My View: We Need to Stop Planning by Litigation


For some reason, there wasn’t as much attention given to the fact that, before the council even acted on the Hyatt House, a neighbor, represented by local attorney Don Mooney, had filed a CEQA lawsuit.

Mr. Mooney writes that the Hyatt House Project has “potentially significant environmental impacts… particularly those associated with aesthetics, traffic and land use planning” which “require the preparation of an environmental impact statement.”

Thus far, every major project has undergone litigation. There is a lawsuit filed against the Hotel Conference Center, the Nishi Gateway Project – heck, the Hotel Conference Center and Nishi filed lawsuits against themselves.

There has been a lot of talk about planning by exception, but this is planning by litigation.  And I would argue it is not particularly healthy for our community.  A public records request filed in early September revealed that four lawsuits filed by Michael Harrington, a former councilmember, had cost the city half a million dollars.

Mr. Harrington would offer in his defense that there were flaws in the four projects he sued and that the result of his suits would result in better projects.  And clearly, Mr. Harrington has a point here, particularly with regard to his efforts that led to the water project being rescinded in the fall of 2011 when he and a group of volunteers got sufficient signatures to put the measure on the ballot.

The initial water project was rushed, there was no rate study, and it was overly expensive and over-sized.  The city learned from their mistakes and had a group of citizens study the need for the project – they came up with a much better scaled-down project, greatly reduced in cost, and put it on the ballot.  While Mr. Harrington and others would still oppose the water project, it narrowly passed, and he takes credit for the result of a better project.

Going forward, my biggest concern is process.  The Hotel Conference Center is bogged down in litigation.  While the cost of that litigation to the city will be reimbursed by the developer, what the city has not calculated is the loss of revenue in the form of TOT (Transient Occupancy Tax) resulting from the litigation.  Moreover, the litigation expenses to the applicant figure to raise the cost of development in Davis.

The city is not blameless here.  They resisted doing an EIR which would have better shielded them from litigation – even over the objections of the applicant.  On the other hand, while we can quibble on the traffic report, the bottom line is, given that the traffic flow in and out of the hotel is not going to be a steady stream, the impacts on Richards of just the hotel would be minimal.

The litigants would argue that we need to have proper process, but they ignore their role in hampering proper process.

The issue becomes a bit more egregious when we are looking at the continuation of a lawsuit against Nishi – which the voters ended up voting down.  How absurd that a defeated project has a continuing lawsuit.

From our standpoint, litigation against every project is in the long run self-defeating for a number of reasons.

First, for the most part, these projects are not going to be stopped by litigation.  If the goal of the litigators is to stop projects, the best idea is to put forward candidates who favor slower growth policies, get a council majority and allow democracy to work properly.

Second, if the argument is that these lawsuits will produce better projects – first of all, that is subjective.  But second, by raising the costs to develop in Davis, it may end up that developers cannot deliver all of the added amenities that the community might want.

Third, by cutting off or reducing city revenue, it may well incentivize the city to do more projects rather than less.

One interesting example is now the Hyatt House.  On Tuesday the council signaled, but did not do the vote on the Hyatt House.  Back in the spring, the council received the HVS report, which recommended in the short term that the council approval one but not two of the hotel proposals.

However, something changed.  First, the Embassy Suites project remains tied up in litigation.  Second, the defeat of Nishi has led to new investment in the Cowell-Richards corridor.  Sierra Energy and Fulcrum Property are both putting millions into expanding research park facilities.

Would that have happened had Nishi not be defeated?  The defeat of Nishi meant that 300,000 square feet of R&D space did not go online.  Sierra Energy had an agreement to help develop that space, they clearly simply moved their plans to existing facilities.  Would Mark Friedman have purchased Interland for $70 million with the clear incentive to redevelop and densify the property had Nishi passed?  It’s an open question.

But there is no doubt that the close proximity of the University Research Park played a role in reopening the door for the Hyatt House.

So yes, it is entirely possible that litigation tying up the Embassy Suites, coupled with the defeat of Nishi, opened the door to the Hyatt House, to which the council may not have been as open had other projects not been thwarted.

