On Tuesday, the Davis City Council is currently scheduled to take up the contentious issue of the Trackside Center. The city staff report is expected to come out this evening, in the meantime, the city released comments and responses to the Initial Study.
The following is a letter from Rachel Mansfield-Howlett, Attorney for the Old East Neighborhood Association, written in August:
On behalf of the Old East Davis Neighborhood Association (OEDNA), thank you for the opportunity to comment on the adequacy of the environmental review conducted for the Trackside Center Project. The OEDNA Board of Directors have submitted substantive comments on the inadequacies of the analysis done in the Initial Study (IS), incorporated herein by reference. It is my professional opinion that these comments provide substantial evidence sufficient to show that the IS may not be legally approved as proposed, and further, that the record before the City provides the requisite ‘fair argument’ of environmental impacts such that an EIR is required to be prepared prior to further consideration of the Project. Objections to the environmental review conducted for the Project include the following, inter alia:
1. The City’s Design Guidelines Compliance Table for Mixed Use Building Mass and Scale is incorrect. (July 19, 2017 Staff Report, Attachment 11, pg. 05A 86-87.) Staff did not perform a complete evaluation utilizing all of the criteria, lettered A-D, against the specific features of the Project. Criteria A and C, in particular, should be evaluated consistent with these quantitative measures. Instead, staff opines that building mass and scale are “generally consistent” with the Design Guidelines for mixed use but fails to perform a complete analysis.
2. Mandatory language in the City of Davis’ Municipal Code regarding the applicability of the DDTRN Design Guidelines, as well as mandatory language from the Design Guidelines regarding mixed use mass and scale, was not included in the July 19, 2017 Staff Report. The Davis Municipal Code section 40.13A.020 (b) states: “Wherever the guidelines for the DTRN conflict with the existing zoning standards including planned development, the more restrictive standard shall prevail.” This ordinance is paraphrased in the July 19, 2017 Staff Report (pg. 05A-2) but not quoted in full. Notably, the phrase “… including planned development…”, which applies to the Trackside proposal, is absent from the Staff Report paraphrase. Practically 
speaking, when a Planning decision involves the DDTRN Design Guidelines, the Guidelines prevail if they set the strictest standard. The Guidelines prevail even over a planned development.
The DDTRN Design Guidelines for Mixed Use Building Mass and Scale display a schematic figure with the caption: “A building shall appear to be in scale with traditional single-family houses along the street front.” (DDTRN Design Guidelines, pg.58.) The word “shall” is understood to imply a mandatory standard. This standard certainly applies to the Trackside proposal, a mixed-use project located within the boundaries of the DDTRN overlay district. As I showed in figures 2-5 of my July 13, 2017 written comment to the Planning Commission, the proposed building does not “… appear to be in scale with traditional single-family houses along the street front.”
The City must consider the Project’s inconsistency with area plans in light of this mandatory language so that appropriate mitigation measures and alternatives to the Project’s configuration can be fairly considered prior to adoption of the Project.
3. The Initial Study fails to analyze the impacts of the foreseeable loss of the leased land claimed by the applicant as part of the Project area. The use of leased land is discussed in item 5 of the “Old East Davis Neighborhood Association Concerns” June 14, 2017 document signed by the OEDNA board, and submitted as a written comment to the Planning Commission. The use of leased land is also discussed in item 7 of the written July 10, 2017 comment submitted to the Planning Commission by Steve and Lois Sherman. Based on the terms of the lease, the loss of the leased land is a foreseeable event. It is not reasonable to assume that the status quo for use of the leased land by the Trackside Partners will continue through the life of the proposed building. The impacts of the foreseeable loss of the leased land, include, among other things: increased floor-area ratio, increased lot coverage and increased density, above the maximums allowed for mixed use. (See, Table in item 1 of the July 13, 2017 comment letter submitted to the Planning Commission by Mark Grote); loss of parking spaces, and; loss of open space. These impacts must be analyzed in an EIR. CEQA requires all foreseeable uses of a project, the ‘whole of the action’, be analyzed in the same environmental review document in order to preclude impermissible ‘piecemealing’ of environmental review.
