Letter Threatens City with Legal Action on Hyatt House Hotel

A letter dated November 1 from Attorney Don Mooney to Mayor Robb Davis and the city council on behalf of resident Alissa Burnett argues that the initial study contains a legally inadequate project description.

Mr. Mooney writes, “As demonstrated in this letter and the numerous comments submitted regarding the proposed Hyatt House Project, the potentially significant environmental impacts of the proposed Project, particularly those associated with aesthetics, traffic and land use planning, require the preparation of an environmental impact statement.”

He adds, “Ms. Burnett objects to the proposed Project on the grounds that the Initial Study fails to meet the minimum legal requirements as set forth in the California Environmental Quality Act (‘CEQA’), Public Resources Code, section 21000 et seq . and that the proposed project constitutes impermissible spot zoning.”

During the staff presentation last night, Community Development Administrator Katherine Hess noted, “Staff is confident that the analysis is sound and the City has not received substantial evidence to the contrary.”

They cite, for example, that “spot zoning would require a determination that the use significantly more or less intense than surrounding areas, AND the zone change not in public interest.”  She said, “This is a City Council determination.”

She adds, “Availability of parking is not CEQA impact and was removed from CEQA Guidelines Checklist in 2009.”  Moreover, “Litigation questioning traffic analysis isn’t ‘evidence’ that analysis is faulty.”

Here is the full letter:

Dear Mayor Davis and Council members:

This office represents .Alissa Burnett regarding the proposed Hyatt House Hotel on 2750 Cowell Boulevard. As demonstrated in this letter and the numerous comments submitted regarding the proposed Hyatt House Project, the potentially significant environmental impacts of the proposed Project, particularly those associated with aesthetics, traffic and land use planning, require the preparation of an environmental impact statement. Ms. Burnett objects to the proposed Project on the grounds that the Initial Study fails to meet the minimum legal requirements as set forth in the California Environmental Quality Act (“CEQA”), Public Resources Code, section 21000 et seq . and that the proposed project constitutes impermissible spot zoning .

1. THE INITIAL STUDY CONTAINS A LEGALLY INADEQUATE PROJECT DESCRIPTION

In order to be an informative and legally sufficient EIR, the project description must be “accurate, stable, and finite[.l” (County of Inyo v. City of Los Angeles (1977) 71 CaJ.AppJd 185, 193; see also Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.AppJd 692,738.) As stated by the court in County of [nyo, “[a] curtailed or distorted project description may stultify the objectives of the reporting process. Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal’s benefit against its environmental cost, consider mitigation measures, assess the advantages of terminating the proposal (i .e., the “no project” alternative) and weigh other alternatives in the balance.” (County of lnyo v. City of Los Angeles, su.pra, 71 Cal.AppJd at pp. 192- 193; see also Communities for a Better Environment v. City of Richmond (201 0) J 84 Cal App.4th 70, 82 I court found project description inadequate where ELR “concealed, ignored , excluded, or simply failed to provide pertinent information” regarding a reasonably foreseeable consequence of the project].) A curtailed, enigmatic or unstable project description draws a red herring across the path of public input. (County of Inyo, supra, 71 Cal.App.3d at pp . 197- 198; San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal App.4th 645,656.)

The Initial Study for the Hyatt House Project fails to contain a legally adequate project description. The Initial Study indicates that the project is located at 2750 Cowell Boulevard. The Initial Study fails to identify that the project includes the a General Plan Amendment, Specific Plan Amendment and zoning ordinance that applies to an area beyond the “project site” at 2750 Cowell Boulevard. The project description provides a brief mention of amending the General Plan and Specific Plan to allow hotels as a conditionally permitted use but provides no further di scussion. or does the Initial Study provide an adequate description or map showing the location where the amendments will affect the land use designations.

