More Weird Red Herrings on Nishi from the No Side

The Vanguard has received these public records regarding Colin Walsh asking the city questions on Nishi.  Give him some credit here – at least this time he asked the questions before putting his weird conjectures out into the public.  Ethan Walsh from the City Attorney’s office has largely dispelled these rumors.

The bottom line is that the Baseline Project Features require a vote to change – there is no way for the developers to get around that even if Measure R itself expires.

On Wednesday, Colin  Walsh writes:

I was talking with someone from the Nishi development team on Saturday and they told me 2 surprising things that I would like to get cleared up.

1) They claimed if Measure J passes but the University or the Railroad fail to allow the Old Davis Road connection they would have some sort of legal recourse with either the City or State to acquire access to the property without a new general election vote on the project. What is the possible recourse they would have?

2) The Development team member claimed that if J passes, but the renewal of measure J/R the Citizen’s right to vote fails in 2 years, they can change the baseline features on a City Council vote without a general election. What happens to the baseline features if there is no renewal of Measure J/R?

(Please note: The development team told the Vanguard that “no one from the development team had this conversation with Colin [Walsh].”)

Ethan Walsh from the City Attorney’s Office responded:

1. It is hard to know exactly what the Nishi representative was referring to, since we are getting this question second hand, but I don’t think they would have any recourse that would allow them to force access to Olive Drive if the Old Davis Road connection was not permitted by UCD or the Railroad (in a subsequent email, you told Mike that the Nishi rep said they would be able to force access through Olive Drive).

Since this project is subject to a Measure R vote, it is governed by Article 41.01 of the Municipal Code, which codifies Measure J/R. The section of that article specific to the Nishi property provides that an application for development of Nishi shall require “establishment of baseline project features and requirements such as recreation facilities, public facilities, significant project design features . . . submitted for voter approval, which cannot be eliminated reduced or significantly modified without subsequent voter approval. (DMC Sec. 41.01.020(b)(2)(A).)

The baseline features for the Nishi project, which the applicant agreed to and are consistent with their application for development, expressly state that “the backbone access of the Nishi circulation system will connect with Old Davis Road and the UC campus via a new grade-separated crossing of the UPRR line, subject to approval by the Regents of the University of California. There will be no vehicular traffic access allowed to West Olive Drive except for emergency vehicles, and public transit.”

It is clear in the baseline features that access through West Olive was not allowed under the approvals. Allowing for access through Olive would be a significant change to the baseline features that would require voter approval under the terms of Measure R.

2. Even if Measure J/R expires in 2020, the baseline features for the Nishi property (if they are approved) remain in place, and cannot be changed without a subsequent vote. The Baseline Features included in Resolution 18-023, which approves Nishi and is the subject of the current vote, expressly state that “the Baseline Features may not be changed without approval by the voters of the City.” State law generally provides that a voter approved initiative cannot be overturned by an action of the Council. (See, e.g., Elections Code sec. 9217; MHC Financing Ltd. Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1381.)

Even if Measure J/R expired, the Council could not approve changes to the Nishi baseline features, without running afoul of the voter’s approval in the current Measure J/R vote (if it passes). This is consistent with the Council’s past interpretation of Measure J/R. In 2006 the Council passed a clarifying resolution regarding the implementation of Measure J, and in that resolution stated that “[i]f Measure J is not renewed, then the voter approval requirements for any project approved under Measure J shall not expire.” (Resolution No. 06-40, enclosed.)

The voters are considering the current Nishi ballot measure with the express understanding that the baseline features will not be changed without future voter approval. There is no sunset on this provision, notwithstanding the sunset on Measure J/R generally. So, it is my opinion that if the project is approved by the voters in its current form, the baseline features cannot be changed without subsequent voter approval.

In a follow up on Friday, Colin Walsh asks:

I would like to ask one clarifying question in regards to possible connections to the City. I see how the ordinance contains the language specific to Olive Drive, what about the possibility of widening the connection under I-80 and allowing cars through there. I (note) that is not expressly forbidden. Is that something the Council will be able to vote to approve in the future?

Ethan Walsh responds:

The baseline features state both that the backbone access point for circulation will be Old Davis Road, and that access from West Olive is expressly prohibited, except for emergency vehicles and public transit. If the developer were going to not provide access through Old Davis Road, and instead wanted to provide primary vehicular access via the bicycle connection under I-80, I think that would be inconsistent with the baseline features and would require a new vote of the public. That approach would also face numerous other hurdles in addition to a new vote. Access under I-80 was not considered as an alternative as part of the CEQA analysis for the site and would have to be analyzed through a new CEQA process. Additionally acquisition of additional property and likely further discussions with Solano County would be necessary before that approach could move forward. Aside from that, I don’t want to speculate on different scenarios for vehicular access to the site. The City would have to evaluate future changes to the project on a case-by-case basis to determine whether they are consistent with the baseline features. We can’t really do that evaluation on a speculative basis, since the baseline features (if approved) will apply into the indeterminate future, and we can’t say at this point what those future adjustments could look like.

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