By David M. Greenwald
Executive Editor
Davis, CA – It has been two and a half years since Judge Sam McAdam threw out the approval of Trackside in a ruling in May of 2019. The city and applicant exercised their appeal rights in late July. In a strongly-worded decision, the appellate court has now reinstated Trackside’s approval and reversed McAdam.
“(W)e conclude substantial evidence supports the City’s approval in that we fail to find that ‘a reasonable person could not have reached the same conclusion’ based on the evidence before the City,” the court writes. “The City therefore acted within its discretion and the trial court erred in reversing its approval of Trackside.”
They add, ““We conclude substantial evidence supports the City’s approval, and the Association’s contentions on cross-appeal lack merit. We will therefore reverse the judgment granting the petition for writ of mandate.”
The city council in 2017 approved the Trackside project, a 27-unit, mixed-use, urban infill project located on a half-acre of mixed-use zoned land in a transition area between the Downtown Core and the Old East Davis residential neighborhood.
The Old East Davis Neighborhood Association filed a lawsuit regarding the Nov. 17, 2017, City Council approval of the Trackside project, arguing that the city had violated the design guidelines and approved a project of which the size and scale was out of compliance with the city’s governing documents.
In a 22 page ruling by Judge McAdam, he sided with the Neighborhood, “Based on the totality of circumstances and a review of the entire record, it is the 
conclusion of this Court that Trackside is not consistent with the City of Davis planning provisions governing the transition between the Core Area and to the Old East Davis neighborhood.”
As Judge McAdam put it, “the failure here is that the mass and scale of the proposed project is not reasonable under the current law and factual circumstances. There simply is not a logical and reasoned case to be made that Trackside is a ‘transition’ from the Core Area to the Old East Davis neighborhood. Trackside would overwhelm the existing residential neighborhood. It would not respect the traditional scale and character of the neighborhood. The record lacks evidentiary support for the City’s decision.”
Judge McAdam concluded, “Trackside is not consistent with the City of Davis planning provisions governing the transition between the Core Area to the Old East Davis neighborhood.”
The issue at contention, the appellate court reasoned, “is whether substantial evidence supports the City’s finding that Trackside serves as a ‘transition.’”
The court in this case “applied a formulistic approach, reasoning that a mixed-use building outside the downtown core could not exceed the height and size of a mixed-use building inside the downtown core and still be considered a transition.”
But the appellate court noted that they discounted a lot to do this and “it is not the court’s role to reweigh the factors unless no reasonable person could reach the same conclusion based on the evidence. And we see nothing in the planning documents that compels the conclusion that the City’s reliance on the cited factors was inherently unreasonable.”
The court added, “For its part, the Association points to nothing in the applicable planning documents that Trackside unambiguously ran afoul of.
“The Association argues Trackside cannot be a transition between the Core Area and Old East Davis if it is the largest building in the area. But nothing in the planning documents expressly compels that conclusion.”
Following the ruling, Kemble Pope and Steve Greenfield, the Managing Members of Trackside, LLC, the applicant in this case, issued a statement.
“We are pleased with the Court’s thorough review and legal validation of the City’s decision to approve our transit-oriented, environmentally progressive, infill project in Downtown Davis,” they said. “Our investor group, comprised of Davis residents, is glad that this four-year legal process is behind us.”
The statement added, “We are ready to move forward with our goal of creating 27 new residences and modern commercial spaces for local businesses in the core of our community, just a short walk from a busy Amtrak station and UC Davis. The time to jumpstart the revitalization of Downtown Davis is now!”
Mayor Gloria Partida said in the city’s release, “The Court of Appeal supported the decision of City Council to review thorough staff analysis of adopted city policies and take action after focused deliberations. I look forward to seeing a project move forward that will bring more vibrancy and residents to downtown Davis.”
Vice Mayor Lucas Frerichs added, “Prioritization of infill projects has been a priority of Davis land use policy as we promote them through our various adopted policy documents. Bringing additional people downtown to live, work and recreate, just a short distance from our major transit hub at the train station, is good for both our environment and economy, and it is also something we want to encourage more of in the future.”
The original ruling caught the city off guard.
“The ruling in this case is perplexing and runs contrary to the standard of law that applies to decisions by local jurisdictions,” said Mike Webb, City Manager said at the time of the ruling.
Judge McAdam acknowledged that the proper standard of review here was “abuse of discretion.” He wrote, “Under this standard, the Court must defer to the factual findings on consistency of the City unless no reasonable person could have reached the same conclusion on the evidence before it.”
