Commentary: Plaintiff Puts Forward Bad Arguments during Lincoln40 Hearing

It was always going to be an uphill battle to get a judge to change his mind on a tentative ruling, but what we saw on Friday from Patrick Soluri was just bad.  One might go so far as to call it embarrassing.  There were factually inaccurate arguments and even nonsensical ones.

Judge Stephen Mock issued his tentative ruling a few weeks ago – mostly favoring the city by denying the petitioner’s writ.  On Friday he allowed both sides to have 75 minutes of oral arguments before taking the matter under advisement.

Patrick Soluri pressed the case that the city had used the sustainable communities exemption as a crutch to prop up a weak EIR (Environmental Impact Report).

He argued that the city relies largely on “this PowerPoint,” and he added “this is not an attempt to notify the public about the exemption, it’s an 11^th hour attempt to provide an insurance policy because it’s an implicit recognition that there are problems in the EIR and that if by some chance a law suit is filed… the city can hold this out as saying… any claim is mooted.

“That is the opposite of good faith, public disclosure,” he said.  “It is a concession that there are serious issues that prompted this last minute insurance policy in the first place.”

The problem here is that he is factually wrong.

On July 26, 2017, the Planning Commission was asked to give comments to staff on the Draft EIR.  At this point, staff reported that the Lincoln40 project qualifies to be exempt under CEQA (California Environmental Quality Act) because it is a Transit Priority Project.  Then it states, “Notwithstanding this determination, the applicant agreed to staff recommendation to proceed with the EIR preparation.”

This is hardly the 11th hour.  They haven’t even gotten all the comments on the Draft EIR.  It’s eight months before the Final EIR is certified and the project comes to council.

This might not seem like a big deal, but this is the theory that they rest their argument on – that the city knew their EIR was defective and put forward this as a crutch at the 11th hour.  But the Draft EIR is not even commented on yet when this is unveiled.

Both the city manager and the city attorney, separately, told me that while they believed the project was exempt, they went forward with EIR certification out of an abundance of caution as the exemption was pretty new and untested in court.  It was always meant as a parallel process.

As Andrew Skanchy put it: “The city went above and beyond the requirements of CEQA.  Even though it was statutorily exempt, the city prepared a full Environmental Impact Report…  This was belt and suspenders overkill.

“They did extra credit,” he said.  “That is not representative of trying to do something nefarious.  It was an attempt to be fully transparent and disclose to the public what was happening.”

Mr. Soluri is entitled to his opinion, but here he has his facts just plain wrong.

A second point that was raised poorly by the petitioner was the traffic study.  At first, Mr. Soluri argued that the traffic study relied on the General Plan, and that those impacts only went into January 2010.

“The summary of projections in the EIR relied on the general plan,” he explained.  The general plan that the city relied upon,” he argued, only went into January 2010.  “That’s the general plan that the city relied upon,” he said.  “Growth projections through 2010, this was now six and seven years later.  Those growth projections are simply outdated.”

Chris Butcher, representing the developer, countered that “the general plan, transportation element was adopted in 2013.”  That update analyzes the city through 2035.  “The claim the city relied on old data is simply incorrect.”

Prompted by Judge Mock, Mr. Soluri acknowledged, “Yes that element was updated.  But all that it did was update plans and policies.”

So he initially claims falsely that the EIR relies on the 2010 traffic projections, then when called on it, he acknowledged that this wasn’t true.

Mr. Soluri then changed the argument in doubling down on the claim that the study was outdated: “There was never any update to development projects, none.”

But we were forced to wonder what projects he was talking about.  He mentioned Sterling as an example.  But most people from Sterling are not going to drive to town via Richards Boulevard.  The idea that Sterling is going to add a lot of cumulative impact to Richards is not realistic.

He didn’t mention Nishi, but Nishi would have minimal impacts on Richards since it has no Olive Drive access.

Then there is the LRDP (Long Range Development Plan) which he mentions as adding 11,000 people – but that’s a misread of the LRDP (in terms of the numbers of new students added) and also it is somewhat questionable as to whether the LRDP will have a huge impact on traffic at Richards Blvd.  After all, the whole point of the LRDP is to add more students on campus where they do not have to drive through the Richards corridor to get to campus.

In fact, the university is adding more housing on campus than they are adding students over the next ten years, by building capacity for 9000 new beds – most of which will be on the west side of campus.

If anything, the LRDP will decrease traffic entering at Richards because it will take students living out of town and give them housing on campus.

At least with this one we can argue it is subjectively false rather than factually incorrect.

Finally, maybe the most curious point of all, but probably less important, is his gaffe on the noise ordinance.

During his rebuttal time, Mr. Soluri argued that the EIR was insufficient in addressing noise impacts because, when analyzing the impact of the construction of the building construction, the city never analyzed the noise impact above ambient noise levels.

“EIR never said here’s ambient, the noise from construction will increase ambient by x,” he said.  “They simply never did that.  But that’s what’s required under the general plan.”

Mr. Butcher pointed out that there was no evidence in this matter, and that the city doesn’t enforce its noise ordinance.

“That’s actually completely incorrect,” Patrick Soluri countered.  “The evidence that the city does not enforce its noise ordinance is found in the fact that the ambient noise right now exceeds the noise ordinance levels.  So clearly the city doesn’t enforce its noise ordinance, because if it did, ambient would exceed the current levels.  It’s really that straightforward.”

Except for one problem – the ambient noise is coming from the freeway and occasionally railroad traffic, so what exactly is the city supposed to do?

As one person in the city put it: “We do enforce our noise ordinance, but we must stay with what’s in our jurisdiction so I-80 and RR noise we cannot enforce.”

Mr. Soluri was probably never going to win this.  I was given a number of examples of the court issuing a tentative ruling, a city providing clear evidence that the judge wasn’t following the law, and the judge then issues the same ruling 90 days later.

But in this case, the arguments posed were just incorrect.  From our standpoint, Mr. Soluri just makes a series of bad arguments in his attempt to rescue a lawsuit that probably never should have been filed in the first place.

—David M. Greenwald reporting

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