Land use policies are a series of trade-offs.  This is something that we should think long and hard about as other projects move forward.

As our commentary on Thursday and Dan Carson’s analysis on Friday demonstrate – the city faces a revenue crisis.

Mayor Robb Davis is frustrated.

I’m frustrated,” he said.  “We set as a number one goal as a city council not a month ago, fiscal resilience.”

“People have said to me what you’re engaged in around the fiscal issue, especially in relation to this project, is fear mongering,” he stated.  He said that fear mongering is raising fear that isn’t merited.  “The reality is our fiscal situation is dire and it’s not getting any better.”

He noted that the city is not going to have to be looking for a couple hundred thousand every year, “we’re going to have to be looking for millions of additional dollars every year.”

“In that context, is it too much for me to ask a neighborhood, many neighborhoods in our entire city, to make sacrifices?  I don’t think so,” he stated.  “We’re in a situation where we have to try to find more revenue for the city.  I am unapologetic in trying to find ways to find revenue.  And I’m unapologetic in trying to find ways to cut costs.”

But it goes further than just the opposition to the hotel.  It goes to the difficulty in getting projects passed in Davis that can generate revenue.  And, while I share the desire of most in this community to preserve farmland and our unique character of our town – I have been warning people that right now this community is not sustainable and that the price of preserving our community threatens, ironically, to harm our community.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Misanthrop

    Then get rid of Measure R. Remember Nishi was sued because the vote would be held before the environmental review was complete as required under Measure R, a requirement that will add years of litigation before any Measure R vote can go to the voters.

    1. David Greenwald

      You’re wrong Misanthrop. Nishi was sued for CEQA problems. None of the other projects in litigation are Measure R. Your opposition to Measure R is limited your thinking.

      1. Misanthrop

        No David you need to go back and look at what happened when the suit was filed. As Allen Pryor pointed out in April when the suit was filed:

        “The reason a possible violation of the City’s Affordable Housing Ordinance and possible CEQA violations are important in a Measure J/R election is because the Measure J/R ordinance mandating such a vote to expand the City borders specifically require any project to be in compliance with CEQA and “all applicable laws and regulations”. If the Measure J/R vote is not in such compliance, it is an illegal vote.

        But don’t blame me…I didn’t write the law.”
        So a vote isn’t valid and shouldn’t be held until all environmental review is complete. This further makes Measure R unworkable.

  2. MidCentury

    I think you should restate the problem as  ‘We need to stop growing by spot zoning’. If you want to stop the litigation, then the city needs to get ahead of the curve and update the general plan, stick to the plan, and not accept developers (or anyone else’s) arguments or statements as fact without rigid and impartial analysis.


  3. DTDavisite

    I am not surprised  the neighbors are going to sue considering the ill-treatment the neighbors got from the Council.

    It was a sad night for the City. The residents that live near Olive Drive, Old East Davis and Sterling be warned, this Council gives no weight to neighbors concerns. and everyone who wants concessions on a project should probably hire lawyers ASAP.

    1. Chamber Fan

      The council gave a lot of weight to the concerns of neighbors, they just didn’t veto the project on the basis.  The irony is that driving up the costs of development are going to make this worse, but better.

      1. DTDavisite

        Rob lectured the neighbors and told them to take one for the team. He has no understanding of the harm he is doing these poor people.

        Will took all meaningful concessions off the table and then ordered the neighbors to meet with the developers. With 3 City Council members actively hostel to the neighbors and any meaningful concessions taken off the table, making the neighbors meet with the developers is an exercise in cruelty.

        Lucas seemed unfamiliar with the project  like he hadn’t really looked at it  and asked to put a row of redwood trees in, but there is no room for landscaping because the parking lot covers almost every inch of the lot that is not building.


        1. Robb Davis

          Harm: physical or mental damage or injury : something that causes someone or something to be hurt, broken, made less valuable or successful, etc.

          What, exactly, is the harm I am doing to these people? Please be specific.