The Initial Study references the permits and approvals required for the project which include the General Plan Text Amendment to add hotels as a conditionally permitted use within the Business Park land use category, on Cowell Boulevard between Drummond Avenue and the eastern terminus of Research Park Drive with a maximum Floor Area Ratio of 1.0; South Davis Specific Plan Amendment to allow a reduction in the otherwise-required 25 percent landscaping, for the area on Cowell Boulevard between Drummond Avenue and the eastern terminus of Research Park Drive; and P-D#2-12 District Amendment (Zoning Amendment) to add hotels as a conditionally permitted use with the Planned Development, allow the proposed four-story building, and provide flexibility in building signage. (Initial Study at p. 7.) The Initial Study does not provide this information in the project description . To the extent the Initial Study identifies these amendments to the General Plan , South Davis Specific Plan and the zoning ordinance, it provides no further discussion or identification of these amendments.

The Initial Study also misrepresents the nature of the Project as a purely “extended stay” hotel. (initial Study at p. 3.) The Initial Study states that the average length of stay will be 6 to 14 days. (/d.) The Hyatt House development team has continually misrepresented the project to local residents , Staff, and Council as an extended stay facility . Almost all of Staff’s references to the hotel in their various reports to it as an “extended stay”. The Project Description is misleading because as developer has stated they expect substantial numbers of overnight traveler visits. This is further supported by the fact that the development will contain a substantial number of studios without kitchens. Full suites with complete kitchens is what characterizes an “extended stay hotel”. Thus, the Initial Study’s discussion of the Hyatt House project as a full “extended stay” hotel , when most of the rooms are actually designed for short term occupancy , is misleading and inaccurate. This is in stark contrast to the proposed Marriott Residence Inn in which , they claim , qJJ. units are full suites truly set up for extended stay with kitchenettes.

Based upon the foregoing, the lnitial Study contains an inaccurate, curtailed and unstable project description. Such a project description affects the information to provided to the public as well as the decision-makers. (County o/Inyo v. City 0/ Los Angeles, supra, 71 CalAppJd at pp. 192-193 .) The Initial Study’s legally inadequate project description violates CEQA’s requirements.

1. THE INITIAL STUDY FAILS TO ANALYZE THE WHOLE OF THE PROJECT

CEQA requires that the environmental analysis covers “the whole of an action” that has the potential to result in a direct or reasonably foreseeable indirect change to the environment. (CEQA Guidelines, § 15378(a).) The City must describe the project to encompass the entirety of the activity that is proposed for approval and that environmental analysis for other phases of the project cannot be deferred . (CEQA Guidelines, § 15378(a); Pub. Resources Code, § 21003 .1.) Thus, the City may not limit environmental analysis and disclosure by ignoring development or activity that will result from the approval of the Project. (City o/Antioch v. City Council (1986) 187 Cal.AppJd 1325.)

In the present matter, the City’s approval includes a General Plan Text Amendment to add hotels as a conditionally permitted use within the Business Park land use category, on Cowell Boulevard between Drummond A venue and the eastern terminus of Research Park Drive with a maximum Floor Area Ratio of 1.0; South Davis Specific Plan Amendment to allow a reduction in the otherwise-required 25 percent landscaping, for the area on Cowell Boulevard between Drummond Avenue and the eastern terminus of Research Park Drive; and P-D#2- 12 District Amendment (Zoning Amendment) to add hotels as a conditionally permitted use with the Planned Development, allow the proposed four-story building , and provide flexibility in building signage. (Initial Study at p. 7.) Thus, the City’s approval extends beyond the project location as identified in the Initial Study. (Id. at pp . 1, 2.) The Initial Study, however, limits the environmental analysis to the project site at 2750 Cowell Boulevard. The Initial Study does not address the potential environmental impacts associated with the amendments to the General Plan, the South Davis Specific Plan, as well as the Zoning Amendment to areas that are beyond the “project site.” As a result, the Initial Study fails to provide an environmental analysis of the whole of the action.

III. Substantial Evidence Supports a “Fair Argument” that the Project May Have Potentially Significant Environmental Impacts

As discussed below , CEQA mandates that the City prepare an EIR for the proposed Hyatt House Project. Based upon the comments and information submitted on the Initial Study, the comments submitted to the Planning Commission, as well as the significant comments of Planning Commissioner Marilee Hanson at the September 14, 2016, Planning Commission hearing , substantial evidence supports a fair argument that the project may have a potentially significant effect on the environment regarding traffic, aesthetics, and land use planning.

