Analysis: A String of Litigation at the Behest of Michael Harrington

Former City Councilmember Michael Harrington raised legal issues that suggest a potential law suit
Former City Councilmember Michael Harrington speaking before council

The Davis City Council on Tuesday night announced, out of closed session, that, in the item “Supporters of Responsible Planning in Davis v. City of Davis,” the council voted unanimously to defend the lawsuit. That means, among other things, there will not be a settlement agreement at this time between the parties.

The council was unable to provide further comment as the litigation is active and pending against the city.

On Friday, October 16, Attorney Don Mooney filed a lawsuit on behalf of Michael Harrington, and Supporters of Responsible Planning in Davis, an unincorporated association, against the City of Davis, challenging the Davis City Council’s September approval of a Mitigated Negative Declaration for the Embassy Suites Hotel and Conference Center.

On September 15, the Davis City Council approved the project that will tear down the existing hotel and neighboring restaurant, Caffé Italia, and build a new six-story hotel and conference center on 2.83 acres located at the southwest corner of the intersection of Richards Boulevard and the westbound Interstate 80 on-ramp in the city of Davis.

The project would replace the existing single-story 43-room University Park Inn & Suites hotel – five buildings totaling 21,817 square feet (sf) – and the 4,000 square-foot Caffé Italia restaurant, with a new six-story 132-room/suite hotel. This included a breakfast room/restaurant and 13,772 sf (aggregate) conference center. All existing structures would be demolished and the site would be cleared for the proposed use.

In the suit, the plaintiffs argue, “Respondents’ action in adopting the Mitigated Negative Declaration constitutes a violation of CEQA in that Respondents failed to proceed in the manner required by law and their decision not to prepare an Environmental Impact Report is not supported by substantial evidence. Based upon substantial evidence in the record, a ‘fair argument’ exists that the Project may have a significant impact on the environment.”

City Planner Katherine Hess reaffirmed her comments, from the September 15 city council meeting, that they went the route of a Mitigated Negative Declaration as opposed to a full EIR because the traffic and environmental impacts came up with zero effect.

City Attorney Harriet Steiner said they have gone over the issue of using a “Neg Dec” versus an “EIR.” She said, “Staff went through an initial study to determine what impacts this project would cause based on the baseline. As we went through that and as we did the analysis we did not feel that there was a fair argument that the project itself would cause an impact that required preparation of the EIR. That is why staff recommended and the city went forward with a ‘Neg Dec.’”

She added, “We have not heard anything through the public hearing or tonight that would provide substantial evidence that that was the wrong conclusion and the city should have done an EIR. So we’re comfortable with (the decision).”

This was not the only item relating to Michael Harrington on the council’s closed session agenda. Mr. Harrington has a trial set for December 1, 2015, in a challenge to the City’s approval of a Conditional Use Permit for Catherine LeBlanc, to allow her to operate her psychotherapy office on 7th Street in Davis.

The office would handle up to 35 individuals a day in a residential neighborhood and would operate up to 11 hours a day.

Mr. Harrington “challenges the City’s approval of the CUP on the grounds that the Project fails to meet the off-street parking requirements as all of the required off-street parking will not be within the front setback line. Petitioner also challenges the City’s determination to exempt Ms. LeBlanc from the requirement to provide accessible parking.”

The City believes that “the on-site parking requirements for the conditionally permitted professional office use at 717 7th Street have been met because the City did not require an accessible parking space.”

The city and Ms. Leblanc’s attorney have responded that Mr. Harrington “pursues this writ proceeding based upon a strained and incomplete statutory construction and a selective recitation of the facts found within the administrative record. The record contains substantial competent evidence and analysis in support of the City’s interpretations and decisions.”

In an email acquired by the Vanguard dated October 20 from Michael Harrington to Dan Wolk, Mr. Harrington writes, “I am writing to my elected official. We are very confident of winning the case on December.  A City Council, as powerful as it is in many local matters, simply cannot waive federal and state handicapped access law. However, a win would  merely result in LeBlanc being forced to leave the premises and set up shop somewhere else on short notice.”

