The city was definitely caught off guard by this week’s tentative ruling on Trackside. And while perhaps the city can gain some solace in the fact that it was a tentative ruling and that Judge Sam McAdam has scheduled further argument for April 5 prior to issuing a final ruling – really, unless the city can show factual legal error at that time, there is not much chance that the judge will change his mind.
In all likelihood the case gets appealed and I think, without getting too far into the weeds, there could be real strain on the ability of the investors in Trackside to stay in this. But that is sheer speculation.
From a political standpoint, this surprise ruling further illustrates concerns I had about the project from the start. I opposed the project for reasons that differed from some of the neighbors.
It didn’t make a lot of sense to lead with this project as opposed to updating the Core Area Specific Plan (CASP). One of the reasons for this had to do with the height requirements – and here I differ with some of the neighbors.
To me at least, we should be looking at a downtown of five to six stories. Neighborhoods in general are going to be one to two stories. That being the case, even if you believe that Trackside operates within a transition rather than the core itself, a three- to four-story building is reasonable.
The first problem here is that the city could have and probably should have waited to update CASP prior to proceeding here. While I believe the judge’s decision was a clear reach – it was avoidable if 
the city had followed better process.
At the same time, a lot of these problems were further avoidable with better planning by the applicant. Leading with a six-story building was an absolutely bad decision on their part. It completely poisoned the waters between the neighbors and the city.
Contrary to the belief of some, the planners I spoke to think it’s highly unlikely that their original intent was to plan large and modify – the costs involved for a group without deep pockets to begin would mitigate against the possibility. Having to go back to the drawing board was a costly and time-consuming decision that likely strained their resources further (it also probably made them reluctant to go back a third time and reach a real compromise).
Aside from the poor process, my biggest objection was that, while it is clear we need a range of housing, it is difficult for me to fathom that luxury urban-style apartments rank that high on the needs scale. Furthermore, we were essentially going to war against a neighborhood over a relatively modest upside of 27 units.
It seemed like a lot of effort on the part of the city without much to show for it.
With all that being said, the city can and does have a wide range of discretion to approve projects.
The judge himself seems to acknowledge this, citing the 2009 California Native Plant Society v. City of Rancho Cordova case that set the standard for review in determining whether the city has complied with the General Plan.
But the standard of review here is a high bar – “abuse of discretion.” Judge McAdam writes, “The trial court must determine whether the City’s decision to approve the Project was arbitrary, capricious and lacking in evidentiary support, unlawful or procedurally unfair.”
He then notes: “Under this standard, the Court must defer to the factual findings on consistency of the City unless no reasonable person could have reached the same conclusion on the evidence before it.”
This reasonable person standard is a necessarily high bar because you want your local governing bodies to be able to have some discretion over the projects they approve.
Judge McAdam also seems to recognize this point when he acknowledges that the design guidelines, which are “not unequivocal,” have flexibility, and “even some (room) for interpretation.”
If you recall, the entire public debate over Trackside revolved around a very basic discussion over the Design Guidelines and whether they were hard and fast and Trackside was in violation of them (the position of many of the neighbors), or whether they were simply, as the name implies, “guidelines” that were flexible and the city could go outside of them.
As Judge McAdam put it: “The parties dispute whether these guidelines are incorporated into the zoning law or not.” From the city perspective, “The City asserted that the Project was consistent with the guidelines and that it substantially complied with and relied on them.”
The question seems to come down to how large is too large – and in taking the position he does, Judge McAdam seems to imply that the city was unreasonable in going to four stories here.
My problem is that this view is largely based on his opinion rather than some objective rule of law.
Judge McAdam proceeds to compare Trackside to two other four-story buildings and argues it “is double the size of the Chen Building and likely at least 30 percent larger than the McCormick Building.”
Here he has gone beyond just a height comparison and argued, “From the record, other than two relatively large parking garages in the Core Area, it would appear that Trackside would be the largest mixed-use or commercial building in downtown Davis by a longshot.”
In comparing to other buildings along the Third Street Corridor, he concludes, “there is no like building on the Corridor or anywhere near the proposed Trackside project.”
He adds, “Trackside would be over 4 times larger than the current commercial buildings.”
In short, it appears that his view is that the city abused their discretion because Trackside would be the largest building in the core area – not the tallest, but the mass itself being the largest.
But is that really an abuse of discretion on the part of the city? Remember, the standard is that of a reasonable person – which, given the number of people who weighed in and supported this project, means there are a lot of people whose views are implicitly unreasonable during this entire discussion.
