The plaintiffs in the lawsuit against the Hotel Conference Center have now fired back against the city, who in a response argued that they had fully complied with CEQA (California Environmental Quality Act) when they approved the Initial Study/Mitigated Negative Declaration for the Embassy Suites Hotel and Conference Center. The city argued that the evidence relied upon does not rise to the level of substantial evidence and they attacked the work done by Dan Smith, the expert that the plaintiffs rely on.
Now the plaintiffs, attorneys Michael Harrington and Don Mooney, fire back, “The City has no other argument other than to assert that Dan Smith’s expert opinion does not constitute substantial evidence and/or that Alan Pryor’s comments do not constitute substantial evidence. To acknowledge otherwise would be to acknowledge that a fair argument exists that the Project may have significant impacts regarding traffic and circulation, thus requiring the preparation of an environmental impact report.”
They continue, “The City argues that unless a traffic consultant conducts an independent traffic study including traffic counts and modeling, any opinion would lack foundation and be mere speculation and conjecture.”
However, the plaintiffs argue that this is not what CEQA requires. They argue, “Mr. Smith’s expert opinion constitutes substantial evidence as it is supported by facts and does not amount to speculation or conjecture.”
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 plaintiffs cite the case law here on the need for “substantial evidence.” “In reviewing an agency’s decision to adopt a negative declaration, a trial court applies the ‘fair argument’ test,” which requires that an agency “prepare an EIR whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment.”
“If there is substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment, an environmental impact report shall be prepared.”
“’Substantial evidence’ means enough relevant information and reasonable inferences … that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.”
Mr. Harrington and Mr. Mooney argue, “Contrary to Respondents’ assertions, Mr. Smith, as well as other evidence in the record, constitutes substantial evidence that supports a fair argument that the Project may have a significant impact.” They note that the substantial evidence consists of “fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.”
They argue that “there can be no dispute that Mr. Smith is a qualified traffic engineer with decades of experience.” The question, therefore, is whether “his expert opinion is supported by fact.”
They argue, “The City attempts to disparage Mr. Smith’s opinion and comments because they were based in part on his personal observations over a period of 15 years. Contrary to the City’s assertions, such personal observations can serve as the factual basis to support an expert opinion. In addition to Mr. Smith’s personal observations, Mr. Smith has performed numerous traffic studies in the Davis and UC Davis area.”
They argue that “personal and first hand observations by an expert” would “constitute a factual basis to support an opinion.”
They continue, “This is not a case where Mr. Smith indicated that he simply visited the site or drove by the site as part of his review of this matter. Mr. Smith indicated that he had visited the site over 15 years and many occasions viewed this site based upon his experience and expertise as a traffic engineer.”
The plaintiffs add, “The City’s own consultant, Fehrs & Peers, previously confirmed that Mr. Smith’s observations [were] made over a period of 15 years. Fehrs & Peers stated that actual conditions are much worse than the theoretical calculations at the intersection and documents the fact that professional observations can be more relevant than theoretical calculations.”
“The City argues that Mr. Smith’s expert opinion does not rise to substantial evidence because he did not conduct a traffic study or conduct his own modeling. The fact that Mr. Smith did not perform separate counts or modeling does not mean that his personal observations, the observations of others, and his expert opinion do not rise to the level of substantial evidence.”
The plaintiffs cite case law where the courts conclude “that opponents that challenge a negative declaration often have no expert studies to rely on and that such absence of expert studies is not an obstacle because personal observations concerning nontechnical matters may constitute substantial evidence under CEQA.”
From the city’s perspective, they argue, “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.”
The plaintiffs counter that Mr. Smith’s observations are supported by comments from Councilmember Brett Lee who offers “the traffic could be extremely problematic for little blocks of periods.”
Mayor Pro Tem Rob Davis added, “There’s a lot of anxiety about this spot because the terrible section, it’s a terrible street segment. It’s just not good but the marginal impact is not huge and that’s what the traffic study shows and at a certain points, but I’m asking us also to recognize that a fairly well-developed methodology was used to assess the fact that the marginal impact is not huge.”
–David M. Greenwald reporting