On Friday, 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 onramp 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 would 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.
According to city officials, the city has not been formally served with the lawsuit. However, an October 19 letter from Don Mooney to City Clerk Zoe Mirabile, indicated, “On behalf of our clients, Supporters of Responsible Planning in Davis, we filed a Petition for Writ of Mandate in Yolo County Superior Court challenging the City of Davis’ approval of a Mitigated Negative Declaration, Conditional Use Permit and Ordinance for the Embassy Suites Hotel and Conference Center.”
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.
The Vanguard has learned that this was the call of the city staff over the objections of the project applicant. Ms. Hess confirmed to the Vanguard that, ultimately, this is the call of the city and that the city is the defendant in this matter.
While being careful to not say anything new due to the lawsuit, she indicated that she has not seen any evidence to cause her to doubt the finding.
The Vanguard has also learned that the applicants have been asked to fund the defense of the lawsuit.
In a letter dated September 15, Attorney Don Mooney, on behalf of Michael Harrington, argues that “approval of the project would violate the requirements of the California Environmental Quality Act (‘CEQA’), Public Resources Code, section 21000 et seq. as substantial evidence in the record of proceedings supports a fair argument that the Embassy Suites Hotel and Conference Center Project may have significant environmental impacts to traffic and other matters such as historical resources.
“The Initial Study must provide the factual basis and the analysis for the determination that a project will not have a significant impact on the environment,” Mr. Mooney writes. They then present an “expert opinion” provided by Dan Smith of Smith Engineering & Management, who argues that “a ‘fair argument’ exists that the Project may have significant impacts regarding traffic and circulation.’”
Mr. Mooney continues, “Mr. Smith identifies significant flaws in the Transportation Impact Study for the Embassy Suites Hotel and Conference Center. Mr. Smith’s comments result in conflicting claims regarding the Project’s impacts to traffic and historic resources. It is the function of an environmental impact report, not a negative declaration, to resolve these conflicting claims.”
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).”
Katherine Hess also responded to some of the comments at the onset of her presentation. She addressed some of the points raised by the letter from Dan Smith of Smith Engineering & Management.
Mr. Smith cites a statement by the city’s own consultant, in which he argues that “in simple terms means that actual conditions are much worse than the theoretical calculations at the subject locations, documents the fact that, in certain situations, professional observations are more relevant than theoretical calculations.”
Ms. Hess in effect argues that Mr. Smith takes this comment out of context. She said that the issue here is not whether Fehr & Peers used theoretical calculations, but rather that “these are real data and should not be dismissed in favor of occasional observation.”
Second, Mr. Smith complains that “the counts taken for the previously cited Hyatt Expansion study on April 26, 2011 show pm peak hour traffic on the critical outbound movement on Richards Boulevard through the railroad underpass is 7.6 percent higher than counted in October 2014. This is contrary to general observation that current traffic, because of growth and economic recovery, is greater, not less than traffic measured in 2011.”
Ms. Hess responds that there are many reasons why the traffic in 2014 might be less than in 2011, saying that “reasons that trips measured in 2014 might be lower than 2011 might also be changes in trip modes or alternative travel routes to various destinations. Ultimately CEQA cares about current conditions and data not older data based on less current conditions.”
Finally, Mr. Smith criticized the analysis for failing to “provide any indication of how successful or unsuccessful the simulation was in replicating existing queues (or whether data on existing queues was collected at all). Moreover, it is unknown whether the simulation analysis set parameters prohibiting traffic from entering areas blocked by queues or not (without the prohibition set, the simulation results would be useless).”
Ms. Hess said they in fact analyzed the details of “queuing and blocking” and noted “Fehr and Peers collected traffic counts over four hours and queue lengths during that time as well… calculating intersection delays for existing conditions. One of the things that they found was there was a very short period within the hour when queues are at their longest and then periods with much shorter queues.”
Michael Harrington spoke during public comment. He said, “I’m even more firmly convinced after researching it following the previous meeting, that this project is not appropriate to be sent through the abbreviated ‘Neg Dec’ process, it should have had a more complete EIR, it should have been sent to the appropriate city commissions and it wasn’t.
“It just wasn’t handled appropriately,” he said. “I think that the traffic study that was done here tonight was woefully incomplete, inadequate, and is just flat wrong. I think this will severely affect the tunnel, the historic subway tunnel, and I think the voters said, in 1996, that they like the tunnel, they want to keep it, and they want the city to work around it.”
Alan Pryor said that staff has not responded to a council request for more traffic options. “All they have done is give you a litany of reasons of why they think their legal analysis of their justification for their mitigated negative declaration [is adequate]. There’s nothing new that they presented.
“I think that’s problematic and speaks to the difficulties that you’re going to have with traffic issues on there,” he said.
Mr. Pryor added, “This project was rushed through the entitlement process without full citizen engagement.” He said, “This is absolutely unheard of, rushing through a project of this size in Davis. I don’t understand what they were thinking.” He said if they had done so, they would have a mitigated negative declaration “that could actually pass CEQA scrutiny. I don’t think that’s the case now.”
He concluded, “I really think you have to go back and embrace the Davis Way of doing things which is engage the citizens early on… which did not occur here. I think you may see the consequences of that.”
Council ultimately voted 5-0 to approve staff recommendations.
—David M. Greenwald reporting