From my standpoint, whether I agree or disagree with this project it seems that the locally elected body is in the best position to judge reasonableness here – particularly given their extensive local process, review and consideration – rather than a judge who probably has little to no background in land use.
Is Judge McAdam really setting the standard that the Chen and McCormick buildings are the upper threshold on size, and any building that is larger is unreasonable and abuses the council’s local authority on permitting?
For those who argue that we need to update the General Plan and CASP, I’m in full agreement, but this rule itself is subjective and arbitrary enough to be concerning on its face.
—David M. Greenwald reporting
“…it seems that the locally elected body is the in the best position to judge reasonableness here …”
You are funny David! If that is the case why have legal review of anything the city does?
Because the system allows for checks and balances, that doesn’t mean that local land use authority doesn’t get wide latitude
I will point out that the judge essentially made the same point: “Under this standard, the Court must defer to the factual findings on consistency of the City unless no reasonable person could have reached the same conclusion on the evidence before it.”
My difference with the judge comes down to whether the reasonability line was crossed. And my concern is that it comes down to a matter of subjective opinion rather than objective rule of law. But I suppose reasonable people might disagree there.
“The first problem here is that the city could have and probably should have waited to update CASP prior to proceeding here. While I believe the judge’s decision was a clear reach – it was avoidable if the city had followed better process.”
I’m a very strong advocate for densification of Davis’ Core Area, but I really do not believe the judge’s decision was a reach at all, given the approach he used (a well tested and regularly used approach in the real estate and finance industries) … the use of comparables. He did not just look at how the proposed building compared to its Old East Davis neighbors, but also compared it to its neighbors to the west. Davis Ace Hardware’s building is two stories. The Fit House building is one story. The brand new Temple Coffee building was rebuilt at only two stories. The Taste of Thai restaurant building is one story. The Davis Enterprise building is one story (but with high ceilings that are the height of two stories). Under a “comparables” criteria, any reach by the judge was for evolution rather than revolution.
With that said, your point about doing the CASP first is a good one. The “aspiration” of the CASP for that portion (west of the RR tracks and north and south of 3rd Street) of Downtown presented as Option Two by staff and the consultants at the February 21st DPAC meeting is for “Main Street Large,” which is up to 5 stories, at least 60′ at the eave and 70′ at any roof peak. Right now the zoning for those parcels has no limit of stories and a height limit of thirty-five feet, which means all the “comparables” are well below the current zoning limits.
However, zoning currently isn’t the only constraint Davis uses, and the judge noted that. The Davis Downtown and Traditional Residential Neighborhoods Design Guidelines impose additional restrictions that often conflict with the specific provisions of the zoning code.
Completing the CASP update, and having it approved, would also eliminate the conflicts and essentially change the vector of planning from backward-looking to forward-looking. Until that happens, my personal belief is that there was no “reach” in the judge’s decision.
I resemble that remark.
“In short, it appears that his view is that the city abused their discretion because Trackside would be the largest building in the core area – not the tallest, but the mass itself being the largest. But is that really an abuse of discretion on the part of the city?”
If the project were actually in the Commercial Retail core, then David’s point would have merit … but the judge’s point is that the project isn’t in the Commercial Retail core, but rather it is in a Mixed Use transition area between the core and the OED residential neighborhood.
Matt: very good point about project location. And to expand on that, it seems to me that if Greenwald were actually interested in answering the question that the headline of his article proposes, he would discuss the details about the Design Guidlines/GP/zoning, instead of his pet theory of judicial overreach.
This isn’t a scholarly publication. Newspapers weigh in on all sorts of landuse decisions without a background in planning. Citizens weigh in on all sorts of landuse decisions without a background in planning. Rik is being unreasonable in his attacks.
As I recall, the original pitch to potential investors was for a 3-story building.
Reminder… judge has neither erred yet nor judged rightly yet… no matter how anyone else might ‘judge’ the arguments…
He could yet affirm all actions to date, reject most/all actions to date (appeal or do-over for applicant), or land somewhere in the middle… ‘splitting the baby’, as it were.
Many options still in play… stay tuned… I’d not be surprised, if on April 5, there is further deferment of a ‘final decision’… in fact, I’d give better than even odds on the latter…
What it appears we have is a “notice of intent of what I’m inclined to do”… We’ll see… should be interesting in any event, and will likely provide plenty of fodder for future updates/articles on the VG… and Emptyprize, and elsewhere…
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