The City of Davis, along with representatives for the Hotel Conference Center, have filed a joint opposition to the motion from attorneys representing Supporters of Responsible Planning in Davis, including Don Mooney and Michael Harrington, arguing that the group has “failed to provide relevant substantial evidence to support its claim that the Project may have a significant effect on the environment.”
The city, they say, fully complied with CEQA (California Environmental Quality Act) when it approved the Initial Study/Mitigated Negative Declaration for the Embassy Suites Hotel and Conference Center.
Representing the city is City Attorney Harriet Steiner and some of her associates. Tim Taylor and Juliet Cho are representing the applicants for the Hotel Conference Center.
The city council unanimously approved the construction and operation of a hotel, conference facility and parking structure at 1111 Richards Boulevard, the site that currently houses the 43-room, two-story University Inn & Suites Hotel, and a 4,000 square foot Caffé Italia (Dancing Tomato Caffé) restaurant.
The proposed project that has been stalled by litigation from the plaintiffs in this matter, consists of a six-story, 132-room hotel, a breakfast room and restaurant and a 13,772 square foot conference center that is expected to draw 225 attendees per event.
“The city has planned for redevelopment and revitalization of this area for several decades,” they write, and the project could bring in as much as half a million dollars annually in additional tax revenue.
The city prepared an initial study to consider the potential environmental impacts of the project and concluded that “with implementation of mitigation measures, all potentially significant environmental impacts of the Project would be less than significant.”
Fehr & Peers Transportation Consultants was brought in to analyze the traffic and concluded, “The Traffic Study concluded that adding the new vehicle trips would, on average increase the delay a vehicle will experience at the signalized intersection from 15.4 seconds to 20.3 seconds during morning peak hours – a 4.9 second delay (LOS C), and from 19.8 seconds to 22.6 seconds during evening peak hours – a 2.8 second delay (LOS C).”
The city notes, “Under the City’s General Plan, LOS C at the intersection of Richards Boulevard and Olive Drive is completely acceptable, and the City could have concluded that there would be no significant impact to this intersection from the Project. Nevertheless, the City recommended and Real Parties agreed to specific mitigation to address the intersection of Richards Boulevard and Olive Drive.”
With the mitigation measures, the traffic study concluded with saying that the intersection would operate at LOS (Level of Service) B in the AM peak hours and LOS C in the PM peak hours. These are both within acceptable levels of services, “thereafter, the City prepared an initial study/mitigated negative declaration for the Project, incorporating the analysis in the Traffic Study, and determining that, with mitigation, the Project’s impacts, including traffic at Richards Boulevard and Olive Drive, would be less than significant.”
According to the city, “When a Petitioner challenges an agency’s determination that a proposed project will not have a significant environmental impact and an MND [Mitigated Negative Declaration] has been adopted, the trial court conducts an independent review of the administrative record to determine whether there is substantial evidence supporting a fair argument that the proposed project may have a significant environmental impact.”
The standard, they point out, “is not whether any argument can be made that a project might have a significant impact, but rather, whether such an argument can fairly be made.”
They argue that the petitioner’s contentions are “unsupported” with no “valid expert opinion” and therefore they have no “substantial evidence of a fair argument of a potentially significant effect.”
The petitioner “claims that because its own traffic expert, as well as a lay-member of the public, wrote letters contradicting the determinations made by Fehr & Peers, an EIR must be prepared.”
Instead, they note that CEQA guidelines recognizes there can be “disagreement among expert opinion,” however, if “an effect is treated as significant due to a disagreement among experts,” that expert opinion must first “be supported by facts over the significance of [the] effect on the environment.”
Further they argue that such disagreement only requires an EIR in “marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment….” Conflicting opinions alone do not “give rise to substantial evidence of a ‘fair argument.’”
The city adds that, in this case, “the two opinions Petitioner relies on to challenge the expert findings contained in the Fehr & Peers Traffic Study are not supported by facts and thus do not meet the standard set forth in CEQA Guidelines.”
“The opinion letters offered by Petitioner, and the limited context on which they are based, are not adequate ‘expert opinion’ and, even if considered as such, cannot be given the weight of substantial evidence simply on the basis that they conflict with conclusions in the Traffic Study,” they argue.
The city attacks one of the letters, arguing that it is “rife with conjecture and unsubstantiated claims that do not qualify as proper expert opinion.” They continue that traffic engineer Daniel Smith “belies his own credibility as an expert by asserting that his opinion is based on ‘personal observations’ from ‘his more than occasional visits to [the] intersection [of Richards Boulevard and Olive Drive] over the past 15 year[s].’”
They argue that the phrase “more than occasional” “appears to be little more than thinly-veiled code for ‘I haven’t visited the site much.’ Smith’s concession that he has never conducted a formal traffic study of this intersection further undermines his credibility as an expert.”
The city counters, “Professionally-licensed traffic engineers perform detailed site assessments to support their calculations and conclusions.”
Mr. Smith “attempts to contradict the Fehr & Peers determination that the Richards Boulevard/Olive Drive intersection operates at LOS B by asserting that the intersection actually functions at ‘LOS E or F.’ But, Smith fails to provide any foundation for his allegation.”
With respect to Mr. Smith, the city concludes that “Smith’s personal observations of occasional visits to the intersection over a span of 15 years do not rise to the level of evidence similar to that of an adjacent property owner who may observe traffic conditions on a daily basis.” They add that “courts have rejected personal opinion regarding traffic impacts and critiques of traffic studies absent a “specific factual foundation in the record,” and have held these opinions do not constitute substantial evidence of a fair argument.”
Next, the city goes after Alan Pryor, who at the city council meeting last August opined that the Richards Boulevard and Olive Drive areas are the “most congested and problematic of all intersections in Davis” and that it is “not uncommon for such long lines to develop on the Richards Boulevard freeway overpass trying to enter the downtown area such that multiple light changes at the Olive Drive intersection are necessary to be able to pass into the downtown area.”
The city argues, “Pryor’s lay-opinion about traffic delays at the intersection of Richards Boulevard and Olive Drive may be sincerely felt, but the delays at this intersection have been, as Mr. Grandy testified, measured by traffic engineers “many many many times” and “we are confident that what we are showing in terms of the average delays calculated for the intersections is actually what is happening in the field.”
“Perhaps the most important shortcoming regarding Pryor’s comments,” the city writes, “is the fact that, unlike the Fehr & Peers analysis, which meticulously catalogued the time, place, and methodology for acquiring area traffic data, thereby explaining why an apparently congested intersection can operate at LOS B, Pryor provides no countervailing information or level of detail. In fact, Pryor’s casual observation that the intersection is the ‘most congested and problematic’ is derived only from Pryor’s own lay understanding of traffic congestion. Subjective observations regarding traffic conditions are not substantial evidence.”
—David M. Greenwald reporting