There have been a number of lawsuits filed against projects in Davis this year. Back on July 12, sources suggested that the suit against the hotel conference center would settle, but that settlement was apparently not agreed to during a closed session meeting of the city council, and there was “no reportable action” on that evening – and nothing new has emerged since.
It may be surprising for many to learn that a suit filed against Nishi by a group calling themselves “Davis Citizens Alliance for Responsible Planning” is still set to go forward. The suit, filed on March 18, 2016, is scheduled to be heard on January 26, 2017, at 9 am in front of Judge Timothy Fall.
The suit alleges, among other things, that the city violated CEQA (California Environmental Quality Act) and city requirements for affordable housing in connection with the city’s certification of an EIR (Environmental Impact Report). The question is, given that Nishi was defeated narrowly at the polls, why is this still a “live” dispute?
Michael Harrington, who initiated this dispute, declined comment on Monday evening. Mayor Robb Davis and City Manager Dirk Brazil did not comment on Monday evening, either.
Sources told the Vanguard, however, that part of the issue is the expectation that Nishi will come back at some point – some believe as a housing-only project but others are less certain about what form it would take.
Part of the issue is that, when the voters voted on Measure A, they were voting on the 47 acres of Nishi, but not the rest of the Nishi-Gateway project. That means that there is potential development on West Olive Drive, not covered under the Measure R vote, that can proceed if the EIR is certified.
That means that the redevelopment and zoning changes for West Olive Drive remain alive. It also means that businesses like Redrum Burger remain subject to the possibility that they could be evicted and the area redeveloped.
Some sources tell the Vanguard that the council “duped” the public by bifurcating West Olive Drive from the 47 acres under consideration for the Measure A vote. One of the votes that the council took in February amended the zoning of the Gateway/Olive Drive Specific Plan.
Two key features were, “Existing and Proposed Land Use Account shall be amended to reflect a potential additional 55,900 square feet of commercial service uses on West Olive Drive.” The commercial zoning shall be amended as follows: “The maximum floor area ratio shall be 50 percent, with the exception of a hotel conference facility between West Olive Drive and Interstate 80, which has a maximum floor area ratio of 1.35, subject to discretionary review through the Conditional Use Permit process. Vehicle parking requirements for uses on West Olive Drive shall be established through the Design Review process, using standards for the Mixed-Use Zoning District as a guide.”
These changes are again subject to CEQA, but separate from the Nishi consideration.
The resolution notes, “Final determination of roadway configuration and phasing of improvements shall be as established pending completion of improvement plans for Nishi Gateway, the Davis Arch, Richards Boulevard Interchange improvements, and the Richards Boulevard Corridor Plan.”
The only thing standing in the way of developers changing West Olive, sources tell the Vanguard, is certification of the final EIR – which is currently being held up in court. A critical component of that are the traffic studies, long in dispute by Mr. Harrington and his associates.
The challenge is under CEQA where the EIR is being challenged as laid out in the complaint.
Back in March, Michael Harrington noted, “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.”
According to Mr. Harrington’s press release, “[T]he 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.”
Sources tell the Vanguard that the Nishi EIR will be fought all the through the courts, with the full expectation that whichever side ends up losing will appeal to the appellate courts. The earliest that this would be heard would be March 2017 and, effectively, Nishi cannot do anything until the issues surrounding this case are resolved.
—David M. Greenwald reporting