Monday Morning Thoughts: How Can the City Avoid Litigation on Projects?


In the summer of 2014, the city of Davis, having had the voters overturn the water rates in June and having already prevailed in court but facing deadlines on financing for the water project, made the decision to settle a lawsuit filed by Yolo Ratepayers for Affordable Public Utility Service (or YRAPUS), represented by Michael Harrington.

The settlement agreement paved the way for the new rates to be implemented, the financing to be put in place, and the city to be able to move forward on its water project.

However, that lawsuit and the decision to settle has seemed to have opened the door for a new era of litigation in Davis.  Currently, we have a case where Mr. Harrington sued the city of Davis over a Conditional Use Permit over a parking spot on 7th Street next to his residence.  Mr. Harrington lost the suit but has appealed the trial court decision.

Then there is the recently-settled suit, Supporters of Responsible Planning in Davis v. City of Davis, et al., over the Hotel Conference Center Project.  Nishi may have lost at the polls, but a lawsuit over it is still pending in trial court.

Recently we have seen a letter from Attorney Don Mooney to the city over the Hyatt House and the city’s use of a Mitigated Negative Declaration (MND).  There was a letter which did not threaten litigation over the request to certify the Mace Ranch Innovation Center EIR.  And finally, as we reported on Friday, a suit was filed by Don Mooney on behalf of the Burrowing Owl Preservation Society challenging the city’s MND for the Marriott Residence Inn.

It is important to note here that not all lawsuits are created equally.  Catherine Portman explained to the Vanguard that part of the problem here is that, in a Mitigated Negative Declaration, “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.”

But she believes, in this case, the California Department of Fish and Wildlife (CDFW) has followed a practice of “passive relocation,” which she believes is another word for “eviction” which is harmful to the birds.

“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.”

My point here is that there seems to be a legitimate complaint here, but not a readily available solution.

As pointed out by Attorney Don Mooney: “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 bigger problem is that litigation is making Davis much more difficult to govern.  There are clearly people in this community who believe they are acting in the best interests of the community.  Davis already has strict growth control measures.  It has an active and engaged citizenry.

There is a political process to determine how and where to put development.  There is a democratic process here that determines this – it starts with city council elections, it includes the commission system, the environmental review process and finally approval by the Planning Commission and ultimately, perhaps, the city council.

When a few people hold up these projects through litigation or the threat of litigation, that starts to change the system.

We asked Dirk Brazil, Davis’ City Manager, if, given the large amount of litigation, there is something that the city should be doing differently in its planning.

Mr. Brazil responded, “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.”

Talking to attorneys in the field, they believe the only answer is for the city to adopt an approach where it does not settle litigation – even if that means multi-year delays for projects.  That simply becomes the cost of doing business in Davis.  If ultimately these lawsuits fail, then they become costly for the citizens and attorneys to take on.

The Vanguard has been told by a number of sources that that is already the approach of the city – they will not settle.  But they cannot do anything to stop a private developer like the Hotel Conference Center from doing otherwise.

On the owl issue, Alan Pryor in a comment on Friday noted, “The problem here is that the developer and the City should clearly have done a ‘Focused EIR’ for the project instead of a MND. If our planning dept and developers continually keep trying to short-cut CEQA requirements, why is there outrage that they get themselves sued again and again. This is a mess of the City’s and developers own doing.”

Indeed, when the city approved a Mitigated Negative Declaration on the Hotel Conference Center, they got sued.  As a result, some of the forthcoming projects have gone the EIR route.

But the problem here, and there has been no response, is that the view of the litigants – and perhaps rightly so – is, “Substantial evidence indicates that excluding a burrowing owl from its burrow is a significant impact and one that cannot be mitigated.”

If it that is the case, how does a Focused EIR solve the problem?

Leaving the burrowing owl issue aside, is there any way the council can avoid litigation on projects that are controversial – which in Davis may prove to be every single one?

—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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44 thoughts on “Monday Morning Thoughts: How Can the City Avoid Litigation on Projects?”

  1. Tia Will

    There is a political process to determine how and where to put development.  There is a democratic process here that determines this – it starts with city council elections, it includes the commission system, the environmental review process and finally approval by the Planning Commission and ultimately perhaps, the city council.

    When a few people hold up these projects through litigation or the threat of litigation, that starts to change the system”

    I see this somewhat differently. It is true that in this country, in our state, regionally and locally, we operate on the basis of democratic processes. Our system has defined these processes as having 3 components : legislative, executive, and judicial. The judicial process is not one which is separate or an outside “changer of the system”. It is an integral part of our system of checks and balances.

    I agree that it is a costly part of the system but again I see primary prevention as the best way to prevent costs and delays. It seems to me that the city and some developers have adopted a pattern of attempting to minimize the up front project costs by attempting to cut corners. Limited use of studies even when more thorough evaluation has already been asked for is one example. The traffic studies at Olive and Russell and air quality studies at Nishi would be two cases that come readily to mind.

