Monday Morning Thoughts: EIR Certification Issue at MRIC Raises Some Interesting Issues

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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.”

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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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127 thoughts on “Monday Morning Thoughts: EIR Certification Issue at MRIC Raises Some Interesting Issues”

  1. Keith O

    Congratulations.  For a blog that stated that it for the most part stayed away from national politics I think this is the first day since Trump became president that there are no Vanguard articles with Trump’s name attached though I’m sure that somehow his name will be drug into the comment section.

  2. Jim Frame

    I think this is the first day since Trump became president that there are no Vanguard articles with Trump’s name attached though I’m sure that somehow his name will be drug into the comment section.

    And you’re the one who dragged it in.

  3. Tia Will

    Back to the topic at hand.

    Certification has no implications for any subsequent action on the project.”

    If this were accurate as written, there would be no advantage to certification. The only advantage would be in the preservation of the work already accomplished which could be achieved by archiving the material with no certification necessary. Mr. Ramos, in his own words clearly believes that there are “implications for subsequent action” as he confirmed by stating that this would demonstrate to possibly interested companies that Davis was favorable towards business.

    I have no stake in this fight and do not have strong feelings one way or the other. But I do think that it is important that decisions be made on a complete understanding of all of the potential implications of an action. I do not believe that the above statement is accurate, or at least has endorsement of all involved parties.

    1. Matt Williams

      Tia’s comment captures the key conundrum very well … Dan Ramos has articulated a belief and people are reacting to that belief … not wanting to give him any advantage.

      Throughout the whole MRIC process, Dan has consistently been his own worst enemy.  For example, the night when EPS came to the FBC with their financial analysis, he and his team didn’t even show up.  Barack Palin, and many others, would point to Dan’s handling of the housing/no housing issue.  Members of the business community would point to numerous other examples.  Others would point to Dan’s short-lived discussion of the possibilities of a referendum vote rather than a Measure R vote.  The list goes on and on.

      So, we can add this latest chapter to the checkered history of the MRIC project application.  Its greatest accomplishment has been its ability to generate emotional angst amongst the Davis populace.

       

  4. David Greenwald Post author

    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.”

    1. Matt Williams

      Which is what was being said yesterday.  It can remain open in the State Clearinghouse forever, and as long as it is open the City must comply with the CEQA regulations for reporting on each open EIR to the State Clearing House.

        1. Matt Williams

          The simple way to do that Roberta would be for the Council to notify the State Clearinghouse that it is closed  as complete/incomplete, adequate/inadequate, accurate/inaccurate.

          To your way of thinking is it complete or incomplete?  Is it adequate or inadequate?  Is it accurate or inaccurate?

        2. Roberta Millstein

          To my way of thinking it should be withdrawn, not deemed complete or incomplete, adequate or inadequate, accurate or inaccurate.  Just withdrawn, since the project discussed in the EIR has been withdrawn.

  5. Roberta Millstein

    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.

    David, you are forgetting something.  The mixed-use alternative was “evaluated at a level of detail that is equal to the analysis of the proposed project.”

      1. Roberta Millstein

        Yes, but that is a different point than the one you made above, where you were suggesting that a mixed use project would generate a new EIR.  If they were to propose the same mixed use project described in the EIR (unlikely, I would imagine, but possible), it would not need a new EIR.  If it was close (more likely), it might not need a new EIR.  Thus the critics claim (the one you were responding to and dismissing) that “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” becomes potentially relevant.

      2. Colin Walsh

        Councils and opinions change over time, so arguing that the council voted it down previously is a week argument. Since there is no project before the city, the equal weight alternative with housing must be considered a real possibility. The EIR should be accurate to be certified, The fact that  “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” is reason enough not to certify.

  6. Colin Walsh

    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.

    This question has it exactly backwards. The article has clearly defined some benefits to the developer by certifying the EIR, but what benefit does the City derive. That is the Question that should be asked here -What benefit does the city derive from certifying the EIR without a project?

    1. David Greenwald

      The question I would pose is this: if the process doesn’t harm the city, why does it need to have a benefit?  I’m not saying there aren’t benefits, but I’m not clear as to why the question is backwards.  If it doesn’t harm the city, why is it bad to benefit the developer?  Honest question.

        1. David Greenwald

          I could write a separate commentary on that question.  My answer is nuanced here, I don’t think that benefitting the developer is inherently in the best interests of the city, particularly if the benefit comes at the cost to the city.  On the counter flip, I don’t see any inherent reason not to benefit a developer in a process as long as it doesn’t hurt the city.

          Here’s an example: Cannery CFD, clearly helped the developer, clearly, at least in my view, that benefit came at the cost to the city and the city could have and should have exacted greater benefit for the deal than they did.  So that’s a win for the developer, a loss for the city.

          I don’t this case has such a clear cut harm to the city.  In fact, I have yet to see a real articulable harm here.

        2. Roberta Millstein

          Whether helping the developer would help or hurt the City depends on the project, but there is no project on the table.  So, why should we help the developer for a project that might benefit, but which also might harm, the City?

