Harrington Follows Through, Files Suit Against Hotel Conference Center Negative Declaration

Michael Harrington addresses council in September at Public Comment
Michael Harrington addresses council in September at Public Comment

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 responds to criticisms of the "Neg Dec" process
Katherine Hess responds to criticisms of the “Neg Dec” process

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

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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    1. Alan Pryor

      Firstly let me make it clear that even though I forcefully spoke against approval of this project when it was before Council for the first and 2nd hearings, I am not a party to this lawsuit in any shape, form, or fashion. I have absolutely no financial skin in this game one way or another and all the work I did quantitatively analyzing the deficiencies of the traffic study in the MND was done completely on my own time and given to the City without receiving any payments or any form of compensation from anybody. I actually would like to see the project done in the best manner possible and, toward that end, I even additionally made substantial constructive quantitative suggestions supported by detailed engineering calculations (again completely on my own unpaid time) to improve the sustainability of the project to which the applicant has subsequently agreed.

      My sole interest in doing this work was to try to make sure the project has a minimal impact on the environment and we don’t completely screw up the Richard’s Blvd – Olive Dr. interchange. And Mike has also repeatedly said he is not against the project but rather that he is simply trying to get it done right. The simple fact is that the process the City followed for the approval of the MND in terms of traffic analysis was in clear violation of CEQA standards and they received abundant warnings about these problems beforehand. Instead of taking just a few extra months to work them out, however, the City Staff and Council instead choose the short-cut path of expediency vs following the the law. To those of us knowledgable about CEQA, this was not even a close call and the City received abundant and detailed warnings of these CEQA deficiencies weeks before their final approval. Had the City followed the advice of the project applicant (the Patels) and naysayers such as Mike and myself and done a full EIR instead of an MND, this lawsuit would have never been filed.

      So blame Mike if you want to have a scapegoat and like bad-mouthing lawyers (except, of course, when YOU need them). But it was the arrogance of senior City Staff and the Council in trying to ram through an MND instead of taking a few extra months to do a full EIR and engage the public that is the cause of this problem. Mike is simply trying to force the City to correct itself and do what the Patels wanted to do in the first place – do a full EIR with a complete and accurate traffic analysis. You can demonize Mike and lawyers with snitty little anonymous remarks in this blog all you like. But to many in the Community, Mike became a hero for standing up and making sure due process is followed and Staff and the Council are not ramming through massive developments simply to get the millions in fees and occupancy taxes that will flow into the City coffers.

      And I would also like to suggest to the naysayers that instead of just taking the easy route and carping about lawyers and the CEQA process that you actually dig into the Staff reports and look into the traffic studies themselves and then present to this blog your own quantitative analysis as to why this project’s traffic analysis holds water. Every single comment posted here whines either about 1) the evil Mike Harrington is doing, or 2) he is just looking out for his own pocketbook, or 3) he just wants to be an obstructionist because he hates the City. I have not seen a single comment here that actually addresses the traffic study deficiencies that are pointed out in Mike’s lawsuit. C’mon folks! Please put some facts and figures in your posts if you really want to be taken seriously.

      Many in the Community have also taken notice of the bigger picture here which is how senior City Staff and the Council have conducted themselves when approving these stand-alone project entitlements. There has never ever been a project of this magnitude in Davis in which the approval process was rammed through from the Planning Commission to Council approval in only 45 days in the dead of summer…and without even taking it to a single Commission! It did not even go to the Traffic Commission to discuss the traffic problems around which the whole lawsuit revolves! This was crazy and has never ever been done before in Davis. It is certainly NOT “the Davis way” which dictates full community engagement.

      This whole process begs the question if this is how the City will evaluate all of the future individual projects that will come before them if the Nishi Innovation Center and Mace Business Park initiatives are approved by the voters. Can we trust the Staff and Council to make rational, informed, community-driven long-term decisions when they are instead drooling over the propects of short-term fees and income into the City coffers.

      Getting the Nishi and and Mace projects passed next year will revolve around the trust the population has that the Council and senior City Staff will protect the City’s broader interests and ot just ram things through to get future fees or taxes when evaluating the individual project entitlements that will come after the passage of any Measure J/R votes by the citizens. For me, this whole Conference Center process conbined with the horrific give-aways the City made to the Cannery developers says we have to watch them very, very carefully to make sure their new motto, ” Davis is now Open for Business” does not just mean “Davis is now for Sale”.

      1. hpierce

        Alan, you lost me when you said the project needed a “full EIR”.  BS.  If I had a say, it would have been a “focussed EIR” on traffic/circulation.  If you think a “full EIR” is warranted, please justify your reasons (other than obstruction/delay).  Am listening.

        The rest of your ‘rant’ goes on about future considerations, on other projects, and is “off-topic”, although it might make you feel better about questioning the motivations/qualifications of “senior City staff”, and development in general.  Look at the negative adjectives you used, and I suggest you evaluate whether you have your Pryor-ities straight.

        1. Alan Pryor

          Your right in that I should have more careful with my terminology and specified that a “project” EIR should have been initially done rather than a “full” EIR. “Full” is an ambiguous term and only generically used. Alternatively, a “focused” EIR could have been initially done as you suggest. The only currently viable after-the-fact option, though, is for the City to do a “supplemental” EIR .

