Letter From Attorney Leads to Delay in MRIC Certification Request

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On Tuesday evening, Mayor Robb Davis at the Davis City Council meeting announced that the developers at the Mace Ranch Innovation Center had asked that the item requesting certification of the EIR be pulled from the agenda.

The Vanguard learned that the city had received a letter from Attorney Don Mooney.  The request has not been withdrawn, however, the developers are acting on the side of caution and wish to accurately address concerns expressed in the letter before going forward.

The letter from Don Mooney represents Dr. Billie Bensen Martin, who owns a 160-acre farm located at the corner of Roads 105 and 30 in close proximity to the proposed MRIC.  The letter describes, “Since 1999, Dr. Martin has been one 1 of the 4 organic farmers in Yolo County that raise organic alfalfa and grains for organic dairies in the Petaluma area that supply milk and other dairy products to local stores.”

Dr. Martin’s comments in the EIR “addressed concerns at the Project impacts to burrowing owls and polluted drainage from the Project that would negatively impact her 160-acre organic farm.”

MRIC had proposed a mix of industrial, commercial and retail uses totaling 2.7 million square feet on the 218-acre site located on the east side of Mace Boulevard near the Second Street intersection.  The EIR prepared included “an equal weight analysis of the project as proposed and an alternative that included housing.”

The draft EIR was released in August 2015, with the final EIR and response to comments back in January 2016.

In a letter dated October 5, Dan Ramos based his request for certification on the notion that “[o]ver the course of the next year and one-half, City staff, technical consultants, City commissions, the applicant team, your Council and the Davis community spent considerable time and energy participating in that effort which resulted in a very thorough environmental impact report (EIR).

“A certified EIR should accordingly serve as a tool for economic development as certification signals to potential users that this site, though not approved for any development, has undergone the most substantial part of the entitlement process and that the City of Davis is serious about keeping and attracting innovation employers,” he stated.

Don Mooney’s letter states, “On behalf of Dr. Martin, we respectfully request that the City Council reject RAMCO’s request to certify the Final EIR. First, RAMCO fails to provide a timeline for any future project approval. Thus, if the City moves forward with certification, the Final EIR could sit on the shelf for an indefinite period of time.”

Second he noted, “It is simply not in the public interest or good public policy to certify a Final EIR when the applicant cannot provide a timeline for project approval nor can identify the project that it intends to pursue. Thus, RAMCO’s request for certification is simply an attempt to preclude any further public discussion and participation on the Final EIR.”

In Dan Ramos’ letter to council, he acknowledged “that any future approval action may require further environmental analysis.”

Responds Mr. Mooney, “Such further environmental review is in the form of a supplemental or subsequent EIR. CEQA requires a supplemental or subsequent EIR when there are substantial changes to the project or there are changed circumstances surrounding the project.”

He clarifies, “Changed circumstances only trigger the requirement for supplemental or subsequent environmental review if they are substantial and could lead to new or more severe significant impacts.”

He adds, “Changed circumstances do not require subsequent or supplemental environmental review if the resulting environmental impacts are already addressed in the Final EIR.”

In short, the request for certification, writes Mr. Mooney, exists even though “RAMCO recognizes that there may be substantial modifications to the Project or changed circumstances regarding the Project. Changes and modifications so significant that they would require subsequent or supplemental environmental review.”

He argues, “Prior to certifying the Final EIR, the City Council should require that RAMCO identify to the City Council and the public what is the project that it intends to pursue and what, if any, changed circumstances may apply to that project. The City Council should not blindly certify the Final EIR without this critical information.”

Mr. Mooney also rejects the notion of market certainty, arguing, “This argument fails in part because RAMCO acknowledges that there may be need for additional environmental review due either a major modification for the Project and/or changed circumstances that may lead to new or more severe significant environmental impacts. Thus, RAMCO cannot offer the certainty that it seeks to offer.”

Therefore, Mr. Mooney writes, “It makes no sense from a public policy point of view to certify a Final EIR when RAMCO acknowledges the potential for future environmental review. Prior to certification of the Final EIR, the City Council should request that RAMCO submit a specific project so that it can be evaluated in light of the current Final EIR.”

—David M. Greenwald reporting


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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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23 thoughts on “Letter From Attorney Leads to Delay in MRIC Certification Request”

  1. Tia Will

    Once again, I find myself needing help in understanding this issue. Some questions :

    1. Since this site has been under discussion for development with various permutations for years, how is it that issues such as adverse effects on the doctor’s farming operation have not already been part of the discussion ?

