Back in January, the council had agendized the possibility of certifying the Mace Ranch Innovation Center (MRIC) project – absent a project. But a letter from Attorney Don Mooney led to the developers requesting the proposal be delayed.
The item is now back on the agenda for Tuesday. MRIC had proposed a mix of industrial, commercial and retail uses totaling 2.7 million square feet on the 218-acre site located on the east side of Mace Boulevard near the Second Street intersection.
The draft EIR was released in August 2015, with the final EIR and response to comments back in January 2016.
In a letter dated October 5, Dan Ramos based his request on the notion that “[o]ver the course of the next year and one-half, City staff, technical consultants, City commissions, the applicant team, your Council and the Davis community spent considerable time and energy participating in that effort which resulted in a very thorough environmental impact report (EIR).”
The move has triggered questions and criticism from some in the community, who see the certification of the EIR without a current project as inappropriate and potentially short-circuiting the EIR process.
For his part, Dan Ramos told the city, “We recognize that certification of the EIR does not approve MRIC nor commit the City to any future course of action with respect to the project.”
“To be clear, we are not requesting that any project be approved at this time,” he informed the city.
He also told the city, “We also recognize that any future approval action may require further environmental analysis. Nonetheless, your certification of the EIR would officially acknowledge that the voluminous environmental document prepared for MRIC is adequate and complete.”
Mr. Ramos continued, “It would also provide us with an environmental document which we will be able to use to help attract potential tenants and investors, all of whom are likely to look more favorably on our project if we can show them a certified EIR.
“A certified EIR should accordingly serve as a tool for economic development as certification signals to potential users that this site, though not approved for any development, has undergone the most substantial part of the entitlement process and that the City of Davis is serious about keeping and attracting innovation employers,” he stated.
Finally, Mr. Ramos added, “We believe that the certification process should provide the City an additional opportunity to discuss how our project might move forward in the future.”
According to the city’s analysis, “Certification of an EIR is required prior to approving a project, but approval of a project is not required following certification.”
Certification means that the EIR has been completed in compliance with CEQA (California Environmental Quality Act), it was “presented to the decision making body and that body reviewed and considered the information in the EIR prior to approval of the project,” and it reflects “the lead agency’s independent analysis and judgment.”
Staff writes, “Certification requires no other findings, and can be divorced entirely from consideration of the merits of the project. Essentially, certification signals confidence in the analysis and provides some finality to an expensive and lengthy analytical process.”
They continue: “While typically combined as one concurrent set of actions when approving a project, CEQA does allow for certification apart from project action. It is not uncommon in other jurisdictions for the City to certify an EIR well in advance of any action on a project. While this is not typical in Davis, staff believes this request has merit given the scale and unique nature of this type of undertaking.”
Staff again clarifies that the certification “has no implications for any subsequent action on the project.” Following certification, “the Council is free to approve, deny, or take no action on a project proposal.”
With regard to mitigation measures: “Certification confirms the mitigation requirements for a project based on the regulatory and environmental setting described in the document and based on the project and alternatives as defined in the document. This makes clear the mitigation requirements of the project.”
However, “If significant new information relevant to a project emerges prior to certification of an EIR, recirculation may be required.”
Staff adds, “If directed to move forward, staff is mindful of the importance of clearly communicating to the community throughout the process that certification is not a project action. Direction to proceed with processing this request does not obligate the City Council to certify the EIR. Ultimately that decision would be made if and when a project proposal comes before the City Council.”
In a response to a Vanguard column in January, Dan Ramos wrote: “The simple reason we’re seeking certification on the MRIC EIR is that it makes sense for the city and us to complete the lengthy process, which simply evaluates the impacts of a project if one were to occur in the future on that site. We’ve both invested a significant amount of time and money in getting to this point and have become significantly more educated along the way. Why let that go to waste? That’s what would happen if the EIR isn’t certified.”
“We understand that some in Davis will always question our motives and every move, despite our efforts to transparently implement a viable project that would provide significant economic benefit for the community,” he said.
He acknowledged: “We definitely learned some things along the way and, yes, we proposed changes in the project with an eye toward making it work better for the city and us. Might we choose to do some things differently if we could rewind the clock? Yes, probably. We guess that city staff and at least some members of the City Council probably would say the same thing. But we are where we are. And that is with a project proposal indefinitely on hold and a mostly completed environmental document that initially went out for public review more than 16 months ago.”
He concluded, “As you have reported, certification of the EIR does not in any way serve as approval of a project. If we do come back with a project proposal at some point, we would be subject to and firmly committed to complying with all of the project reviews and approvals, including a Measure R vote, that are required and expected in Davis. We trust under the current circumstances that most would see our request for EIR certification as very reasonable.”
—David M. Greenwald reporting
“We’ve both invested a significant amount of time and money in getting to this point and have become significantly more educated along the way. Why let that go to waste? That’s what would happen if the EIR isn’t certified.”
Why would any work that has already taken place “go to waste” whether the EIR is certified now or in conjunction with a definite proposal in the future ?
Also, I know that this has been covered before, but would someone give me the elevator talk at 5 year old level on what is accomplished by an EIR that does not take into account the specifics of a particular project ?
The applicant spent a large amount of money on the EIR and wants to preserve it so that money is not wasted. A future project would probably have to redo some of the analysis and they acknowledge that.
I think it has also been noted that it would enable them to market the property more readily if they chose to do that.
And also get investors
Not directly asking Tia’s question, the City Council should either certify the EIR as complete and sufficient to make a decision, albeit in the future, on a project that fits the parameters of the analysis, or declare it insufficient to take action, and articulate why. Given time, effort, and money expended, that’s only fair and appropriate.
As pointed out repeatedly, if the project “morphs”, or if the document becomes ‘stale’ with time, due to changes in ‘the existing conditions’, a supplemental analysis (supplemental EIR/focussed EIR) will be warranted/needed… but not necessarily an automatic “do-over” from scratch.
Without action, one way or another, a forced “do-over” becomes more likely… which I do not think is in anyone’s interest. Unless, of course, they are a complete obstructionist. [or, if you an EIR consultant]
We were told by the developers that the project as currently designed did not “pencil out,” and that’s why they withdrew. So, the project will need to be changed. Given that, it does not make sense to me to certify the EIR now. The details all matter for the EIR – how big are the parking lots or are parking garages planned? Where are the green spaces? Where are the required ag transitional areas and what is planned for them? What are the building heights? How many people will work there? Will people live there and if so how many? How are threatened species being mitigated? The answers to each of these questions affects the EIR, and possibly in a holistic way.
