There are a lot of questions that the planning commission has to grapple with when the Mace Ranch Innovation Center (MRIC) EIR certification comes back for consideration, but by far the biggest one is going to be whether there is a project to certify.
Critics have argued that you cannot certify an EIR in the absence of the project. From the city’s perspective, they are apparently not disputing that. Instead, Community Development Direct Mike Webb reiterated to the Vanguard, “Our position is that there is a current proposal that is on pause.”
As staff writes, “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.”
Staff further points out that, while in June of 2016 the applicants submitted a letter to the city indicating that they were “ceasing” their “processing efforts,” the letter also left open the possibility that the applicant team would “entertain a request” to recommence the project in the future if asked to do so by the City, and identified additional conditions on moving forward.
That was followed four months later with a request to seek certification of the EIR.
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 that “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 that “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.”
The attorneys later add, “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 [Draft Environmental Impact Report].”
It seems unlikely that this legal challenge would go forward because, with the project on pause, the litigants don’t have the normal leverage they might have in terms of timeline.
While the attorneys argue that members of the association “and their families who live and/or work in the City of Davis and Yolo County” are the litigants, the question of standing certainly would need to be raised here.
The attorneys argue that there is no underlying project here – but the city has a strong case that there is, it is simply on pause.
For those who believe that there is clearly no project at this time, consider two possibilities. First, that MRIC could, in retrospect back in April, simply have allowed the certification process to go forward and then announced a pause on the project. Would there have been a fundamental difference?
Second, what would preclude the developer from announcing that they are requesting the city to recommence the original project?
Would either of these actions essentially change the fundamental facts about the project? And yet, in essence, the lawyers are arguing that those factors are legally binding over whether the EIR can proceed. That seems dicey at best, given it would not take much for the applicants to simply unpause the project and ask the city to proceed, only to pause it again after certification occurs.
Or to put this another way – is the act of pausing the project a legal status or simply a courtesy extended to the city?
That makes the status of the project much too fluid for status alone to determine whether an EIR can legally proceed.
Perhaps the stronger point that the attorneys have is their second point, saying “the FEIR fails to accurately describe the Project because the Project’s description has been in constant fluctuation since the FEIR was released.”
This too seems to be a difficult legal sell. The applicants introduced a project that was commercial-only. They then added an equal weight mixed-use alternative. In February 2016, the applicants asked the city to only evaluate the mixed-use alternative, but the council rejected that proposal which once again made the commercial-only alternative the one under consideration.
In June of last year, the applicants came back with a reduced-size proposal – again council suggested they could evaluate it, but before they could weigh in on it, the applicants pulled the project and put it on pause.
Again, that meant that the reduced-size proposal was never a formal part of the application.
The attorneys here are arguing that these proposals mean that the project is in constant fluctuation, but that is clearly untrue. There has never been a new formal application or official change to the project. The applicant has simply thrown out possible alternatives that it has pulled back on, for a variety of reasons.
Only a formal change to the project would trigger the need for re-circulation of the EIR.
In short, we believe that the case put forward by the attorneys is largely without merit. The planning commission and the city council, therefore, ought to consider the EIR on its merits and whether the EIR has been completed in compliance with CEQA.
—David M. Greenwald reporting
Yes. If they’d done it back then, the Planning Commission would have been simultaneously been approving the project and certifying the FEIR. A number of commissioners expressed confusion over what it meant to do the one without the other. Did it mean, for example, that certifying the EIR would prejudice the City to approve the project later? A number of people have said that it would not prejudice the City. But some commissioners seemed uncertain on this point, and wanted clarification, especially legal clarification.
Another practical difference is that if they had gone through with the process last April, they would have had input from the other commissions on the project. But since the other commissions don’t weigh in specifically on the FEIR (by staff instruction), only on the project, the Planning Commission is forced to act without any input from the other commissions. To give an example of the sort of input that might be given (but isn’t): a commission could have asked questions on the DEIR and gotten responses; it could then let the Planning Commission know whether it thought those responses were adequate.
It also became clear in the discussion that certifying the EIR now would not bring “closure,” because legal challenges to the certification could come at any time, and because in all likelihood when a project would be brought forward they’d have to ask whether more analysis was needed and possibily perform that analysis.
I disagree with this. The FEIR dismisses the two “reduced” alternatives because they don’t, supposedly, meet the stated objectives of the project. But then the applicant proposed a “reduced” alternative. This suggests that the reduced projects would have, in fact, met the actual objectives. But what are those objectives? If a reduced alternative could actually have met them, then they are either completely vague or they are incorrectly stated in the FEIR. Either way, it’s a problem with the FEIR analysis. Furthermore, if those reduced alternatives could have met the objectives, they should have been given equal weight analyses – but they weren’t. Again, this is a problem with the FEIR.
David Greenwald said . . . As staff writes, “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.”
When this issue first surfaced I argued that closing the EIR (whether in “complete and adequate” or “complete and inadequate” or “incomplete” status) was the fiscally prudent, and procedurally prudent thing to do. Part of the reason I felt that way was that I assumed the original MRIC project as “dead” with any future for the site coming from a new group of investors and a new project. The statement above and the actions of last week tell me that assumption was not correct.
Given the status of the project, it would seem that the following statement would be the best description for the status of the EIR, “At this time, this EIR remains on hold but active. Neither the applicant nor the City has taken steps to withdraw or otherwise close the EIR file.”
If the applicant and the City really want to close the EIR then perhaps the best middle ground (and the most fiscally prudent course of action for the City) would be to close the EIR with a certification status of “incomplete.” Taking that step would avoid protracted and expensive legal costs.