          I otherwise think past performance of Council and Staff in development projects is a very good indicator of what to expect from them in future development projects and pertinent to this thread. And, as I state in my comments, their performance on the Cannery and this Conference Center certainly gives me cause to worry and suggest they may not be up to the task. If you don’t think so, then you are certainly free to eat the pabum or drink the Kool-Aid they serve up to you without question.

      2. ryankelly

        But to many in the Community, Mike became a hero for standing up and making sure due process is followed

        Because they ignore the harm that Mike does in the community, the many people he has screwed over.  He seems to only want due process followed for others, not himself.  I don’t care about his fans who have made it a sport to pick apart every effort by businesses to expand and improve in Davis.  We couldn’t even upgrade the STEAC Food closet due to Mike’s meddling and opposition, for goodness sake.  Maybe you think that this particular cause is a valid one, but taken as part of a whole of Mike’s activities, it is just appears as additional efforts toward obstruction and extortion.

      1. hpierce

        Uh, can’t imagine a legitimate injunction to prevent the demolition, based on the record.  Am guessing this is outside the scope of your legal knowledge/expertise.  Not sure what  financing they would need for demo.

        Oh… I re-read… you are absolutely correct about getting an injunction against BUILDING permits and the financing for BUILDING. I see no facts that would support an injunction against the demo.

  1. hpierce

    From the article, it appears that Mr H (and Don M’s) issue is based on “process”, not “fact”.  It is not clear if the record would show that they adequately pursued ‘administrative remedies’.  If they did not, suspect the suit will be thrown out, the expense borne by the applicant, and in my opinion, constitutes “harrassment”.  The City could also defeat the suit by conducting a “focussed EIR”.  That is a valid remedy to the process claim.

    Ironically, time and effort (read, “cost”) needed to do a focussed EIR, as opposed to a MND, would, in my experience, have been trivial.  I’m scratching my head as to why that was not done.  I believe the “results” would have been the same.  Except the questionable grounds for the lawsuit.  Couple of ambulance chasers throwing their wooden shoes into “the works”?   Perhaps.

    1. Barack Palin

      Couple of ambulance chasers throwing their wooden shoes into “the works”?   Perhaps.

      If that’s the case and the city ends up ‘settling’ with him I’m going to be highly pissed off at the city.

      1. Davis Progressive

        we should really be blaming dan wolk.  wolk decided he wanted to be a hero on the water deal and offered a settlement when the city fully believed that they would prevail on the lawsuit.  this ended up giving harrington a lot of money and evidently planted in his mind that he could simply sue his way out of his financial problems.  that’s not to say he won’t prevail here – the city may well have screwed up.

        1. Davis Progressive

          i don’t know.  we know that dan went behind the scenes with harrington to reach the settlement.  probably seemed like a good idea at the time to take the issue off the table.  but the result is where we are now.

        2. CalAg

          “we should really be blaming …”

          There’s plenty of blame to go around – Pinkerton, Steiner, and Krovoza for starters. The notion that Wolk orchestrated an empowering settlement to Harrington is ludicrous.

  2. Michael Harrington

    We are not wasting our time or money.  You guys haven’t even seen the data and you go negative.  The case is challenging the process.  A fair, professional traffic analysis will tell us what that heavily impacted corner can bear in terms of increased traffic, and the project should be sized or designed for that number.  The City’s Peers Traffic Engineers used an old traffic model that is rarely used any more, and it made the traffic impacts look minimal.  They mostly now use a new one, accepted by the industry, and that one would have shown the obvious:  gridlock at Richards and Olive, and a jammed Subway for long stretches of the mornings and afternoons. Who told them to use the old model?  The litigation will get the documents for the public to see.

    Also, this project should have been planned with Nishi traffic, and it was not. This is so obvious …

    If no CC member has the guts to ensure that this project is appropriately designed and sized correctly for the location, then our team will have to do it via the court system.

    I like Davis having a hotel conference center, but it has to be planned properly.


    1. ryankelly

      We are not wasting our time or money.

      I think everyone knows this.  I am certain that you are expecting a large settlement that will pay for your time and money spent on this and other lawsuits that you file.   If it this is only done out of your concern for the Davis community, I challenge you to do this pro bono and not accept any monetary settlement.

    2. Miwok

      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.

      Because it can’t get any worse?

      Olive Drive is a pit, yet the City keeps shoveling more potatoes in the sack, and does nothing for the traffic, to keep the DownTown pristine, and has allowed buildings to be so close to the roads they cannot widen them. They also keep squeezing the freeway to the point it is stopped both ways, every day. This “conference center” will only add to the congestion. People will vote for Salt Lake City, or Wendover, instead of this “innovative city”. Zero Effect?

    3. hpierce

      Actually, re-reading, not enough said…  Mr H has gone on record, in his post, to say this is about “process” and not (my inference) about “facts” (yes, one can lead to the other).  If so, then he should accept a “focussed EIR” as a ‘remedy’ before the project moves forward, and drop the suit.  If not, he is being disingenuous, at the least.