On the one hand, Ramos is saying that they “recognize that certification of the EIR does not approve MRIC nor commit the City to any future course of action with respect to the project.”
On the other hand, he is saying that certification would signal to potential users of the site that “the City of Davis is serious about keeping and attracting innovation employers.”
It seems to me that Ramos is trying to walk a fine line that doesn’t exist. The City cannot simultaneously say that they are not committed to the project and that they are committed to the project. And the City should not commit to a project in the abstract, only to a specific and clear project whose impacts can be determined.
What was explained to me is there any change in the project would trigger a need for An update. But they certify and they could preserve the parts of the EIR that are not project specific and thereby save money
They could save money by using copy and paste on those sections.
No, for a number of reasons… and why would anyone do that if it hasn’t been determined if those sections are adequate for decision making?
If the document is flawed, and does not address issues, the CC has a duty to so find, and articulate why (and “what if’s” don’t qualify as a ‘reasonable doubt’). If it is not flawed, or determined to be inadequate, it should be certified… simple concept.
It would be simple if there were a project on the table. But there is not.
Why would anyone re-do the sections if they were still relevant and had not been determined to be inadequate?
Roberta… there are still ‘potential projects’ and “no project” on the table… their basic parameters are outlined in the EIR… any substantive, significant changes will be subject to additional analysis… I say three times: substantive, significant.
It is true that the applicants are not ready to proceed with a particular project at this time.
You truly appear not to understand CEQA… an EIR is a ‘disclosure document’, nothing more, nothing less (think I’ve said that at least 3 times, also). Technically, it could be well argued that the CC can’t say “no” to a specific project, unless the CEQA process has played out.
“Certification” of an EIR does not “commit” the CC to ANY decision, and they still have the right to decide “no project”. The EIR gives them the factual (and statutory) basis to make a decision, in the future, and that includes “saying no”.
It’s not like the CC is getting “engaged”, much less “married”…
I write this primarily to inform folk about the facts… I care not if I affect your position.
You are entitled to your opinions, but not to your own “facts”.
Right – and as Colin notes elsewhere, this would just set up a fight about what will count as substantive and significant.
I actually understand the process quite well, having reviewed this EIR and other EIRs as a commissioner on the Open Space and Habitat Commission. It is the developer who seems to be using the EIR for other than its intended purpose, suggesting that a certified EIR would show that “the City of Davis is serious about keeping and attracting innovation employers.”
Not likely true. To the extent it may be true, it can be addressed in a supplemental or focussed EIR. If major , substantive, significant changes, a do-over is conceivably necessary/
There are some who, if the building heights grew by 5 feet, if employees increased by 10 employees, if the green spaces remained the same in area but got rearranged by 25 feet (or got reduced by 25 square feet), the entire work to date is “suspect”… I am not one of those folk… I’m smarter than that, and understand very well the purpose and procedures of CEQA.
Approving the EIR now without a project seems like a guarantee to have a fight later about what kind of change is significant enough to trigger the need for a new EIR.
The obstructionists in town are guaranteed to fight any project regardless of what is done with the EIR now. Trying to appease them by not addressing the issue will change nothing with regards to the future actions.
If the CC finds that the EIR was performed properly and is sufficient, it should be certified, as that is their role in the process, to determine if the work meets the requirements of the law. To ‘punt’ on that responsibility by refusing to act would be inappropriate.
What constitutes sufficient change to require additional analysis is defined in the law and is easily addressed if a new project is brought forward. It isn’t determined by the opinions of the obstructionists.
Mark… to amplify on your last statement… professionals, particularly those on city staff, always strive to make CEQA documents “bullet-proof” (not subject to successful legal challenge)… their professional judgement should be the same, independent of their feelings on a project, or their being driven by ‘political winds’.
I say this, as having opined that Embassy Suites should have a ‘focussed EIR’, rather than a MND, precisely to make the documentation “bullet-proof”… years ago, when the project was first coming forward… that advice was not heeded… we’ve seen the result.
Or the opinions of the pro-development, pro-any-growth side. But nonetheless, if/when the time comes they will be fighting to skew the process.
Roberta, all the partisans will be fighting to skew the process. The only difference will be the many (and varied) directions of skewing that individual partisans are seeking.
Matt, yes, that was my point.
Mark, the problem you have is very fundamental. You see this as an us vs. them battle between you and some mythical always no obstructionists. The truth is you are tilting at windmills. There is no organized cabal of obstructionists trying to drag down this project.
As I stated above, approving the EIR now will lead to inevitable fights down the road about how or if the EIR should be updated. Law will be open to interpretation, and the way to resolve the questions that will inevitably be raised is litigation. I for one do not wish to have more litigation brought against the City, but that is how application of the law would become defined if there is a serious dispute.
Let’s have a good clean EIR that reflects the actual project that is to be built, so we can move forward with this project in a reasonable informed manner.
Why don’t we instead follow the process as defined in the law?
Colin said . . . “As I stated above, approving the EIR now will lead to inevitable fights down the road about how or if the EIR should be updated.”
Colin, that problem and its inevitable fights exists just as much in the current situation. The simple act of bringing an MRIC proposal back to life (in any form whatsoever) will lead to inevitable fights.
So my question to you is What harm will happen to the community by bringing this EIR to an end?”
Said another way, “What benefit will the community realize by not bringing this EIR to an end”
Matt, I think your asking the wrong people the wrong question. It would be better to direct this to the developer. What benefit is the developer offering the City in passing the EIR now?
Colin, that is a very good question, and the answer is very simple … this EIR is a disclosure process that has completed all its steps save one. That incomplete step is having the City Council bring it to a formal/legal ending.
The final act for this, and any EIR, happens when the governors of the jurisdiction issuing the EIR (the Davis City Council in this case) make a formal determination to certify it, or a formal determination to declare it inadequate, explaining to the public why and how the EIR is inadequate.
If the City Council determines the EIR is adequate, then they have the option of including a “no project” statement in their statement of the EIR’s adequacy.
