Analysis: Will Baseline Features Pass Legal Muster?

Nishi-Jan-Rendering

At the January 19 meeting, Mayor Pro Tem Robb Davis suggested that the city simply increase the number of residential units in the Nishi project to 780, rather than the proposed 650 units with the option to increase the number to 780 later.

However, city staff likely believes that such an increase now would necessitate a new Environmental Impact Report (EIR), which would undoubtedly delay the project. Instead, they write, “The Baseline Project Features also allow potential increase in residential units, or addition of a hotel, as a potential subsequent action by the City, but without a requirement for subsequent voter approval.”

What would be required is: “Discretionary review, public hearing, and environmental analysis would be required for a proposal to increase densities or add a hotel to be considered.”

Staff notes that two possible amendments are identified in the Baseline Project Features, which would require a full environmental review as required under CEQA (California Environmental Quality Act), and city council consideration of the necessary General Plan and planned development amendment (but not an additional vote). These are the additional 130 units of residential which would increase the total to 780, and the construction of a hotel not to exceed 125 rooms.

Staff maintains, “City Council may approve, modify and approve, or deny, any submitted application, but subsequent voter approval would not be required.”

In our view this move is risky, at best. First, it will practically invite someone to sue the city for allegedly violating the spirit, if not the letter, of Measure J/R. Second, it would seem to be a very risky political move, as well as inviting uncertainty.

This piece will take up the legal issue and leave the politics of it to others.

Under Municipal Code second 41.01.020, “Voter approval”, the provision created by Measure J requires the establishment of “baseline project features… which cannot be eliminated, significantly modified or reduced without subsequent voter approval.”

There is not a lot of guidance in the language of the municipal code, though section (c) stipulates, “Once the voters have approved a land use map designation or land use entitlement for a property, additional voter approval shall not be required for: (1) Subsequent entitlement requests that are consistent with the overall approved development project or land use designation and entitlements including the baseline project features and required provision of open space, recreational amenities, design features and public facilities, as specified in the exhibits and plans approved by the voters.”

Moreover, “Any requested modification to a land use designation or development project entitlement that does not increase the number of permitted dwellings or units or the intensity of commercial/industrial development and does not significantly modify or reduce the baseline project features and required provision of open space, recreational amenities, design features and public facilities, as specified in the exhibits and plans approved by the voters. The city council may adopt procedures for the hearing of a request for modification.”

The reason for these provisions is obvious, lest someone attempt to slip a proposal by the voters and then attempt to change it later with a more sympathetic city council.

The question before us is something different. How specific must the guidelines be? Can they put a whole provision into the baseline features, allowing for an additional 130 units, upon approval and a new EIR?

There is nothing in the text of the municipal code and the ordinance that appears to prevent such contingencies.

When Measure J came up for renewal, there was an attachment to the resolution, written by the city attorney, which attempted to assess for “illustrative” purposes only and “to provide guidance for possible future circumstances” those “proposed changes and project refinements that would not trigger a subsequent Measure J vote.”

These included, “A change of land use, if determined consistent with the range of land uses, the density and intensity of land uses, and the maximum number of housing units and non-residential development square footage as established in the Base Line Project Features and the Master Plan.”

Given that the project baseline feature would allow for the request for the additional 130 units, that would seem covered in this example.

On the other hand, examples that would trigger a new vote include, “A reduction or increase in the density or total number of housing units within the overall project below or in excess of the established minimum or maximum number of units set out in Base Line Project Features.”

But again, because the project baseline feature would allow for this possibility, it would seem to fit the former and not the latter example.

Therefore, I would argue that, from the perspective of legal requirements, there is nothing that would preclude there being contingencies in the baseline project features, and therefore the additional 130 units with requirements for CEQA review seem to be permissible under Measure J.

However, there is also the political consideration here. Will the voters approve a project that has a number of contingencies including: the number of housing units, the hotel, the requirement for the second UC Davis crossing and the requirement for the Richards Boulevard Corridor plan?

Those are political questions rather than legal ones. The council and developer will have to weigh the advantages of going in June versus the risk of waiting to resolve some of the uncertainties.

—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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8 Comments

  1. SODA

    The illustration attachment to the resolution you cite seems to be in direct opposition to the language of Measure R in terms of size/density ; how can they be compatible? Who is staff recommending this?