          How am I being “hostel” (sic)?

        2. DTDavisite

          Mayor Davis, what you are seeking is a legal definition not a dictionary definition. You would be better served to take this up with a lawyer than to post about possible pending legal action on a blog.

  4. Tia Will

    There has been a lot of talk about planning by exception, but this is planning by litigation.”

    And herein lies the crux of the issue from my point of view. Is it surprising that when we have planning by exception, citizens will fight back with the only means available to them in the form of litigation ? We have opted for an all out adversarial approach to city development. While we could be using a collaborative ( if unconventional model) we are entrenched in our ” I am going to get ( or preserve ) what benefits me rather than seeking a win – win solution. I do not believe that it has to be this way. I have seen a collaborative approach work in one of the most lucrative and competitive enterprises in our country, medicine. I believe that a collaborative approach offering benefits to all could be adopted in city planning if  only we had the will to do so.


      1. Tia Will


        How do you see a “collaborative approach ” changing that dynamic?”

        Good question. I will present one possibility that asks something from all involved.

        We have one hotel proposal that is not adjacent to houses. We have a second project tied up in litigation. We have a third project which could perhaps have been within designed to be within guidelines.

        From my point of view there might be room for compromise all the way around. Approve the hotel that is not controversial. Sort out the legal issues holding back the project near Richards ( yes, some compromise would be necessary). Have the neighbors agree the Hyatt if it could be built to zoning and guidelines in this location. Compromise necessary from both sides as I am sure this would mean less profit on the part of the investors and acceptance of a project that the neighbors don’t really want.

        I am sure that there are many alternatives that could be considered if the principles were willing to think outside the box instead of insisting on their way.

  5. Ron

    As I previously stated, look for lawsuits to become “the norm” (if it hasn’t already), as residents of “at risk” neighborhoods feel that their concerns are being ignored.

    By forcing these changes upon unwilling residents, the city risks incurring even more costs, thereby creating additional financial challenges for the city.  (Of course, some may blame neighbors instead, but the impact will still be incurred by the city – regardless of who one chooses to blame.)

    According to the article, “Mayor Robb Davis is frustrated”.  Might this (partly) be a case of blaming others, for a failure to lead and encourage cooperation?

    I’d suggest that Robb Davis is not helping the situation, when he states, “I am unapologetic in trying to find ways to find revenue.  And I’m unapologetic in trying to find ways to cut costs.”  (Although I understand the reason for the statement.)

    I recall that the council seemed “shell-shocked”, when Nishi did not pass.  It seems that they are continuing to attempt to force a vision for Davis that others don’t completely share.


    1. Frankly

      It seems that they are continuing to attempt to force a vision for Davis that others don’t completely share.

      Similar to how previous leaders pushed civil rights reforms onto southern communities that did not share their vision.

      1. Ron


        Since we’re coming up with absurd comparisons now, how about Hitler, forcing his vision upon the world?  (What is that reference, in which someone noted that Hitler will eventually come up in an extended conversation?) 🙂

        1. Frankly

          Wow Ron.  I make a provocative analogy and you go right to the bottom with the Nazi reference.

          Let’s just abstract the point that you and other NIMBYs don’t agitate for the best interests of the community… and hopefully we have leaders like Robb Davis that steps up to make policy decisions overriding those selfish objections.

    2. Robb Davis

      The irony “Ron”, is that it was I who reached out to the neighbors to try to set up a neutrally facilitated meeting between them and the applicants. They refused. I have worked to bring people together in each contentious project/action before the CC in the 2+ years I have been on the Council. I am not frustrated by the efforts I have led to bring opponents together. I am frustrated by our collective inability to be honest about the significant challenges that face our city.

      I was not shell shocked after Nishi. I was disappointed.

      There is very little I can “force” on this community. If you think my vision is at odds with the citizens of Davis then I would encourage you to work to get people elected who better represent the will of the community.

      1. Michael Harrington

        Robb, with all due respect, you don’t bring people together. You just lecture down to people.  I’ve never witnessed such pontificating and contempt by a city leader.