4. The Initial Study (IS) is inadequate and incomplete because it fails to analyze the Project’s inconsistencies with area plans and policies, including applicable City of Davis zoning ordinances, General Plan, Core Area Specific Plan and mandatory provisions of the DDTRN Design Guidelines for mixed use mass and scale which require that a project “… appear to be in scale with traditional single-family houses along the street front.” (DDTRN Design Guidelines, pg.58; see 6/14/17 letter to City from OEDNA Board; 7/13/17 and 8/11/17 letter to City, from Mark Grote, Secretary, OEDNA; 8/11/17 letter to City from Rhonda Reed, President, OEDNA.)
5. The Environmental Checklist contained within an IS requires a project’s conflicts with area plans and policies be discussed. (Appendix G, Environmental Checklist IX Land Use and Planning.) Evidence of a project’s arguable lack of consistency with a plan adopted for environmental protection can trigger the need to prepare an EIR. (The Pocket Protectors v. City of Sacramento (2004) 24 Cal.App.4th 903, 934.) Here, the IS broadly claims that the Project is substantially consistent with area plans but does not discuss, as it must, the areas of inconsistency. The whole point of environmental review is to put the public and decision makers on notice of a project’s potentially significant effects. The IS is inadequate and incomplete for failing to divulge the Project’s inconsistencies with area plans and policies, some of which contain mandatory provisions.5Staff incorrectly asserts that the adequacy of the IS is governed by the ‘substantial evidence’ standard rather than the ‘fair argument standard.’ (Staff Report, 7-19-17 Planning Commission Hearing, pg. 5A-13.) Pursuant to the Public Resources Code, an EIR must be prepared whenever there is substantial evidence that significant effects “may” occur. (Public Resources Code §§ 21082.2(a), 21100, 21151.) “May” means a reasonable possibility. (League for Protection v. City of Oakland (1997) 52 Cal.App.4th 896, 904-05; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 309.) The CEQA Guidelines confirm that preparation of an EIR rather than a Negative Declaration is required if there is substantial evidence in the “whole record” of proceedings that supports a “fair argument” that a project “may” have a significant effect on the environment. (CEQA §15064(f)(1.); No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 111-112.) Neither of the relevant Public Resources Code sections, applicable to the environmental review conducted for the Project, 21155.2 (concerning transit priority project streamlining) or 21159.28 (concerning sustainable communities’ strategies) state that the ‘fair argument’ does not apply; on the contrary, Public Resources Code section 21155.2 subdivision (b)(1) specifically references the ‘fair argument’ standard. “An initial study shall be prepared to identify all significant or potentially significant impacts of the transit priority project, other than those which do not need to be reviewed pursuant to Section 21159.28 based on substantial evidence in light of the whole record.”
In light of this, the City must review the adequacy of the IS under the ‘fair argument’ standard. Courts have repeatedly affirmed that the fair argument standard is a ‘low threshold test.’ Evidence supporting a ‘fair argument’ of any potentially significant environmental impact triggers preparation of an EIR regardless of whether the record contains contrary evidence. (League for Protection v. City of Oakland (1997) 12 Cal.App.4th 896; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 310.) Whether the administrative record contains a ‘fair argument’ sufficient to trigger preparation of an EIR is a question of law, not a question of fact. Under this unique test “deference to the agency’s determination is not appropriate and its decision not to require an EIR can be upheld only when there is no credible evidence to the contrary.” (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1318; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144, 151 (citing Sierra Club and Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597).)
Furthermore, it is important to note that a conflict in expert opinion over the significance of an environmental impact normally requires preparation of an EIR. (Guidelines §15064(g); Sierra Club v. CDF (2007) 150 Cal.App.4th 370.) Here, the expert opinion of architectural historian Patricia Ambacher (12/12/ 16 letter to the Planning Commission) found that the Project may result in indirect impacts to historic resources and the City’s analysis did not conform to the correct standard for evaluating the historical setting of the site. (See also 8/11/17 letter from Rhonda Reed, President, OEDNA, to City, re. cultural resources.)
Opinions based on the expertise of planning commissioners, city councilmembers, and other public officials with expertise in land use planning also qualify as substantial evidence supporting a fair argument of potentially significant impacts that requires preparation of an EIR. (Stanislaus Audubon Society v. County of Stanislaus (1996) 48 Cal.App.4th 182; The Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 934; Architectural Heritage Association v. County of Monterey (2004) 122 Cal.App.4th 1095, 1115; County Sanitation District No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544.) Here, the testimony given by the HRMC confirms the Project is inconsistent with the mass and scale of its surroundings and may have cumulatively significant impacts to cultural resources.