Mr. Harrington continues, “I have a proposal that I believe might result in a win-win for all concerned, including the old neighborhoods, but only via the court-ordered confidential mediation process.  The result would be a binding deal, approved by the parties and the Court.”

“The applicant has zero authority to settle anything, as the CUP is a creature of city law and under the sole authority of the CC,” he adds. “Furthermore, I believe she is being forced to pay the city’s expenses in this case, yet the City will not attend a mediation.  I don’t think this is fair on the applicant.”

In addition to the two active suits, it appears that Mr. Harrington is gearing up for a third one, as well.

This week, he furnished a report from Daniel Smith, a traffic engineer with Smith Engineering & Management. He has reviewed “the portions of the Draft Environmental Impact Report (the DEIR) related to transportation and circulation for the Nishi Gateway Project (the Project) in the Davis, CA (the City).”

The city released the Draft EIR in early September. Monday was the deadline for the submission of comments. The Nishi Gateway Innovation District is a collaborative planning process among the city, UC Davis and Yolo County, and is proposed on the 47-acre Nishi property adjacent to the city limits and UC Davis. The Innovation District also includes West Olive Drive and is designed to complement adjacent uses on the UC Davis campus.

According to the city’s release in September, the Draft EIR analyzes impacts that may result from development of the project under different circumstances, including full project buildout, no project, and several alternatives which provide additional important information and context for the community and council to consider.

The alternatives studied in the DEIR include examining research and development (R&D) only, alternative land use mix, and off-site (5th Street corridor) considerations. The DEIR addresses the impact of development of the 47-acre Nishi property as a mixed-use innovation district, as well as potential redevelopment of properties on West Olive Drive.

What Daniel Smith’s letter to Don Mooney dated October 25 offers is a technical analysis of the Nishi Draft EIR. He concludes, “It seems evident that the City has pared the content of the DEIR’s transportation section to make it more difficult for the public to understand and comment on it. Based on all of the foregoing, I am convinced the problems with the transportation and circulation section renders this DEIR unsuited for certification.”

Mr. Smith is critical that the analysis of the trip generation “are unreasonable and result in understatement of the Project’s external motor vehicle trip generation and consequently findings of impacts and mitigation needs.”

He adds, “Reliance on assumptions that unreasonably minimize the Project’s external traffic generation is inconsistent with the good faith effort to disclose impact that CEQA demands. The analysis should be redone with more realistic assumptions…”

The decision by the city not to settle the current litigation at this time is a change from the decision a year ago to settle the water lawsuit.

Last August, the city agreed to go to mediation with Michael Harrington, John Munn and Yolo Ratepayers, which resulted in a settlement agreement.

“This is a total settlement that has now been approved by all sides of this case,” City Attorney Harriet Steiner reported at the time. “The city and the parties went to mediation last week and that has resulted in this settlement.

“The general terms of the settlement are that the plaintiffs will not oppose the city’s proposed water rates as set out in the current Prop 218 notice, that they will dismiss their entire case against the city, and that they will not file another case related to the water rates, the sewer rates, Measure I or do any other public process regarding these water rates.

“The city in exchange agrees that it will pay its water and sewer charges at the same standard rates that everyone else pays their water rates going back to August 2013 with offsets for the properties that the water and sewer system uses that belong to the general fund. The city has already begun making those payments approximately a year ago, the city will continue to provide water education and conservation programs, the city will allocate another $5000 for the Water Assistance Program, and in consideration of the plaintiffs maintaining their obligations in this matter, the city will pay $195,000 to the plaintiffs for the costs that they incurred in the litigation,” Ms. Steiner stated.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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39 Comments

  1. Misanthrop

     “Furthermore, I believe she is being forced to pay the city’s expenses in this case, yet the City will not attend a mediation.  I don’t think this is fair on the applicant.”

    Of course another solution, dropping the suit, would also be fair to his neighbor the applicant.

  2. ryankelly

    If he thought it was unfair for his neighbor to pay to defend her property and business, he shouldn’t have sued her.