      “the project should be sized or designed for that number.”  No.  The community can decide acceptable “levels of service”, mitigate and/or can make findings of “over-riding considerations”.  All perfectly legal, at many times, appropriate.

      “used an old traffic model that is rarely used any more”  Cite facts, or I will dismiss as “attorney tactics” sometimes aka unsubstantiated BS.

      “Also, this project should have been planned with Nishi traffic, and it was not. This is so obvious …”  Actually not so obvious.  Believe he is referring to ‘cumulative impacts’ that can be reasonably foreseen.  As Nishi has not been well defined, and may not have ANY MV access to W Olive Drive (my hope), this is speculative, at best.  But throw stuff against the wall, and see what sticks… get it.

      “then our team”  Wow… new wrinkle… Mr H and Mr M?  Others?  Maybe the members of the “team” should be disclosed… think ‘transparency’ is the term that applies.

      IMO (sorry, Tia) this is going to be a pain in the arse, generating more heat than light, but the litigants have every right to throw their wooden shoes in.

  3. Davis Progressive

    in fairness to harrington – and i use that rather loosely – a lot of people i talked to are surprised that the city insisted on a negative declaration here given the complexity of the traffic scenarios.  on the other hand, perhaps you can argue that given that the hotel does not contribute to peak hour flow, it really does have a negligible impact on the traffic.


  4. Anon

    The Vanguard has also learned that the applicants have been asked to fund the defense of the lawsuit.

    How frustrating for the applicant.  Hope this developer hangs tough.  Bottom line, this is a hotel replacing a hotel, and mitigation funds will actually IMPROVE the intersection/traffic.

    DP: “the last time he sued the city, the city cut a deal and undoubtedly he received tens of thousands in attorney fees.”

    If I remember rightly, $300,000.

    1. CalAg

      The settlement was $195,000. I would assume it was split between Harrington, the plaintiffs (members of the “Yolo Ratepayers for Affordable Public Utility Services”), and at least one local consultant.

      1. ryankelly

        No, Harrington received payment for his “attorney fees.”  I don’t know if this was included in the settlement or an extra expense directly to Harrington.  John Munn said that he didn’t receive any money. 
        [moderator] edited, contact me if you need to discuss this — donshor@gmail.com

        1. ryankelly

          Double standard.  The Vanguard dragged a candidate through the mud over his delinquent property taxes, but you continue to protect an attorney who files lawsuits involving the City.  It speaks to his character and people need to know.

    2. Alan Pryor

      Bottom line, this is a hotel replacing a hotel, and mitigation funds will actually IMPROVE the intersection/traffic.

      So do you really think that adding a few thousand trips per day though the Richards-Olive intersection and only adding a median strip for mitigation will actually improve traffic? I assume you have some quantitative basis for making this outlandish statement that you are willing to share.

      …Oh, wait…I get it it. Your comments were just a joke, right?

      1. hpierce

        “adding a median strip for mitigation will actually improve traffic?”  It may help to avoid deterioration, but you are correct… it will not improve anything (except, maybe, aesthetics).  Anyone saying differently is selling ‘snake oil’.  Don’t buy.

        And in saying all this, I think the project should move forward, as approved.

      2. Anon

        Alan Pryor: “So do you really think that adding a few thousand trips per day though the Richards-Olive intersection and only adding a median strip for mitigation will actually improve traffic?

        If you listened carefully at the City Council meeting on this issue, it was clear the City Council believes there were a number of traffic problems that must be fixed prior to the hotel going in – BECAUSE THE HOTEL DID NOT CAUSE THESE PROBLEMS, THEY ARE THE CITY’S RESPONSIBILITY TO FIX.  Secondly, it is possible the mitigation funds from the project TOGETHER WITH GRANT FUNDING FROM OTHER SOURCES CAN BE JOINED TO IMPROVE THAT ENTIRE CORRIDOR.


  5. Frankly

    I am really disappointed in Mike again, but not surprised.

    But everyone needs to understand that his methods are quite common for the legal profession.  For many of them the law is simply their field of opportunity to harvest dollars that the rest of us end up paying for one way or the other.

    For every bit of good they do to make sure all the laws are upheld and challenged, many trial lawyers do tremendous harm to everyone else.

    From my perspective, this law suit causes much more harm to the community than good.

      1. Frankly

        Certainly.  My business is supported by good lawyers.  I could not succeed without them.

        And certainly legal challenges to municipal development development protocol can be justified and beneficial.

        But Mike seems to file suit at almost every development and ends up making coin from it.  And most of these suits do not really serve the community best interests.

        There are a lot of Mikes out there doing similar things.

        One thing that irritates me with the profession, is the demonstration of apathy over the existence of so many bad apples.  What would the medical profession or the engineering professions do if so many of their members were bad apples?

        1. Anon

          Don’t assume there are “so many” bad apples in the legal profession.  You have to take into account all the transactional attorneys (don’t litigate, do things like contract law to keep things out of court), attorneys working for legal aid, etc.  The problem is that bad apples in any profession give the profession a bad name…

        1. Anon

          Q: What’s the difference between a lawyer and a vulture?
          A: The lawyer gets frequent flyer miles.

