Former Davis City Councilmember Michael Harrington filed a lawsuit on March 18 challenging the legality of the Nishi-Gateway project approval. The lawsuit was filed by attorneys Michael Harrington and Don Mooney of Davis on behalf of their client, Davis Citizens Alliance for Responsible Planning.
Mr. Harrington and company have named the defendants in their lawsuit as the City of Davis, the Davis City Council, and Nishi Gateway, LLC, as the developer of the proposed Nishi Gateway project. The lawsuit alleges that the City of Davis and the city council improperly approved a Final Environmental Impact Report (FEIR) for the Nishi Gateway Project. It also alleges violations of the City of Davis Affordable Housing Ordinance by the City, the Davis City Council and Nishi Gateway, LLC.
“This is a desperate attempt to disrupt the Measure R process and remove voters’ rights. The facts are contained in the EIR – the Plaintiffs just prefer to ignore them to obstruct the process. After eight years of collaboration, Davis voters deserve an opportunity to finally weigh in on this community plan,” said Tim Ruff, managing partner of the Nishi Gateway in a statement this morning.
The Nishi Gateway project is a proposed mixed-use development project composed of two distinctly separate but adjoining areas, totaling approximately 57.7 acres; 10.8 acres are within the City of Davis and 46.9 acres are immediately west of the city limits. The project site is adjacent to downtown Davis and the University of California at Davis’ campus but is separated by the existing Union Pacific Railroad (UPRR) track.
The 46.9-acre area is referred to as the Nishi site and is evaluated at a project-level within the EIR, the press release states. “Vehicle access to the site will be from an extension of West Olive Drive in Davis and a new grade-separated crossing of the railroad tracks to Old Davis Road on the UC Davis campus.
“The City of Davis is responsible for preparation of an EIR that describes the Project and its impacts, and, if necessary, evaluates mitigation measures and/or alternatives to lessen or avoid any significant environmental impacts. The EIR evaluated the environmental impact of the proposed development of 440 rental housing units, 220 for-sale condominium units, 325,000 sq. ft of office/research and development space, and 20,000 sq. feet of retail space on the Nishi site.
“Because the 46.9 acre portion of the site is not currently within the City of Davis boundaries and the City desires to annex the land and change the zoning from Agricultural to urban uses, the approval of Davis voters is required under local law (Measure J/R -Davis Municipal Code Chapter 41) and the matter was placed on the June 7 General Municipal Election ballot as Measure A by the Davis City Council.”
According to Mr. Harrington’s press release, “the lawsuit alleges that the EIR was deficient with respect to the traffic analysis performed and analysis of air quality impacts of the project and thus should not have been certified by the Davis City Council on February 16, 2016.”
The lawsuit makes three critical claims:
1) The Project includes traffic mitigation measures that are inconsistent with mitigation measures for a previously approved project.
2) Documented evidence to support the traffic study’s analysis was not made available.
3) The Project also fails to adequately analyze, discuss and mitigate the air quality impacts and significant health impacts to residents of the Nishi Project due to the location of the Project sandwiched between the congested Interstate 80 freeway and heavily used railways.
The lawsuit also claims that “the City, City Council, and Nishi Gateway LLC violated the requirements of the City’s Affordable Housing Ordinance (Davis Municipal Code, Article 18.05) which requires that developers of certain sized residential housing projects in Davis either construct a prescribed number of below-market, affordable rental or for-sale housing units or pay prescribed in-lieu fees to the City’s Affordable Housing Trust Fund.”
Mr. Harrington and company allege that “the City improperly and arbitrarily exempted the Nishi project from affordable housing requirements and failed to require affordable housing as required by law.”
“The City has basically tripped all over itself to rush this to the June ballot for no discernible reasons and given away over $11.0 million USD of value to the rich developer extended families who own or optioned the Nishi site,” Mr. Harrington’s suit alleges.
When the council passed Nishi Gateway and put the measure before the voters, they put into the project baseline feature requirements on the timing of construction.
The Baseline Project Features require phasing the construction based on the approval of the grade-separate crossing, as well as the Richards Corridor study. First, “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.”
Second, “The Baseline Project Features also include commitments for backbone infrastructure to the R&D properties with the first phase of development, to ensure ‘permit-ready’ sites when prospective purchasers or buildings are identified.”
City staff believes that air quality concerns “can be substantively addressed by planting trees near I-80 earlier than previously planned and by planting larger trees. The Nishi Gateway is already designed to place trees and R&D [Research and Development] space as a buffer to residential units, with for sale units furthest back from the highway.”
However, the planning commission was concerned about the plan. Commissioner Cheryl Essex expressed real concern about the air quality issue. “I am really concerned that this is going to be a real unhealthy place to live, work, and play,” she said. “I wonder about that residential component more than anything. We need more residential – because if we don’t have more residential close to campus… then people are driving on Interstate 80 and creating more pollution as they come to town.”
She noted that tree planting “is not something that’s going to work right away, so the outdoor air quality may take some time to improve. It may never improve – it’s not a proven mitigation measure.” She noted that this might be possible if they delayed for sale housing until the tree mitigation is proven effective.
Likewise, Thomas Cahill expressed concerns about the health impacts of particulate matter, and opposed development of housing on the Nishi site.
Dr. Cahill, in his report in October, concluded that “in present conditions, it is my opinion that causing people, and especially vulnerable populations spending much of their time on the Nishi property, to move into a situation of such great potential harm is simply not supportable.”
Mayor Pro Tem Robb Davis, however, pushed back on the issue, stating, “I’m really frustrated about this one.” He argued that “we need a basic course in risk analysis.”
For instance, he noted that 1 in 3500 farmworkers in this country will die on the job this year. “That’s an acceptable risk to us,” he stated. “We live with that. We consume the food that they produce.”
The mayor pro tem explained, “What we’re hearing about this property is 1 in 4500 people will over the course of an entire lifetime contract a certain form of cancer. That’s not annually, that’s 1 in 4500 over the course of lifetime. We’re talking about magnitudes of difference.”
He said, “These are minuscule risks compared to the risks that we face every day in our lives.” He noted that people who drive their car their entire lives will have three accidents on average. “That’s the risk we live with,” he said.
The Baseline Project Features establish “[d]eveloper commitments of $1 million for the affordable Housing Trust Fund and an additional $200,000 for the City Council to allocate amongst on-site civic arts, establishment of a local carbon offset program, and implementation of the Downtown Parking Management Plan, for a total of $1.2 million.”
—David M. Greenwald reporting