Nishi is a Political Process Not a Legal One – In the fall of 2011, the city council in the early morning hours of the new city manager’s first meeting, rammed through the Surface Water Project. A group of citizens led by former Councilmember Michael Harrington gathered petitions and forced the council first to rescind the new water ordinance, then study it, and finally put it on the ballot.
The result of those actions was a smaller, cheaper, and far better project. Had Mr. Harrington simply stopped there, he would have done the citizens a great service and saved the community and city millions.
However, he didn’t. Instead he sued the city, put the water rates on the ballot, and while the city ultimately settled with him, it is unclear the benefit of the subsequent actions. Most recently he has taken advantage of a tactical error on the Hotel Conference Center project – about whether the city is legally obligated to have done a focused EIR (Environmental Impact Report) on the impact on Richards Boulevard. It was a tactical error to go the Negative Declaration route there, and now that project, with hundreds of thousands in potential revenue for the city, is tied up in court.
Now Mr. Harrington has turned his attention to the traffic analysis in the Nishi Gateway EIR. In the staff report, the city mentions that they will have a response to the CEQA (California Environmental Quality Act) comments from Mr. Harrington forthcoming.
In his communication to council, Mr. Harrington writes, “There are conflicts between the two project’s proposed plans to mitigate the traffic snarls that are likely to happen, and the City really needs to perform more analysis.”
Mr. Harrington suggests that the city “postpone Nishi vote until after the traffic analysis is improved, and realistic mitigation measures are adopted.”
Mr. Harrington has contracted with Dan Smith, an traffic engineer. Mr. Smith notes, “The traffic analysis for Embassy Suites does not consider the Nishi project either in assessment of immediate traffic impacts on existing conditions nor in the cumulative conditions (2035 development level) assessment.”
Implicit in the February 10 communication from Mr. Harrington is a threat to sue if the city does not delay the Nishi Project. A similar tactic was used previously on the Hotel Conference Center – and Mr. Harrington has followed through on that implied threat and launched a suit that has ground that project to a halt.
The city concluded that the traffic impact of the Hotel Conference Center would be less than significant with the planned mitigations. As the Vanguard has previously noted, the city would have been on safer legal and political ground having done a focused EIR rather than a Negative Declaration, but, given Mr. Harrington’s subsequent actions on Nishi, it is not clear that this would have mattered.
All of this is a very technical objection by Mr. Harrington. The city is well aware of the problems on Richards Blvd. As the Vanguard has suggested, some of this can be mitigated by re-directing traffic, attempting to access the university through Richards, to use Old Davis Road, Hutchison Drive and Russell Boulevard access points to the west.
Second, the connectivity to the campus through Nishi itself will allow for a second and more direct access point to campus that bypasses the Richards Underpass.
Third, the city has a grant through CalTrans to improve the Richards interchange and has placed, into the project baseline features, stipulations that require the completion of the grade-separated crossing to campus and the interchange improvements (set for 2020) prior to construction.
Writes staff, “The Baseline Project Features call for all backbone infrastructure, including the grade-separated crossing to UC Davis and the improvements to the Richards Boulevard interchange, be completed prior to any occupancy on the Nishi site. Construction on the Nishi site could begin only after construction has begun on the interchange and the grade-separated crossing.”
Mr. Harrington, in a communication to council back on February 2, argued, “We do not believe this project’s FEIR conforms to CEQA. Measure R requires that the project FEIR conforms to CEQA. Since it does not, putting this project as currently describes violates the letter and spirit of Measure J/R.”
He continued, “The best, and only legally viable option, is to delay voting to certify the FEIR, delay voting to put the project on the June 2016 Ballot, and demand that the project applicant continue work on the project design until it conforms to law and is otherwise acceptable to put onto a future ballot at the soonest opportunity.”
He continued, “Our position is that since the project does not conform to CEQA, a Measure R vote would be invalid under the terms of Measure R.”
The legal threat here is quite clear, but in our view completely unnecessary. We argue that there is a clear political solution here – let the voters decide
Measure R remains vague as to timelines. Mr. Harrington contends that the city must complete CEQA and comply with it prior to the vote.
The language of Measure R seems more vague, noting that it requires “[a]pproval by the City Council, after compliance with the California Environmental Quality Act, the State Planning and Zoning laws and any other applicable laws or regulations…”
The question is whether the city has done enough to comply with CEQA by requiring the project’s construction be contingent upon Richards Corridor transportation issues as well as the completion of the access point to the university.
While there are technical legal issues here, much as we surmised in 2013, a judge was not going to overturn the will of the people unless the law was grossly violated. This is much more technical than even the water issue.
In our view, this should not be a legal issue at all. Let the voters decide. If they believe that the city and project developer have done enough to address the traffic issues on Richards, then then they will vote for the project. If they do not, then they can vote against the project.
If Mr. Harrington believes that Measure R is not specific enough – and he may be right on this point – then re-write Measure R, put it back on the ballot and get the voters to change it.
But let us stop with the never-ending flow of lawsuits. We do not need another lawsuit here. Lay the issues before the voters and let the voters decide. If your view is so compelling, then the voters will vote the project down. If the voters believe this is a technicality, then they won’t. That is why we have Measure R, to allow the voters to decide.
The bottom line is there are a bunch of political decisions to be made here – not a legal one.
—David M. Greenwald reporting