          Q: What’s the difference between a mosquito and a lawyer?
          A: One is a blood-sucking parasite, the other is an insect.

          Q: Why did God make snakes just before lawyers?
          A: To practice.

          Q: What’s the difference between a dead skunk in the road and a dead lawyer in the road?
          A: There are skid marks in front of the skunk.

          Q: Why won’t sharks attack lawyers?
          A: Professional courtesy.

    1. Alan Pryor

      From my perspective, this law suit causes much more harm to the community than good.

      Frankly, exactly what is your basis for such an informative comment. I assume there is some quantitative information that formed your “perspective” that you will be willing to share with the rest of us

      1. Frankly

        1. Costs the City from payouts to the plaintiff and plaintiff attorney (especially if one and the same)

        2. City staff costs to deal with the law suits.

        3. Results in subsequent additional complexity to municipal protocol that adds unneeded costs to city and to developer.

        4. Reinforces the “Davis is hostile to business” sentiment that exists in the business community.

        5. Causes unnecessary delays in the development project that in-turn delay the city revenue inflow.

        6. Distracts the community from other important business/issues.

        7. Delays the anticipated services made available by the new development.

        And if you really think about the impetus for this lawsuit, it is only an attempt to either kill the development somehow, or to extort money from the City to allow it to do forward in a timely manner.  Because there is really not any solution for traffic mitigation that would be accepted by voters in Davis.

        1. hpierce

          Damn, Frankly, it really bugs me when I have to agree with you!  I can think of a few more points, but I’ll wait to see if you get a response from yours.

        2. Alan Pryor

          I’d suggest that the suppossed “harm” you think was caused by this lawsuit was brought on by the City themselves. According to the article, the applicant wanted to do an EIR. Certainly the City was adequately warned that their traffic analysis itself was deficient and lacking such that an MND was insufficient. But the City chose to go ahead with an MND anyway against the applicant’s wishes and substantial evidence of legal authority about the inadequacies of the MND. This information was all brought to the City’s attention and known before their decision to approve was made.

          You have not read any of those materials or studied that information so how can you honestly say that this problem or “harm” was caused by the lawsuit and not by the process the City chose to pursue against the applicant’s wishes and sound outside legal advice supported by a wealth of quantitative information. All the lawsuit did was expose the adequacies and shortcomings of the City’s own review process. I would think that you would be generally supportive of reining in government when it makes obviously bad decisions based on whims and expediency.

          Interesting also that you are only listed the suppossed “harm” that this lawsuit causes. Well let me take a stab at listing the “good” that I see this this lawsuit might bring.

          1. It will force a more realistic and less biased traffic analysis to be done that could prevent the Richards-Olive intersection from becoming hopelessly grid-locked in the future. A better traffic management plan makes the project much better for the community and still puts money in the City coffers. That is “good”, right?

          2. It will cause the Council and Staff to seriously think twice before circumventing CEQA in the future and perhaps avoid other such litigation in the future. That is “good”, right?

          I admit I am confused, though, by your statement that “…there is really not any solution for traffic mitigation that would be accepted by voters in Davis”. By this should I assume  that you think that the public should just take what the City deals up to them even if flies in the face of what the voters want?  C’mon, Frankly. We elected “leaders” not “rulers”. I would think that you of all people would be against a big, over-bearing  government imposing its unwanted will on the general populace. Isn’t that what you are always railing about what the Democrats are doing?



        3. ryankelly

          Alan, the harm is in the action of repeatedly suing the City and delaying projects until an acceptable amount of money is paid.  The only anticipated outcome other than money in the pocket of Mike Harrington.  To defend his actions as valid city planning is inexcusable.  It is despicable.  The character of anyone who participates in this charade is tainted as a result.  There are other administrative means to accomplish what you envision.

          It will cause the Council and Staff to seriously think twice before circumventing CEQA in the future and perhaps avoid other such litigation in the future.

          That’s the threat, isn’t it?  No need to run for City Council.  Just sue people until they bend to your will.

        4. Barack Palin

          Good points ryankelly.

          As I’ve said many times, it seems as if we have the same few voices that get heard over and over as far as policies and what gets done in this city.  It’s time for the council to care about what’s good for everyone and not just the few activists that spend their lives at city council meetings and/or meddling in city politics.

        5. Michelle Millet

          To defend his actions as valid city planning is inexcusable.  It is despicable.  The character of anyone who participates in this charade is tainted as a result.


        6. Mark West

          Come now Frankly, common sense is not allowed here.  Alan clearly stated that he wanted “quantitative information” to support your ‘perspective,’ not these seven meager bullet points. Look in comparison to the number of words he used in his seven paragraphs of bombast argument above and you can clearly see that your position doesn’t stand up quantitatively. Besides, I’m sure Alan is right, he told us so after all.  

        7. Frankly

          I admit I am confused, though, by your statement that “…there is really not any solution for traffic mitigation that would be accepted by voters in Davis”.

          Alan Pryor… You know, and I know that you know, that you have an ultimate agenda here.