  2. Misanthrop

    Adaptability must now be sacrificed to the righteousness of ballot box planning. Are contingencies the right thing to do? You seem to think so but worry that they won’t pass Measure R muster. Add one more failure to the list of the negative unintended consequences created by Measure R.

  3. Matt Williams

    As a reference for comparison, here (see http://community-development.cityofdavis.org/Media/Default/Documents/PDF/CDD/Planning/Special-Projects/Covell-Village/36-Applicant-Proposal-for-Baseline-Project-Features-20050527-Covell-Village.pdf) are the May 27, 2005 Baseline Features for Measure X – Covell Village

    Covell Village Measure J Baseline Features Project Description

    The City’s agreement with the developers of Covell Village requires the project to feature homes, 105 acres of parks and open space, and a Village Center.

    The agreement places other requirements on the project’s developers, including funding a new fire station, building affordable housing, providing solar electricity, and permanently protecting farmland.

    LOCATION

    The Covell Village site, located on 383 acres north of Covell Boulevard between Pole Line Road and F Street, does not include the old Hunt’s cannery site. Its northern border is even with the northern borders of Wildhorse and Northstar.

    HOMES

    Over a period of 10 years, the developers will be required to provide 1864 homes in Covell Village at an average rate of 186 homes per year, including approximately:

    600 market-rate homes. Average lot size: 5,400 square feet.
    315 middle-income homes. Average lot size: 3,250 square feet.
    85 middle-income senior condos or townhomes.
    150 senior homes. Average lot size: 4,500 square feet.
    212 apartments.
    144 low and moderate-income homes.
    358 other dwellings, such as affordable apartments, live-work lofts, Village Center apartments, and a co-housing project.

    PARKS AND OPEN SPACE

    Covell Village will be required to have over 105 acres of parks and open space.

    A 34-acre wetland habitat, like the Northstar pond.
    A 27-acre nature corridor, running east-west.
    16 acres of greenbelts.
    12 acres of mini-parks.
    An 11-acre central park.
    4 acres of “linear greens” (long, narrow parks).
    A village green and other green spaces (under 2 acres). VILLAGE CENTER

    Covell Village’s walkable, multi-story, mixed-use Village Center — blending commercial, civic and residential uses — will be required to meet “New Urbanist” planning and architectural design criteria.

    OTHER DEVELOPER REQUIREMENTS

    The developers of Covell Village are required to:

    Build and equip a new fire station or donate $4 million, whichever is less.
    Give the City $12.1 million over a 9-year period to defray fire station operations.
    Donate 1.7 acres for the fire station at the intersection of Covell and L Street.
    Donate another $425,000 for fire apparatus.
    Install a 1KW solar photovoltaic system on every single-family home.
    Build and make available more affordable housing than has previously been required in Davis.

    Complete all parks and open spaces within two years of starting each phase.
    Maintain all parks and open spaces at their own expense for at least five years.
    Give 776 acres of permanent farmland easements to the City.
    Improve 60 acres of habitat or natural corridor similar to the Northstar pond.
    Buy Nugget Soccer Fields and donate them to the City for permanent sports use.
    Donate land and $2.75 million for a Community Center in the Village Center.
    Fund up to $500,000 of traffic calming measures for L Street, J Street and Claremont Drive.
    Fund unlimited bus use by assessing Covell Village residents.
    Fund a community amphitheater and public art improvements in Covell Village.
    Donate a 10-acre site to the Davis Joint Unified School District.
    Pay for an additional police car.

    Baseline Project Features – 5/27/2005

     

  4. Matt Williams

    And as a second reference for comparison here are (see this LINK) the Baseline features for Measure P – Wildhorse Ranch

    EXHIBIT B
    Wildhorse Ranch
    Base Line Measure J Project Features

    Wildhorse Ranch is a 25.8 acre development site, inside the city limits, designed with a mix of housing types and affordability levels to meet the housing needs of the local Davis workforce. The community is designed with housing that is blended together so that families of all incomes and social structure will mix and interact in the common greenways, or paseos that form the front yards and community open space for all to enjoy. The community plan provides for more than 37% of the site, dedicated by the developer, to be set aside as permanent open space, including an addition to the City’s Agricultural Buffer, and a 4.4 acre open space area for passive recreation that is to be planted with trees and ground cover and will become the focal point for the community. The street pattern in the community is designed at a human scale that puts the pedestrian first and the automobile second. Roadways are narrow and sized to meet the minimum needs for traffic, thus lessening the amount of paved surface leaving more area for landscaping and natural site drainage and absorption of rain and lessening site runoff. Most importantly the community is designed to set a new standard in sustainable building and community design for Davis as well as the region.