If the City does not close the EIR then they have to follow all the CEQA regulations associated with an open/incomplete EIR.
So what you appear to be advocating for is the City expending time and dollars maintaining an EIR in perpetuity.
Which brings me back to the same two questions:
“What harm will happen to the community by bringing this EIR to an end?”
and
“What benefit will the community realize by not bringing this EIR to an end”
Haven’t seen any arguments regarding “maintaining an EIR in perpetuity”. This is not a realistic statement, since conditions change over time (thereby rendering even a certified EIR as unusable, over time – assuming that no proposal is forthcoming). Also, I understand that developers reimburse the city for all costs incurred, regardless of whether or not an EIR is ultimately certified.
As usual, Matt makes takes a position (without acknowledging that position). At least other commenters acknowledge where they stand.
A lot of things “seem” to be, but are chimeras, in fact.
I agree with both Colin and Mark. A fight is guaranteed regardless.
My question to both Roberta and Colin is “What harm will happen to the community by bringing this EIR to an end?”
Said another way, “What benefit will the community realize by not bringing this EIR to an end”
The developer will try to use the certification of the EIR as leverage and momentum to say that the project is already on its way to approval and to suggest that the City has been encouraging them.
If the project comes back, we can have a nice, clean EIR that is geared toward the particular project they propose and not waste time arguing over what is “substantial.” We can examine the new project on its merits.
Roberta, let’s deal with your second point first. You will have the same outcome either way. In each case material from the prior EIR will be brought forward and new material will be added.
Regarding your first point, they can do and say that now. How does ending the current EIR process, as opposed to leaving it in its current unended state, change the developer’s ability to say that the project is already on its way to approval and to suggest that the City has been encouraging them? There is no shortage of evidence that the project has been actively part of a review process. There is no shortage of evidence that the City has encouraged the application by invested thousands and thousands of dollars in the evaluation process. How would not certifying the EIR change any of those historical facts?
What you appear to be advocating for is forbidding the developer from any attempts to locate and/or communicate with prospective tenents. Is that your intent?
Hmm. I didn’t realize that facilitating such communications was a “legitimate” justification for certifying an EIR.
Obviously, the developers think it will give them additional leverage and momentum or they would not be asking for this. They have in fact explicitly said so.
I’m surprised you would say something like this, Matt. How would failure to certify the EIR at this point in any way forbid the developer from locating or communicating with potential tenants? They are free to do that without a certified EIR.
Roberta, I’m surprised that you are surprised. You have said elsewhere in this thread that you don’t want the developer using the EIR as evidence that the City of Davis is serious about keeping and attracting innovation employers.
My question to you was (and continues to be) a simple one. Is it your intent to terminate any possibility of conveying that message to prospective tenants?
Matt, you originally said that I was attempting to forbid the developer from any attempts to locate and/or communicate with prospective tenants.
Now you say:
Well, now, that is a very different thing. That’s not forbidding the developers from attempts to locate and/or communicate with prospective tenants. That’s saying that I don’t think that the developers should be using the certification of an EIR as evidence of the City’s intent, even though that is pretty clearly what they are intending to do.
To address an earlier point that I didn’t have time to respond to before I ran out the door, I had said, “If the project comes back, we can have a nice, clean EIR that is geared toward the particular project they propose and not waste time arguing over what is ‘substantial.’ We can examine the new project on its merits” and you replied, “You will have the same outcome either way. In each case material from the prior EIR will be brought forward and new material will be added.” But it is not the same outcome. We have to spend citizen and staff time wrangling over this certification. We have to spend citizen and staff time wrangling over what is substantial. Instead, we could wait until the developer actually has a proposal for us to discuss and look at the EIR for that. That would be a lot less work and wasted energy for everyone. But I do agree that in each case material from the prior EIR will be brought forward and new material would be added. So, there will be “lost work” from this EIR, contra to what others have suggested on this page.
Roberta, thank you for that clarification. It seems to me that you are describing a difference in name only, but I respect the fact that you believe it is a meaningful difference. Reasonable people can agree to disagree reasonably.
Regarding “We have to spend citizen and staff time wrangling over what is substantial.” Staff will spend less time if the EIR is put into the same status as the MRIC project . . . ended. If a new project comes forward Staff will put zero time into wrangling over what is substantial. They will simply assemble an RFP for EIR consulting services on the new project and issue the RFP. If anyone does any wrangling it will be the EIR consultants who submit the successful RFP bid, and they will not be paid by the City. Bottom-line, the City will expend no additional time or financial resources wrangling over what is substantial. What makes you think that they will?
Yes, although I cannot really see how you could say the two assertions are the same. But I won’t belabor it.
A number of people here think that they will try to use the same EIR, or just some tweaks to the existing EIR. That is what would require staff time because if they try to do it, staff will first have to make a recommendation, then there will be the usual pushback, and a big fight, and more staff time… Are you saying that you don’t believe that the existing EIR might be used? That is one of the arguments that people are making for certifying now.
Roberta Millstein said . . . “A number of people here think that they will try to use the same EIR, or just some tweaks to the existing EIR.”
There is one, and only one, way that those people can be correct in their thoughts. That one way is if the developers submit the exact same proposal that they did the first time around. They abandoned that proposal because it did not “pencil out.” As a member of the Finance and Budget Commission I personally heard David Zehnder from Economic & Planning Systems, Inc. tell our Commission that the project would not pencil out. So, the chances of a resubmission of the same project are somewhere between slim and none, and slim has left the building.
As a result the chances of any attempt to try to use the same EIR, or just some tweaks to the existing EIR are also somewhere between slim and none, and slim has left the building.
I happen to agree with you on this. But as I said, read the comments here – others think otherwise. And if they are right, it will be a big mess and a big waste of time. That’s my only point. But I think you and I are right and that a new EIR will be put forward regardless.
Yeap.
A “way to save money”? (Doubt it.)
What do you mean by that comment? (Way to save money – doubt it)
David:
By approving a document in which there will likely be future legal challenges, regarding which parts of the EIR should be “updated”. In the absence of a defined development proposal, it’s anyone’s guess.
I don’t recall any other situation in Davis in which certification of an EIR is pursued, in absence of a proposed/defined development.
It just doesn’t seem to be a “cost-savings” measure, on the face of it. (Almost seems like an invitation for future legal action against the developer/city, by those qualified to analyze and pursue it.)