“The ruling is a disappointing setback that undermines the authority of city officials to make difficult and complicated, local, land-use decisions,” said Councilmember Dan Carson at the time.
“Although I voted against the Trackside project, I believe the City Council does have discretion to decide as it did on this development issue,” said Davis Mayor Brett Lee. “I am surprised that the court felt otherwise.”
The appellate court reiterated a council’s determination that a project is consistent with the General Plan carries “a strong presumption of regularity,” and, “Its determination can be overturned only if it abused its discretion—that is, it did not proceed legally, its determination is not supported by the findings, or if the findings are not supported by substantial evidence.”
The court here ruled, “We therefore see no abuse of discretion in the City’s reliance on the “Increased building scale and height” language.” And ultimately ruled, “The City therefore acted within its discretion and the trial court erred in reversing its approval of Trackside.”
The residents have the option of appealing the matter to the state Supreme Court. Knowledgeable sources indicated the Supreme Court is highly unlikely to take up a case unless there is a compelling state constitutional issue that they wish to address.
It is understandable that the project team would make a statement like this one. However, the fact that the City still hasn’t approved the long-awaited Downtown Plan Update appears to provide evidence contrary to the project team’s statement.
No Downtown Plan Update
No Economic Development Plan
No start of the long-promised General Plan Update until 2023.
Three ad-hoc Development Agreement Amendments at the Cannery
The recent return by the developer of home-purchase deposits at WDAAC/Bretton Woods
It is hard for the residents/businesses of Davis to feel they can rely on consistency and predictability in the Davis planning environment.
Matt,
I don’t see the incongruity between the Trackside manager’s statement that it is time to jumpstart revitalizing Downtown Davis and your concerns. Regarding the Downtown Plan Update, that is going to be ready for adoption imminently; moreover, Trackside preceded this plan, so I don’t really understand the nexus here in your mind.
An economic development plan was done ten years ago. It resulted in the Studio 30 report which called for a strategy of creating dispersed innovation centers in Davis. That lead to the City issuing RFEIs which resulted in Nishi, MRIC, and Davis Innovation Center. That process of economic development consisted of years of meetings and planning and still is trying to see an innovation center pass in Davis. I have always been a bit perplexed by your statement that there is no economic development plan considering there has been a plan in place for almost a decade now.
As for consistency and predictability, as long as the City artificially suppresses the legally allowable FAR/height/whatever your favorite development metric is, then the development process will essentially always consist of ad hoc negotiations and decisions. This is because as long as the City’s planning regime provides less height/density/whatever than the market would allocate, then the City, as a monopoly holder on this “extra” development capacity, can use its position as a monopolist to extract special carve-outs and amenities that the planners have decided should be priorities. As long as these extractions’ costs do not outweigh the benefits of being granted the “extra” or “bonus” allowable development standards, then developers will rationally play the game to try to return closer to what market equilibrium would be without the constraints of government.
The point is that this will not be solved by a General Plan Update or any planning so long as planning efforts insist on creating development standards that prohibit efficient market equilibria. To me, that is a much bigger issue than the lack of the latest planning efforts since these efforts will only marginally alter the dynamic between developers and the planners.
An amusing, but disturbingly “sage” comment… just walk with me, Wesley…
The right word, legally, is “exactions”… but “extractions” is exactly what many folk seek, preferably without ‘pain reducing medication’… and what many others feel, (developers in particular) as removing a healthy tooth, with no anesthetic (topical or general)…
Too often, “planners” don’t focus on ‘planning’ so much as wetting fingers, seeing which way the strongest (most vocal) winds blow, politically… then adding their personal biases (not professional) to the mix. It is what it is… apologies to those uncomfortable to know how ‘sausages are made’… occasionally, there is real, professional planning involved… there are voices in the community who have strong animus against that.
There are many, including some who purport to conditionally support development, to extract every ‘ml of blood’ from a development proposal’s ‘turnip’… then reserving the right to say, “maybe” in a JeRkeD vote. What a former CC member described as a “spanking machine”…
It is what it is… more the pity…
Wesley, here is the nexus. The final meeting of the DPAC was January 23, 2020 … almost two years ago. The statement “is going to be ready for adoption imminently” has been repeated numerous times over numerous months. You adding your citing of that same phrase doesn’t make it any more credible than all the prior iterations did. You are just one more voice saying the same thing. As they say Nero fiddled while Rome burned. It took nine months to accomplish the following and issue the NOP … “Since the close of the public comment period on the Public Review Draft Plan and completion of the Downtown Plan Advisory Committee work in January 2020, staff have been engaged in documenting and analyzing the comments received.” There are developers with express interest in redeveloping one or more properties in the Downtown that are stuck in “neutral” waiting for the adoption of the Update.
