By David M. Greenwald
Executive Editor
Davis, CA – Davis and much of the rest of California is suffering from a housing crisis precisely because it is too difficult and takes too long to build housing and that makes the housing that we do have in short supply and too expensive.
Trackside greatly embodies this problem. Trackside was approved in 2017. Judge McAdam threw out that approval in 2019. The appellate court overturned that ruling at the end of 2021, and the process might not be done yet if the neighborhood decides to attempt to appeal to the California Supreme Court.
In my view, though, I was not in support of the Trackside proposal, once the council approved it, but the standard for overturning the approval had to be extremely high—an abuse of discretion. While you can argue that they subjectively overreached their authority, I don’t think that this is objectively the case.
Basically, the appellate court ruled along those lines.
“(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 Neighbors in their response to the court ruling argued, “Residents concerned about the unique feel of Davis should be troubled by this ruling. By overturning the trial court, the appeals court implies that the City does not have to keep its own commitments as implemented in the ordinances and planning documents.”
They add, “The appeals court grants the City license to take any provisions agreed upon by the community to protect neighborhoods or specific resources and then interpret them in a way that best serves the interests of developers or other special interests.”
I see it somewhat differently. The courts are not an extension of the land use battles for a community, they are and should be the vehicle of last resort to step in when the local body egregiously oversteps their boundaries.
The appellate court saw the guidelines as guidelines, not some sort of bright line that could not be crossed. Judge McAdam, in ruling as he did, took a subjective position and the court felt like the use of setbacks mitigated the impact of size and scale.
While I felt like McAdam got the ruling wrong and the appellate court got it right, in a lot of ways I agree with the neighborhood on this debate. Certainly coming forward with a six-story building next to an existing neighborhood was not a good idea. The applicant came back with a four-story alternative. The neighbors made a three-story suggestion.
Was there a way to bridge the remainder of the gap? I’m not sure. I ended up siding against the applicants here because I felt the process was adversarial and the project really did not advance a true housing need. Even though, in general, I am in favor of densification.
Still, the ruling by Judge McAdam was frankly shocking—one of the few times in my 15 years of doing this that I have been stunned by a development of this sort.
Whether we like the project or not, the city council ultimately has land use authority here, especially during a housing crisis—the courts should be erring on the side of council.
That didn’t happen here with Judge McAdam. And that was the basic problem. He made a subjective ruling on something that needed to be objectively wrong. That’s not how it is supposed to work here.
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.”
But somehow he determined that they had.
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 it ultimately ruled, “The City therefore acted within its discretion and the trial court erred in reversing its approval of Trackside.”
It wasn’t just me caught off guard by the ruling—the entire city was caught 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.
“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.”
I come down where Brett Lee did—I was not a fan of the project, but to argue that the council did not have discretion here or abused its discretion was a big stretch.
The city has over the last ten years or so prioritized infill and densification as a means to add housing. That’s strategic, of course, because of Davis’ Measure J and the requirement that any peripheral housing go to a vote of the people.
That has often pitted the need for new and additional housing against densification and necessarily increased heights, against the wishes of existing neighbors. The council has generally sided with the applicants here, though at times they have modified the design and scale as a means of finding a happy medium.
I guess my ultimate response here would be—if residents are concerned about densification and future Tracksides, they need to address it at the level of electing city councilmembers who agree with their view, rather than hoping that the courts will correct things after the fact.
The headline of this article confuses me. The Trackside decision was Addressed at the Council Level … rather than at the voter level at the ballot box.
As opposed to in courts
And, the voters voted for the CC members…
I do not trust vox populi, on a given day, deciding land use questions… “capricious and arbitrary” comes to mind… at least until we have an ‘entrance exam’ to demonstrate subject matter knowledge, and thoughtful intelligence… but I don’t want to “go there” in general, as a voting criteria… worse than the “poll tax” as far as exclusionary…
There have been two council election since Trackside came forward. In the first, two candidates were clearly motivated by the Trackside issue. They lost. In the next election, now with districts, the candidate who opposed Trackside lost quite decisively running against one of the incumbents who had voted to move it forward.
The voters have spoken at the council level on this issue. Either it didn’t matter enough to a majority of voters in each case to make a change at the ballot box, or they were ok with the council’s position on the topic.
There was nothing wrong with OEDNA seeking a judicial remedy. But they’ve now also lost there. They speak for their members, who constitute a small portion of their council district, and constitute an even smaller portion of the city as a whole. The council chose to do what they felt was in the best interests of the city as a whole, despite objections from the nearby neighbors. This is how infill goes.
“There was nothing wrong with OEDNA seeking a judicial remedy. ”
Right and wrong is clearly subjective.
There’s a cost to them seeking a judicial remedy.
* We are now over four years from council approval of the project – so likely this adds at least five years to the time
* At what cost? How much expense does this add to the cost of creating housing?
