Commentary: Planning by Litigation Run Amuck

Former City Councilmember Michael Harrington raised legal issues that suggested a potential law suit at the same meeting
Former City Councilmember Michael Harrington raised legal issues that suggested a potential lawsuit

This week the Vanguard has reported on the settlement between Michael Harrington and the developers of the Embassy Suites Hotel Conference Center.  It has been a remarkable process, insofar as it is unclear exactly who benefited from the agreement or what was gained.

The developers and their attorneys have not returned calls from the Vanguard.  The city and the city council were not parties to the settlement and were largely in the dark.  The only one willing to talk at all about this was Michael Harrington and, for the most part, he was speaking in tongues.

We have devolved into planning by litigation where, in most ways, the decision making is taken out of the hands of publicly accountable elected officials – it is not even placed into the hands of elected judges, but rather into the deal making of private interests, accountable to no one.

The end of this is not in sight.  There are still cases that have not been settled, including the Nishi suit.  And this week, we learned that Don Mooney, co-counsel on the hotel conference center matter, is one of several attorneys who filed suit against Field & Pond in the county, and previously he wrote a letter to the city regarding the Hyatt House, alleging CEQA violations in that case as well.

I write this as a critic of public policy gone awry, rather than a critic of good planning or an opponent of important environmental legislation such as CEQA.

But in the hotel conference center case – it is not clear who has benefited, if anyone.  By most accounts now, it is not clear exactly what changes were accomplished through the litigation.  The suit was filed on the basis of the improper use of an MND (Mitigated Negative Declaration) and the insufficiency of the traffic report.

The settlement, in plain language, changes neither of those things.  The stipulated agreement by all accounts now imposes conditions of development that were already required by the council.

There is the matter of the $75,000 that was stipulated to be paid to Don Mooney, but Mr. Harrington maintains that the costs of the traffic report and other consultants wipes out most of that money.

If that is the case – and it at least seems plausible – then no one gained anything from this litigation.  The environment was not helped.  The traffic congestion not alleviated.  There are no winners in this process that we can see.

If anything, there are only losers.  When the Vanguard requested from the city back in September the costs of Mr. Harrington’s litigation since the water suit, the formal and direct costs were half a million dollars to the city.  That doesn’t include other costs though – opportunity costs, the costs to private parties, and the increased cost of doing business in Davis.

How much did Royal Guest Hotel have to pay in litigation expenses?  How much did they have to pay in delays to construction?  How much more will it cost the next company to do business in Davis?

How much has the city lost in TOT (Transient Occupancy Taxes – basically taxes on guests to stay in hotels)?

It would be one thing if these lawsuits were seeking to right deficiencies in the public process.

Alan Pryor, in a comment critical of the Vanguard, noted that he wrote an entire article that demonstrated “how the existing traffic was very likely under-counted.”

He argues, “I showed in detail how the sq footage capacity of the Conference allowed at least twice the estimated attendance at the facility compared to what was estimated by the developer. This lowball estimate was then used by Fehr and Peers to calculate traffic levels of service. I have also posted how projected levels of service are based on delays in traffic and not just how many vehicles per hour are moved through an intersection.”

He believes that “there may be up to an additional  1,000 vehicle trips a day just from  the new Conference Center…and not even counting Nishi if it were passed.”

That is his opinion and his calculations.  But my point is more basic than this.  We don’t know if this is true or not.  This lawsuit never settled this claim one way or another.  And if there are problems as the result of the hotel with regard to increased impacts on Richards – I remain unconvinced – this lawsuit certainly did not do a darned thing to fix it.

This litigation is not fixing these problems.  If these are legitimate concerns – and I think they have some merit – then we need to fix them through the public process and not through litigation.

Mr. Pryor in a follow-up comment writes, “Anytime the City tries to take short cuts for the benefit of developers (which now seems to be the norm given the propensity for spot zoning instead of updating the General Plan), they need to be held accountable.”

Perhaps so.  But how did this litigation do that?  I fail to see any public benefit to this litigation and, frankly increasingly, I’m not seeing private benefit either.  Unless there is something being withheld from us.  And finally, I can think of a lot better uses for the money that is going to litigation defense.

Yeah, I get the argument that the city shouldn’t be taking short cuts.  One thing that is very clear, any time a project is remotely controversial, it probably saves money and time to at least do a focused EIR rather than the MND route.  The county is now learning a lesson the city already learned.

But again – if there is nothing gained from these suits – what’s the point?  That’s what we’re still looking into.

