The headline of the Enterprise article Sunday on the Nishi lawsuit caught my eye: “City won the battle in Nishi Gateway suit, but lost the war.”
It follows from a quote from City Manager Dirk Brazil who said, “It’s a hollow victory. We won the battle, but we lost the war.”
That got me thinking – did the city manager miss something here or is he just being coy? That is not meant as a shot at either the paper or the city manager, but there are some very important issues at stake here.
On the face of it is true: “The ruling comes more than a year after the Nishi Gateway project lost at the ballot box by only a few hundred votes.” So, clearly, you could argue that hey, the project is not happening therefore any victory in the lawsuit is pyrrhic at best.
But that ignores something fundamental here – the plaintiff in this case, Michael Harrington (among others), and the defendants, the city and developer, did not drop the suit when Nishi went down.
One of the big questions now going forward is whether Mr. Harrington will pursue an appeal. I would not give an appeal much chance of succeeding, but that may not be the point.
There is some question as to whether the city could use this EIR in the future if there is still ongoing litigation. If so, an appeal could lock up the project at Nishi for several years as it goes through the system. There is some indication that the developers here wish to proceed with a project.
One suggestion made to the Vanguard is that the best strategy for the city is to concede defeat – even in the face of victory – and do a new EIR.
But clearly that is not what the city wants to do. Rather, the city has basically a free opportunity to prevail in court, because right now there is no time ticking on a live project. The problem 
that the city has had previously is that there has always been a live project with financing and deadlines that have to come into play.
That meant the city settled on the water rates lawsuit, even though they had won in the preliminary rounds. The developer settled on the Hotel Conference Center lawsuit, that was in part based on the same traffic analysis as this one. The developers out on Mace and Second settled on the owl preservation suit.
There are several other pending suits and the city has basically been held hostage on them. The suggestion has been made that the city needs to incorporate litigation costs as the price for doing business, but that seems like bad business.
Mr. Harrington steadfastly argues that this is about good government and good environmental policy, but others would argue there are financial motivations involved in his decisions to sue – and therefore they believe that fighting him to defeat is the best way to discourage him and other litigators from going forward.
But there is another key element of this victory in court – Judge Sam McAdam now hands an advantage to the Lincoln40 project, which relies on the Richards-Olive corridor study and similar traffic analysis by the same company, Fehr & Peers.
The ruling by Judge McAdams would seem to validate the methodology and findings of the Lincoln40 studies.
There was a prevailing belief – even expressed by members of the Planning Commission – that the traffic analysis did not comport with people’s experience on the roadways.
As a city staffer explained to the Vanguard, “[T]here is sort of a reluctance to believe or trust the traffic analysis because it doesn’t comport with our own personal observations and experiences.”
However, the traffic study took traffic and vehicular counts from the properties on Olive Drive which are similar to the proposed Lincoln40 – specifically, the Lexington Apartments and The Arbors. That means that the baseline data driving this traffic analysis for impacts on Richards Blvd. and Olive Drive are based on how people are actually traveling from those apartment complexes.
Fehr & Peers Transportation Consultants found that the impact of the existing condition plus the project’s effect on peak hour intersections is “less than significant.” They write, “While the LOS grade does not change, additional delay occurs at Richards Boulevard/Olive Drive during the PM peak hour, which operates at LOS D, generally due to the increase in westbound vehicle and bicycle traffic.”
And, while we might have to wait for a solution to that additional delay, the delay is found to be only about 18 seconds and only in the PM peak hour commute.
The city, as we explained, believes that even without improvements to the corridor they can mitigate the impact of new development, simply through signal modifications. With the proposed improvements, they actually expect circulation to improve along the corridor.
But the more important thing is that, by fighting out the legal battle on Nishi, the city and developer will make it far easier for Lincoln40 to avoid a costly lawsuit that would delay construction of desperately needed student apartments.
Having a court decision that has already validated the methodology and adherence to CEQA (California Environmental Quality Act) of the Nishi traffic study will make it that much easier for Lincoln40, if their time comes, and may also act as a disincentive for would-be litigators to file similar suits.
So I would argue that, while the city lost the battle on Nishi, they may ultimately win the war by paving the way for development to go forward without the threat of additional future litigation – and that would be a big thing.
—David M. Greenwald reporting
Yeah, I’d say beyond belief, a couple of members of the planning commission were like, “oh, ‘cmon”.
There is a point at which you have to ignore the traffic “studies” by consultants who always come back with the same “insignificant” answer, and just use your common sense and say, “The situation at Richards and Olive sucks now, we need to do several things to give people options and improve the flow.”
It is human nature to place greater value on your own anecdotal experience than to believe expert opinion to the contrary. When it comes to planning decisions, however, it is the expert opinion that should take precedence. CC or PC members who listen to their ‘common sense’ instead of the data presented by experts are failing in their duty. It isn’t good enough to state that the consultant is wrong, you need to have evidence to support that belief. Personal anecdote is not evidence.
That said…
Agreed.
Alan:
You’re basically arguing against the use of data and evidenced based approaches. I was admittedly skeptical until someone walked me through how the traffic study was undertaken and now I believe it is fairly solid.