    A separate word about the burrowing owls. Just because the currently accepted way of mitigation by eviction seems to be the standard practice does not mean that this is the only possible way, especially if there are a small number of owls to be moved. I have yet to hear a list of alternatives to eviction and feel it is the responsibility of the developers to thoroughly explore and present all alternative options if they have not already done so.

    1. Leanna Sweha

      How the approval process impacts housing is one of the topics Senator Dodd and I discussed last week. Governor Brown wants reform, but the legislature has not passed anything because of the local control issue.  Reform may have to come locally, city by city. For example, Fresno has a new development code that allows some ‘by-right’ ministerial permitting.

    2. John Hobbs

      “The judicial process is not one which is separate or an outside “changer of the system”. It is an integral part of our system of checks and balances.”

      The adversarial system you so often decry?

      “…it is a costly part of the system…”

      It also seems to conveniently and effectively kill any planned development.

      1. Howard P

        Measure R… 3 swings at the plate… if the CC (executive branch) approves a development, the legislative (electorate) branch can overturn, and if that fails, you can take it to court (judicial)… and to add to that, the voters/citizens can pressure the CC even before the first ball is thrown… they actually, arguably get two swings at bat.  Total of four opportunities to say”no”.  Hell, we have a “strikeout” on Nishi, and still have a judicial challenge…  driving a second stake into the heart of the vampire?

      2. Tia Will

        John Hobbs

        The adversarial system you so often decry?”

        I didn’t say that I like it. I said factually that it exists as a part of our democratic system. Like every other part of our system, it has its pros and cons.

  2. Marina Kalugin

    back in the days when the city council was full of real attorneys… . not mostly nice but ostrich folks…  and friends and family of developers, small business  folks and who just couldn’t keep up with the laws on the various topics..   and when the likes of Bob Black, Joan Poulos, Dave Rosenberg and even Lois..  were more interested in protecting the town, the folks and children, the University and so on  and though Julie was laughed at … she cared and she was just ahead of her time.   RIP Julie….

    The likes of  the Chuckies  ( the engineer and the developer) and my other pal Dan had little chance to run circles around the council and the folks on the development committee and even those sitting at the desks at the city offices.

    The council  of the days or yore would NEVER have approved the unneeded overpriced housing at the cannery..  and would have pushed for REAL affordability..

    They would not have allowed those developers to get out of the $10 mil one time..

    and so on and so on.

    This is a reflection that the likes of MH and DM and those of us who are now retired and have the money to stop the id@@@@@@@@@ from further ruining this town to either wake up or pay up..

    Jeez.  get a f clue…..

  3. Marina Kalugin

    Davis was ahead of its time on many things.. .it is now paying the price of not thinking some things through. . .even the gov is now a sell out. . those twin tunnels?   right?   omg the gov who used to be a friend and the conservation gov and married to Linda is now also a sell out..  follow the money folks..

    just like the unneeded surface water project..  the twin tunnels are not needed…

    Engineering is in my blood and so on..   this is all related and is the truth..

    if not for the folks on council who were pushing development that would not have is NOT needed..  and so on..

    The problem is that the current council is not able to stand up to those with  the money as they…   well have the money.. .follow the money..

        1. Howard P

          Good point, David… think it was Jesse Unruh who first said “money is the mother’s milk of politics”…see…

          And you are also correct (IMO), in, “…money flows in all directions for all purposes.”   Either everyone is guilty, or all are innocent (apologies to those who don’t like dichotomous ‘thinking’)…

          Freshman year,lived in the same dorm as one of his kids… she was a very nice person. Did not know her well, but all encounters were fun… she had a great sense of humor…

      1. Marina Kalugin

        and would you chose to be a little less cryptic?   the gov used to be married to Linda Ronstadt, wasn’t he? or someone similar  🙂

        PS>   I would compare my CV to yours any day….

        including awards back to young childhood and as recently as 2016.. on a wide variety of causes in a wide variety of work areas.. or did I miss what you meant?

        1. Howard P

          Marina… me, “cryptic”?  Coming from you, my gut is still hurting from the ‘belly laugh’ that gave me…thank you for giving me my great laugh of the day!

    1. Howard P

      Sidebar… is the pic of your car, John H?  Very cool…my cousin (my Dad’s age) had a fully restored Model T… got to ride in it ~ 55 years ago…

      Oh, and I almost wrote something very much the same as you did… suspec tit is not “engineering” ‘in the blood’….

      1. John Hobbs

        ” is the pic of your car, John H? ”

        Used to be. A 1948 MGTC, RHD. Original electrics, running gear and suspension. I bought it in Vancouver BC in 1974 and rebuilt the motor and transmission, all for a couple of grand. It’s barely existent suspension made it feel like flying at 50 mph, just before the fenders became aerodynamic.