* I would also argue, despite the trial court ruling, they were probably unlikely to prevail
So you’ve added both cost and time to the production of housing.
David, have any of the investors in Trackside lost their interest in the project because of either the additional time or the additional cost?
No idea
Clearly. To some, the fact that they are subjective, is subjective.
You ain’t kidding, Bub.
At least.
Housing in general, or this one project?
You also argued “they” wouldn’t win the trial court ruling.
Exactly. During the time that Lincoln40 was conceived, introduced, planned — even delayed while sued by the anti-development crowd — their developers constructed, built, fully-occupied and now bring in delicious piles of the final goal: rental income; as Trackside continues to languish: tenants kicked out, investors bailing, new tenants brought in, probably soon to be kicked out again, five years of lost rental income. A divided community, friends lost, and angst, lots of angst.
We lost the appellate court decision, true. But thanks largely to the delicious contrast between good and evil, the results are there for all to see: the punched bully with the black eye. What amazed me throughout was the number of ‘insiders’ we talked to (business people, who’s whos of Davis, even a couple of the investors) who told us on the down-low that they thought the project and the approach by the developers was deplorable (and other similar words) or that once they heard our side and looked at the site in context they changed their minds — but they couldn’t say so publicly because of City politics. I appreciated their candor. But:
‘The only thing necessary for the triumph of evil is for good [peeps] to do nothing.’
Just sayin’
Someone asked the other day what I was disappointed in. I think that’s obvious, but to answer I’ll say everyone who was involved in conceiving, promoting, investing-in and enabling the proposed Trackside project.
On the other hand, this fight united our neighborhood, allowed me to get to know my wonderful neighbors much better and meet others I may never have met otherwise, inspired Lincoln40 to work with us constructively to avoid a similar “difficult problem, that is only aggravated by attempts to solve it.” This has clearly sent the message that respecting planning documents and working cooperatively brings in the gold. And not to mess with Old East Davis.
In my experience, one hasn’t lost when sticking up for what you believe in and fighting through to the end for that belief. Though the nayers of the sayers who don’t like the neighborhood rising won’t say it, fighting for what you collectively believe in brings reverence, and the caution of others.
And now, if you’ll excuse me, I’m off to deliver an envelope to our treasurer in support of our legal fund.
I seriously hope that is for past work, not future re: Trackside… that would be wasted money, if for a future effort. McAdam failed, on several levels. Legally. The appeals court got that right.
As to the merits/demerits of the project, that is still arguable, politically… given the history, and timed passed, it is unclear what entitlements the Trackside folk actually “vested” (that would be a factual, legal matter)… as to the project, I have always been ambivalent, and mainly neutral as to the ‘approved’ project itself… my main issue was the legal process, not the political/ministerial aspects.
The subject site is certainly not “the highest and best use” today… would assert the same-same for the project that was approved… it has problematic aspects, to be sure, and not just for the adjoining neighborhood… nothing in life is perfect…
Well said Alan, well said…
I’m not on the board and therefore don’t decide how the money is spent. I doubt any such decisions have been made. It’s the middle of the holidays.
David, five years is a drop in the bucket compared to Measure J, where nothing has been built in 22 years and counting. So you lament a five year delay but support a 22 year delay. I would ask you consider these same questions about cost, time and litigation resulting from Measure J.
Offensive, disingenuous, illogical pablum. Making the argument that one candidate winning over another candidate that supports one issue constitutes a voter opinion on that one issue, is nonsensical. Lucas won because of his name-recognition and that people like his stands on dozens of issues overall, not one development.
I know several people who were downright angry at Lucas for his support of Trackside and his investing in Trackside while on the Council, and voted for him anyway because they liked other things he had done. It’s always difficult to win against a popular incumbent.
Furthermore, Larry was not so much moved to run because of Trackside itself, as implied by DS, but because of what the Council’s logic in voting as they did on Trackside meant as far as following city planning documents and how government operates in this City. Larry please correct me or word this better if I have not captured your sentiments.
I have more to say below following another comment.
As I read this article I felt like I had read some of the same points made by another commenter days ago so I did a search and found this, Craig certainly had good foresight:
Craig Ross December 22, 2021 at 10:27 am
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.
Amazing foresight . . . almost like he was living in someone else’s head, literally.
Yes, it’s uncanny to say the least.
Why did you feel the process was adversarial? How did it not advance a “true” housing need? Affordability? I thought you were for the most part against single family (detached) housing and I’m guessing that the trackside project didn’t have single family (detached) housing as a major component (if at all?). I wasn’t paying attention to Trackside when it was proposed and approved.
As for the overall political process: It’s always the same.
The majority of people believe there’s a bleeding heart need for new housing.
But nobody wants it built near them (often for legitimate impact reasons).