Do you recall any other situation where a project was vacated after completing the EIR process but before the EIR was certified?
David:
I don’t recall any other situation in which a developer pursues EIR certification for a withdrawn development proposal, apparently for the purpose of using portions of it for some “undefined” future development proposal (either by current or future owners).
Don’t forget the developers stated purpose of signalling to potential investors that the City of Davis is serious about keeping and attracting innovation employers.
I don’t see a problem with that.
Ron… based on my 40+ years in Davis, and having reviewed pretty much every EIR in the last 30 years, you are correct… perhaps why you don’t recall…
But to word it a different way, in all that time there was no EIR got went this far, and the developer take a time out…
In all that time, I can’t recall any EIR that got this far that was not certified…
What is your point?
Howard:
My point was to answer David’s question.
That thread started by noting that there may be costly legal disputes (for the developer and city) regarding which portions of the EIR will require “updating”, if/when a defined development is actually proposed. Therefore, I noted that pursuit of EIR certification at this time may ultimately not result in “cost savings” – which was presented as a reason to proceed with certification.
The point I am making and Howard is making is that this an unusual circumstance.
I think both sides have good points here. I understand why the applicant would want to preserve as much of the EIR as they can. I think Colin is correct that this would bring forth a new fight over what is substantial. I wonder if the council has the ability to define substantial from the outset, so it is understood what would trigger an updated EIR. Honest question.
I am not sure how they would do that, given the many ways in which the project could be different that are relevant to its environmental impact, as I suggested above: how big are the parking lots or are parking garages planned? Where are the green spaces? Where are the required ag transitional areas and what is planned for them? What are the building heights? How many people will work there? Will people live there and if so how many? How are threatened species being mitigated? …and no doubt other questions I am just not thinking of right now.
Roberta, given how the prior project ended, the chances of substantial change to the project are 100%.
There will be a new EIR if there is a new project, and material from the old EIR will be brought forward
Right. So this is just wasting everyone’s time in an attempt to get leverage on a project that doesn’t exist yet. It’s not right.
Greetings all,
So I just got home, read all of your comments and realized that everyone posting here obviously has a much more advanced understanding of this issue than I do. So I am going to try again to see if anyone will take pity on me and address what may be the most basic questions of all.
1. Since an Environmental Impact Report is an assessment of what impact a change would likely have on the environment, how would it be possible to assess change without knowing exactly what that change entails? What exactly would be being assessed in this “interim” EIR that apparently everyone believes would have to be modified anyway ?
2. Since we all have computers now, why not just store whatever information would be relevant for use when the full project is available. No need to redo if it is still relevant. And if it is not still relevant, it would have to be done over anyway ?
What am I missing here ?
The City and the applicant invested considerable resources into performing the EIR. For the applicant, that is just the cost of doing business. For the City, however, even if all of the staff time and expenses were reimbursed by the applicant, the time spent on the project could have been used providing other services. Consequently, there is a real cost to the City and resident taxpayers due to the creation of the EIR.
If the CC determines that the EIR was properly performed and is sufficient, and consequently certifies it, then there will be a legal document that has real value for both the applicant and the City moving forward. The investment of the taxpayer’s resources will have had a purpose.
If however, the CC refuses to certify the EIR, not due to problems with the EIR itself but because of some political calculation (as is being proposed by Colin and Roberta) then the taxpayer’s resources will have been completely wasted and the City will be left with nothing of value from the process. In fact, it could be argued that the City would no longer even have a legitimate ‘process’ for the future.
A certified EIR is a legal document, the same text stored on a computer is not.
I understand that these costs are reimbursed by the applicant, regardless of whether or not the EIR is certified. Not sure what “other services” (as Mark described) are not being provided as a result of processing this development proposal.
Tia… the problem is the word “exact”… certainly in your field, no matter how much testing you do, all your interviewing your patient, etc., you don’t know “exactly” what the problem is, or “exactly” the outcome of your treatment, right?
Same is true with development and CEQA analysis… “the environment” is more complex than any patient you have ever seen, so:
is not “real world”… can you not see that?
Oh… and if a project comes forward substantially the same as one of the alternatives analyzed, or ‘between’ two, no, there would be little or no additional work needed…
Mark, You have a point here and by this standard the MRIC proposal has already wasted a considerable amount of staff time by being repeatedly proposed and withdrawn. If this EIR is certified, it will also lead to a considerable amount of staff time being used in the future to determine if changes to the project constitute serious enough changes that a new EIR will be needed. Even more staff time will be needed to defend that decision since it is almost guaranteed to be contested, by residents, MRIC partners or both. Frankly it seems like the best use of staff time is to encourage MRIC to come back with a full workable proposal that can be properly considered.
Colin, your 4:48 post…
That is simply untrue, and borders on a lie.
Speculative, and in that event, the project proponent will be required to reimburse the City. Time will certainly be less than a re-do.
It is pretty obvious that you, Ron, and Roberta are desperately trying to throw high starch spaghetti, to see what sticks… good luck with that.
But watching you folk generating alt-facts, borders on comedic relief.
I feel no desperation whatsoever, nor have I presented any alt-facts. But, if you find this conversation “amusing”, than perhaps it does (at least) some value for you. Always good to brighten someone’s day, I guess. 🙂
Roberta Millstein said . . . “So this is just wasting everyone’s time in an attempt to get leverage on a project that doesn’t exist yet. It’s not right.”
I’m not sure where you think such leverage will come from. Any reconstituted project will require its own EIR. By law the City will have to issue a competitive RFP (Request for Proposal) for the EIR services, and have to award the contract to the most competitive bid. Then the EIR consultants will make their own independent professional determination about where the best sources of data are to complete their legally mandated tasks. Some of those best sources may or may not come from prior EIRs (of any stripe). What is there that is not right about that open, public process?
Tia Will asked . . .
“1. Since an Environmental Impact Report is an assessment of what impact a change would likely have on the environment, how would it be possible to assess change without knowing exactly what that change entails? What exactly would be being assessed in this “interim” EIR that apparently everyone believes would have to be modified anyway?
2. Since we all have computers now, why not just store whatever information would be relevant for use when the full project is available. No need to redo if it is still relevant. And if it is not still relevant, it would have to be done over anyway?”