1. THE FAIR ARGUMENT STANDARD

CEQA requires that an agency prepare an environmental impact report (“EIR”) for any project that may have a significant effect on the environment. (Pub. Resources Code § 2IL51(a).) An agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a project may have a significant effect on the environment. (Pub. Resources Code, §§ 21080(a); 2115L (a); see Laurel Heights Improvement Ass ‘n v. Regents of /he Univ. of Cal. (1993) 6 Cal.4th LI12 , 1123.) “In reviewing an agency’s decision to adopt a negative declaration, a trial court applies the “fair argument” test.” (City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4’h 398, 405; Gentry v. City of Murrieta ( L995) 36 Cal.App.4’h 1359, 1399.) The fair argument test requires that an agency “prepare an EIR whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment.” (City of Redlands, supra, % Cal.App.4’h at p. 405: quoting Gentry v. City of Murrieta, supra, 36 Cal.App.4th at pp . 1399-1400.) If such evidence exists , the court must set aside the agency’s decision to adopt a negative declaration as an abuse of discretion in failing to proceed in a manner as required by law . (City of Redlands, supra, 36 Cal App.4’h at p. 406.)

The “fair argument” standard is “a low threshold requirement for preparation of an EIR.” (No Oil, Inc. v. City of Los Angeles ( 1975) 13 Cal.3d 68,84.) The fair argument standard reflects CEQA’s “preference for resolving doubts in favor of environmental review.” (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4’h 1307,13 16- 1317.) Thus, an EIR must be prepared “whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact” (No Oi/, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 75) even if there is substantial evidence to the contrary (Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) LOJ CaI.App.4th 1333, 1346; Friends o/”B” Street v. City of Hayward (1980) 106 Cal App.3d 988, L002). CEQA defines “environment” as “the physical conditions which exist within the area which will be affected by a proposed project, including land , air, water. .. f1ora, fauna, noise …. ” (Pub. Resources Code § 21060.5.) “Significant effect upon the environment” is described as “a substantial or potentially substantial adverse change in the environment.” (See Pub. Resources Code § 21068; CEQA Guidelines § 15382.) A project may have a significant effect on the environment if there is a reasonable probability that it will result in a significant impact. (See No Oil, Inc. v. City of Los Angeles, supra, 13 CaI.3d at p. 83.) Even if the overall effect of the project is beneficial, the lead agency must prepare an EIR if any part of the project “either individually or cumulatively, may cause a significant effect on the environment.” (CEQA Guidelines § 15063(b)( J) .)

CEQA and the CEQA Guidelines provide assistance in evaluating what constitutes substantial evidence to support a “fair argument”. (See CEQA Guidelines § 15384(a) (”’substantial evidence’ means enough relevant information and reasonable inferences … that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.”).) Substantial evidence consists of “fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.” (Pub. Resources Code § 2L080(e)( I); see also CEQA Guidelines § J5384(b).) [t does not include “argument, speculation , unsubstantial opinion or narrative, evidence that is clearly inaccurate … or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” (Pub. Resources Code § 21080(e)(2).) Comments that present evidence of facts and reasonable assumptions from those facts may constitute substantial evidence to support fair argument that the project may have a significant effect on the environment. (See City of Redlands, supra, 96 CaI.App.4’h at p. 590; see also Stanislaus Audubon Society, Inc. v. County of Stanislaus, (J 995) 33 Cal App.4’h 144, 152- 153 .) Relevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence for a fair argument. (Ocean View Estates Homeowner’s Assn., Inc. v. Montecito Water District (2004) 116 CaI.App.4’h 396,402.)