          1. You want to defeat the project… make it go away?

          2. You want specific roadway/traffic designs currently not in the plans?

          3. Some other environmental impacts mitigation in the plans?

          Because otherwise you would not put this much effort into your crusade.

          I think Mike is in it for the money… at least part of his motivation.

          I certainly don’t see that you are in it for any money.

          My suspicion is that you are unhappy that the full EIR was not done because of either #1, #2 or #3 above.  I give you the benefit of the doubt knowing the types of issues you work on, that it is #2 or #3.

          How about just telling us what it is you want to see instead of doing this end-around argument that the process was not rigorous or complete enough?

        8. Davis Progressive

          you’re being a bit presumptuous frankly.  it’s entirely possible that alan has no problem with the project but is concerned about allowing the city to skirt requirements.

  6. VeryUpsetDavisLocal

    Honstley, Harrington Has sued and got away with it before.

    He attacks the city of Davis often and has filled his wallet with pretty green sparkled cash.

    If this was a huge issue in Davis, why NOW?

    This project is in everyone’s favor, Davis cannot accommodate all the conferences from UC Davis, Soccer, Students, Parents. Davis is constantly over occupied in the Hotels/Motels.

    Do you know how many jobs this project can offer.

    With all that money, Honestly do you stay at Motel 6 or Days Inn?



  7. CalAg

    I’m a huge supporter of the Embassy Suites project.

    That being said, the core complaints of Pryor are valid. The City Council had no business considering the entitlements for a major project at the Richards Blvd/Olive Dr intersection without (1) vetting it through the Commissions and (2) producing a defensible environmental document, and the City Manager had no business putting a half-baked proposal in front of the Council in the first place.

    The Mooney/Harrington lawsuit is an appropriate remedy, and the City did, if fact, bring it on itself. If you don’t like Harrington profiting from this legal action against the City, then your displeasure should be directed at the City Council, Harriet Steiner, Katherine Hess, Mike Webb, and Dirk Brazil.

    In my opinion, it is time for the Council to replace Steiner – and if they don’t make this long overdue course correction then it should be an issue in the 2016 election. In addition, it’s time to start taking a hard look at Brazil. His management of the MRIC and Nishi applications (particularly entertaining the no-housing bait-and-switch on MRIC and the UCD connection bait-and-switch on Nishi) has set the stage for more embarrassing failures for the City if there is no effective corrective action.

    1. hpierce

      I differ… I believe the traffic study to be VERY defendable.  CEQA does not require analysis to be anywhere near “perfect”.  It is a disclosure document as to what can reasonably be anticipated.  Not a Jeanne Dixon prediction where you can argue that there are 9 cars in a given queue instead of 7, and therefore the analysis is flawed.

      Mr Pryor’s previous comments, if true, including charges of “bias”, means ‘heads should roll’.  I believe that accusation is not only false, but potentially libelous and/or slanderous.  If Fehr and Peers fudged their data, and if professional City staff directed, abetted and/or supported that, there is cause for concern.  I see none.

      Mr Pryor, I am VERY familiar with traffic studies done on this corridor, know how Fehr and Peers approaches their work (reputation is EVERYTHING in their field), and know the City staff.  Either have the honesty to directly accuse them of mal or non feasance, or apologize.  And if you do the former, I suggest you line up your ducks.

      1. CalAg

        I don’t disagree with anything you said, but we’re talking about two different things.

        I said a “defensible environmental document” not a “defensible traffic report.” In my opinion, a MND without a cumulative impact analysis of the pending Nishi application is not defensible. Even if it turns out to be legal, it’s certainly politically stupid given that this is arguably the worst stretch of road in the City.

  8. Michael Harrington

    I think it’s appalling that the city made the decision to short cut the CEQA analysis, told Royal Ganesh to accept the neg dec, then when the City gets sued for that decision, turns around and demands that the applicant defendant the City for the City’s own decision making and orders to Ganesh.  This is not fair to our local business people.  The application contract in Planning should be amended to state that the applicant pays for the defense of the City ONLY if the applicant is the one who caused the planning problem.  If Planning makes a mistake, THEY should pay for it, not the innocent applicant who has to follow City orders and decisions, as what happened here.

    I have proposed the same confidential mediation process we used in the water case, and am waiting for a response.

  9. CalAg

    We are not wasting our time or money.  You guys haven’t even seen the data and you go negative.  The case is challenging the process.  A fair, professional traffic analysis will tell us what that heavily impacted corner can bear in terms of increased traffic, and the project should be sized or designed for that number. @Michael Harrington

    I strongly object to downsizing the project regardless of what the traffic modelling shows.  There are a variety of other traffic mitigations I would consider before tampering with hotel/conference center.
    1. Shut down Richards Blvd access for Dutch Bros, Shell, and In-N-Out Burger.
    2. Require construction of the UCD/Nishi connection prior to issuance of any occupancy permits on Nishi.
    3. Redevelop the traffic corridor from First Street to Research Park Drive.
    4. Joint planning of West Olive Drive and Nishi to maximize economic value and minimize traffic impacts on the Richards Blvd corridor.
    5. Close the East Olive Drive I-80 off-ramp.

