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