The Burrowing Owl Preservation Society, a non-profit incorporated group whose membership is based in Yolo County, has become the latest entity to file suit against a pending development in Davis. The group, represented by attorney Don Mooney, filed their complaint on January 5 and served the city earlier this week, on January 10.
The litigation challenges the city council’s approval of a Mitigated Negative Declaration (MND) for the Marriott Residence Inn, which was unanimously passed in November on a 4-0 by the Davis City Council (with Rochelle Swanson abstaining). The project, located on Fermi Place near the intersection of Mace Boulevard and Second Street, consists of four stories; 120 rooms, including studio and one-bedroom units; fitness room; lobby; meeting room; guest laundry; outdoor pool; photovoltaic panels; surface parking with 120 spaces; vehicular access from Fermi Place; and bicycle/pedestrian access from Fermi Place and Second Street.
The complaint notes that, in the MND, the council “concluded that the Project would not have a significant effect on the environment despite, inter alia, the fact that substantial evidence supports a fair argument that the Project will have significant environmental impacts to biological resources.”
The litigants believe, “At least one pair of burrowing owls occupies the site. The burrowing owl is a State Species of Special Concern and a Federal Bird of Conservation Concern. The burrowing owl pair at the Project site is known to have fledged young for at least the last two years.”
The group is concerned because the bird was once a “widely distributed, common grassland bird,” but its numbers have significantly declined in the last half century.
Catherine Portman, a representative from the group, told the Vanguard, “The city of Davis has put this forward as a Mitigated Negative Declaration, meaning that there may be some impacts but they have recommended mitigations that they think reduces the impact to less than significant which is what CEQA asks them to do.
“Our decision to take legal action on this is primarily focused on the lead agencies and the failures of CEQA,” she explained. “We’ve never done this before, I never wanted to solve problems with litigation.”
The problem, she believes, is the mitigation method, which is by “evicting them.”
She explained that the California Department of Fish and Wildlife (CDFW) “routinely allows owls to be evicted from their burrows.”
The agency calls this practice “passive relocation.”
Ms. Portman believes this terminology is misleading as it does not encompass passively picking up the bird and moving it somewhere else. She added that “it’s eviction, burrowing owls are dependent for their survival year round (on their burrow).” The burrow is not something seasonal or optional, “it’s their shelter,” she explained.
Literature notes, “Evictions continue despite CDFW acknowledgement that owls are likely harmed when they are evicted.”
CDFW’s 2012 Staff Report on Burrowing Owl Mitigation explains: “Eviction of burrowing owls is a potentially significant impact under CEQA… The long-term demographic consequences of these techniques have not been thoroughly evaluated, and the fate of evicted or excluded burrowing owls has not been systematically studied. Because burrowing owls are dependent on burrows at all times of the year for survival and/or reproduction, evicting them from nesting, roosting, and satellite burrows may lead to indirect impacts or take.”
In their complaint, Mr. Mooney writes, “Respondents’ action in adopting the Mitigated Negative Declaration constitutes a violation of CEQA in that Respondents failed to proceed in the manner required by law and their decision not to prepare an EIR is not supported by substantial evidence. Based upon substantial evidence in the record, a ‘fair argument’ exists that the project may have a significant impact on the environment.
“Substantial evidence in the administrative record supports a ‘fair argument’ that the Project may result in a significant impact to biological resources, in particular, the western burrowing owl, a State Species of Special Concern and a Federal Bird of Conservation Concern. Substantial evidence indicates that excluding a burrowing owl from its burrow is a significant impact and one that cannot be mitigated,” the complaint alleges.
When the city council first heard the Residence Inn project in October, they focused on LEED Certification, photovoltaic commitment and discussions with employee labor organizations.
However, the council had received two communications from groups regarding the issue of burrowing owls. The city wrote, “Direct or in direct impacts to burrowing owl nests or individuals may occur as a result of construction, and would be considered potentially significant.”
The city added, “Avoidance of the occupied burrowing owl burrow is not possible with the proposed development plan.”
A letter from the Yolano Group writes, “The assumption is that the project impacts can be mitigated to less than significant. However, the project would have significant impacts on western burrowing owls occupying the site and those impacts could not be mitigated.”
The current litigation is the latest in a string of lawsuits or potential lawsuits in Davis developments. Other projects that have been subject to litigation include: the hotel conference center (suit just settled); Nishi; Hyatt House, with a letter to the city; Mace Ranch Innovation Center, with a letter to the city; and now this lawsuit.
City Manager Dirk Brazil told the Vanguard, “We spend a great deal of time at the outset of projects and throughout the entire process discussing and taking whatever extra steps we can to avoid litigation when the process is complete. But we have to work within a system that makes litigation hard to avoid.”
—David M. Greenwald reporting