    If no CC member has the guts to ensure that this project is appropriately designed and sized correctly for the location, then our team will have to do it via the court system.

    Is your hidden agenda to make the project smaller? If so, why is it too big?

    I like Davis having a hotel conference center, but it has to be planned properly.

    This we agree on.

  10. Tia Will

    OK, as someone who has no direct interest in this project one way or the other and no knowledge of city planning,  I have some honest questions that I would like someone to explain to me “as though I were a five year old”.

    1. If the applicants wanted an EIR, why would the city not opt for this route?

    2. As someone who travels through the Richards underpass on a nearly daily basis at peak hours, I find it very hard to understand how this highly impacted intersection will not be worsened by a hotel/conference center with a much higher occupancy than the current hotel. Can anyone explain this to me ?

    3. It has been asserted that there are other administrative options available. What might those be ?

    4. “already it is too small to adequately host a conference.”

    If this is true, would that not be an argument against this project since it is largely being billed as a conference center ?


      1. David Greenwald

        They didn’t need to do a full EIR, they could have done a focused EIR, which would have been not that much more than the Neg Dec, but protect the city from a potential lawsuit.

        1. Matt Williams

          David, my personal belief is that this is not really a document content issue, but rather a public process issue. I could be wrong, but I don’t think the evidence contained in a focused EIR would have been significantly different than the evidence that Staff used to come to its Mitigated Negative Declaration. In my opinion, what was missing from the process was a presentation of the results of the traffic study to the Bicycling, Transportation, and Street Safety Commission, which would have taken public comment and then forwarded an advisory report to the Planning Commission as input to their deliberations about the application. Deliberations by the Bicycling, Transportation, and Street Safety Commission could have, and almost surely would have, subdivided the traffic issues into two component parts … the baseline issues that exist currently and the incremental, additive issues that the application would contribute over and above that baseline. Unfortunately Staff decided that that predecessor process step was not necessary.

          1. David Greenwald

            Matt: I agree on your point. I have spoken to a number of land use experts on the subject and the belief was that a focused EIR would have avoided a potential lawsuit, not that it would have generated a different result necessarily.

          2. Matt Williams

            Understood David, but unless that focused EIR process had included a hearing before the Bicycling, Transportation, and Street Safety Commission, I believe they would still have been leaving themselves open to the risk of a lawsuit.

        2. CalAg

          To reiterate my previous post, the City Council had no business hearing this application without (2) a defensible environmental document, and (2) Commission review.

          And I’m a huge supporter of the project.

          This SNAFU is on Brazil.

        3. ryankelly

          Richards Blvd has been the discussion of City Councils for decades.  Why didn’t Harrington bring this up and come up with solutions when he was on the Council, when other businesses were being proposed and built.

  11. Michael Harrington

    Our team has a settlement process proposal pending with the City and Royal Ganesh. Waiting for a response.

    I have always found Harriet Steiner and Katherine Hess to be pleasant to work with, friendly, and very quick with responses to my questions, no matter how odd sometimes. I sometimes don’t agree with them but often I do, as professionals with shared experiences working in the public interest. We often reach different conclusions but I never question their integrity or attempts to get it right.

    We shall see where this goes, but our team is hopeful that by working with all parties and our excellent local court, we can achieve a fair, balanced and lawful result that our residents will embrace and be proud of.

        1. hpierce

          “Attorney fees”…  yeah, @ what, $300/hr?  Nice work if you can find it.  How are “hours” verified?  Oh, they’re not.  Am close to suggesting that the City counter-sue, to get staff and attorney costs covered.

          If the MND is “vacated”, the remedy is to ‘re-brand’ the analysis as a focussed EIR, with a modicum of additional study, and move forward.

          Still scratching my head as to why City didn’t do the “focussed EIR”.

        2. Anon

          hpierce: “Am close to suggesting that the City counter-sue, to get staff and attorney costs covered.”

          If the city doesn’t do something like that, there will continue to be more of the same…

  12. Michael Harrington

    Frankly:  nothing better than a better building than a certain proposal years ago for baby diaper orange vertical stucco walls with green Tuscan trim .,.,  don’t you love your great office building that I helped you get into ?

    Royal Ganesh will too

    1. Frankly

      Mike, thanks for the previous neighborly building design consultation.  I wasn’t in charge during that period of the company; however, I do like the way the current building looks.  The previous CEO was a fan of Santa Barbara and Pasadena Mediterranean architecture and was going for that look.  I might have liked that too.

      But I wasn’t trying to push any buttons here.  What is your goal with this law suit?

      Someone mentioned that Alan Pryor might just be focused on municipality planning and development protocol.  I suppose that is a worthy thing… making sure our rule-makers follow their own rules.  What is the outcome you are looking for here?  Are you wanting a seat at the elevation design table?

      I might get behind it if I understood it.

      1. ryankelly

        OK, David, so what amount is acceptable to you?  Is $50K, or even $10,000 OK with you?  It sure isn’t to me.  Why should the property owner have to deal with Mike Harrington at all?