—David M. Greenwald

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. Chamber Fan

    Posted this in the other article. David in his opening thoughts made reference to this case, Hyatt, and Embassy all challenging an MND, and all using Don Mooney as the attorney.  I’ve always respected Don, but I think the CEQA has been abused.

    I think we’re owed a better explanation on the Embassy than we’ve gotten.

  2. Ron

    From article:  “If these are legitimate concerns – and I think they have some merit – then we need to fix them through the public process and not through litigation.”

    That would be the ideal situation.  Unfortunately, the council (and staff) is (overall) more pro-development than the “average” citizen, as demonstrated by Nishi, pushback on Trackside, Hyatt, Sterling, Lincoln40, etc.  Hell, even the effort to encourage the University to assume greater responsibility for the problems its creating seems to be a greater priority for citizens who are leading the effort, rather than the council.  (Yes, I’m aware of the sub-committee.)

    To focus on this single case as “proof” that litigation has no merit or purpose is misleading.  Also, I’m wondering if there are confidentiality agreements which prevent a full discussion by the parties involved.


      1. Ron

        Chamber Fan:

        I’ll play along for the moment, despite my admittedly limited knowledge regarding the number of recent actions, as well as details.

        The water project.  Both cost, and size.  (I recall that some were pushing for a larger size, to accommodate more development.)

        Possibly Nishi (which I understand is unsettled, at the moment)?

        I recall that another commenter mentioned litigation between the city of Santa Cruz and its university, which apparently resulted in the university assuming greater responsibility to house its own students.  (Definitely seems like something to look into, for the city of Davis. Perhaps if someone like Mike Harrington was our city attorney, there’d be more interest?) I would speculate that a related issue that might eventually attract legal interests is the use of master leases and purchases, by the university.

        Since you asked me for examples regarding effectiveness, perhaps you could provide some that demonstrate ineffectiveness?

        1. Ron

          Oh, and possibly “Field and Pond”, as noted in another Vanguard article, today. I have personally witnessed the impact that such operations have on rural communities.

        2. Chamber Fan

          I don’t think any of these are examples where litigation created an improved project.  The water project had already gone through two elections, the litigation had actually failed in two court decisions, but because the city stood to lose millions in guaranteed loans, they settled the case for the same terms and conditions they would have had without the settlement.

          Nishi?  There’s no project, but they are still litigating it?  What purpose would that serve anyone other than the litigator?

        3. Ron

          Chamber Fan:

          Regarding the water project, I have a different understanding.  Regarding Nishi, I think there may be other reasons that haven’t been mentioned to pursue a decision on the issues that were brought up.  Since I’m not an attorney and have not studied these cases in detail, I’m probably not the best resource to debate them.

          I haven’t seen any examples from you, regarding “ineffective” legal actions.

        4. hpierce

          You say, “some were pushing for a larger size, to accommodate more development”… I say, with a facility life of 50 + years, “to not preclude further  reasonable development if the community so chooses in the next 50 years”… 

          Facility planning is one thing… I tend to have a 100 year perspective… land use decisions are a seperate, likely political, matter…

          I fully expect that I will not be living in Davis (or, living at all) 50 years from now… yet, I do not wish to arbitrarily bind folk in the next 20 years (where I plan to live, but not necessarily in Davis)…

          I abhor folk who want to constrain future generations from making their own decisions… guess in that way, am “pro-choice”… many do want that constraint… they like to control others… why, I cannot fathom…

          “Growth-inducing” is a ‘strawman’ [actually, think it is BS]… just to make water (or any other) supply available doesn’t mean you have to use it… except for those who have no self-control, and assume everyone else acts the same…

          If one gets a $100 k windfall, some would go on a ‘spree’… I wouldn’t… parents grew up in the midst of the ’20-30 s’ depression… would feel free to spend some for needs and wants, but would invest the rest… the water facility is truly an investment… gives Davis, Woodland, UCD options, knowing that water will not necessarily be an insurmountable constraint.

        5. Ron

          hpierce:  “Growth-inducing” is a ‘strawman’ [actually, think it is BS]… just to make water (or any other) supply available doesn’t mean you have to use it… except for those who have no self-control, and assume everyone else acts the same…”

          I respect your point of view, but couldn’t disagree more (at least in some ways).

          A good example is our road/freeway system.  Pretty much at (and beyond) capacity throughout most metropolitan areas, right now.  And yet, we’re “cramming” more in.  For what purpose?