        We are not simple villagers in Africa who are grateful that someone from another land helps our health system.

        The City’s screw ups produce these cases, and the three times in five years my team has gone to the voters to reverse 5-0 CC decisions that were flat stupid and HARMFUL to the public.

        Sure, you received a hellavu lot of votes but it’s like you’re a stranger here.

        1. Robb Davis

          I’ve never witnessed such pontificating and contempt by a city leader.

          Well, at least you do not post anonymously Michael.  I appreciate your honesty.  You will be rid of me in under two years.

        2. Frankly

          Hey Mike, you are 1/100th of the city leader that Robb Davis is.  Talk about bringing people together, you are one of the most divisive “leadership” figures in Davis.   What good have you done for humanity?  Seems that all your efforts are directed at what benefits you personally.

          I would not criticized someone like Robb Davis they way you have. He stands significantly taller than you based on his contributions to this world.

        3. Don Shor

          Perhaps, Mike, you and your colleagues who have worked so hard to block all the recent projects should put up a candidate for council. It’s been at least three election cycles since there was a slow/no growth candidate in the field. It seems that your approach is simply reactive: oppose, litigate, campaign against what the council majority has worked on.

          The city needs fiscal solutions. The city needs resolution of a severe rental housing shortage. The proposals three successive councils have put forth have been intended to deal with those issues. Blocking, fighting, and suing are not actions that will solve any problems.

          If you want to help deal with the city’s issues, become a problem-solver. That requires cooperation, communication, and compromise. I haven’t noticed any of those characteristics prominent among those who have opposed recent projects.

  6. Frankly

    Washington DC is playing out like a great big Davis in this fight against development and NYMBism.  So are most of the neighborhoods in San Diego.

    Psychologists have a label for the basis of what drives a NIMBY.  It isn’t so much change-aversion as it is loss-aversion.  Or, more specifically loss-aversion bias.

    Both psychologists and economists have concluded that the average human will value a perceived loss more strongly than a commensurate perceived gain.  For example, if given the choice to gain $100 or protect for the loss of something valued at $100, most humans would protect from the loss of $100.

    Frankly, (because I am), this is an example why direct democracy is a bad idea.   Most humans are incapable of compartmentalizing their emotional impulses from their morality… their position of what is right and what is wrong.   I see an ideological/political connection to this tendency but that is a topic for another day.

    Sometimes this loss-aversion bias seeks to avoid loss that is tangible and material.  For example something built that would clearly decrease property values.  But more often the opposition of NIMBYs is based on intangible and nebulous feelings of loss that would occur.  I get this scolding all the time… that Frankly dismisses the feelings of others.   The point I make is that I get the feelings.  I understand the feelings.  But when is the last time that any human made a good decision just based on feelings.   Feelings need to be rationalized.   If we are protecting ourselves from feeling loss, it very well might be preventing us and others from achieving gains many times more valuable.

    But NIMBYs seem to be incapable of that next step… they get hit with the emotional trauma in consideration of the a change and the heels immediately dig in and their resolve is 100% to prevent the change… not matter that the facts lean heavily in support of a project that would provide tremendous gains… even to those directly in opposition.

    Unfortunately, NIMBYs are abundant in places like Davis like they are in DC and San Diego.  And they tend to collect and organize… and then heat up and grow very, very nasty in behavior and rhetoric in opposition to the proposed change.  For example:

    One of the NIMBYs’ favorite rhetorical fallacies is “the shill gambit,” an ad hominem attack that proclaims any non-NIMBY to be a secret, Astroturf-esque “paid shill” for development interests. (Some people can’t conceive that there are non-monetary, non-selfish reasons to hold a given position.) This contemptible lie — which slanders the opponent’s ethics to “poison the well” and thus avoid an argument on the merits — is readily leveled against pro-density forces even when it’s demonstrably false.

    This is good article that refers to this challenge in San Diego.