So it takes the majority of a city to outvote/overrule/screw over whichever local neighborhood opposes the new development.
I’ll tell you as someone part of the process, it was dåmned adversarial.
Trackside doesn’t have affordable housing. Not sure how other housing isn’t a ‘true housing need’, except relative to one’s politics.
True. People see the ‘bleeding heart need’ group as selfless, but I see them as selfish as h∑ll. (see below)
We have an unwritten credo in our neighborhood — we help our neighbors most impacted by a project, because we know tomorrow it could be us. Trackside will not loom over me, but it will loom over my neighbors, so I help my neighbor. And when Lincoln40 threatened to loom over me, several neighbors and the association offered help. (As it turned out, the help wasn’t needed, as the developers were great people, so we worked out mitigation issues over tea.)
That’s what good neighbors in good neighborhoods do, and it should be what the good residents of the City as a whole do citywide to help each other, but they don’t. But instead there’s that misplaced bleeding-heart push for density, projects thereof being very unlikely to land immediately adjacent to the vast majority of Davis’ most-likely-to-vote voters, who live in insulated suburbs surrounded by other single family homes. So far too many are willing to say it’s OK to densify because they more than likely won’t be personally impacted. I consider that selfish feel-good narcissism.
Others here will of course say to those of us impacted by the attraction of meth addicts to the empty spaces along the tracks, the day reprieve center, the recycling facility, the drunks leaving downtown Thu-Sat nights, break-ins at a mental-health facility that stores drugs, the sound emanating from ‘night-club’ bass woofers, and the development pressure from a Prop-13 protected downtown that won’t build up as there’s no economic incentive — and instead wants to jump the tracks and loom-over and plow under a wonderful historic neighborhood that Davis documents say is of great value to Davis — well, we should just suck it up for the ‘good of the City’. Well, @#$%! y’all who think like that in your fluffy cul-de-sac.
And don’t forget, we here Old Easters wanted and supported densification and development on the Trackside site. What we opposed and still oppose is the Trackside developers buying the site assuming (and God help us all: correctly assuming) that the City Council would grant their wishes to build the building they wanted, not the transition building size and scale called for in the Design Guidelines.
The problem isn’t whether the court was ‘right’ or ‘wrong’, the problem is that we worked hard to create those Design Guidelines because of the future we knew was coming in which there would be tremendous development pressure that would threaten the neighborhood. And when that came, the City Council happily trashed the transition guidelines. We were naive when we, as people in our 30’s and 40’s, worked hard on those guidelines: we thought future Councils would respect them. Instead they said ‘times have changed’.
Yeah, we knew they would change — that’s why we created the guidelines, to protect the character of the historic neighborhoods from the coming pressure. We agreed to not seek to become a literal historic district because we trusted the City would respect the hard-won guidelines. Now, as people in our 50’s and 60’s, we realize that documents are created by government only to appease the voters-of-the-moment, later those intentions devalued to nothings by government lawyers and court systems.
This same political trickery happens in my industry with voter initiatives. There are specific projects and particulars that are written into these initiatives, to lure the voters into thinking they will be built as claimed, within budget, and on time. They rarely are, and sometimes are not built at all — and it’s all found legal by the courts — even though any ‘reasonable person’, or should I say ‘rational’ person, would find the court’s actions ludicrous relative to what the voters believed they were voting on.
And so our City Councils pull the same tricks as the years pass. ‘You know they are guidelines, not rules’ they say. So they claim they aren’t legally bound by them. But that still breaks the agreement between the City and the neighborhood, and legal or not, that’s wrong.
And those of you blithely claiming that McAdams was ‘wrong’ and the appellate court ‘got it right’ — will you also clams that a 5-4 decision by SCOTUS to overturn Roe will mean that the old SCOTUS got it wrong, but the current SCOTUS got it right? I didn’t think so. Courts are people too, and those 5-4 court decisions at our highest court just shows it’s the luck of the draw and politics that steers the ship, not ‘right’ and ‘wrong’.
So the question I have is should residents boycott the General Plan process because it is obviously non-binding and meaningless?
Yes… by doing so, in subsequent years, they can righteously say, “I told you so!”… some get a lot of satisfaction from that… they can say, “my hands are clean! I had no part in it!”…
Fact is, most folk will attack any GP that didn’t end up conforming exactly to their views… whether they participated in the process, or not… and they’d be upset with any deviations even if they ‘got their way’ in the documents…
It is what it is…
I am jaded, for a reason, having lived so long and seen this happen on so many levels and so many issues. I see fighting after the fact as the only possible solution; clearly planning efforts are fake and meant to make people feel like they have say. My experience is the powers that be will use that power however they wish and the courts will back them up. So yeah, not real excited to participate in the General Plan process, should it happen some decade. But I probably will anyway, just to point out how non-binding and meaningless it all is.