Or, perhaps they recognize (as was discussed at the meeting) that there really is no “closing” of the EIR without a project, and so, they vote to recommend that the decision on the EIR be deferred until the applicant brings a project forward. That seems to me like the easiest and least potentially problematic “middle ground.”
There is no “middle ground” in CEQA.
The last phrase does not exist as an option under CEQA… that would be like a new medical definition of “sorta’ pregnant”… to attempt to ‘create’ such a category would be pretty much guaranteed to generate litigation, likely from both sides of the equation. The City would lose in any event, in my opinion.
It can be certified, or be deemed inadequate. It is indeed time for the City to make a choice as to the EIR. It is beyond time that the PC acts to recommend one of those two options to the CC… the PC could pass the EIR to CC with a ‘split recommendation’, but then action, “on” or “off”, is called for.
Can no longer see Matt’s post, to which I responded, so mine will seem like it is now “out of context”, and probably should be removed. Thanks…
Howard, in my personal opinion “incomplete” and “inadequate” are pretty much synonymous. If it isn’t complete, it can’t be adequate.
Roberta, as best as I can tell, it is the “they” in this theatrical performance is the applicant, who is the driving force behind the impetus to certify. As I read it, your reply is looking at “they” as being the City. Do you think the City would even be considering EIR certification at all if the applicant had not made the request?
The City is stuck in the middle . . . with several of their available courses of action involving potentially costly legal disputes. Your point is that the “open” project is incomplete as it currently stands. If the applicant insists that the EIR be closed, then choosing a status that matches the realities of the project application appears warranted. That means a choice of incomplete (if Howard is correct, inadequate may be the more accurate CEQA term) probably is the best match.
OK… Matt’s concept has a fatal flaw, but at least folks against the project will “have clean hands”… if you think that’s “middle of the road, fine, but it isn’t. State law provides that an agency must act within one year from the inception of an EIR, unless applicant requests/agrees to a waiver of time.
Absent such an on-going request, the EIR dies. So, by doing nothing, City forces the applicant to either keep requesting/agreeing to waivers of statutory time. Nice tactic… opponents can say “not our fault!”
If you want to kill it, kill it, but at least have the honesty and integrity to do it yourselves.
Another thought, Matt… failure of the PC to act, doesn’t mean a thing, if applicant ‘appeals’ their “non-action” to the appropriate body to act… that would be the CC… that’s what I’d do, if I was the applicant. After all, the CC is the only body that can determine, for the record, adequacy (certification) or inadequacy… that would give the PC a ‘safe (albeit cowardly) place to land’…
Tis’ oft said, doing nothing is often an ‘action’ in and of itself.
Ok, I’ll be more precise with my pronouns. The applicant has requested that the City Council proceed with the certification process. The City Council agreed, and sent it to the Planning Commission for review. One option open to the Planning Commission is for them to push back and say, no, we don’t think that the certification process should proceed now. That would be a middle ground between voting to recommend rejection or certification. The reasoning could be that certification does not bring closure, because legal challenges could (and apparently would) be brought at any time, and also, it is likely that there will be changes to the project that will require some amount of re-review (and possibly more challenges). It would still, however, leave open future possibilities. The City Council could then agree with that advice or disagree.
To be clear, this is not my own view. My own view is that there are inadequacies with the FEIR, some of which I describe above and some of which I gave in public comment, and that it should be denied based on those and other inadequacies. I engage in the above thought experiment only for those who are seeking a middle ground.
The applicant could also, I believe, withdraw the EIR. I don’t know that they have the grounds to “insist” on certification proceeeding.
Roberta, let me acknowledge that I’m learning as we go forward on this, and also acknowledge that Howard has forgotten more about the various CEQA processes than I know. So, as is my wont to do, I’m doing primary source homework, the results of which I will share here. It is interesting fuel for dialogue.
The legal provisions of CEQA are governed by California Public Resources Code – Division 13. Environmental Quality [Sections 21000 – 21189.57], which was added to California Law in 1970, and the timeline requirements are covered by Chapter 4. Local Agencies [Sections 21150 – 21154]
Section 21151.5 (a) reads as follows:
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If I read that statutory language correctly, the Planning Commission does not have the legal authority to push back and say, no, we don’t think that the certification process should proceed now.
It would appear that once the City accepted the project application as complete (which they did many months ago), the 12 month clock specified in Section 21151.5 (a) (1) started. Further the provisions ofSection 21151.5 (a) (4) are very clear in stating that any legitimate extensions of the 12-month time period (due to compelling circumstances) are subject to the project applicant’s consent.
What Section 21151.5 (a) (4)says to me is that the MRIC team probably never had the legal right to ask the City to proceed with Certification. Their legal right was actually only to have been to give or withhold their consent to any City decision to continue extending the 12-month time limit due to compelling circumstances.
Thoughts?
Could be, Matt. I really don’t know. What strikes me more is that the phrase “For projects described in subdivision (c) of Section 21065” seems to suggest that there needs to be a project proposal on the table — which there is not, at this current time. So, the whole section may be irrelvant. But again, I don’t claim to have the expertise to say for sure.
Roberta, I followed up on your question about Section 21065, the language of which I have quoted below. The words “an activity which may cause” would seem to apply regardless of whether the application status is active or not active. Once the application was accepted by the City as “complete” the one year clock started ticking.
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It seems to me that the issue at hand is whether the actions that took place subsequent to the submission and acceptance of the MRIC project application transformed that application from complete to incomplete.