    The site plan was prepared with the intent of maximizing the energy efficiency and opportunities to generate solar power. Continuing the long tradition in Davis of approving high-quality, environmentally progressive development on a scale consistent with the intent of the City of Davis General Plan policies, Smart Growth principles, and the desires of the community, Wildhorse Ranch sets the bar at a new level of energy efficiency and Green House Gas emission reduction. The project will reduce operational Green House Gas emissions by 90%. To achieve this, the project will use a combination of methods to reduce energy demand or replace carbon generated electricity with clean solar power from onsite photovoltaic systems, and the homes will be designed to exceed the California Energy Standards for 2005 (2005 Title 24) through the use of high efficiency heating and cooling systems, demand hot water systems including solar hot water, passive solar features, energy efficient appliances and improved insulation. All of these features will result in a reduction in GHG emissions of below a traditional single family neighborhood, and exceed the current city goals for new homes.

    Wildhorse Ranch will provide up to 151 new town homes and single family homes to meet housing needs for families and the local workforce population as well as 40 rental apartment homes (with 15 units affordable to very low income, 23 affordable to low income and 2 non- income specific). The human scale and protection of the planet are the key drivers to creating the sense of place to be found at Wildhorse Ranch. Most homes will face one another, as opposed to roads, orientation to maximize solar efficiency, all within an a site already within the city limits will serve to create the next step in sustainable design and development that will take real steps to addressing the human impact of growth, while providing a real world example of how sustainability and GHG reduction can be designed into a community without compromising comfort of livability.

    Project Description:

    Wildhorse Ranch is 25.8 acres and will contain up to 191 homes. The project will be developed in substantial compliance with the attached master plan and entitlements approved by the City Council. The following mix of housing is to be developed on the site:

    — Up to 73 Single Family Homes.
    — Up to 78 Town Homes.
    — Up to 40 Apartment Homes of which 38 will be affordable to very low and low income households.

    The total number of units, 191, cannot be exceeded. The number of units within the Single Family Homes category and the Town Homes category may vary up to ten percent (10%) provided however that any increase in one category must accompany a corresponding decrease in the other category. A reduction in one category may occur without the requirement to increase the total units in the other category. Such an event would result in a decrease in the total units within the project. Notwithstanding the forgoing the total market rate units for the project shall not be less than 136.

    The focal point of the Wildhorse Ranch community will be the common area open space that is to be planted with trees and native plants. This open space area is to remain in permanent open space under the ownership of the future Home Owners Association.

    Sustainable Design & Energy Efficiency

    — The project shall reduce its Green House Gas emissions by 90% below the base line established by the City of Davis in its Resolution #09-043 regarding Green House Gas reductions. Examples of methods that could be employed to meet this GHG reduction level include:

    ++++ The use of photovoltaic systems (solar panels) on the roofs of homes, and other structures within the community.

    ++++ Design building and homes within the community to exceed the 2005 California Energy Standards, Title 24, by an average of 50% throughout the project.

    — To improve the quality of storm water leaving the site, the project shall employ bio- swales and periodic settling basins to allow sediments to be filtered or settle out of storm water runoff before it leaves the site.

    Greenbelt and Open Space

    The following greenbelt and open space features will be included with the Project:

    — An approximately 2.26 acre addition to the existing Urban Agricultural Transition Area bringing the total width of this area to 200’ thus creating a definable edge to the City. This area is to be dedicated to the City for ownership and maintenance.

    — An approximately 1.61 acres of greenbelt providing connection from the existing neighborhood to the west through the property to the agricultural buffer on the east side of the property. This property is to be dedicated to the City for ownership and maintenance.

    — An approximately 4.4 acre open space area to be planted with trees and ground cover to provide a location for passive enjoyment of open space. Walking paths and bike paths will provide access to the internal pathway system as well at to the citywide bike trail system. This property will be deeded to the future Home Owners Association for ownership and maintenance.

    — The project shall secure a Conservation Easement on approximately 51 acres of active agricultural land to ensure the preservation of farmland in perpetuity.