          Same with water.  California is a semi-desert, with a population approaching 40 million (more than doubling in my own lifetime).  Not sure why we want to add even more, or what the impact will ultimately be on water, wildlife, climate, the economy, traffic/congestion, etc.  Someday, farming will also have to move away from petroleum-based fertilizers, pesticides, and processing/shipping, leading to some uncertainty, there.

          You’re underlying argument assumes that we (as a society) are making “choices”, regarding growth/development.  I’d argue that it’s not even being considered, at this point.  (Except to a limited degree on some local levels, such as Davis.)

          Count on it – if water or any other developable resource is made “more available” (at the expense of ?), the “wolves” will ensure that it’s eventually forced to serve their purpose. Just look at history, if you doubt this.

        6. Ron

          Chamber Fan:

          My understanding is that if the city had left decisions to our elected officials, we would have a more-expensive, larger water system than is needed to serve the city of Davis. (And, one that induces more development.)

          I’m not going to engage in endless conversation with anyone, today.

        7. hpierce

          Excellent, Ron… your words prove my point… you want things your way…by your “compass”… others should not have a democratic choice, because “they don’t understand”, so you and others should control them [for your and their own “good”]… the stupid folk (me?) can’t be trusted to make decisions and live with their success or failures…

          Got it…

        8. Ron


          Your way would apparently ensure that the current citizens of Davis are forced to pay for a water system that is larger than needed, for the benefit of future development.  (In other words, removing the choice to build a system to serve existing needs.)

        9. hpierce

          Ron… mature.

          I did not impose my will on the water project… I was ambivalent… you are so out of line in your most recent comment… the sound you hear (if you can) is disengagement…

        10. Chamber Fan

          Ron: You specifically stated that the litigation by Harrington was helpful with regards to the water project.  My contention is that the water project was shaped more by the referendum and the water advisory committee than the litigation.  If you believe otherwise, I don’t think it’s unreasonable for me to ask you to back it up.

        11. Ron


          I didn’t impose “my will” on the water project, either.  However, I understand that the community as a whole has made choices.  And, that some elected officials were (once again) not on the forefront of those choices.

          In general (and not directed at you), there seems to be a constant message on the Vanguard (by some pro-development types) that the choice made by the community as a whole to remain “slow-growth” is somehow not reasonable.  (The argument is made in many different ways.)

          Chamber Fan:

          Again, I’m not familiar enough with the details to comment further.

    1. hpierce

      Ron… did not plan to engage again, but you hit a nerve, big time… you said, “the council (and staff) is (overall) more pro-development than the “average” citizen, as demonstrated by Nishi, pushback on Trackside, Hyatt, Sterling, Lincoln40, etc.

      If you believe, with credible evidence, that professional staff skew their opinions that way [pro-development], “bring it”… if there are staff that does so, they should be dismissed, as they are not acting as professionals… on that matter, put up or, …

      And “average citizen”?  What does that mean?  Someone who shares your views?  At the 50% level (average?) I am strongly inclined to believe that at least 51% of the citizens of Davis don’t give a “tinker’s damn” about land use policies, unless it is next door to them… here, I have no verifiable data, but given my years on this planet, if the data was available, I’ll bet you I would be verified.

      Will bind my fingers so I don’t respond to your often insipid comments again… the spirit is willing, mais the flesh can be weak…

  3. hpierce

    Congratulations Grasshopper… you are moving on the path to enlightenment when you write…

    One thing that is very clear, any time a project is remotely controversial, it probably saves money and time to at least do a focused EIR rather than the MND route.

    Gee, wish I had said that at one point or another… oh, but I did…

    Learned that from true professionals in the field, augmented by experience…

    [“Probably” should be interpreted as “80% of the time” as to controversial projects… professionals look at that as ‘bullet-proofing’]

  4. ryankelly

    Since these two men – Harrington and Mooney – seemed to think that they can interfere and profit from every development decision in our community, let’s speed up the process.  No more long, drawn out City Council meetings with various commissions input and hours of public comment in addition to  hours of City staff working with the property owner to address neighborhood concerns.  Just have them approve the project, as presented by the property owner, and then let Harrington/Mooney sort it all out in a sort of backroom secret deal.


  5. Matthew

    Thank goodness “Ron” wasn’t in charge of California planning in the 1940s and 1950s!  Our cities didn’t have the water then for growth either, and we innovated and conserved our way out of the problem through ambitious infrastructure and aqueduct plans.  We can do so again.  Saying “there isn’t enough water” is an argument that ignore continuing advancements in conservation and efficieny.  Furthermore, the real water use is in agriculture and not the cities anyways.

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