Commentary: Planning by Litigation Run Amuck

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