    The developer shall improve these areas, as required, and dedicate to the City the approximately 1.61 acres of Greenbelt and the approximately 2.26 acre addition to the Urban Agricultural Transition Area. The remaining areas shall be owned and maintained by the Home Owners Association to be formed for the community.

    Developer Contributions, Dedications & Obligations:

    Wildhorse Ranch will provide land dedications, sustainable and climate improving technology, fees and housing for low and very low income households. These contributions will benefit much of the community as well as the region and are as follows:

    — The project shall reduce its Green House Gas emissions by 90% below the base line established by the City of Davis in its Resolution #09-043 regarding Green House Gas reductions. Examples of methods that could be employed to meet this GHG reduction level include:

    ++++ The use of photovoltaic systems (solar panels) on the roofs of homes, other structures within the community.

    ++++ Design building and homes within the community to exceed the 2005 California Energy Standards, Title 24, by an average of 50% throughout the project.

    — Dedicate to the City the approximately 2.26 acre parcel to be added to the existing city agricultural buffer adjacent to the property.

    — Dedicate to the future Home Owners Association, for permanent open space, the approximately 4.4 acre to buffer the adjacent neighborhood.

    The Developer shall also comply with City requirements, standards, policies and mitigation measures by providing the following:

    — Dedicate to the City the approximately 1.61 acre parcel for continuation of the City greenbelt

    — Dedicate to the City permanent conservation easements on approximately 50 acres of active agricultural land.

    — Provide approximately 15.5 acres of Swainson Hawk foraging habitat through the purchase of a Conservation Easement, or payment of mitigation fees to the Yolo County Habitat Joint Powers Agency.

    — Dedicate to the City a 1.92 acre site for the production of 40 apartment style homes including 38 homes affordable to very low and low income households, or construct up to 40 apartment homes including 38 units affordable to very low and low income households pursuant to an approved Project Individualized Plan.

    — Pay to the City of Davis an in-lieu Parkland Dedication fee.

    — The project shall also pay fees to the City, the Davis Joint Unified School District or Yolo County as part of the development fees for the project. The actual amounts to be paid will be the amount of the fee then in force at the time the fees are paid consistent with the Development Agreement between the Developer and the City. These fees presently are:

    ++++ Davis Joint Unified School District Capital Facilities Fee. Yolo County for Public Facilities.
    ++++ City of Davis for Road fees.
    ++++ City of Davis for Park Improvement fees.
    ++++ City of Davis for Open Space fees.
    ++++ City of Davis for Public Safety capital purposes.
    ++++ City of Davis for General Facilities.
    ++++ City of Davis for Water Connection fees.
    ++++ City of Davis for Sewer Connection fees.
    ++++ City of Davis for Stormwater facilities.
    ++++ City of Davis for Construction Tax and miscellaneous fees for operations. City of Davis for Long Range Planning efforts.

    Baseline Project Features: Implementation

    The Wildhorse Ranch project is required to develop in a manner consistent with these Base Line Features. As provided for in Measure J, the Base Line Features may not be changed without approval by the voters of the City. There are other additional requirements for the Wildhorse Ranch project, including but not limited to, the mitigation measures set forth in the Final Environmental Impact Report, and the Development Agreement that, while important to the Project, are not Base Line Project Features and may be modified with the approval of the City, after the appropriate public process. In addition, minor changes to the Project can be anticipated during the course of this multiple year build out. Such changes, often the result of detailed engineering or changing conditions, may be changed without voter approval, if they are substantially consistent with the Base Line Features and they do not materially alter the character of the project.

  5. CalAg

    “The question before us is something different. How specific must the guidelines be? Can they put a whole provision into the baseline features, allowing for an additional 130 units, upon approval and a new EIR? There is nothing in the text of the municipal code and the ordinance that appears to prevent such contingencies.” David Greenwald

    I disagree. The language is pretty clear. In my opinion, a “contingency” does meet the legal bar of a “project feature.” This needs to be tested in court if the council is foolish enough to approve the baseline project features with contingencies on density, land use, and/or traffic circulation.

    The bottom line is that the planning is incomplete and staff is trying to create a work-around so that the project can prematurely go to the ballot. The issue here is not the contingencies but the fact that staff never seems to be able to get the job done in a timely manner.

    This was a problem with Wilhorse Ranch, Cannery, and now Nishi.

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