    That’s because so often these are made-up objections. I get frustrated too. But even when they’re making made-up objections, usually their real objections are real, even if you don’t agree with them. They are what they are. That’s the nature of democratic politics. You have to deal with everyone’s concerns, no matter what they are.

    And yeah, don’t be shy about forming coalitions. Don’t be scared of criticism from neighborhood groups saying you’re allied with developers, and don’t be scared of coalitions with neighborhoods whose interests are aligned with the greater good.

    I would like to talk to this author and get his reaction to our Measure J/R.  I am guessing he would say “your city is doomed”.

    1. Chamber Fan

      There is a Nimby problem in Davis and clearly the Hyatt House is at the top of the list, some basically said great project just don’t want it in my backyard.

      The litigation issue is more complex and I think you make a mistake ascribing it to Nimbyism.  It’s interesting that the biggest litigator has yet to weigh in on this.

      1. Frankly

        The biggest litigator is the biggest NIMBY.  But he just sees all of Davis and the land surrounding it as HIS backyard.

        I suppose you can make the case that this litigator’s actions are for the money.  That might be, but I think it is secondary to his standard loss-aversion… he does not want any change that has the slightest indication that it will result in loss… even intangible and nebulous definitions of loss raise his objection.

        That person once mentioned a concern that the transient population surrounding the community church was negatively impacting his property values.

        Part of the problem here is that Measure R and a history of no-growth has escalated property values to the point that a small decrease in equity can be calculated by some property owners as being significantly material.   And if you then add the expectation for appreciation, there are enough dollars at stake to explain some of the resistance to development.

        Said another way… litigation has a component of rational explanation for people protecting the value of their high-value Davis real estate assets.  Measure R serves them well for this too.  They are just tools of the NIMBY.

  7. Biddlin

    ” It isn’t so much change-aversion as it is loss-aversion.  Or, more specifically loss-aversion bias.”

    I’m no NIMBY, but that does explain why I have 20+ guitars.

    I am somewhat familiar with the ongoing conflicts between growth/development advocates and nags in San Diego. Still a better vacancy rate and less provincial that Davis, eh? I’m looking at property in San Diego county at the moment. Convincing SWMBO to move, well who knows?

    I think any reasonable person will agree development is dead in the Peoples Republic of Davis and my abacus says you can’t raise taxes enough to keep the lights on.

  8. Marina Kalugin

    back when the city staff did their jobs and the pc did it’s job and the cc did it’s job, there was no need for lawsuits..

    yes, things have changed and it is not because of J/R  …first J then R were as a result of those three groups not doing their jobs…

    1. Chamber Fan

      Off the top of my head I have to wonder how far back you are going, because since I’ve been around there have always been lawsuits and pitched battles over development.  I’m sure someone like hpierce can better lay out all of the lawsuits over the years.

      1. Marina Kalugin

        I came to UCD as a freshman back when Davis had not north, west or south and hardly an east….

        about 13K folks in those days…..involved in city/state and national issues even before then….learned a lot when my family moved from SF to Lafayette and then Orinda   ……

        massive developer projects were shut down there much of those years…..and Davis has still been growing by leaps and bounds..  were you here before J?  only those that were will know the details of why that was so needed….


  9. Mark West

    We will stop ‘planning by litigation’ when folks stop filing frivolous lawsuits. Now that the City has taken the position to fight these instead of folding we will see the impact of the City winning a few.

  10. Matt Williams

    David Greenwald said . . . “For some reason, there wasn’t as much attention given to the fact that, before the council even acted on the Hyatt House, a neighbor, represented by local attorney Don Mooney, had filed a CEQA lawsuit.”

    David, has an actual CEQA lawsuit actually been filed? As I read the Mooney letter, it is not a notice that a lawsuit has been filed, but rather an illumination of the CEQA issues that Mooney/Burnett believe exist.

