To the surprise of probably no one, Michael Harrington and Don Mooney have filed a lawsuit once again on behalf of a group called Davis Citizens Alliance for Responsible Planning. Among other things, the suit challenges the city on traffic mitigation, insufficient traffic study analysis, health impacts and violation of the city’s Affordable Housing Ordinance.
Our view is that it is unlikely that a judge will throw out the results of a democratic vote of the people in June on the basis of this suit. More importantly, there is nothing alleged in the lawsuit that cannot be resolved in a political rather than legal process. The voters can be made aware of these issues at the polls and determine for themselves whether the project measures up.
Bottom line is that if the voters believe that the project fails to address traffic mitigation or the other alleged shortcomings of the project, they can simply vote no. The Vanguard believes that the voters should make this call – not a judge and not by lawsuit.
In their press release, Michael Harrington, an attorney and former city councilmember from 2000 to 2004, writes, “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.”
We would not necessarily disagree with him over the issue of the $11 million in value. The city of Davis, for reasons that remain unclear in a pre-development agreement from November 2012, agreed to a provision, “If residential density is greater than 30 units per acres gross, no affordable housing obligation or fees.”
Under the terms of the city’s affordable housing program, one-quarter of the 650 units should have been designated Affordable Housing units or the city should have received in-lieu fees that could have totaled somewhere between $6 and $11 million. Instead, the city has received $1 million, which the council insisted on receiving during negotiations this year with the applicant.
The Vanguard believes that the city negotiated hard in the last few months to address many issues, and disagrees with the notion that it tripped over itself; nevertheless, the city council in November 2012 gave away the store on Affordable Housing.
However, this is not a legal issue, in our view. Michael Harrington, in a comment yesterday, writes, “Nishi was never exempted from the Affordable Housing Ordinance. Therefore, the Nishi application the CC brilliantly rushed through for June does not conform to law.”
However, the Vanguard believes he is wrong here. The Affordable Housing Ordinance is a municipal ordinance, written into the municipal code. It can be changed with three votes and the council has the ability to exempt or modify on a case-by-case basis.
The voters of Davis can decide whether the city’s decision on affordable housing is acceptable, but a judge is unlikely to overrule a vote of the people on this basis.
Mr. Harrington writes, “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.”
Here there were extensive conversations about the impact of the location between the railroad and I-80. The city has opted to buffer the project with trees in order to reduce air quality impacts. Is that sufficient? Depends on whom you ask.
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.”
Again, this is not an argument that the city has sufficiently addressed the issue, but rather an argument that this should be a campaign issue not a legal issue.
Finally, Mr. Harrington argues that the “project includes traffic mitigation measures that are inconsistent with mitigation measures for a previously approved project.” Moreover, they add, “Documented evidence to support the traffic study’s analysis was not made available.”
Unlike the other two provisions, traffic mitigation is governed by state CEQA law. However, while we can disagree over whether the traffic analysis is exactly one hundred percent accurate, everyone knows that the traffic is bad on Richards Blvd. – LOS (Level of Service) F, to be precise. An EIR is a disclosure document.
The city council has put into the project baseline features provisions that could address these traffic impacts. On Richards Blvd. itself there is a corridor plan. There are also mitigation measures. And the city needs to re-route traffic to the university to bypass the Richards Underpass, along with correcting long-problematic light sequencing. Building Nishi will also help, as traffic can flow through the project, bypassing the downtown altogether.
Crucial to this plan is that there is a connection from the Nishi Project to the university.
More importantly, construction and occupancy of the project is linked to both corridor improvements and the connection to the university.
Once again, reasonable people can and do disagree over whether this is sufficient. However, we believe this is an issue that the voters and not a judge should decide.
Bottom line: if you think the city has shirked its affordable housing obligations, you can vote no on the project. If you think that it has failed to address air quality, you have the recourse of voting no on the project. If you believe that the mitigation measures are inadequate on traffic, vote no on the project.
What we don’t want to see is the project bogged down in the legal process. We feel that is an abuse of the legal system and are disappointed in Mr. Harrington for taking this route once again, when we have a political process that can address each and every concern raised in the suit.
Finally, we urge the city not to capitulate to such tactics, but force the courts to render a decision and not settle and give up a dime of city money. We already have a process in place here – the voters can decide and they have plenty of information to go either way.
—David M. Greenwald reporting