The IS errs in failing to acknowledge that the City has treated the conservation district as the functional equivalent of a historical district. The Project should be evaluated under the same protections afforded a historic district. The purpose of the adoption of a conservation district is the same as for a historic district, to implement historical preservation policies, objectives and mitigation measures that would prevent impacts to the city’s historic resources. (See also 8/11/17 letter from Rhonda Reed, President, OEDNA, to City re. cultural resources.)
City’s response to comment letter 1: Rachel Mansfield-Howlett (08/11/17)
Response 1-1.
The comment is an introductory statement. It addresses the CEQA process and suggests that an EIR is required to be prepared for the project. The SCEA/IS, which was prepared in accordance with CEQA, determined that the all potential environmental impacts of the project would be less than significant or less than significant with mitigation and that preparation of an EIR is not required. As such, in accordance with Public Resources Code section 21155.2(b)(5), a SCEA/IS is appropriate for the project.
Response 1-2.
The commenter states that the evaluation of the project’s compliance with the City’s DDTRN Design Guidelines is incorrect. The comment does not specifically address the adequacy of the SCEA/IS and instead references a table that summarizes project compliance with the DDTRN Design Guidelines from a July 19, 2017 Planning Commission Staff Report on the project. The SCEA/IS adequately addresses and evaluates the project design relative to the Design Guidelines, the City’s design review process, and project aesthetics in Section I (Aesthetics), Section V (Cultural Resources), and Section X (Land Use/Planning).
The evaluation in the SCEA/IS of the project’s consistency with the DDTRN Design Guidelines is correct. The Design Guidelines must be considered as part of a project review, but do not establish mandatory requirements in contrast to Zoning standards which are mandatory. Design Review does not require one hundred percent compliance with the DDTRN Design Guidelines. The SCEA/IS acknowledges that the project will alter the existing visual character of the area, but that it would not substantially degrade the visual quality of the site. Section 3.0, Errata and Clarifications, includes additional discussion that has been added to Section X, Land Use/ Planning on the role of the DDTRN Design Guidelines as guidelines and relationship to zoning. The project includes a rezone to a new Planned Development and requires Design Review approval which ensures a less than significant impact relative to potential conflicts between the zoning standards and design guidelines. See Master Response 2.
Response 1-3.
The commenter states that the DDTRN Design Guidelines contain mandatory language that prevail over Zoning standards and suggests that the project is not consistent with one of the guidelines addressing mass and scale. As discussed in Response 1-2, the DDTRN Design Guidelines do not establish mandatory requirements in contrast to Zoning standards. Davis Municipal Code Section 40.13A.030.d notes that the DDTRN Design Guidelines are intended to “serve as a guide…in regard to development within the downtown and traditional residential neighborhood district boundary.” The project includes a rezone to a new Planned Development and requires Design Review approval which ensures a less than significant impact relative to potential conflicts between the zoning standards and design guidelines. Section I (Aesthetics), Section V (Cultural Resources), and Section X (Land Use/Planning) project address the project design and relationship to the DDTRN Design Guidelines. See Master Response 2.
While the DDTRN Design Guidelines includes several quantitative guidelines with specific limitations that function as a standard, by and large the language of the guidelines indicates preferences and recommendations. The DDTRN Design Guidelines generally envisions buildings at a maximum of 2-3 stories, but a project may exceed the “scale” that is recommended and are not restricted to 2 or 3 stories. The proposed project is a 4-story building. However, the proposed building height, varying elevations, stepping back of the upper floors, and setbacks, is consistent with several other commercial buildings in the core downtown area, and to some degree reflects the historic use patterns of the area along the railroad tracks. The specific standards for building height and size, limited by the floor area ratio, is established as a zoning regulation. The new proposed building would be one story of street-level commercial uses, three stories (top story is massed toward the west and south) of rental residences and parking, tucked under the north end of the building, continuing out to the western edge of the site.
Response 1-4.
The commenter argues that the project inconsistency with area plans must be considered. Project consistency with land use plans is addressed in SCEA/IS Section X (Land Use/Planning) which determined the potential conflicts to be less than significant. The project implements the intent of the City’s General Plan and Core Area Specific Plan (CASP) and the SCEA/IS identifies project consistency with land use policies, including policies to encourage housing, economic development, and a mix of uses in the Core Area to maintain it as the City primary center, to support infill development, to encourage high-intensity residential and commercial development near activity centers, promote urban/community design, provide an architectural “fit”, and encourage a variety of housing. The policies describe desired outcomes, but do not require compliance with every single policy. See Master Response 2.