  4. Howard P

    Mulling on the topic… how can the City avoid litigation?  Can think of two… never do anything (which might not work, as project proponents are entitled to present projects for consideration, and are entitled to due process); or follow the advice of Wm Shakespeare, as expressed by one of his characters… (Henry VI,” Part II, act IV, Scene II, Line 73)… am sure all are familiar with the line…

    1. David Greenwald Post author

      I think there are some other approaches that might be employed. I know the city is looking at conflict resolution processes. the alternative would be increase the cost of litigation and the cost of losing litigation.

      1. Howard P

        The City did conflict resolution processes in the past… you know how they really work?  If there is misunderstanding, lack of knowledge, it works GREAT.   It sucks when folk are die-hard zealots in ‘what they want’… the “die-hards” get 90% of their way, because the goal of the facilitator is to ‘end conflict’… nothing about what is right, or justice.

        It depends whether those at the table are sincere, honest, open… that occasionally happens…

        1. Marina Kalugin

          it used to happen more when the council and planning commission actually listened to the staff at the city, and also didn’t dismiss the concerns of citizens.

          that disconnect only got worse in the recent decade or longer as see my above comments, and the many other comments over the last 9 or so months…


          1) the planning commission and the council were not so quick to jump on the bandwagon of the latest carrot a developer would hold out. .

          even going as far as believing the developer promises of 10 mil in the case of the Cannery only to  unanimously allow them to renege in days/weeks….

          2) and stop trying to dismiss real concerns, like at Nishi, and if only the council would stop acting like fools and know-bests… .

          when they actually are not nearly as savvy as many of the local residents..

          3) they would not approve such useless and unneeded projects and then not be complaining about the litigation costs….

          PS. the fact that the Frerichs were in on the “investment team” in one of the latest unneeded proposed downtown projects, while on the council and voting on that project and, ps, that project was not compliant to the GP either….

          and that one of the wonderful IRS rules set up for ministers many decades ago, when ministers were not able to afford any housing much less “affordable” housing in Davis, and thus one of the most well known ministers in town could now afford to invest in the unneeded hotel project on Cowell, which also, by the way was not according to the GP either. .

          only provides more proof of follow the money.

          jeez folks..  get a f clue…..

  5. Marina Kalugin

    yes… those who have are often not too interested in helping those who have not… but that has not been the case in Davis…

    We have people like ES and others who have given their lives to help the campus and the town.

    but sometimes one takes chances by helping the have nots…… I have known some of the very best teachers in town.. . when many of them passed in the recent years it was devastating to me and my sons.. .

    People who worked hard for their whole lives and only started getting ill and sick when the DJUSD board went off the deep end and hired a nice man who was soooo unqualified,  but he talked a lovely talk… then fired the only one left who had a clue about gifted education, then hired a full time person who truly made a dogs breakfast of the GATE testing and on and on…

    It used to be that folks first paid their dues on the school board and then went on to the council.

    Lately that hasn’t been the case……..  it has now become VERY expensive to earn a seat on the council…… and also the school board.

    Not as much as the other crazy costs.. .

    The point is that I am not sure if anyone on the current council has the education and still set to handle the issues that are now even more challenging….

    I mean graduate level education in the topics most critical these days…. finance, personnel management, budgets….  or law, business law, personnel law, …, construction management, etc etc.

    PhDs of STEM not so much the ones of the humanities…..

    and so on…..



    money flows in all directions..

  6. Colin Walsh

    There is a political process to determine how and where to put development.  There is a democratic process here that determines this – it starts with city council elections, it includes the commission system, the environmental review process and finally approval by the Planning Commission and ultimately, perhaps, the city council.

    This completely leaves out the General Plan process. Currently we have a citizen based General Plan that took years to craft and involved hundreds of participants. This citizen based General Plan has laid out the broad strokes for how the city should develop and grow. This plan is now being challenged on multiple fronts with developer driven exception requests.

    Many citizens across the city are organizing and opposing the exceptional scale of the new developer proposals and again and again they cite how the developer driven proposals diverge from the citizen based general plan.

    With that backdrop, the City Council will need to find ways to work with citizens and neighbors of the sites developers are targeting with exception requests to bring the plans in line with the General Plan, and what is appropriate for the City. Respecting and working with the Citizens groups is integral to avoiding future lawsuits.

    1. Howard P

      “citizen-based” GP?  Really?  Were you there?  Most of the “citizens” who came up with much of the policy docs, were hand-picked by the CC, and often ignored/reviled professional staff when the latter tried to point out problems with their proposals.