Only half of “an economic development plan was done ten years ago.” If the City had walked into a venture capital firm or lending institution with that plan looking for financing, they would have been laughed out of the room. There was no assessment of market demand in the Studio 30 report. The closest thing was an expression of the old saw … “build it and they will come.” The intellectual capital being created at UC Davis was cited as the source of the market demand, but when it was time for UC Davis to put an opinion out in public, that opinion was not delivered by Chancellor Gary May, but rather by Mabel Salon, whose title ends with the word “Officer” rather than the word “Chancellor” (and is several organizational levels down from Chancellor May), and the message was not “UC Davis supports DiSC” but rather “UCD does not oppose the project.” What does that say about the demand side of any economic development plan for Davis?
Even if one stretches credibility and accepts the Studio 30 report as a Economic Development Plan, what growth business doesn’t update its business plan for nine years? When you say, ” That process of economic development consisted of years of meetings and planning and still is trying to see an innovation center pass in Davis. I have always been a bit perplexed by your statement that there is no economic development plan considering there has been a plan in place for almost a decade now.” you are talking about talk. Where can a Davis resident and/or business get a copy of the City’s current Economic Development Plan? Where are the milestones and goals of such a plan laid out in writing? Is it perplexing to ask for open and transparent communication of that plan?
Regarding your third paragraph, the fluid, arbitrary environment you describe is precisely what having a current General Plan, and its ancillary specific plans like one for Downtown, is supposed to avoid. The reason that the developers who are very interested in specific downtown sites for redevelopment, are in a holding pattern is because they see too much risk and uncertainty in the game your third paragraph describes.
Regarding the points you make in your final paragraph, you have jumped right past the context that “efficient market equilibria” operates in … a clear Vision statement that articulates what the desired future is for the City.
Building a Vision Statement means consideration of the following questions:
(A) A Community Profile “What are we?” (some answers to that question could be … a University town? a bedroom community? an innovation center? a food and agriculture hub?)
(B) Existing Conditions and Trends – “Where we are” and “where we are going (where current trends are taking us)”
(C) A Vision of the Future “Where Do We Want To Go and/or Be?”
(D) An Action Plan “How Do We Get There?” and
(E) Implementation and Monitoring “Are We Getting There?”
The residents and businesses of Davis do not currently have clearly articulated answers to any of those questions. What you have described as “efficient market equilibria” will naturally and organically flow out of the answers to those questions.
JMO
A couple thoughts:
Would Covid have effected the ability of the Council and Staff to set long term plans?
Does the state’s new housing mandates and laws (since some are still being challenged in the courts) make planning more difficult?
Maybe the current fiscal situation of the city makes some hesitant to plan going forward? (though you could argue that you should try to plan your way out of the current fiscal situation)
Your question as to “What are we” makes me wonder if differing opinions on that question make coming to a consensus for future planning difficult or unlikely in the near future.
The cynic in me says that having undefined and fluid plans make holding the leaders accountable more difficult.
I was told by staff that DPAC was coming back in January to council and that COVID sapped a lot of staff’s bandwidth.
I also think that changes as the result of COVID probably play a role in the delay.
As an economist, I can tell you that the “efficient market equilibrium” rarely exists due to many factors that go well beyond just government regulation. In fact regulation came about because markets were not arriving at “efficient” equilibria. Instead we need to determine the appropriate balance between regulation and market forces to arrive at equilibria that are largely acceptable to the populace. That means that we must engage as a community and we cannot rely solely on individual decisions.
As an economist, I am quite skeptical of your view here. Artificially constraining the intensity of development so the planners can have a stronger bargaining position via their monopoly right to confer greater intensity creates a dynamic dominated by politicking instead of a system of stable predictable rules.Do you think that either consumer or general welfare is served by artificially constraining the supply of developable area?
Furthermore, as soon as you introduce regulations, you move whatever the effected process and its related outcomes out of a market setting to a political setting. This invites special treatment for special interest groups, etc.
Wesley, you have missed the point that Richard is making when he ends his comment with “That means that we must engage as a community and we cannot rely solely on individual decisions.” That comment is not about regulation. It is about vision.
