Judge Returns Quickly with Final Ruling in Favor of City on Nishi

Judge Peter Williams ended last week’s hearing saying that he was leaning toward sticking with his tentative ruling and that he would have a ruling within two weeks – turns out he didn’t need that long, as the hearing took place last Tuesday and the ruling was finalized the following Monday.

The judge made one adjustment to his ruling, based on the oral arguments.

In his arguments before Judge Williams, Plaintiffs’ Attorney Patrick Soluri argued that the affordable housing project violated fair housing principles by discriminating against families.

The judge had ruled that they needed to be able to show disparate impact, but Mr. Soluri disagreed and said this wasn’t a disparate impact standard – he said they made a facial challenge showing that this creates actual discrimination against families, therefore disparate impact is irrelevant.

The issue he found is that they rent by the bed and require the tenants to show that they are full time students.  Thus a family would not be able to move in with a child and rent an affordable unit by the bed.

Judge Williams ruled that the plaintiffs had standing to bring this writ, based “on the public interest exemption.”

However, he maintained that “petitioner has failed to establish that the project unlawful discriminates based on familial status.”

Here, the judge added, “To the extent petitioner is proceeding with a facial challenge, that challenge fails because the affordable housing plan only designates a minimum number of affordable beds that must be set aside for eligible students.”

On the other hand, he wrote, “To the extent that petitioner challenges the affordable housing plan on a disparate impact theory, petitioner has failed to meet its burden.”

The rest of the ruling remains the same.  That means the judge did not buy Mr. Soluri’s argument that the EIR failed to account for changed circumstances by failing to update the EIR to account for the 5000 to 6000 additional vehicle trips each day.

Sabrina Teller countered last week that the project was anticipated back in 2014 when the Housing Element was put into place and noted that a large amount of growth was already baked into that EIR.

She said, if anything, the current project has a reduced impact over the original EIR.  She noted that this project has reduced parking and even more bike parking than the previous project.

The standard here is to look at the addendum, not the already approved EIR.  This project will generate about 5 percent fewer trips than the approved EIR.

Mr. Soluri then countered that the city was ignoring their own consultants’ recommendation to do additional review, and they did nothing.

Ms. Teller responded that the city did a number of analyses and found that there was no change in circumstances from the original EIR.  They looked at 12 different intersections and only found that one was worse – and it was slightly worse and still within the city’s threshold.

Judge Williams simply left his previous ruling alone: “Petitioner has failed to establish that the City’s decision to prepare an addendum, regarding transportation impacts, is not supported by substantial evidence.”

Mr. Soluri also argued that the judge wrongly ruled that the issue of health risks is outside the burden of CEQA (California Environmental Quality Act).  Here he argued that there is evidence that the project exacerbates existing conditions, and this brings it into a CEQA issue

He said the standard is that if they can show that the air emissions can lead to significant health risks, then new case law requires that analysis.

However, this did not move Judge Williams, whose ruling remains, “Petitioner has not provided new information indicating that the project would cause an exacerbation of existing environmental hazards or conditions.”

He notes from case law “it is the project’s impact on the environment—and not the environment’s impact on the project—that compels an evaluation of how future residents or users could be affected by exacerbated conditions.”

Nishi was passed by the voters in June of 2018 by a nearly 60-40 margin.  It became the first project to pass a Measure R vote, with WDAAC (West Davis Active Adult Community) joining it in November.

However, the project has been on hold pending litigation.

“We knew the City was 100% thorough in their analysis and disclosures as required by law. More often than not these lawsuits have nothing to do with environmental impacts but rather are attempts to stop or extort the project. The court rejected the spurious claims and reached a sound decision based on the facts and the proper process that was followed,” Tim Ruff, the Nishi Project Manager, told the Vanguard.

The next step is to get the below grade cross.  Mr. Ruff said, “We are working closely with City, UCD and UPRR on engineering and final alignment for the access road in accordance with the Memorandum of Understanding.”

Patrick Soluri on behalf of his clients, Davis Coalition For Sensible Planning – believed to be Susan Rainier and Colin Walsh, has 60 days to decide whether to appeal the decision.  In the case of Lincoln40, Mr. Soluri missed the deadline and the court dismissed the matter.  An appeal could drag this case out another year.

—David M. Greenwald reporting

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