      More accurate to call it a “political activist based GP”…

        1. Howard P

          In theory, yes…  practically, actual input varied, but in many cases that which was reported out was very ‘self-selecting’ by dominant activists… there were certain elements that did have good, honest, open input… other workgroups, nowhere near as much… dominated by narrow interest groups…

      1. Colin Walsh

        Howard, I find your attempt to negatively characterize all of the many and diverse Davis citizens who participated in the General Plan process offensive.


        1. Howard P

          Were you there?

          And I did not characterize all… I find your assertion that I did so, VERY offensive… but to think that the earlier process was a “grass-roots”, all inclusive process, is patently untrue.

        2. Colin Walsh

          You continue to attempt to negatively characterize the citizens who worked on the general plan. There was a wide range of people who participated in the plan.

        3. Eileen Samitz

          Howard P,

          I was there and I participated in the General Plan update, and what you described is not what happened and I am confident that most all of the more than 200 volunteer committee members would not agree with your opinion either.

          First of all, no one who applied was refused, so it was not special appointments by Council members.

          Second, the process was very inclusive and handled well by city staff for the weekly meetings which required a quorum and were completely open to the rest of the community to attend and give their input.

          Finally, thousands of hours cumulatively were invested in the citizen-based General Plan by our community members including the final language of policies, principles, and goals for the entire community to review and comment on before it moved forward to consolidation for our current General Plan. So everyone in the community got the opportunity to give input into it and it has been used as a model by other cities.

        4. Howard P

          Eileen… I remember well your participation, and respected it, tho’ I disagreed with some positions you took… it’s been years, but I still recall that directly, or perhaps indirectly, there were folk who were ‘picked’… I recall a number of the participants who even ‘bragged’ about it…  as I say, it has been years, and perhaps my memory has become a bit “selective”… will acknowledge I may have ‘mis-spoke’/mis-remembered, but if I did, it was not intentional… it is true (at least as I recall) tho’ that it was at a minimum, self-selecting… there was little effort to get a broad x-section of the community.

  7. Marina Kalugin

    it appears that wtf is now also on the scrubbed list.. or why else would this now be moderated..

    Marina Kalugin January 16, 2017 at 6:59 pm
    Your comment is awaiting moderation.
    conflict resolution works when the opposing sides with their own agendas WANT to resolve an issue.. wtf would any resident who spent years or decades on GP committees want to then sit down with the same developers who created s__t in other parts of  Davis to resolve what?  the fact that those folks bought land zoned for NOT housing or NOT commercial construction for a song because it was zoned for something else .. and now the developers want to make a fortune on the backs of the locals.   wtf?   who would be dumb enough to waste more time and money..

    [moderator] Edited. Maybe you can guess what triggered the filter. Please stop swearing.

  8. Marina Kalugin

    oops..  oh well.   I only started swearing in my very old age.. .  when it truly became unbearable in the town and campus…  that was hardly considered a swear word even decades ago.   I need to brush up on the many words I never learned in my other languages..

    PS  for some other key points…  attorneys may be more quick to litigate.. and I don’t recall what the deal was about MH’s parking spot.  but I would bet that was on the very tip of that iceberg.. 
    Also, as DG has also mentioned, one may miss a real foul ball but call the new one, whether it is a foul or not…

    Finally, the developers in this town have gotten away with WAY too much over way too many decades..

    Now, when some of us see their names we are already seething. . 


    if anyone really wants to figure out why the litigation took off, well these are more clues for ya….

    [moderator] Edited. Please stop gossiping and stay on topic.

    1. John Hobbs

      “Also, as DG has also mentioned, one may miss a real foul ball but call the new one, whether it is a foul or not…”

      Not even close, but predictably self-serving.

       David Greenwald Post authorJanuary 10, 2017 at 6:31 pm

      “The ref always catches the retaliation, not the initial foul. So that’s all I can say.”

      Sloppy research or is it intentional?


  9. Marina Kalugin

    it wtf would I waste my time to look for the real quote…

    and I am glad you have the time..  muchas gracias amigo.

    PS I always like it when I am close but no cigar and the minions are happy to spend the time to look it up.

    Now DS says I am gossiping .. I don’t recall seeing that in the rule book ..  haha..

    and it was all true.  I was there and involved so wtf is that gossiping…   really now..

    It is the damn truth of what the f is wrong in this town ..  I mean in Davis..

    1. John Hobbs

      “PS I always like it when I am close but no cigar”

      Gee, when I was at school, we called that “Wrong!”

      “and the minions are happy to spend the time to look it up.”

      No time required, I knew right where to look and recalled the popular American maxim.

      You still didn’t answer my question:

      Was it intentional?

      1. Howard P

        Am not an attorney, but I think there are standards as to whether someone can form “intent”…

        Does Grue have “minions”?   Yep…  [movie reference was intentional…]

        And, yes ref, I just committed a foul… recommend an indirect free kick, and hope the foul doesn’t rise to being carded… coach will bench me for the rest of the half in any event… and I agree with that decision… need to take a ‘time out’…

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