I’m saying to things:
1) Experts can be hired to say anything; experts can contradict each other.
2) It is obvious that the situation at Richards and Olive is already awful. That intersection should be fixed with project or sans project.
I’ll add a third — Olive drive is currently an island. It has the potential to be linked to downtown and Pole Line for alternative (ped/bike) transit and become a hub rather than an island. When you draw this on a map, a couple of good projects open up link possibilities in multiple directions. This should be mapped out succinctly as a goal for the City.
I want to follow up on what Alan Miller said. David and others have, in minimizing the traffic impacts of Lincoln 40 et al., have repeatedly cited the Fehr and Peers traffic report as if it was both totally current and absolute gospel, the last word, whatever.
However in the debate about Nishi, not to mention in lawsuits, the soundness and accuracy of these traffic reports was repeatedly questioned by many people in different contexts including by me in an Op-ed piece in the DE that also appeared in the DV.
I am not going to rehash all, or indeed any of those arguments, yet again. But thanks to Alan Miller for letting us know that even some members of the essentially pro-growth Planning Commission were also skeptical of the Fehr & Peers traffic report.
At the time of this debate I recall Alan Pryor saying that the city had, or was in the process, of commissioning another traffic report. Either he was wrong or that report went by the wayside. Whatever, given that traffic is among the biggest objections or concerns of many people cautious about growth, it is surely time that the city had another more current and thorough, and I’d add, truly independent, traffic study done.
Or is the fact that the city has not undertaken a new study indicative of what they fear the traffic data might show. Thus, confirming the fears of many Davisites like myself? Or is the City waiting for the UCD EIR traffic study whose unimpeachably neutral traffic study will show that there will be little traffic impact if UCDs student, staff, and faculty population rises by circa 7,000 people in the next few years while the City pushes through Lincoln40 et al. and whatever else it can get in.
“However in the debate about Nishi, not to mention in lawsuits, the soundness and accuracy of these traffic reports was repeatedly questioned by many people in different contexts including by me in an Op-ed piece in the DE that also appeared in the DV.”
And they lost on this point in the lawsuit.
This is where I think the City Manager is wrong in his assessment on losing the war. The real ‘war’ if you will, has been the effort to change our decisions making processes to being based on evidence, solid data, and professional assessment, rather than simply emotional statements of opinion and determining which direction the ‘wind is blowing.’ We haven’t won that war, as evidenced by Dan C.’s comment, but we certainly made a major advance with the decision in this lawsuit. It isn’t sufficient to simply question a report’s conclusions, you need to present your own data and professional analysis to support your position.
Seems to me that the Court just rejected your arguments.
Ah, Dan, the court ruled against your position. The city (and Fehr & Peers’ traffic analysis) prevailed.
Having worked, admittedly some time ago, for several firm that do EIR’s, and having several friends, not in Davis, who have a lifetime of experience working on various facets of EIR’s, I know that, there is pressure on these firms by developers and public entities (Cities etc.), for reasons that are only too obvious, to minimize most environmental impacts as far as credibly possible. I mean is that a surprise?
Whose interests is an EIR firm most likely to cater to the people or entity paying them or those of the community at large? It’s not rocket science. Hence lawsuits when plaintiffs can afford it. It’s also touching to find David faith in judges and the court system. Presumably the total expertise and neutrality of these judge and courts does not always apply when “black lives matter” in his view?
It is generally agreed that the main reason for the defeat of Nishi was that people feared the traffic impacts as David has observed on occasions. The majority were no more convinced, from just basic everyday experiencing with the traffic, that Fehr and Peers were correct in minimizing the traffic impacts of Nishi than I was.
If the city really wants to convince us that their developments, such as Lincoln 40, will have a minimal impact on traffic congestion, esp. when the UCD expansion takes place, they need to commission an objective and thorough traffic report. Is that such an unreasonable expectation?
And no Mark W, it is not the civic duty of individuals citizens to come up with alternative data. That is the provenance and charge of the City and the EIR firm that they hire unless I have got things totally wrong.
I think this gets to the question of what should an EIR do versus the political process of a Measure R vote.
If you look at the EIR as a disclosure document – we know that (A) the baseline traffic on Richards is not great but above LOS F and even if it was at LOS F, it would be acceptable under city guidelines and policies. (B) That there were expected impacts from Nishi and the developer committed to putting a large amount of money into mitigating those impacts.
The court found the EIR itself acceptable from a legal standpoint, but the voters rejected the project in part because of their concerns over traffic impacts.
From strictly a process level position, I’m finding it hard to justify the notion that the process failed even if the outcome isn’t what some people wanted ultimately.
It’s late in the day Vanguard time and I will not do much research except to post this short extract from a Wiki entry on “Environmental Consulting.”
“With increasing numbers of construction, agriculture, and scientific companies employing environmental consultancies,.. And while some companies are genuinely motivated by concern for the environment, for others, hiring consultants to appear to be “going green” has proven to be a useful marketing tool. Growing government funding into renewable energy and technologies producing low emissions is also helping growth, as organizations investing in research and development in these areas are often major employers of environmental consultants.[1]