    If he has a solution that he feels will handle things, why not just go ahead and suggest it.  Why demand a confidential mediation?

    If he is feeling the financial  burden and distraction from his life and work of these lawsuits, then why doesn’t he just drop them?

    Why is he contacting the mayor at all about these lawsuits asking for relief?  Isn’t that like contacting the person you are suing instead of their lawyer?  Stating that he is writing to his elected official doesn’t change the nature of his action.  Does he feel that the mayor has the power to act alone without the approval of the rest of the Council?

        1. Dave Hart

          I’m no attorney, but I do understand that the basis of a meaningful mediation is confidentiality during the process so that both parties can feel free to honestly state their issues which is essential to reaching a mutual resolution.

  3. Davis Progressive

    the leblanc matter is over a single parking space on a street without a parking problem.  he complaints about the impact on his home over a 9-5 job, the alternative is a bunch of party students could live there and he’d have little recourse.  in my opinion most of this is sour grapes over him not being able to buy the property in the first place.

  4. Anon

    The decision by the city not to settle the current litigation at this time is a change from the decision a year ago to settle the water lawsuit.
    Last August, the city agreed to go to mediation with Michael Harrington, John Munn and Yolo Ratepayers, which resulted in a settlement agreement.

    I’m glad the city has finally seen the light – and is not caving in to Harrington’s demands.  Let’s hope the city continues in that vein, otherwise Harrington will have found a way to develop a steady stream of income at the city’s/taxpayer’s expense…
     

      1. Anon

        You ask an excellent question, which I have pondered over for many months.  I honestly don’t know how to answer that question – I am of two minds.  I think it could be argued either way.  But I will say this – if the city continues to knuckle under to these lawsuits, it will be never-ending for obvious reasons.

  5. Michael Harrington

    DP:  I never offered to buy the home next to mine and have never been interested in owning it.

    The reason why the Chamber and business and real estate community backed the CUP was because they know that once they can get a CUP for a business and waive the required parking, the same can be done to every single one of the hundreds of bungalows in our historic districts.

     

    The CUP is a creature of the City, and they have sole control over it.  The City’s refusal to enter into any settlement discussions means that any private discussions are DOA, and pointless.

     

    The City created this situation, and City staff and the Attorney are billing the project applicant for the City’s mistake.

     

    The same is true for the neg dec on the Hotel Conference Center.  The City made the mistake, and are billing thousands to the applicant.    I have asked 2x that the City enter into settlement discussions and they have refused.

    Basically, there were two knowingy rogue votes 5/0 by the CC that violate the law, in our opinion, and we will pursue these cases.  I am also always open to settlement at any time.  It’s really up to the City and the applicants.

     

     

    1. Davis Progressive

      “the same can be done to every single one of the hundreds of bungalows in our historic districts.”

      but don’t cup’s rely on specific situations (which is why they are called conditional)?  in this case, the availability of parking and the impossibility of the applicant to provide the single parking space you are demanding plays a role that may not exist elsewhere.

    2. Misanthrop

      Funny argument Mike, you are doing it to prevent a city wide precedent not because you live next door. Of course when the original CUP was in place it didn’t create a precedent that all the business community and city used to do the same thing elsewhere. So your fallacious argument leaves the bad neighbor argument as the most believable reason.

      Now a good neighbor might do a lot line adjustment and sell a few square feet to the neighbor so that the neighbor could be in compliance if the concern was really providing for the needs of those with disabilities and the desire was to be a good neighbor.

      Who is this we you refer to Mike? You and your lawyer?

      1. Matt Williams

        Misanthrop said … “Now a good neighbor might do a lot line adjustment and sell a few square feet to the neighbor so that the neighbor could be in compliance if the concern was really providing for the needs of those with disabilities and the desire was to be a good neighbor.”

        That is a creative solution proposal. Mike, do you have any objections to the solution Misanthrop has proposed?

  6. Davis Progressive

    “The City made the mistake, and are billing thousands to the applicant. ”

    can you provide the records that shows that the city is billing thousands to applicant based on this “mistake”?

