Attorneys Argue that Certification of MRIC EIR Improper

Original MRIC Plan

On Wednesday night, the Planning Commission heard the presentation on the certification of the EIR (Environmental Impact Report) on MRIC (Mace Ranch Innovation Center).  The commissioners took public comment, asked clarifying questions, but took no action.

The application for the Mace Ranch Innovation Center was filed September 25, 2014. The project proposed a mix of industrial, commercial, and retail uses totaling 2.7 million square feet on 212 acres. The Mace Triangle component, which included 71,000 sq. ft. on 16.6 acres, was “subsequently added to prevent the creation of an unincorporated island.”

An EIR was prepared with an equal weight analysis of an alternative that included housing.  On February 23, 2016, “the Council unanimously directed staff to continue to focus processing efforts on the application as originally proposed (with no housing component).”

On April 13, 2016, the applicant notified the city that they were putting the project “on hold to re-evaluate its feasibility.”

At this time, “the project application remains on hold but active. Neither the applicant nor the City has taken steps to withdraw or otherwise close the file.”

In June of that year the applicants briefly pushed forward a modified project that would utilize the southern 102 acres leaving 110 acres in an “urban reserve.”  The council discussed this project but took no action and a few days later the applicants again paused the project indicating that they were “ceasing” their “processing efforts.”

In October, the applicants requested certification of the EIR.  In February, the council “directed staff to move forward with processing the request for consideration of EIR certification only.”

On May 24, attorney Alisha Pember of Adams Broadwell Joseph & Cardozo, in South San Francisco and Sacramento, wrote a letter on behalf of “Davis Residents for Responsible Development,” opposing certification.

The letter maintains that “the City may not certify the FEIR [Final Environmental Impact Report] at this time because there is no underlying ‘project’ that is currently ‘proposed to be approved or carried out’ by the City.”

Additionally, Ms. Pember writes that “the FEIR fails to accurately describe the Project because the Project’s description has been in constant fluctuation since the FEIR was released.”

Furthermore, she said “the City may not certify the FEIR at this premature stage of Project development because it would constitute a ‘definite course of action’ that may improperly limit the City’s subsequent choice of alternatives or mitigation measures if the final version of the Project deviates from the version originally analyzed in the FEIR.”

Finally the letter says “the Staff Report improperly concludes that certification prior to Project approval will bootstrap the Project approvals into a subsequent CEQA review standard which is only intended to apply to projects that have previously been approved by the lead agency.”

In their opinion, “The City must revise and recirculate the EIR prior to certification to analyze the most recent version of the Project that was proposed by the Applicant, and to correct outstanding errors in the FEIR. Davis Residents urges the Planning Commission to recommend that the City Council remand the Project to staff to prepare and recirculate a legally adequate revised DEIR [Draft Environmental Impact Report] for the Project.”

The letter describes Davis Residents for Responsible Development as “an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards and environmental and public service impacts of the Project.

“The association includes Jorge Gomez, the International Brotherhood of Electrical Workers Local 340, Plumbers and Pipefitters Local 447, Sheet Metal Workers Local 104, and their members and their families who live and/or work in the City of Davis and Yolo County.”

According to the letter, “Individual members of Davis Residents and its affiliated organizations live, work, recreate, and raise their families in Yolo County, including the City of Davis. They would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work on the Project itself.

“They will be first in line to be exposed to any health and safety hazards that exist onsite. Davis Residents has an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for its members. Environmentally detrimental projects can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making it less desirable for businesses to locate and people to live there.”

In order to certify an EIR for a project, the lead agency must make a mandatory finding that the EIR has been “completed in compliance with CEQA.”

According to the letter, “The threshold requirement for a lead agency to comply with CEQA is that the agency must be considering a “discretionary project proposed to be carried out or approved by [the agency].

“The Staff Report explains that the Project is currently ‘on hold’ and that the action being considered by the Commission is to certify the FEIR for the Project without considering Project approval,” Ms. Pember writes.

She argues, “Certification of the FEIR would therefore be improper because there is no Project proposed to be approved by the City or carried out by the Applicant at this time.

“CEQA does not authorize the City to certify an EIR for a theoretical project that is not currently pending before the agency,” she adds,  “Certification of FEIR at this time would violate this basic requirement. Therefore, the City may not certify the FEIR until there is a definite Project proposed for approval.”

She further argues, “The FEIR fails to adequately describe either the Project identified in the FEIR or the most recent versions of the Project that the Applicant has asked the City to consider. The City may not certify the FEIR until it corrects these errors in a revised and recirculated DEIR.”

In February, the applicant submitted a letter to council arguing the following:

• The staff, technical consultants, City commissions, applicant team, Council, and community spent considerable time and energy participating in the environmental review process, and certification of the EIR would formally bring that effort to a close.
• Certification does not approve the project nor commit the City to any future course of action related to the project. They are not asking for approval of a project at this time.
• They recognize that any future approval action on a project proposal may require further environmental analysis.
• Certification would officially acknowledge that the detailed EIR prepared for the project is adequate and complete.
• Certification would assist the applicant in attracting potential tenants and investors. They will look more favorably on the project if there is a certified EIR.
• A certified EIR may serve as a tool for economic development because it will signal that the site (though not approved for development) has undergone a substantial part of the analysis process and that the City is serious about keeping and attracting innovation employers.
• The certification process could provide the City with an additional opportunity to discuss how the project might move forward in the future.

The city believes that “Certification of an EIR is required prior to approving a project, but approval of a project is not required following certification. These are two separate and distinct actions.”

Certification means the EIR has been completed in compliance with CEQA, the decision-making 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 distinguished 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. While typically combined as one concurrent set of actions when approving a project, CEQA explicitly allows for certification apart from project action.”

The staff will now set up a follow-up hearing date for a second meeting before the Planning Commission.

—David M. Greenwald reporting

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