Tia, there isn’t anything about the MRIC EIR that is “interim.” The MRIC EIR is directly and legally attached to the MRIC proposal that reached its conclusion as a “no project.”
Your second point is both right and wrong at the same time. The information will reside on the internet long after you and I have died and gone on to another existence. It indeed will be accessible, and as I noted in a prior comment in this thread, if another project is proposed for the MRIC parcel, it will require its own EIR. By law the City will have to issue a competitive RFP (Request for Proposal) for the EIR services, and have to award the contract to the most competitive bid. Then the EIR consultants will make their own independent professional determination about where the best sources of data are to complete their legally mandated tasks. Some of those best sources may or may not come from prior EIRs (of any stripe) … and they will no doubt use their computers to locate that material.
If the City chooses to keep this EIR open then it will incur both recurring costs and the investment of human time to ensure that the EIR is maintained according to the standards and regulations established by CEQA.
Mark West wrote:
Sorry, what? What value is there to the City in a certified EIR for a project that isn’t being proposed and that will require revision?
Please don’t pretend that Colin and I are being “political” but that somehow you, the developers, and the defenders are not.
How could that be argued? The process is that the developers come back with a proposal that they think will “pencil out,” unlike the one that was withdrawn. Then they do a new EIR, using relevant parts from the old EIR wherever possible (so not wasted work after all).
Let me give a somewhat-similar-if-not-perfect analogy. You may have followed the recent kerfuffle over whether the Cannery farm should be organic. Here’s one of the things that happened. This past fall the CLBL put up some serious resistance to organic certification for the farm (after having earlier promise that it would be organic). They fought the OSHC pretty hard on this and refused to budge. Then when it was put on the consent calendar and people called foul, they claimed that they had been open to organic all along. Well, that was just false, and you might think that this would be reason not to want to deal with them (as Greg House argued). Well, but if you listened to the City Council meeting, one of the things that Rochelle Swanson said that was that if we didn’t go with the CLBL that it would be a bait-and-switch, that we’d worked with them for all these years and couldn’t go down another path now.
I can see a similar argument being made by the developer at Mace and by any City Council member or citizen who was so inclined to be favorable to them. And obviously, the developers think that this is a foot in the door, too (or a step along the path – pick your favorite metaphor) or they wouldn’t be thinking that it would be helpful to have this in order to talk to prospective tenants. But that’s wrong. They shouldn’t have a foot in the door based on a project that is not the one that is going to be implemented. The City should not be asked to, or be seen to, approve of a project that is other than the one that will be proposed. The process should not move forward until they are ready to put forward a project. Here’s another question: why don’t they just make a new project proposal and stop playing footsie with us?
Roberta, thank you for sharing that example. I agree with you wholeheartedly that the CLBL situation was very concerning.
With that said, I see a couple of significant differences between it and the way two separate projects are handled under the provisions of CEQA.
The first and biggest is the fact that CEQA is the controlling law in the case of environmental review of developmental projects. There is no such controlling law in the case of the CLBL situation, only an agreement of mutuality between two parties, the City and CLBL.
The second is that there is no discontinuity in the CLBL/City situation. The contractual agreement between the two parties existed before, during, and after the kerfuffle. In the case of MRIC there absolutely is discontinuity. That discontinuity is memorialized in the public record by the “No Project” status of the prior MRIC application. Any future project will only exist with a new application that will stand or fall on its own merits.
The third is that the principals of any future project on the MRIC parcel will be different from the principals of the “No Project.”
Those are three rather substantial reasons that I do not believe the fears engendered by the recent CLBL actions apply to any possible future application for the MRIC parcel.
Bottom-line, they will not have either a foot in the door, or step along the path, or camel’s nose under the tent.
Not legally, right. I wasn’t claiming that it was a legal foot in the door. The foot in the door is in the minds of those who are in favor of developing pretty much anything at Mace and who will use this as an argument in its favor, including trying to get the City Council to support it.
Roberta Millstein said . . . “The foot in the door is in the minds of those who are in favor of developing pretty much anything at Mace and who will use this as an argument in its favor, including trying to get the City Council to support it.”
At the risk of torturing your metaphor, the door that you are describing is guarded by CEQA with all its tried and true provisions. The minds of those who are in favor of developing pretty much anything are no match for CEQA.
And if the new project gets through CEQA, it has to go through a Measure R vote, where the hearts and minds of Davis’s citizens and its City Council come back into play.
Well said Roberta. Very well said.
For someone who has oft argued about the importance of ‘process’ and following agreed upon procedures, you seem surprisingly interested in creating new hurdles outside of the process as defined in the law. We have a professional staff and consultants more than capable of determining what constitutes a substantial change to trigger new reviews, and besides, we also know that any major project in Davis is going to elicit a court challenge. We don’t need to build new artificial barriers or hoops to jump through, the ‘Davis spanking machine’ is already fully functional.
If you are talking to me, I’m trying to facilitate a solution not create new hurdles.
The solution is to use the legally defined process already in place. By calling for the CC to specify new criteria, or to agree to the political demands of the noisy, you are creating more hurdles.
Pretty much agree with this statement, and the one that follows, and I say that as someone who is neither a supporter nor opponent of the concepts of a project @ the MRIC…
As to Tia’s question about what constitutes a substantial change… given the size of the most intensive use studied, any decrease in size would not negate the value of the document, as it exists.
Given its size, a 5%-10% increase in employees, etc. is most likely not significant as to traffic, except I’d look at the key intersections as a screen check, to see if conditions would likely change from one LOS to another, and document the reasons why I’d either think it was insignificant, or potentially significant… if potentially significant, I’d recommend either a supplemental or a focussed EIR… and I’d lean towards being ‘conservative’ to keep the document “bullet-proof”. Drainage issues are self-correcting, based on the principles and ordinances in place. More runoff = more detention/retention. Effects on water and sewer capacities would be minor, with almost any scenario other than a Budweiser brewery (a bit of exaggeration, but not much).
Building heights, building aesthetics, those aren’t actually CEQA things… they may be important, but the CC making decisions on those are not CEQA issues.
Impacts on wildlife are probably not significant unless something much more intense than any of the alternatives, except of course, the “no project” alternative. And even with “no project”, the type of farming done could be as ‘bad’, with no mechanism for mitigation.