The Initial Study must provide the factual basis and the analysis for the determination that a project will not have a significant impact on the environment. (See CEQA Guidelines § 15063(d)(3); City of Redlands, supra, 96 Cal.App.4lh at p. 408; Sundstrom v. County of Mendocino (1988) 202 Cal.AppJd 296,311.) “An agency should not be allowed to hide behind its own failure to gather relevant data .” (Id .) Thus, a mitigated negative declaration may only be prepared when, in light of the whole record , no substantial evidence exists that the project may have a significant environmental effect. As discussed below, substantial evidence su pports a “fair argument” that the Project may result in a significant impact to the environment, thus requiring the preparation of an EIR.

B . SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT THAT THE PROJECT MA Y HAVE SIGNIFICANT IMPACTS TO AESTHETICS

Substantial evidence supports a fair argument that the Project will have potentially significant environmental impacts to the aesthetics. Under CEQA, it is the State’s policy to “[t]ake all action necessary to provide the people of this state with .. . enjoyment of aesthetic, natural scenic, and historic environmental qualities. (Pub. Resources Code, § 21001(b). Thus courts have recognized that aesthetic issues “are properly studied in an E[R to assess the impacts of a project. (Pocket Protectors v. City of Sacramento (2005) 124 CaI.App.4’h 903, 928; Mira Mar Mobile Community v. City of Oceanside (2004) U 9 CaI.App.4’h 477, 492; Ocean View Estates Homeowner ‘s Assn, Inc. v. Montecito Water District, supra, 116 CaI.App.4’h at401; National Parks & Conservation Assn. v. County of Riverside (1999) 71 CaIApp.4’h 1341 , 1360.)

In the present case, substantial evidence supports a fair argument that the Project may have significant impacts to aesthetics. The personal observations of the neighbors to the Project constitutes substantial evidence. (Pocket Protectors v. City o/Sacramento, supra, 124 Cal App.4′” at 937.) Relevant personal observations of area residents on nontechnical subjects, such as aesthetics, qualify as substantial evidence for a fair argument. (Jd., Ocean View Estates Homeowner’s Assn., Inc. v. Montecito Water District, supra, 116 Cal App.4th at 402; Citizens Ass’n/or Sensible Development v. County o/Inyo, supra, 172 Cal.App.3d at 173 (owner of adjacent property may, based upon personal observations, testify to existing traffic conditions). Thus, while an individual may not be an expert, their firsthand observations should not casually be dismissed as immaterial because “relevant personal observations are evidence.” (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dis/., supra, 116 Cal.App.4^th at 402.) The City dismisses the personal observations of the neighbors which constitutes substantial evidence .’

Additionally, the Initial Study claims that the residents of Albany Avenue will have adequate line-of-sight privacy as a result of the existing greenbelt and mature trees separating the hotel and residents . The existing greenbelt, however, cannot be properly used as mitigation for the project to resolve aesthetic, noise, and privacy issues due to the uncertain lifetime and transient nature. The City arborist has stated that many of the trees are in poor health due to overcrowding and may be further harmed by construction related soil compaction or physical damage. Further, the proximity of the Hyatt House landscaping and paving and the new storm drain work required by the project will also very likely damage these already stressed trees hastening their eventual demise and removal. This will cause even further degradation of the trees along the greenbelt and there is no mechanism for the project or City to offset or mitigate this loss of privacy and noise to the affected single-family homeowners .

As in Pocket Protectors v. City a/Sacramento, supra, 124 Cal App.4th at 937, the City Staff and local residents disagree about the proposed project’s impacts on aesthetics . “This disagreement does not reduce the neighbors’ evidence to insubstantiality , however. At most, the opposing views are substantial evidence going the other way, which is insufficient to refute the cla.im of a fair argument.” (Jd., citing CEQA Guidelines , § 15064(f).) Thus , as the administrative record supports a fair argument that the proposed project may have a significant impact, CEQA mandates the preparation of an EIR.

