Can a project without an application have an EIR certified? The answer, according to city staff, is yes.
They write, “While typically combined as one concurrent set of actions when approving a project, CEQA does allow for certification apart from project action. It is not uncommon in other jurisdictions for the City to certify an EIR well in advance of any action on a project. While this is not typical in Davis, staff believes this request has merit given the scale and unique nature of this type of undertaking.”
Staff argues that certification requires the following findings: (1) EIR has been completed in compliance with CEQA; (2) It was presented to the decision making body and that body reviewed and considered the information in the EIR prior to approval of the project; (3) It reflects the lead agency’s independent analysis and judgment.
Staff writes, “Certification requires no other findings, and can be divorced entirely from consideration of the merits of the project. Essentially, certification signals confidence in the analysis and provides some finality to an expensive and lengthy analytical process.”
They add, “Certification has no implications for any subsequent action on the project. Following certification, the Council is free to approve, deny, or take no action on a project proposal.”
So why is RAMCO and Dan Ramos requesting certification of the EIR at this time? Because they completed the process and spent a lot of money on it, and therefore would like to preserve that work.
They recognize that if and when a project actually comes forward, they will likely have to revise the EIR, but they are also aware that some parts of the EIR are not project-specific and therefore will not change.
Having a certified EIR is not going to gain them an advantage in getting passage. The EIR is a disclosure document, but they will still have to gain a majority vote on council and then get the project passed through a Measure R vote.
Is there a legal reason why the city could not certify the EIR? The certification was originally to be considered on January 10, but after a letter from Don Mooney on behalf of 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 Mace Ranch Innovation Center (MRIC), they delayed consideration.
It is important to recognize that, in the letter, Don Mooney presented no legal argument about why the city could not certify.
Instead, he argued, “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.”
Both of those may be valid points, but neither of them are legally-based arguments.
In an email circulated this weekend against certification, it was argued, “It is very disappointed to see that the City has returned with the request by the Ramos developers of the Mace Ranch Innovation Center (MRIC) for a premature certification their Environmental Impact report (EIR), which is seriously flawed, but City Staff is recommending that the City Council approve processing the certification!”
The city probably had no choice but to formally consider such a request. The council has no obligation to approve it, though the writer is correct to note that the city staff is recommending staff initiate the EIR certification process.
The email said, “The short version is that we need to urge the City Council to deny any processing or certification of the MRIC EIR for many reasons. The most important is that the Ramos developers now are really trying to get somewhere between 750-850 high density housing units approved with the commercial component, rather than a commercial-only Innovation park which was originally promised by the Ramos developers.”
It is by no means clear that the developers are “really trying to get” get high-density housing approved. Remember, the council voted against processing a mixed-use alternative as the main project last year, which led to the project being placed on hold.
Given the concerns raised by council last year, a mixed-use project seems unlikely to gain approval and, even if it did, it would have to get past a Measure R vote.
Finally the point was made, “The MRIC EIR is not accurate and needs to not be certified, particularly since it is making ridiculous claims that 80% of the 750-850 high-density units will be occupied by MRIC workers, which is not legally enforceable or even reasonable to expect. Instead, such an enormous 750-850 unit high-density project would primarily attract I-80 highway commuters from the entire region to be residents and be a drain on City infrastructure and City series costing Davis residents financially and in terms of environmental impacts.”
That point is speculative at best. But it misses a critical point – it’s an alternative, not the main project. It stands to reason that if the project application was a mixed-use project, that would seem to be a significant enough change in circumstances to warrant a new EIR where the issue raised could be more aptly addressed along with other issues likely to arise.
With that said, I do think there are some issues that the council needs to firmly address before certifying.
First, we need to understand what certification does and what it does not do. Staff did a decent job of explaining that in their staff report.
Second, what harm comes to the community if the EIR is certified? There are layers to the process that would need to be gone through again, even if certification occurs.
Third, what triggers the need for a new EIR? Can the council express those conditions in an enforceable way up front to avoid a fight?
Or on the other hand, would any new application trigger at least a new focused EIR that could focus on project-specific impacts, and would that be sufficient to address the concerns raised?
—David M. Greenwald reporting
Update: Got a response from Mike Webb at the city as to whether the city had any sort of obligation to certify, he responded, “Generally speaking, “no” as the CEQA document is the “City’s” document and in the case of a project requiring legislative action (General Plan Amendment and Rezone), and not subject to the Permit Streamlining Act, the City has no legal obligation to complete it, and no legal liability by not completing it.”