This whole consideration (certification of the document) should be fact based, in accordance with the statutory requirements of CEQA… my recommendation to the CC would be, either certify the EIR, or find it inadequate, and articulate why. At this point, I’m hearing “my mind is made up, don’t confuse me with facts” from a number of the posters… am tempted to do the Snagglepuss thing and ‘exit, stage left/right’ (showing my age)… but will still confront un-truths.
It is time that the CC make a decision, not ‘punt’ (or “fish or cut bait”)… inaction is unacceptable, in my view.
Actually, you’re wrong about that (I thought you were a CEQA expert?). Go and look at the document, and you will see that aesthetics and visual resources are part of the analysis.
That’s completely speculative on your part (especially in the absence of a proposal). EIRs are based on actual research and analysis, not armchair conclusions.
Roberta… which “document” are you referring to, so I (and others) can see for ourselves… here’s what I know…
I. AESTHETICS. Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site and its surroundings? d) Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area?
If you believe those tests are met by ANY use (and I don’t agree), maybe I stand corrected on that, but surely none of the tests are met between one specific design or another.
Can find absolutely nothing in the Code about building heights… perhaps you could elaborate on your cites for all to see?
Source:
Environmental checklist,
http://resources.ca.gov/ceqa/docs/2016_CEQA_Statutes_and_Guidelines.pdf
[in the interests of facts and disclosures… not an armchair opinion]
[warning, the download is over 400 pages]
I have to explain to you how the height of a building could have an effect on a scenic vista?
In the area in question (Mace), there are City-identified scenic views of the Sierra and of the Sacramento skyline. Depending on where the buildings are and how tall they are, those views may or may not be blocked.
Whether c and d are impacted significantly would also be affected by the specific proposal.
And the document I was referring to was the Mace EIR, which can be found on the City’s website.
Yeah, views of the Sierras from Lake Boulevard residents (or around 99.75% of Davis residents for that matter) would be significantly negatively affected by development at the site. I see you point now… I was horribly wrong…
But I was citing the State statutes, guidelines, not the EIR… big diff…
There aren’t that many places where one can see the Sierra anymore. Whether that loss is significant or not is not for you to decide. It’s one that is relevant to the EIR, which is what I was suggesting above.
Are you saying that the EIR does not follow the appropriate statutes?
I’m not sure that there’s agreement regarding a “problem” that requires a “solution”. (At times, it seems that there’s a “solution” proposed, which then goes in search of a “problem”.)
Read my initial post where I said both sides have valid points.
That’s right. I’m sure that the developers are pursuing certification of the EIR, so that they can pursue “no project”. (And “definitely not” one of the other alternatives in the EIR, which apparently includes 850 residential units.)
“Nothing to see here, folks. Just a formality. After all, there is no proposed development.”
Any project that is proposed at this point will require approval by the CC and by the voters through a Measure R election. Any notion or suggestion that certifying this EIR is going to somehow allow a project to move forward without further review is laughable in the extreme. The complaints being pushed by Ron, Colin, Roberta et al. are nothing more than obfuscation and obstruction.
Mark:
I was just responding to Matt’s statement, in which he stated that the proposal “reached its conclusion as no project”.
I guess that the developers aren’t aware of this conclusion, since they’re pursuing EIR certification of a “withdrawn” (*wink-wink*) proposed development (which includes an alternative for 850 residential units). And yes, the manner in which this is unfolding is apparently unprecedented in Davis.
Nobody has said that certifying this EIR is going to allow a project to move forward without further review. But it is clear that the developer thinks (and others think) that certifying the EIR will move the process one step closer. And why should a proposal-less project be moved forward? That makes no sense.
Yeah… there is a first time for everything in a given community… plastic bag ban, sugary drink tax, a Measure J/R, etc.
Your logic about “unprecedented” could apply to a lot of what has been /will be proposed by ‘progressives’… that could be interesting…
Roberta Millstein said . . . “And why should a proposal-less project be moved forward? That makes no sense.”
No project is being moved forward.
A disclosure process, which is what an EIR is, is simply coming to an end. That ending of the disclosure process customarily is certified as “accurate, adequate and complete.” However it is within the discretionary powers of the City Council to declare one or more of those three certification categories as “not accurate” “not adequate” or “not complete.”
Matt, it occurs to me that you haven’t said why you think the EIR should be certified. You don’t think it moves the process forward. You think that there will be a brand new EIR regardless. So what is the point, in your opinion?
Matt did not say it should be certified… I believe he believes it should either be certified, or reject it, in his words (on the latter), because
If the latter, I believe they should articulate the reasons for that, for the record… please re-read the entire content of his post.
Howard, sorry I misspoke. I meant to ask Matt why he favored the City making a decision about certification at this time.
Roberta Millstein asked . . . “Matt, it occurs to me that you haven’t said why you think the EIR should be certified. You don’t think it moves the process forward. You think that there will be a brand new EIR regardless. So what is the point, in your opinion?”
The answer to that question is straightforward Roberta. All the work on the EIR has been completed with one exception, the closing of it on the books. Since there is no additional work to be done on it, why expend the time and money keeping it open? If you do keep it open you have to communicate periodically and officially with the State Clearinghouse updating the status of the EIR according to their rules and regulations.
Letting the State Clearinghouse officially know that the EIR is closed with a status of some combination of complete/incomplete, accurate/inaccurate, adequate/inadequate eliminates the need for the expenditure of staff time and expense.
It is like you submitting a final grade for one of your students once they have completed one of your courses. Whether the grade is A, B, C, D, F or Incomplete, I suspect you always submit a grade for each student enrolled in your course. Correct me if I am wrong in that suspicion.
Matt
“Bottom-line, they will not have either a foot in the door, or step along the path, or camel’s nose under the tent.
I think that it is clear from Ramos statement that he sees having certification as an advantage. Perhaps psychological in the minds of perspective companies rather than legal. Whichever of the above metaphors you prefer, it is apparent from Ramos statement that he does not agree that this is not an advantage ( foot in door, step on path or camel’s nose) for him.
I do not know which of you is right or wrong, only that you two do not seem to see this the same way.
But the question is – what is the advantage?