CEQA requires that an environmental document identify ways in which a proposed project’s significant impacts can be mitigated. (Pub. Resources Code, § 2Ioo2.I(a) , 21061.) The environmental document must describe feasible mitigation measures that can minimize the project’s significant environmental impacts. (CEQA Guidelines, § 1512l(a), 15126.4(a).) Nothing in the Initial Study provides for the mitigation when or if the trees die. There is no mitigation measure or condition of approval that requires either the City or the project proponent to maintain greenbelt trees for privacy and aesthetics. Based upon information in the record, it is reasonably foreseeable that the greenbelt trees and private trees relied upon for the aesthetic and privacy analysis may die or be removed due to poor health. As such , a fair argument exists that the project may have potentially significant impacts to aesthetics, including lighting and glare. Therefore, CEQA mandates the preparation of an EIR for this project.

1. SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT THAT THE PROJECT MAY HAVE SIGNIFICANT IMPACTS TO TRANSPORTATION AND CIRCULATION

Substantial evidence also supports a fair argument that the Project may have potentially significant impacts to transportation and circulation. The Initial Study relies upon a flawed traffic study as it relies in part on outdated baseline data from the Embassy Suites Traffic Study for baseline conditions. As stated in the Traffic Study for the proposed Hyatt House project, “Cumulative traffic volumes and lane configurations presented herein are based on information derived from the work performed for the Mace Ranch Innovation Center Draft EIR (MRlC DEIR) and the Davis Hotel Convention Center (DHCC) traffic impact study.”

Uncertainties exist as to the accuracy of that baseline data which is a partial basis for the currently pending litigation against the City and the Conference Center. Reliance on this data to justify the traffic study conclusions for the proposed Hyatt House obviously calls these conclusions into question and should not be used as a basis for the City approving the project’s Mitigated Negative Declaration.

The Traffic Study also fails to account for the inadequate parking and associated problems that currently exists at Davis Diamonds (next to the proposed Hyatt House) which has been adequately documented to Council members via numerous photographs. Further, the Traffic Study assumes most traffic to the Richards Boulevard Corridor will travel along Cowell but, in fact, much of it travels along Research Park Drive along Playfields which, due the large number of guests entering and leaving the parking lot at the Playfields, presents additional problems not addressed in the Traffic Study.

Finally, as discussed before the Planning Commission and in numerous comments on the Initial Study, the Project contains inadequate parking to accommodate all guests and employees when at capacity. It is likely that such employees will simply park their cars in the residential areas along Albany and use the short footpath over to Cowell to get to work. This presents further undesirable impacts on the Rosecreek residents.

1. SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT THAT THE PROJECT MAY HAVE SIGNIFICANT IMPACTS TO TRANSPORTATION AND CIRCULATION

If substantial evidence supports a fair argument that the proposed project conflicts with the land policies, this constitutes grounds for requiring an EIR. (Pocket Protectors v. City a/Sacramento, supra, 124 Cal.App.4’h at 930.) “Whether a fair argument can be made on this point is a legal question on which we do not defer to the City Council’s determination .” (ld. , citing San Joaquin Raptor/Wildlife Rescue Cemer v. County 0/ Stanislaus (J 996) 42 Cal.App.4’h 608 , 617-618.) “If substantial evidence supports the existence of a fair argument, the existence of contrary evidence does not excuse a lead agency from its duty to prepare an EIR.” (Pocket Protectors v. City a/Sacramento, supra, 124 Cal.App.4’h at p. 931 ; citing CEQA Guidelines, § 15064(f).)

As discussed in comment letters and in testimony before the Planning Commission, the proposed project is inconsistent with the City Council’s Site Selection Criteria for Hotels. (Resolution No. 16-049.) The Resolution states that the criteria supplements the customary planning entitlement review considerations of plan consistency, zoning standards, CEQA review and urban form. A review of the criteria for siting indicates that the project does not meet the criteria regarding proximity to demand generators, site location to facilities , proximity to public transit, proximity to residences and neighborhood compatibility and existing zoning. (ld.)

