On Tuesday, October 10, Michael Harrington filed an appeal of the Nishi court decision, on behalf of “Davis Citizens Alliance for Responsible Planning” in a suit against the City of Davis and others.
In a statement, Mr. Harrington, a former Davis City Councilmember, told the Vanguard, “Plaintiff has filed its appeal today as we believe that certain aspects of the trial court’s decision after hearing are legally incorrect or need further clarification by the Court of Appeals. Those aspects include the traffic issue and the lack of affordable rental housing. Further comments will come at the time of briefing.”
It has been two months since Judge Sam McAdam denied the claim filed by Mr. Harrington and others who alleged that “(1) the EIR’ s traffic analysis relies upon unreasonable trip generation assumptions, (2) the City fails to document the validation of the VISSIM [traffic simulation software] model in respect to replication of the existing queue conditions, (3) the EIR fails to adequately analyze and mitigate vehicle miles traveled, and (4) the EIR’s traffic analysis is inconsistent with previous traffic analysis performed by the same consultant.”
Judge Samuel McAdam denied this claim.
Judge McAdam wrote, “Petitioner fails to demonstrate that there is not sufficient evidence in the record to justify the public agency’s action, and therefore this argument does not support a finding that CEQA was violated.”
The judge ruled on the second part: “It is unclear what petitioner is arguing as the traffic study in the EIR does not assert that ’20 percent of the employed residents in those 298 non-student dwelling units would be employed in the Project’s R&D-office component.’ This argument lacks merit.”
The judge also denied the claim for a violation of the Affordable Housing Ordinance (AHO). The city, as you might recall, has argued that the Affordable Housing Ordinance does not apply, as the stacked flat condominiums and family rental units are exempt.
In the case of Palmer v. City of Los Angeles from 2009, the court held that the Costa-Hawkins Act “precludes local governments from requiring a developer to set affordable rental levels in 
private rental housing units unless the developer agrees to do so in exchange for financial assistance or other consideration from the local government.”
Therefore, the judge ruled that “the City was prohibited from requiring rent-restricted rental housing, unless the City decided to provide financial or other consideration for the rent-restricted units and the developer agreed to provide the units based on the City’s financial participation. Therefore, the 440 rental units are also exempt, and approval of the Project did not violate the City’s AHO.”
The judge noted that the petitioner appeared to concede “its position lacks merit,” as he quoted them acknowledging the ruling in Palmer.
While the state has legislatively overturned Palmer, it was in effect when the city approved the affordable housing provisions in Nishi as well as when the judge made the original decision.
—David M. Greenwald reporting