Tia, as is often the case when Roberta and I dialogue there is both agreement and disagreement in the dialogue, with considerable discussion of nuance along the way. For example at 8:41 last night she quoted the following comment by me:
and replied to that comment of mine as follows
Our next interchange resulted in her 8:45 post in which she quoted the following from me ,
and responded to me as follows
Why is that meaningful to your statement that you think that Dan Ramos sees having certification as an advantage? For me, Dan is simply one of the “others” that Roberta refers to in her comment above. His perceptions are his perceptions and the likelihood that his perceptions will result in any attempt to try to use the same EIR, or just some tweaks to the existing EIR are also somewhere between slim and none, and slim has left the building.
With respect to Roberta and I seeing this the same way, all I can do is refer you to her words “I happen to agree with you on this. But as I said, read the comments here – others think otherwise. And if they are right, it will be a big mess and a big waste of time. That’s my only point. But I think you and I are right and that a new EIR will be put forward regardless.”
I’m sorry, but this conversation seems so incredibly one sided.
The fundamental approach to the EIR process appears to assume that the entire onus for justifying the need for a given project should rest solely and entirely upon the proponent for change.
The whole purpose of the EIR appears to be designed to discuss, analyse and understand what will the incremental, future effects of a new development – with particular focus on the negative effects of such proposed development.
Nowhere in the process, it would seem, is there any role for a retrospective, basecase review of what life would be like 20-25 years hence – IN THE ABSENCE OF A GIVEN PROJECT.
In other words, what if we are to assume a basecase analysis for the community in which the prospective project IS NOT IMPLEMENTED. What would be the likely, cumulative, economic and social impacts to the community if there were to be no new developments over the same timeframe elected for review?
What would that “No Change” scenario tell us about projected growth in per capita income and associated municipal revenue? How would our “projected budget” look some 25 years forward with no growth in the technology employment sphere (owing to a permanent, chronic absence of developable lands during the period under analysis)?
We can easily predict increasing costs associated with an aging demographic. We can easily predict a future economy, together with pressures on affordable and student housing, some 25 years hence, assuming a 20%-25% increase in university enrollment by 2040.
The question is, how will this place look some 25 years into the future if we make no allowance today to accommodate reasonable growth in the technology employment sector within our own, local Davis sphere of influence?
Bottom line why is there no inherent requirement for a Basecase EIR which would otherwise inform us as to where we might expect to be some 20-25 years in the future – in the absence of any significant, new economic development within the community?
It is one thing to expect a new project proponent to be prepared to address and resolve undesirable new economic and environmental impacts from their proposed project. This is only reasonable.
By the same token, how fair is it to the community or the developer not to provide an equally well justified projection of future conditions in the absence of such project?
At least then, the citizens would have a thoughtful, evidence-based frame of reference from which to contemplate the best path forward for their family, their future and the community.
I say, let the advocates complete their obligation and make their case. Likewise, I encourage City Leadership to insist upon presentation of a Basecase Scenario that would serve as the counterpoint or basecase when the community is asked to weight in with their opinion.
And yet, the developers are pursuing certification of the existing EIR. Doesn’t seem to jive with Matt’s conclusion.
Howard:
How do you reconcile your statement above, with Matt’s very different conclusion?
On a related note, I seem to recall you advocating for a “focused EIR” for Sterling, to save developer money. (Basically, the same point you went on to make above.) And yet, a full EIR was performed.
Matt was incorrect… that’s how I resolve that.
As to the other matter, I did opine that a focussed EIR (transportation) would be adequate for Sterling… and I stand by that opinion. Have no insight, other than given the level of local controversy (perhaps including scenic views of Mt Diablo from Rancho Yolo?)… perhaps staff wanted a really strong kevlar vest in order to be “bullet-proof”. Personally thought was ‘over-kill’, but sometimes it makes sense to be ‘uber’ conservative… I honestly don’t know why that decision was made…
Howard, I’ve been known to have been wrong more than a few times in my life. What have I been wrong on this time?
Well, a lack of confidence is not one of your shortcomings. Perhaps good if you were an attorney for the city or developer specializing in this subject, and understood all of the ramifications regarding EIR certification (e.g., in the absence of a proposal). (However, I understand that attorneys often can’t accurately predict outcomes, either.)
Definitely a straightforward response. Imagine that – two knowledgeable people (and actually, I’m sincere about that) having a significant disagreement regarding the usability (and purpose) of certifying the existing EIR, in the absence of a proposed development project. And, neither one of them can be categorized as an “opponent” of the proposed development.
Ron… I have tried to be very factual, but sometimes I respond badly to twisting of words, cherry-picking points, etc. A character flaw, as it were. Indeed, my bad.
I truly do appreciate your sentiment regarding ‘straight-forward’… I try to be, but am human, so sometimes am not as much as I would like.
I truly have no dog in the fight about any project at the site (it might slightly inconvenience me, but the tradeoff is the potential of better City financial outlook). I care deeply about this community, and have for many years. I also care deeply about the law, and process…
But it does indeed gall me when folk who appear to have a dog in the fight say untrue or misleading ‘partial facts’… yes, I know I should grow out of that, but not there yet.
Can see where I need to disengage, but I hope folk weigh the ‘arguments’, in light of the facts. I do not feel a need to convince anyone as to their opinions. Definitely not on the subject issue.
Good night to all.
Howard:
I appreciate your response.
The one thing that I’d point out is that you are expressing an opinion (at least a “small dog in the fight”?) when you state, “it might slightly inconvenience me, but the tradeoff is the potential of better City financial outlook”. (Of course, you’re making assumptions regarding the proposed development (which presumably doesn’t exist), which ultimately might not be true. Especially if residential development is included in a proposal, since it tends to be a money-loser for cities, over time.
I do appreciate your emphasis on facts, and I try to follow suit.
Good night to you, as well.
Thanks to all who have taken the time to try to educate me on what seems ( to me) to be quite a complicated issue.
It is indeed complicated Tia, and the dialogue has been many layered. For example, we had multiple simultaneous discussions happening at the same time, with Howard P discussing what can happen within a single project that experiences design changes after its EIR is complete, and others discussing what is likely to happen in a two separate projects scenario.
It takes diligent and disciplined reading to avoid jumping to an unsubstantiated conclusion. Some would just call that wRong thinking.
Ha! (Very good – wRong thinking.) Can’t think of a comeback at the moment. But on a more serious level, there appears to be some major discrepancies between your understanding and statements, vs. that of some other commenters (as noted elsewhere on this thread).
