannot state for certain.