Response 1-5.
The commenter states that the Initial Study fails to analyze the impacts of the potential loss of the leased land area which is included as part of project area and improvements. The Planned Development (PD) Zoning and proposed development standards address the potential loss of the leased area to ensure that the project would be comply with the PD zoning in the event the leased area is no longer available. The SCEA/IS discusses the leased area and Section 3.0, Errata and Clarifications, and includes additional clarifications.
Response 1-6.
The commenter states that the Initial Study fails to analyze the project’s inconsistencies with area plans and policies. SCEA/IS Section X (Land Use/Planning) addresses the potential impact of project conflicts with land use plans and policies. As stated in Response 1-4, the SCEA/IS identifies the project’s consistency with applicable land use policies. The policies describe desired outcomes, but do not require compliance with every single policy for general conformance with the plans. Project entitlements related to the Zoning and Core Area Specific Plan Amendment ensure consistency with the project’s density and zoning standards. The SCEA/IS determined that the project’s impacts relative to land use plans and policies would be less than significant. See Master Response 2.
Courts will defer to an agency’s decision on consistency with its own plan unless, on the basis of evidence before the decision-making body, a “reasonable person” could not have found the project to be consistent. (See Clover Valley Found. v City of Rocklin (2011) 197 Cal.App.4th 200, 239 (consistency of development project with general plan); No Oil, Inc. v City of Los Angeles (1987) 196 Cal.App.3d 223 (consistency of zoning ordinance with general plan); Mitchell v County of Orange (1985) 165 CA3d 1185 (consistency of specific plan with general plan). Inconsistency with a particular provision of a plan does not necessarily require a determination that the project will have a significant environmental impact. Nothing in the CEQA Guidelines requires that an inconsistency with an applicable plan be treated as a significant environmental impact. (Joshua Tree Downtown Bus. Alliance v County of San Bernardino (2016) 1 Cal.App.5th 677, 695.)Agencies have particularly broad discretion in determining a project’s consistency with general plan policies. (See, e.g., Naraghi Lakes Neighborhood Preservation Ass’n v City of Modesto (2016) 1 Cal.App.5th 9, 21;Friends of Lagoon Valley v City of Vacaville (2007) 154 Cal.App.4th 807, 816; Sequoyah Hills Homeowners Ass’n v City of Oakland (1993) 23 Cal.App.4th 704, 719.)
Response 1-7.
The commenter addresses a CEQA process issue related to the ‘fair argument’ standard. Public Resources Code section 21155.2(b) specifically states that a lead agency’s decision to review and approve a transit priority project with a SCEA is reviewed under the substantial evidence standard. (Pub. Resources Code § 21155.2(b)(7).) “Substantial evidence” means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency.” (State CEQA Guidelines, § 15384.) See also Master Response 1.
Response 1-8.
The commenter cites a CEQA determination issue related to expert opinion on cultural resources impacts and cites opinions on the project provided by Patricia Ambacher, an architectural historian, and testimony by the Historic Resources Management Commission.
Analysis and discussion of impacts to historical resources in Section V (Cultural Resources) of the SCEA/IS included a peer review of the relevant documents by Ben Ritchie, MCRP, Principal of De Novo Planning Group, and by Melinda Peak, President of Peak and Associates. Ms. Peak is a registered professional historian with a Bachelor’s degree in Anthropology from the University of California, Berkeley and a Master’s degree history at California State University, Sacramento. Through her education and experience, Ms. Peak meets the Secretary of Interior Standards for historian, architectural historian, prehistoric archeologist and historic archeologist. The peer review included the peer review conducted by Ms. Ambacher whose comments were taken into account and addressed in Section V.
As part of the City’s review process, the project was reviewed by the City’s Historical Resources Management Commission (HRMC) on December 12, 2016 for advisory input. As described in the meeting minutes, the HRMC took the following actions:
1. Voted unanimously to affirm the Commission’s previous determination that:
a. The existing structures do not meet the criteria for listing in the National Register of Historic Places, California Register of Historical Resources, or City landmark or merit resource requirements based on the Historical Resources Analysis and that they do not warrant full review under CEQA as historical resources; and
b. That a Demolition Certificate is not required given the findings of the HRMC that the buildings at 901 – 919 Third Street do not have significant historical significance to be eligible for designation at local, state and federal levels.