    This office represents .Alissa Burnett regarding the proposed Hyatt House Hotel on 2750 Cowell Boulevard. As demonstrated in this letter and the numerous comments submitted regarding the proposed Hyatt House Project, the potentially significant environmental impacts of the proposed Project, particularly those associated with aesthetics, traffic and land use planning, require the preparation of an environmental impact statement. Ms. Burnett objects to the proposed Project on the grounds that the Initial Study fails to meet the minimum legal requirements as set forth in the California Environmental Quality Act (“CEQA”), Public Resources Code, section 21000 et seq . and that the proposed project constitutes impermissible spot zoning.


    Based upon for the foregoing, the numerous comments provided on Initial Study, and the comments of the Planning Commissioners, a fair argument exists that the Project may have a potentially significant effect. As such, CEQA mandates that the City prepare and certify a legally adequate ErR prior to approving the Project. Additionally, the proposed project constitutes impermissible spot zoning and the City has failed to identify the public interest for allowing such spot zoning.

    Have there been subsequent events since the letter . . . specifically a lawsuit filing?  The letter appears to me to be a shot across the bow of the City, rather than a notice of lawsuit filing.

    For the record, I personally agree with the General Plan Amendment and South Davis Specific Plan Amendment arguments in the letter.  I believe the “purely extended stay hotel” argument fails on two grounds.  First, to the best of my knowledge, the word “purely” does not appear in conjunction with the expression “extended stay hotel.” That is a word that Mooney/Burnett appear to have added themselves.  Second, as best as I can tell there is no standard definition of what an “extended stay hotel” actually is.  The definitions I have found are similar to the one below . . . imprecise at best. Two such definitions appear below

    Hotel, Extended Stay’ means a building or part of a building, containing six or more guest rooms or suites, offering temporary residence for compensation and specifically constructed, licensed, and/or maintained, all or in part, for nontransient extended stays and/or stays longer than 30 days, regardless of the presence of leases for shorter periods of time.


    Hotel, Extended-Stay. A building that otherwise meets the definition of hotel, but in which Cooking Facilities are included in more than twenty (20) percent of the total units. For the purposes of this Chapter, “Cooking Facilities” shall mean a stove top burner, a hotplate that does not serve as an integral part of an appliance de signed solely to produce coffee; a conventional oven; a convection oven; a grill; a hibachi; or any oven producing heat using resistance heating elements or infrared heating sources. Microwaves and coffee makers shall not be considered Cooking Facilities.  

    The entire “Fair Argument” portion of the letter is well beyond my knowledge base.  I defer to wiser minds than mine on that subject.

    The spot zoning argument is interesting.  Stepping back from this specific application, the arguments Mooney is making appear to me to call into question the vast majority of planning decisions/determinations that the City of Davis has made for the past 20 plus years.  Essentially every parcel on the Zoning Map of the City that is a PD (Planned Development) zone can easily be seen as an example of spot zoning.  Said a different way, spot zoning has been the rule in Davis rather than the exception.

    The spot zoning argument is further complicated by the fact that the current City of Davis General Plan is legally out of compliance with State of California regulations . . . specifically because the maximum allowed population in the General Plan is 64,000 people, and we currently are (in my opinion) at least 10% above that limit.  Officially, as of the 2010 Census we were 1,622 people above that limit.  California Law says that once a jurisdiction falls into the non-compliance situation Davis is in, that jurisdiction must handle all land use applications that affect population as General Plan Amendments.  That leads to the following question, “Isn’t the compulsory General Plan Amendment process as defined by the State, by definition Spot Zoning?”

  11. Frankly

    So, noting the vitriol from the NOE people directed at Robb Davis for demonstrating leadership to do the right thing for this city.  And the same that was previously directed at Rochelle for her support of Measure A…  I have a challenge for my VG friends.

    Many of you have chastised me for going after these people… labeling them NIMBYs, NOE people, selfish, self-centered, irrational.  You have scolded me and told me that I should be respectful of their feelings.

    My assessment after all of these years debating them is that many of them are just exactly what I have called them.  In addition, I think many of them are just assh _ _ _ _.

    Just wondering if your opinions have changed, or if you still think there is anything to be gained by being “respectful” and trying to have a rational conversation with these people?

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