The proposed project is also incompatible with the nearby residences and community. There has been abundant testimony provided by the neighbors familiar with the site and with the neighborhood. These comments constitute substantial evidence for purposes of the fair argument test. (See Pocket Protectors v. City 0/ Sacramento, supra, 124 Cal.App.4’h at 932.) ” Relevant personal observations by area residents are properly considered for this purpose.” (ld. , citing Ocean View Estates, supra, 116 Cal.App.4’h at p. 402; Arviv Enterprises,lnc. v. South Valley Area Planning Commission, supra, LOI Cal.App.4th at 1347.) As discussed in Pocket Protectors, while some planning issues are inherently technical, the adverse environmental effects of a project are not. When neighbors offer detailed factual observations on the project’s impacts, they are not mere general opinions, but constitute substantial evidence. (Pocket Protectors v. City 0/ Sacramento, supra, 124 Cal.App.4th at 932.) As such , CEQA mandates the preparation of an EIR.

Additionally , the proposed project is also inconsistent with the existing General Plan, South Davis Specific Plan and the zoning. It is only through the proposed modifications to the plans and zoning ordinance that the proposed project is consistent with these plans and zoning. As the environmental impacts and analysis are based upon the existing conditions (baseline) it is misleading to determine that the project is compatible with existing land uses based upon the City approving the respective amendments. Substantial evidence clearly supports that the proposed project is inconsistent with the existing land use plans and zoning and that such inconsistency impacts the adjacent neighborhood and neighbors. Again, CEQA mandates the preparation of an EIR for the Hyatt House Project.

1. THE PROJECT CONSTITUTES IMPERMISSIBLE SPOT ZONING

“A spot zone results when a small parcel of land is subject to more or less restrictive zoning than surrounding properties.” (Foothills Communities Coalition v. County of Orange (2014) 222 Cal.App.4’h 1.302, 1312, quoting Hagman et aI., Cal. Zoning Practice (Cont.Ed.Bar 1969) § 5.33 , p. 12.) ” ITlhe creation of an island of property with less restrictive zoning in the middle of properties with more restrictive zoning is spot zoning.” (Foothills Communities Coalition, supra, 222 Cal.App.4’h at p. 1312.) “[S]pot zoning mayor may not be impermissible, depending on the circumstances.” (Jd.) In order for the rezoning to be justified , the record must demonstrate that a substantial public need exists. (/d.) Thus, spot zoning may be upheld if the public would benefit from it. (Arcadia Development Co. v. City of Morgan Hill (20 11) 197 Cal.App.4’h 1526,1536.)

The proposed project constitutes spot zoning as it includes an amendment to the zoning ordinance that provides that singles out this parcel of land for a different use than the surrounding properties and for the benefit of the owner of the smaller parcel and to the detriment of the other owners. (Foothill Communities Coalition v. County of Orange, supra, 222 CaI.App.4’h at 1314.)

In order for the spot zoning to be permissible it must be in the public interest. (/d.) Thus, the City must make findings that the Hyatt House Project is in the public interest or that the public would benefit from it. Certainly the comments and testimony before the Planning Commission demonstrate that the public will not benefit from a four story hotel adjacent to an existing and established neighborhood. Moreover, neither the City’s Resolutions approving the amendment to the General Plan , the South Davis Specific Plan nor the Zoning Amendment make any findings that the spot zoning or the Project is in the public interest. The closest the City comes to making any of finding that the spot zoning is in the public interest is in the draft Ordinance that states “the public necessity , convenience and general welfare require the adoption of the proposed amendment.” (Ordinance, section 7, paragraph 3.) The Findings, however, fail to state what is the public necessity , let alone how the public will benefit from a hotel that is removed from any the facilities that normally support such a commercial operation .

Neither the Staff Report nor the Initial Study identify the public interest or how the public would benefit from such a hotel.

1. CONCLUSION

Based upon for the foregoing, the numerous comments provided on Initial Study, and the comments of the Planning Commissioners, a fair argument exists that the Project may have a potentially significant effect. As such, CEQA mandates that the City prepare and certify a legally adequate ErR prior to approving the Project. Additionally, the proposed project constitutes impermissible spot zoning and the City has failed to identify the public interest for allowing such spot zoning.

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