Over and over in recent history he has repeated that message as follows …
… We need to develop a cohesive vision with actionable steps to move forward.
… We’re at a crux point where the City must develop a new vision going forward. There’s growing political momentum for this.
… The reason the innovation parks fell off wagon was because key individuals in City government didn’t step forward to push the proposals that had been made. Rob White could carry those only so far by himself. It reflected that we lacked then what we seem to lack now – a form of a collective vision of where we should be heading rather than drifting along in nostalgia.
… We need a City wide vision plan to determine what we should plan for our existing commercial space and what we be interested in adding. That should be top priority for the next Council.
… We’d be foolish to move forward on a false vision. Just sticking to our guns when so much might be changing could end up with a worse outcome. This is the moment when we should bring in a firm like Urban3 to help us plan for a different future.
Two economists with differing views. I’m shocked.
I’ve sure they are both following Science 😐
Yet another case of representatives fighting its own residents. There is a significant disconnect between the two parties, regarding development. Not just locally, but also statewide.
Says the mayor and representative who sees no problem with the proposals in her district, including Shriner’s, Wildhorse Ranch, DiSC, . . .
Says the next supervisor.
Honestly, folks – vote for someone who represents your point of view. Better-yet, encourage someone who supports your point of view to run for office in the first place.
Don’t be fooled by their meaningless positions on social justice issues (which they ultimately don’t support, anyway – see addition of police officers). 🙂
Development issues are the primary decisions that representatives make.
By the way, did Lucas support what led to the “Mace Mess”?
Be sure to let us know which candidates for Woodland city council meet your criteria.
I feel your comment is uncalled for. I think Ron is saying this in general, that people should vote or support someone who represents their point of view regardless of where they live or vote.
Confused… the support part I get… agreed…
Voting for candidates away from where you live, not so much.
Yes…
I never said “away”. Quit projecting…
Be sure and let us know which candidates for Dixon city council meet your critieria.
That is, when you’re not also a member of a development team in Davis.
I miss the days when folks who ran nurseries just sold plants, and didn’t perform additional duties on a developer blog.
I don’t vote in Dixon. I reside on a farm in Solano County.
Whatever. But according to you (and a few others on here) you probably shouldn’t have opinions on Davis politics (or decisions).
And in fact, one can have input, regardless – in more than one way.
I believe it was Robb Davis in a comment here a month or so ago who said that he represented all of the interests of Davis and not just one district or group. I’m thinking that’s the general belief among the council representatives. As I’ve said before, getting anything approved in a city generally means most of the rest of a city screwing over/overriding one district or neighborhood. Hopefully over time it all balances out and the different districts get opportunities to fairly screw each other over. That’s how good ole democracy works.
Yes, I said that. And after spending a very long weekend pouring over various downtown plans and overlays, and the general plan, and the intent—since the early 60s to create dense, multi-purpose buildings (housing and commercial uses) in the downtown, I voted for this particular project. I considered impacts on nearby neighbors and judged that such a project would be a net good for the City of Davis. I did not take the decision lightly and spent time meeting with and listening to the arguments of those concerned over many months.
We used our discretion to approve this project and I am gratified to see the court acknowledge the appropriate use of that discretion.
However, I do agree with Ron. If you want certain outcomes, then find candidates who support those outcomes and work to get them elected. The challenge is that, unlike Ron, most people do not seem to be narrowly fixated on one thing: land-use issues. And so, people may vote for a candidate with whom they disagree on Trackside, or Lincoln 40, or Sterling, etc., but agree with on other issues. That is generally how it works.
Land-use decisions are the single-most impactful issue that council members face, although I’ve seen that many other issues/decisions are more routine. (Hence, those other issues not usually discussed on a political blog.)
It ultimately goes to values.
Some people may be driven by a narrow focus on social justice issues (which sometimes crosses-over into religious values). Those focusing on social justice issues value that above all else – including farmland preservation, for example. They may also be willing to force large-scale developments into an existing neighborhood (ultimately to advance “social justice” in their own minds), or to put a homeless shelter in a neighborhood for the same reason. Strangely, those values aren’t always consistent, as we saw with the Davis buyer’s program at WDAAC.
Those type of values are what’s behind the effort to defund police departments, release prisoners, essentially legalize driving without valid registration (on the chance that someone might “escalate” the situation), kick-out school board members because they’re the “wrong color”, etc. (Actually, this list is quite lengthy – I’ve only touched on it, here.)