    2. My previous understanding has been that an EIR includes a “do nothing” alternative for comparison and yet that was not mentioned here. Does this apply to some projects, but not others ?

    1. Howard P

      1:  Appears that someone didn’t say anything during scoping, all the public hearings… used to be called “bush-whacking”;  ignore the process, give up on opportunities to raise issues/speak out, then hire a “lawyer” to deliver a rattlesnake bite to the heel at the near-last moment.

      2:  It’s actually called the ‘no project’ alternative.  Meant as a “base-line”.  This scenario assumes entitled projects elsewhere move forward, even if not ‘built’ … so not quite a ‘do nothing’ scenario.  While I have not reviewed this particular EIR, I believe it is a required (certainly standard) alternative that needs to be addressed under CEQA.

      This has the ‘aroma’ of a “set-up”… perhaps an attorney needs $150 k in the new year.  With a finders fee payout to the “aggrieved party”… nothing in the article to indicate the issues were identified earlier, yet were ignored…

      Many of the claims are spurious… ex: an EIR is required for a new General Plan… yet, no projects are actually proposed… this isn’t throwing spaghetti to see what sticks… more like hurling fecal matter… surprised that anyone would think it would ‘stick’ if actually litigated.

      1. Howard P

        There used to be a term, “ambulance-chaser” to describe some attorneys… I propose a new term… “entitlement-chaser”.  Just waiting for the other wooden shoe to drop…

      2. Mark West

        “surprised that anyone would think it would ‘stick’ if actually litigated.”

        We don’t have the benefit of the entire letter here, but from what is reported there does not appear to be any legal issues being raised, just political posturing. The quotes sound no different than what we hear from noisy neighbors around every proposed project. Bluster with little (if any) evidence of actual harm.

        1. Howard P

          David… your 8:21 post… if indeed, there were no legal issues raised, and given the fact that the “client’s” property lies one mile north and one mile east, why is this letter affecting anything? (yeah, I know you didn’t make the “calls”, meant rhetorically)

          Yet, a letter from an attorney pretty much implies there is at least an ‘implied’ legal issue

          1. David Greenwald Post author

            I agree which is why I think it was prudent for MRIC to consider the issues raised in the letter. But he never challenged the legality of certifying the EIR

        2. Marina Kalugin

          instead of addressing the various short comments, much of what the minions are wondering about are very well known tactics in the field of law and also by developers….

          sometimes it makes sense to complain openly and other times one goes only so far …

          it all depends on which side of which fence one is on..   and what the “future” plans are.

          that is all I wish to say so as to protect the innocent and also to not give away too much of any kinds of “strategies”..

          cya  follks…

  2. Tia Will

    so not quite a ‘do nothing’ scenario”

    Thanks Howard. I knew I didn’t have that quite right and yet couldn’t think of the correct expression. I can see this from two points of view. Once is that you are correct and this was a deliberate last minute attempt at a fatal blow at a critical time. Another possibility is that despite having a business, the doctor in question did not know of all of the intricacies of timing and their importance in project planning, and has now obtained legal counsel not knowing what else to do at this late date or having been convinced by a lawyer that this is the right thing to do.

    I hope that you will allow me one medical analogy. I was the named physician in a “wrongful life suit”. I had performed a tubal ligation on a patient which had failed ( a roughly 1/100 chance even if the procedure is performed perfectly). The patient accepted and ultimately wanted the pregnancy and stayed under my care throughout. It was only after the baby delivered that a lawyer convinced her to sue. The suit was dropped when it became clear from documentation that she had been fully informed and had knowingly accepted the failure risk prior to the procedure.  I never blamed the patient at all for the suit, but was quite disturbed by the actions of the lawyer who should have known that this was not a winnable case, but chose to “roll the dice” anyway.

    1. Howard P

      Another possibility is that despite having a business, the doctor in question did not know of all of the intricacies of timing and their importance in project planning, and has now obtained legal counsel not knowing what else to do at this late date or having been convinced by a lawyer that this is the right thing to do.

      Yes, that is a possibility… at about the same level as me being hit by lightning as I put out my cans for garbage/recycling this morning.

      So, someone who has a profession as DVM (requiring a high degree of education and sophistication), and also a quarter square mile of a “farm” (another indication of sophistication, being “organic” and selling product to Sonoma Co businesses), was unaware of a process concerning the proposal?  With all the press and social media coverage this project has engendered even prior to the beginning of the EIR process 16 months ago?  Really?  Am wondering if you’ll next ask me to buy a bridge between Manhattan and Brooklyn… [and, no thank you, I already own it]

      I chose the word “aroma” deliberately… there was a series of books, about Homer Price (fictional character) in the 50’s, early 60’s… he had a pet skunk, who he named Aroma.