  7. Michael Harrington

    DP:  federal and state law do not allow a local government to waive required parking under the circumstances here.  If you email me, I will send you a copy of our brief.

     

    DP:  anyone can send a Public Records Act for the indemnity agreement, and the City staff and City Attorney billing records.   I know from what I am paying Attorney Don Mooney the range that the City is billing the applicant.  (BTW, every single Planning staff member assigned to this is also billing, with Michael Webb the highest, then going down.  The rates mostly exceed $100/hour. You can email Planning and they will send you the rates list.)

    From a mutual friend, the applicant is complaining that she is burning + $10,000/month, for over a year.  That sounds about right, since she is paying her own land use attorneys, plus City staff, plus City Attorney.

     

    I never asked for all of this.  The professional staff told her that she could not do the project there due to lack of the accessible parking, and she “pushed back” and barraged Lucas with emails.  Then they called a meeting with Mike Webb, David Taormino, Lucas, the applicant, and after that, suddenly professional planning staff went radio silent, and the clouds parted, and the sun beamed down on a new Planning decision that the parking could be waived.   It’s all in the administrative record.

    I do want to add that by flipping the switch from residential to effective full blown commercial, she increased the value of her property by about $100,000. So she bought low as a family home, flipped it up to commercial, and now is enjoying that high value without having paid for it, due to her political connections. The litigation costs to her are basically adding that $100,000 to her basis in the property. Now she has in it about what it’s value is as full commercial.

    if she wants to settle, she knows the process I require.

  8. Michael Harrington

    Misanthrop:  you are incorrect.  CUPs expire by law after  change of use, or if the property changes hands.  This property was sold several years before the current situation to a family who lived there and were great neighbors.  Then they bought a nice home in Old East, and sold it to the current owner.  The old CUP actually was legal, because the owner lived there, and she conducted her massage business using a front bedroom.  Very small, very low key.  This kind of family business could work all over the city.   The applicant here bought the property knowing the CUP and parking was going to be problematical.  She got a cheap deal, then used political connections, and flipped the property up to a much more valuable asset.  Email me, and I will send you our brief.

    The old CUP was based on the property use being primarily residential. The City Planning Codes allow for this, and it is done all over the city. Here. the applicant never intended to live there, only to use it to make professional income. There were several affordable and suitable mixed use properties for sale at that time (she looked at at least one of them, I know), but she got a steal of a deal here, and flipped it up to commercial for next to nothing. Until I called her and the City on it, anyway.

    1. Frankly

      I don’t see that this is connected to the downtown parking congestion.  I think customers could easily park in the Kens Bike and Ski lot if there is a need.

      Maybe instead Mike would support a four-story Mediterranean-design condo building with underground parking?

  9. ryankelly

    This is Harrington’s assertion (from the Tentative Ruling calendar on the Yolo County Court website 10/14/2015):
    “Petitioner Michael Harrington contends that the property at 717 7th Street, in Davis, underwent a change in occupancy under California Building Code section 3411.4.2, which necessitated that the City of Davis require accessible parking as a condition of real party’s conditional use permit. The administrative record indicates that the permitted use is single-family residential. (AR 193.)”

    He is contending that if there is a full change of occupancy, there needs to be an accessible parking spot where parking is provided and where technically feasible.  If there is only a partial change in occupancy, then there are limitations to what is required and the addition of accessible parking is not specifically required.

    Harrington is focused on the expired CPU, saying that the house then reverted to residential use only, but goes on to state that the person living there was operating her business (a massage parlor) out of the front of the house, effectively continuing the business use of the house.

    That is the essence of his lawsuit.

    I imagine that the settlement that he wants to reach is a severe limitation on the business hours (9-5 pm?), number of visitors and  number of visitors at a time, and possibly even the demand that someone live there full time.  Plus reimbursement for all of his legal expenses and costs.

     

     

     

  10. Misanthrop

    “I never asked for all of this.”

    LOL. Actually you did when you filed suit. You could have let it be but either out of some personal issue or a mission where you see yourself as protecting the community you  made a choice. So don’t try to play the victim Mike. Any ire you face in the community you live in for this is self inflicted.

