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