      1. Frankly

        This is an example of why I point out that any material traffic mitigation solutions that might be required after the more robust EIR would be rejected by the voters.  So why waste any time on it?  Knowing that it would be futile the Mitigated Negative Declaration make sense, does it not?

        1. hpierce

          In point of fact, NO.  The bullet-proof mechanism is with a “focussed EIR”, which I’m confident would have reached the same conclusions.

          If the “mitigations” included something financially or politically infeasible, the City could legally make “findings of over-riding considerations” and affirm the decisions.

          The City has done this a number of times before.  This is not “rocket science”.

      2. Matt Williams

        For others it is part of a larger picture. The tunnel itself has certain limitations both functionally and aesthetically, but the roads that feed into and out of the tunnel are even greater limiting factors (and contributing factors) than the tunnel itself.

    1. Davis Progressive

      the problem is that the tunnel at least directs the congession away from the downtown.  without the tunnel, the congestions would move to first street and then right back through the underpass.  as it is, first street backs up.

  13. Michael Harrington

    We are doing an independent professional traffic study for Nishi. The Peers report makes no sense to us and seems to be more of the usual:  how to use assumptions to get the traffic count down to what they need to pass muster.  We will use our work product with the voters …. I asked the project manager to make sure they rely on traffic through the campus and a new RR under crossing tunnel but he wouldn’t do it.  He also owns most of the land from Nishi to Richards along Olive Drive …. so ramming through sole vehicle access onto Olive makes huge profits either way

    The CC should be doing all this analysis but they are so blinded by the “open for business” mantra that we will do their job for them.

      1. CalAg

        hpierce: Here is a link to the F&P Nishi traffic study –

        Could you please look at Table 4.14-6 (page 13) and tell me if you agree with their conclusion that the Richards/Olive intersection (#25) is currently LOS B/C at the am/pm peaks respectively.

        I drive through this intersection at least 15-25 times per week and this conclusion is utter nonsense as far as I am concerned. Am I missing something? Is there some methodological nuance that accounts for the disconnect between the data and practical experience?

        In my anecdotal observations, during the northbound peaks, traffic backs up past the top of the interchange and it takes multiple signal cycles to get through the intersection. Yesterday evening I counted 5 cycles from the time I first stopped.

        This is a sincere question – not challenging your professional qualifications in any way. Thanks.


        1. CalAg

          The trip generation assumptions don’t pass the smell test as well.

          325,000 sq ft of R&D/office generating 329 peak inbound trips and 296 peak outbound trips???

          I call BS.

          1. Matt Williams

            CalAg, what is the percentage of the residences that are projected to both live and work on the site, and have no automobile?

        2. CalAg

          Matt – The assumption is that 85% of the rental units will be occupied by students with minimal trip generation.  Pretty far fetched in my opinion. I only read the report quickly, but it looks to me like it is riddled with questionable assumptions that lower the trip counts.

          The other shocker (at least to me) is that the Richards corridor goes to LOS F even with all the rosy trip generation assumptions AND the grade separated connection to UCD.

          1. Matt Williams

            Why is it farfetched in your opinion? UCD’s on-campus housing deficit is going to define the demand for the rental housing. What non-students are going to want to live in what is a de-facto college student dormitory?

            The ownership units will be a bit different, but the geographic location with proximity and access to the innovation incubation businesses on the site, as well as the south campus of UCD is going to again largely define the demand for those units.

            Bottom-line, it will likely be a neighborhood with very high bicycle commuting mode share. In his talk two weeks ago Joe Minicozzi told the audience that in other communities, they study and map the percentage of households by acre that have no automobile at all. My suspicion is that Nishi, if it goes forward, will have a very high percentage of residences with no car.

            One of the market-driven methods for accomplishing that high “no car percentage” will be to provide no parking space as a part of either the monthly apartment rental fee or the ownership unit purchase price. If a renter wants a car they would have to rent a parking space at a rate of (for the sake of discussion) $300.00 per month. If the apartment rental rates are set at the same level as West Village then that is going to produce a very clear market driven signal that if you are looking for student housing that supports your need for a car then West Village is approximately $300 per month cheaper than Nishi, because the West Village units include a parking space at no charge and the Nishi ones do not.

    1. CalAg


      I asked the project manager to make sure they rely on traffic through the campus and a new RR under crossing tunnel but he wouldn’t do it.  He also owns most of the land from Nishi to Richards along Olive Drive @ Michael Harrington

      Could you please elaborate. Are you saying the applicant rejected a UCD-only access plan? Or are you saying the applicant rejected a dual UCD + Olive Dr access plan and is seeking 100% access through Olive Dr?

      Clarity on this point is important.

  14. Michael Harrington

    hpierce:  thanks for your offer to help.  Nice to know our little Davis community has someone with your high credentials to advise.   Maybe we can sit down with all the data out and go through it together sometime?

    We are ready willing and able to go to court-ordered confidential mediation as soon as possible in this matter.  The mediator will have our proposal and take it to the other parties.

    1. hpierce

      There are many in town who have good traffic engineering skills/knowledge.  Some of them have reviewed the current analysis.  They have not questioned it because it is sound.  You folk have raised procedural issues, not issues of fact.