2. Voted unanimously against a motion to find that the revised project is consistent with the applicable guidelines from the Davis Downtown Traditional and Residential Neighborhood (DDTRN) Design Guidelines.
3. Voted unanimously against a motion to find that the Historical Resources Effects (HRE) Analysis report and the Addendum to the HRE, which conclude that the potential historical impacts of the revised Trackside Center project would be less than significant relative to CEQA including less than significant adverse impacts to the setting of the nearby historical resources, is acceptable.
The HRMC input on the HRE were taken into account in the peer review described above and analyzed in the SCEA/IS. Pursuant to Municipal Code Section 40.23.050, the role and duty of the HRMC for this type of project for new construction within the conservation overlay district is to provide advisory review to the decision-making body. The HRMC reviewed the project at a meeting on December 12, 2016 and provided the above input which has been forwarded to the Planning Commission and City Council for consideration in their review of the project.
Potential historical impacts to setting are addressed in Section V (Cultural Resources). The SCEA/IS notes that the project results in a visual change to the area as described in Section I (Aesthetics) and Section V (Cultural Resources), but would not result in a direct or indirect significant impact to the historical setting of the nearby historical resources such that they would be materially impaired and no longer qualify as a historical property. A lead agency is not bound by an expert’s opinion on the policy question of what constitutes significance for a given impact. See Citizen Action to Serve All Students v Thornley (1990) 222 Cal.App.3d 748, 755 (agency could disregard expert opinion because it addressed ultimate issue of whether specified increase in traffic should be treated as “significant” and disagreed merely with city’s standard of significance). See also Master Response 3
Response 1-9.
The commenter states that the Initial Study fails to acknowledge that the City has treated the conservation district as the functional equivalent of a historical district and should be afforded the same protections. Project impacts related to historical resources, including historical districts, is addressed in the SCEA/IS. As discussed in Section V (Cultural Resources), the neighborhood is not part of a designated Historic District. It is a Conservation District which is designed to conserve the neighborhood’s traditional character. It does not require adherence by all properties within the district to the Secretary of the Interior’s Standards for the Treatment of Historic Properties, but allows for flexibility in redevelopment standards for compatible new construction. See Master Response 3.
If it is determined that the SCEA/IS is deemed to be insufficient, then only a focused EIR would be appropriate, and limited to subject areas challenged. A ‘full blown’ EIR, like those required for MRIP, Nishi, Cannery, etc.,reminds me of trying to take care of a fly with a howitzer.
A full-blown EIR requirement would appear to be blackmail or extortion. Or outright “kill at any cost”.
By the logic used by the lawyer, even if the project was revised to two or three stories, the same requirements (if a full EIR) should apply… based on the lawyer’s argument, someone could force the issue even if the neighbors “negotiated” a deal. The die is cast. Adamant sides have been taken. There can be no legitimate compromise, if the attorney’s assertions are accepted.
A focused EIR (or supplement/amendment to the SCEA/IS) is not terribly onerous (although I believe it is unnecessary). A full EIR is BS.
And such a person would not be anyone in the Old East Davis Neighborhood. If such a person wanted to do that, they could do that today.
Of course there can. Attorneys are there to do the best job they can for their clients. That she is doing.
Yes, but it is now part of the public record. Every point made may well now apply to any negotiated project. The points must be answered, at this point (pun unintended), for ANY project on the site. The die is cast.
BTW, am not especially enamoured on the project. If nothing happens/changes, I’m good with that… as far as I’m concerned, it can remain exactly as it is for the next 50 years (odds are, I truly won’t care by then!) … the ‘process’ and rhetoric sucks.
And Alan… I still assert and truly believe that the zoning (or any properly adopted amendments thereto) should lead, and the design guidelines are important, and should not be ignored… but the guidelines are not ordinance. Zoning is.
I still think folk are not making the right arguments (most are valid) in the right venue (CEQA). The danger is that if they are wrapped up in CEQA, the arguments may well fail, in a Court of law, with no recourse. If wrapped in CEQA, and that fails, trying to reassert valid concerns may well be “tainted”, and not given the credibility they deserve. The die is cast. Folk have made choices.
Will be interesting to watch how this plays out.