As if it really MATTers… sorry, too easy…
[do I hear a sMATTering of groans? Hit my punny bone this morning and am still dealing with that]
Not bad, Howard. Pretty quick, as well.
Not sure “which” proposal Matt is referring to, since the EIR contains several (including one with 850 residential units). I believe that he is referring to the commercial-only option, which is only one of the alternatives listed in the EIR.
This statement appears to be factually incorrect, since developers can apparently submit a proposal that includes up to 850 residential units without necessarily creating a new EIR. Since Matt is a knowledgeable person, I’m wondering why he’s posting information that appears to be incorrect.
Also, Matt has offered no opinion regarding the reason that the developers are pursuing EIR certification. He describes the EIR certification as a procedural “closure” of the process for a proposal that is not going forward (see other postings above), when it’s anything but that. Again, since he’s a knowledgeable person, I’m wondering why he’s making such statements.
Oh, wait. Matt did just provide the following speculation:
I guess it’s unfortunate that Mr. Ramos doesn’t have Matt’s level of “knowledge”. (Yeah, Mr. Ramos is apparently just like all of the misguided/non-vested “others” that Matt refers to, above.) Good thing that Matt’s there for us, to “straighten it all out”.
I think it is pretty well articulated in the article, including Dan Ramos’ letter, presentation to the CC, elaboration in the staff report, and Mr Ramos’ response to the previous VG article.
In addition, a certified EIR, even if it’s not necessarily available to be used “off the shelf” for a future project, will give potential investors a better (less risk) idea of the likely issues and mitigations likely to be required… as opposed to what amounts to a ‘draft’ document with no assurances of the CC view of the adequacy of the document… which, until certified, is subject to flat-out rejection.
The ‘risk factor’ (where the risk can be estimated, instead of completely unknown) is huge, particularly for investors… these are all folk knowing how to do ‘due diligence’ risk assessment, knowing clearly there is risk if changes are made as to some additional iteration regarding CEQA. These folks know that “their mileage might vary”, but am pretty sure a certified EIR will rein in at least a significant portion of the perceived risk.
Matt, this has to be the weirdest, least compelling reason I have heard for certification of the EIR – satisfying the bureaucracy? You write:
Isn’t there an option for simply withdrawing the EIR? Also, I found this:
That suggests to me that the EIR would not remain open forever, but would close if not acted on. Perhaps someone can confirm or disconfirm this.
You are not wrong. But there are procedures in place for what to do if a grade is not submitted. For example, after one year an ‘Incomplete’ automatically becomes an ‘F’. The grades do not remain in limbo. This may be similar to what happens with the EIR, as noted above.
In both cases, Roberta and Matt, the ‘academic analogy’ is weak at best.
Roberta, it has nothing to do with satisfying the bureaucracy. It has everything to do with spending taxpayer funded time and money unnecessarily and for no discernible benefit.
Thank you for sharing the section 3 quote. I had chased down the same section yesterday, but chose not to use it as a citation because it addresses the ways to keep an EIR open, but it does not address the ways to close an EIR. There is no question (in my mind at least) that an EIR can be kept open forever. However, it isn’t kept open at no cost to the jurisdiction (and its taxpayers). Time and effort must be expended in complying with CEQA regulations governing open EIRs and periodically communicating the status of the EIR to the State Clearinghouse.
Despite Howard’s protests that the academic analogy is not a good one, let me engage your answer. In the case of an Incomplete, my understanding is that it isn’t that you don’t submit a grade … you submit a grade of Incomplete, which has certain post-submission rules associated with it. As an professor you are not required to do anything further with respect to that grade unless, and until, the student submits supplemental material in the proper amount and format necessary to convert the grade registered in the University database from one status to another status. However, if you were to choose to not submit any grade for the student, would the University consider your job done, or would they hold you accountable for the unsubmitted final grade?
I understand that the developer reimburses the city for such costs. (Not sure if this is a significant amount from this point forward, regardless.) Is that really your argument?
More importantly, you totally disregarded Roberta’s point that “closure” may not require “certification”. Is there some reason you’re ignoring that point?
Clarification/Correction:
I see that Matt doesn’t actually know if “closure” requires “certification”.
Not sure what Matt means… maybe he can elaborate.
What I mean by ‘closure’ (and I agree with Matt, that is what we should do) is either certify the damn thing, based on adequacy/completeness, etc. [with all the caveats/disclosures re: future proposals], or reject it, articulating good reasons for finding it incomplete, inadequate, whatever.
Equivocation and/or delay is BS at this point. The CC should **** or get off the pot.
Howard, your 11:16 am response to Roberta’s 9:14 am comment is a bit unclear about what you are unsure about what I mean, but based on your second paragraph I’ll take a stab at clarification.
As I made clear in my 9:05 PM comment and my 11:21 pm comment “closure” for me mean:
Think you mis-parsed… my 11:16 was in response to RON’s 10:47 post… not to Roberta’s… just verified the ‘tiering’…
No, I parsed it correctly.
The Vanguard technology prevents me from seeing any of Ron’s comments. I believe that technical limitation happened contemporaneously with Ron’s character attacks on the Mayor. It was also contemporaneous with Don’s deletions of my comments questioning the ethics of Ron’s attacks on the Mayor’s character from behind the shield of anonymity.
In the future let me suggest you include a quotation of Ron’s words whenever you are replying to me regarding one of Ron’s comments.
My error… all that is proposed for Tuesday is to direct staff to take the steps necessary to prepare for certification (or rejection)… see,
http://documents.cityofdavis.org/Media/Default/Documents/PDF/CityCouncil/CouncilMeetings/Agendas/20170221/08-MRIC-Update.pdf
There is no recommendation for taking direct action on the EIR… missed that until a few minutes ago…
That will be an agenda item for a future CC meeting, if they direct staff to proceed to the future action point…
Perhaps the argument comes full circle, back to the lack of a proposed development. (Your quote could conceivably be directed at the developers, as well.)
In any case, thanks for clarifying that the council is apparently being asked to make a decision regarding whether or not to direct staff to proceed with the certification process.
If I had known the second, would have held off opining the first…
I still hope they direct staff to move forward to a decision point, whichever that decision is…