     

    1. DoRaMe

      Mr. Harrington’s continued role in Davis as a victim plays to his perfect narrative… “I was a previous Council member, so trust me – but all of the current Council members, their actions are not trustworthy and hinge on egregiousness towards this fair little hamlet”. Everyone (except for a precious few) see Mike’s actions as self-serving, riddled with fallacy and a way for him to make a quick buck when his regular litigation business slows down.

      Aren’t Mike’s offices a converted set of houses in downtown that were substantially densified with some more buildings, to the point that there is way too much square footage for the amount of onsite parking? Yet, this is okay for him, but not for others… and why?

  11. Michael Harrington

    Frankly: On Trackside?  I think they should do underground parking , three stories, and offset the third story.

    DoRa: my downtown offices are zoned for the uses. The commercial offices next to my home are not.

    1. ryankelly

      There is no zoning that allows the parking that you allow – two cars parked off the driveway in the front yard of one, two cars filling the accessible parking in front of the other, one house rented to businesses with no accessible entrance and referred to the neighboring property for accessible meeting space and bathrooms.  Lots of leeway has been afforded you, Mike.  I believe you are just the Worst. Neighbor. Ever.

      1. Miwok

        ryankelly, did Mr Harrington buy the property then change the zoning? Are there residential neighbors? Please elaborate. I thought this suit refers to his 7th street address not the D St?

  12. Anon

    Barack Palin: “You seem to be in the know, did you feel the city needed to settle with Harrington over the water or should they have fought it?”

    Anon: “You ask an excellent question, which I have pondered over for many months.  I honestly don’t know how to answer that question – I am of two minds.  I think it could be argued either way.  But I will say this – if the city continues to knuckle under to these lawsuits, it will be never-ending for obvious reasons.”

    I have pondered your very thoughtful question, and feel it deserves a more complete response.  Suffice it to say that what I am about to say is solely my opinion, that comes with its own personal biases.  I believe there were two good reasons why the City Council/city staff made the decision to settle with Harrington.

    1.  If I remember rightly, at the time of Harrington’s lawsuit, the city was considering an attempt to obtain state revolving fund loans.  The effort to obtain those low interest loans could have been jeopardized if the lawsuit had been allowed to continue, which might have cost citizens of Davis and Woodland literally millions of dollars.

    2. The City Council and city staff knew Davisites were battle weary from all the garbage that had been spewed by opponents to the proposed surface water project.  The opponents tried every dirty trick in the book (frivolous lawsuits, referendums, disruption of public meetings and Farmers Market booths, uttering slanderous statements about public officials/city staff at public meetings, spreading fabricated misinformation, viciously attacking anyone in favor of the surface water project, illegal behind the scenes wheeling and dealing) – despite a vote by the public to approve the project.

    However, I could also argue the City Council/city staff should never have settled with Harrington, because to do so would result in the spawning of frivolous lawsuits after the fact as a stream of income/way of achieving minority rule – which is exactly what has happened.  I certainly would have explored the possibility of trying to obtain an expedited hearing of Harrington’s lawsuit in light of the circumstances (trying to obtain low interest state loans), and stood my ground in the face of what I considered a frivolous lawsuit.  But to do so would have been a gamble, that could have cost citizens millions if the state had not come through with the low interest loan because of the pending lawsuit if it could not have been adjudicated quickly and in the city’s favor.

    In that particular situation, I really don’t think there was any one right answer as to whether to settle with Harrington or not.  But there was no doubt in my mind that if the city knuckled under to Harrington then, the city would be facing more frivolous lawsuits from him later.  Nevertheless, that does not necessarily indicate that refusing to settle with him would have necessarily been the right answer.  I do not fault the City Council/city staff in any way for making the ultimate decision to settle with Harrington in regard to the water rates.  There may have been other factors going on behind the scenes that I didn’t know about as well.  It was a tough decision, and I certainly did not envy the City Council having to make the galling decision to settle with Harrington.

    Hope that answers your question satisfactorily…

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