      Were you unaware of Trackside?  Did you, as a professional, busy with your profession, not see that you might need to say something, early on?

      Another “fact” is that the aggrieved property is, according to the letter, one mile north and one mile east of the MRIC project.  Drainage flows due east.  This is a scam. IMHO

      [Mace Boulevard is aka Co Rd 104… Covell is aka Co Road 31… so, based on the naming conventions (and reality), a property at the corner of CR 30 and 105 is 1 mile north and one mile east of MRIC]

       

  3. Marina Kalugin

    oh boy, a NEW friend.. . . last few times I was more intimately involved…. it was poor ole MH going at it alone….:)

    And now that there are so many more studies in pub med about the toxic chemicals which WERE sprayed on all the adjacent farmland on the outskirts of Davis, El Macero and so on.

    And I am sure that we could get the records from those lovey folks on County Rd 27 just north of town…

    As to just how many tons of which chemicals were dumped by the cropdusters over the many centuries now.

    I am truly licking my chops over this one.

    Makes my day..

    cya folks….

    M

     

  4. Tia Will

    Howard

    Were you unaware of Trackside?  Did you, as a professional, busy with your profession, not see that you might need to say something, early on?”

    I would have been oblivious until quite late in the game had I not had much more aware neighbors who have been through this before who came to talk with us about it. I was the “new kid ” on the block having purchased by home just 4 years before and had never been involved in any zoning of design guidelines dispute before although this was my fourth house purchase. It is entirely possible to be very sophisticated in one area of life, and quite naive in another.

     

  5. Marina Kalugin

    wow.. and it truly must be the new age of aquarius..  what I used to accuse some of the ones who hang here more than the others..  and now they are even admitting the truth.. huh?

  6. Roberta Millstein

    Tia and Howard, quoting from David’s article:

    Dr. Martin’s comments in the EIR “addressed concerns at the Project impacts to burrowing owls and polluted drainage from the Project that would negatively impact her 160-acre organic farm.”

    So, no, this is not being raised for the first time.

     

    1. Howard P

      The comment must have been responded to in the “response to comments”, which is a part of the final EIR.  Having not read the comment submitted during the comment period, nor the response, don’t know how… the response is not reported on in the article, and perhaps, not in the letter…

      If indeed the comment was made, regardless of the response, there was ‘disclosure’…therefore, the CEQA requirements were met.

      1. Roberta Millstein

        The MRIC EIR is publicly available, so you could look it up rather than make accusations or assumptions.

        15088. Evaluation of and Response to Comments
         
        (a) The lead agency shall evaluate comments on environmental issues received from persons who reviewed the draft EIR and shall prepare a written response. The Lead Agency shall respond to comments received during the noticed comment period and any extensions and may respond to late comments.

        (b) The lead agency shall provide a written proposed response to a public agency on comments made by that public agency at least 10 days prior to certifying an environmental impact report.

        (c) The written response shall describe the disposition of significant environmental issues raised (e.g., revisions to the proposed project to mitigate anticipated impacts or objections). In particular, the major environmental issues raised when the Lead Agency’s position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice.

        (d) The response to comments may take the form of a revision to the draft EIR or may be a separate section in the final EIR. Where the response to comments makes important changes in the information contained in the text of the draft EIR, the Lead Agency should either:

        (1) Revise the text in the body of the EIR, or

        (2) Include marginal notes showing that the information is revised in the response to comments.
         

        Authority cited: Section 21083, Public Resources Code. Reference: Sections 21092.5, 21104, and 21153, Public Resources Code; People v. County of Kern (1974) 39 Cal. App. 3d 830; Cleary v. County of Stanislaus (1981) 118 Cal. App. 3d 348.

        http://resources.ca.gov/ceqa/guidelines/art7.html

        You can’t just write any old damn thing in the response to comments, contrary to what you seem to suggest above.

        1. Roberta Millstein

          Howard, you wrote:

          If indeed the comment was made, regardless of the response, there was ‘disclosure’…therefore, the CEQA requirements were met.

          And I responded:

          You can’t just write any old damn thing in the response to comments, contrary to what you seem to suggest above.

          So, what am I supposed to take back?  You said that it didn’t matter what sort of response to comments was made, as long as there was a response, and I provided evidence that, yes, it does matter what response is given.

          My point was a general one.  I have neither defended nor criticized this section of the MRIC EIR.  I have spent a lot of my volunteer time looking at this document already, and do not intend to look at it any further until/unless it is officially back on the table.

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