It is a continuing violation of Vanguard policy, and reflects poorly upon it.
Ultimately, the type of politics plays will continue to discourage others from participating. Already, there’s a dearth of opposing views on here. (And those people do exist – I know many of them. And they hate this blog, even more than I do.)
In a sense, I disagree with Matt here. Or at least, it needs clarification.
What will “flow” (naturally and organically) is not necessarily what benefits a community.
What flows is what benefits developers (e.g., housing proposals, such as Trackside). It’s also the reason for DiSC arising, again (not to mention Shriner’s, Chiles Ranch, Wildhorse Horse Ranch (Palomino Place), the 30-unit development at the site of a former convalescent facility, . . .).
Actually, there’s quite a few housing proposals on Davis’ webpage, in various stages:
https://www.cityofdavis.org/city-hall/community-development-and-sustainability/development-projects
The problem with your analysis Ron is that you fail to acknowledge the BENEFITS of growth and development to the community. Sure OBVIOUSLY developer’s goals are to make money off of the projects; virtually nothing gets built unless it benefits the developers. But the city is looking at what best benefits the city (business growth, job growth, revenue growth…etc…). And that means the entire city and not just a specific district or neighborhood. Now whether those benefits outweigh the costs/negative impacts is for developers to spin, the city to evaluate and voters (for projects subject to measure J) to vote on.
Per David: The rule is five comments per person, per article, per day. Period.
Really surprising to see that no one really addressed the issue raised in the ruling by the court. We have also not heard anything from the neighborhood including two people who post here regularly who are on the board of Old East or at least active parties. The city council is the land use authority for the city. The judge improperly usurped that authority. He got smacked down. I didn’t much care for the project, but that’s a council and I suppose ultimately for the voters to decide. For all the complaints – Lucas took on Larry Guenther for the council seat and won handily. Obviously not a referendum on Trackside, but also shows that Trackside was not the predominant issue or that the voters were okay with it.
As I recall, Lucas (unexpectedly) voted-against the University Mall development, which was (or will be?) in his own district.
Do I have that right? And if so, could that be the reason for his unexpected opposition?
Craig… you got it mostly right…
McAdam was not following the letter, nor spirit of the laws… I don’t know where he was coming from. The appeals court got it right… legally… McAdam’s decision smelled more of politics or incompetence… but at the “whiff” level,,,
Could be interesting to see his Form 700 annual disclosures (required by both by the letter and spirit of the law) … the year of, the year before, and the year after his ‘judgment’…
McAdam erred… that has been confirmed.
In real life, whether the subject project will be good or bad for the community, the neighboring property owners, remains to be seen.
The court of appeals judged rightly.
Not sure where this is coming from. Every planning document in the City – every one – talks about ‘respectful transitions.’ How is this project a ‘respectful transition’ in any way?
This statement is my own. The real tragedy for me, is the complete lack of City leadership to actually try and resolve the issues, instead of just picking winners and losers. The neighborhood of Old East Davis put forward an acceptable, and financially viable, alternative building. City Council and staff gave us no countenance whatsoever. University Commons was the same. Most of the issues that created grief with neighbors in that project were about design. That was another prime example where, if City Council really wanted to solve the problems, they could have brought the Neighborhood together with the developer to resolve the issues. City Council did NOT do that – they sided with the developer. Lincoln40, by contrast, approached Old East Davis, let us know their plans, asked us about our issues, worked to mitigate those issues with changes to the design, and presto – it’s up and filled. And now that the project is finished, we can confirm they came to us in good faith. It can be done that way – you have to want it to be done that way.
And who certified that the alternative was “financially viable” and what does the quoted term mean? Break even? Minor loss? What would be the ceiling of ‘profit’, given all costs and risks?
Inquiring minds want to know where you’re coming from… no need to answer, as you’ll probably (given districts) not be someone I could vote for, or against.
Is that ever “certified” by an independent source? Is it ever even disclosed?
As I recall, there was a claim a few years ago that a developer needed a city-owned greenbelt to make a project “pencil out”. Turns out that wasn’t the case.
I do recall Will Arnold asking (unexpectedly) if the neighbors determined whether or not their proposal would “pencil out”. Which I found to be an inappropriate question.
No one ‘certified’ it, just as no one ‘certified’ the claims of the developer. We, however, were willing to show our computation, they were not. We used standard methods and one of our group is a developer who has built projects in Downtown Davis. Viability was standard bank criteria of finished project worth 125-145% of development costs.