      Sounds like your “independent analysis” will only be vetted in private, in “mediation”.  If you have such analysis (which I am more and more strongly doubting) PUBLISH it where we can see it, evaluate it.

      The process you seem to be following is ~ 180 degrees off of “transparency”.  I.e. OPPOSITE.

  15. Michael Harrington

    I drove though the Subway this morning to South Davis on a business errand, and tried to come back at 8:50 am.  I sat on Richards, trying to go north, from the other side of the overpass all the way to the Olive light.  It must have cycled 10X times before I got through it.  The Subway was nearly empty going south out of downtown.

    In DC, they have a lot of historic roads and tunnels, and they solve the traffic problem by opening tunnels one way with the commute traffic.

    Our Subway could have lights timed to two lanes coming in and two out morning and night, respectively.  The lights could stop the two lanes and allow the other side to come or go, so no one has to sit for too long.  Would have to be timed with Olive Richards lights.  This would be an extremely easy at least partial solution to the congestion issues, and the back up on the bridge ove I-80.

    I’m not a traffic engineer, but there are some obvious things that could be done … BEFORE these new projects are built.

    1. Anon


      Secondly, WHO says your engineer is more correct that the city’s traffic engineer?

      1. hpierce

        To make the record clear, the ‘heavy lifting’ of the traffic study/analysis was done by Fehr & Peers, a very reputable firm who has studied Davis extensively.  

        There are at least two, probably three engineers on City staff capable of reviewing their work, understanding it, and finding any flaws.  Yet, Alan P thinks it’s seriously flawed.  Credentials, please?

        Mr H has not indicated who his “team” will be working with.  Don’t hold your breath… would hate to call 911 on your behalf.  Smell a “bluff”.  but even when you bluff, if you’re called, you have to ‘show your cards’.  Don’t expect that, either.  ‘This dog don’t hunt”

    2. Matt Williams

      Mike, let’s tease out your DC idea a bit. The theoretical result of your suggestion would be that twice as many cars would be able get through the tunnel and present themselves to the streets immediately to the north and south.

      — Starting from the west, you have the traffic signal at 1st and D Streets, which acts as a traffic throughput constriction. Presenting twice as many cars to that intersection is not going to change its carrying capacity, and in the traffic backup times like the one you have described, that carrying capacity is more of a limiting factor of the system than the tunnel is.

      — The traffic light at 1st and E Streets has different, but similar carrying capacity constraints as 1st and D, and further, when the backup of cars waiting to go through 1st and D extends all the way to 1st and E, as it often does, then the 1st and E carrying capacity grinds to a halt.

      — The eastbound traffic on 1st Street, going up and around the Boy Scout Cabin would be the only portion of the through traffic that would be positively impacted by your two-lane DC solution. With that said, it would be interesting to see the traffic volume statistics to know what proportion of the cars going through the tunnel actually go east on 1st Street. My guess (and it is only a guess) is that it is less than 20% of the total volume, and that the current one lane situation doesn’t significantly adversely affect those eastbound on 1st Street travelers.

      For me, the change that I believe would immediately improve the throughput would be to eliminate the north-south pedestrian/bicycle crossing at the 1st and E Street traffic light. All pedestrian and bicycle traffic going to and from the Davis Commons/Whole Foods area would be routed to the current traffic light at 1st and D Streets. Northbound cars coming out of the tunnel headed west on 1st Street would not have to stop for those pedestrians at 1st and E. The 3-foot tall wrought iron fence that currently prevents people from falling over the retaining wall on the east side of that green area in front of Whole Foods would need to be extended along the property edge to the 1st and D intersection in order to make jay-walking across 1st Street impractical.

      Finally, when you look at the rush hour issues of the tunnel from the southbound perspective, the fact that southbound Richards Boulevard has fewer carrying capacity issues means that there are rarely southbound backups on Richards south of the tunnel.


    3. ryankelly

      Mike, Where have you been?  There is road construction all over town and travelers are using all sorts of ways to avoid bottlenecks – Covell, Poleline, 8th Street.  One trip during this is not a good estimation.  You are not a traffic engineer and your one trip to meet up with your lawyer in South Davis during road construction Armageddon is not a valid measurement.   In fact, I would say that you are part of the problem, using the tunnel to get back into town from South Davis.  Why didn’t you use Poleline Road and go down 5th street?

  16. Anon

    Alan Pryor: “1. It will force a more realistic and less biased traffic analysis to be done …

    2. It will cause the Council and Staff to seriously think twice before circumventing CEQA in the future and perhaps avoid other such litigation in the future. That is “good”, right?”

    1. Are you a traffic analysis expert?  What are your credentials in that field?

    2. In other words the way to get one’s way is to sue/threaten to sue or threaten an initiative in order to get YOUR WAY on an issue?

    3. No one way is necessarily the “right” way.

  17. Michael Harrington

    Matt Williams and a few others asking for my input yesterday:  sorry, have been on filing deadlines and have to handle business before blogging.  Thanks for all of your comments.  The admin record will be compiled soon, and the details will become available for the public to see and evaluate for themselves.  Until then, I have to work.

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