    2. Matt Williams

      Colin, as I said to Tia above, the key conundrum in this current chapter of the fitful  MRIC history is that Dan Ramos has articulated a belief and people are reacting to that belief … not wanting to give him any advantage.

      Throughout the whole MRIC process, Dan has consistently been his own worst enemy, and to date, I can’t think of any of the beliefs that he expressed through the process that proved to be true.  His greatest accomplishment has been to work various portions of the Davis populace up into a high state of agitation.  He does that very well.  I overheard someone reading yesterday’s article in the Enterprise refer to him as “Danny Trump.”

       

      1. Roberta Millstein

        Matt, if Ramos believes that certification of the EIR would be to his advantage, isn’t it reasonable to assume that he will try to use it to use advantage in whatever way he can?

        1. Mark West

          “isn’t it reasonable to assume that he will try to use it to use advantage in whatever way he can?”

          So what if he does? Isn’t it his right to use his resources as he sees fit? How does that negatively impact the City, or you? He cannot move forward with a project without that project being approved by the CC and a Measure R vote. Consequently, he cannot cause material ‘harm’ to the City (as you see it) unless the CC and the citizens give him their approval to do so.

           

        2. Keith O

          I will admit that in a lot of cases Ramos has been his own worst enemy.  But when it comes to certifying this EIR Mark west is correct, it will cause no harm to the city because we have checks and balances already in place.  To me this comes across as more needless obstruction on the part of those who don’t want the innovation parks to go forward at anytime ever.

          This is another example where the City Council need to step up and ignore the dissenting voices and do the right thing.

  7. Tia Will

    Another way of looking at David’s question : If it benefits the developer, how is that possible without making a project of his choice more likely whether or not that future project benefits the city ?

    1. David Greenwald

      I think the answer is because ultimately any project needs sign off of both the council and the voters.  This move may lower the cost, but it won’t make a difference in the bottom line approval process.

      1. Tia Will

        it won’t make a difference in the bottom line approval process.”

        I gave this some more thought and am not sure that this is true. If Ramos is correct and the very act of certification would positively influence the thinking processes of businessmen, might it also not positively impact the thinking of council members and/or citizens who might reason along the lines of, well Ramos put in all this effort, time and expense and a certification was granted and so be influenced in favor of the project regardless of its individual merits.

        I do not honestly see how one could claim that opposing the certification is only an obstructionist tactic without acknowledging the converse, that advocating for the certification is a development promotional tactic.

         

  8. Roberta Millstein

    Here is another question: if this is purely bureaucratic and implies no commitment whatever on the part of the City, how does it simultaneously show that the Council is committed to bringing business to the City?

      1. Howard P

        Haven’t I?  How do you know what questions I have asked myself?  Can you read minds?  Do you understand my point?  How can I make it more clear for you?

        1. Roberta Millstein

          If you have asked yourself the question, then you know the answer.  But since you troll more than contribute, frankly, I’m not really interested in your answers.

        2. Howard P

          Just tell us what you want to see occur, and defend you position.  Had you (and others) done so, I would not have asked any questions.  Hiding behind questions, often pointed and baited is a semantic dodge.  I don’t generally operate that way, but am capable of  ‘returning the favor’.

        3. Matt Williams

          Roberta and Howard, as a person who knows and likes and respects you both, please step back and count to 10 in this dialogue.

          You have both made solid, well supported points.  The problem is that the subject of all our collective and individual posts over the past few days doesn’t lend itself well to resolution.  It’s one of those “you can’t please all the people …” moments.

  9. Mark West

    Lest you all have forgotten, the City requested that developers submit project proposals. The applicants submitted their proposal and paid to perform the EIR. If the applicant wants the EIR certified, the City should follow appropriate procedure and consider that request. If the EIR is determined to be correct and sufficient, it should be certified, if not, the City should state why it is insufficient. Anything else is a political attempt to subvert the CEQA process.

    1. Roberta Millstein

      They submitted their proposal.  And then they withdrew it.  It’s not clear to me why the City is obligated to act on a proposal that is not on the table.

        1. Roberta Millstein

          Fine.  I think you know what I meant, but I will revise for you.  It’s not clear to me why the City is obligated to act on EIR concerning a proposal that is not on the table.

        2. Matt Williams

          I know exactly what you meant, and the simple answer to your question is that as long as the City is willing to spend taxpayer money and expend staff time on keeping the EIR open, there is no obligation under the provisions of CEQA that mandates an action.

          I personally see that as a colossal recurring waste of taxpayer money and City resources for no discernible gain for either the taxpayers or the City.

        3. Roberta Millstein

          I know exactly what you meant, and the simple answer to your question is that as long as the City is willing to spend taxpayer money and expend staff time on keeping the EIR open, there is no obligation under the provisions of CEQA that mandates an action.

          Ok, thank you – there is no obligation.  Agreed.

          I personally see that as a colossal recurring waste of taxpayer money and City resources for no discernible gain for either the taxpayers or the City.

          But that assumes that a simple withdrawal of the EIR is not an option.  I would like to get clarity on the question of whether the EIR could simply be withdrawn.  Perhaps it is a question for staff.

          (I also wonder how much staff time is really being used here – if it’s just a quick email, then it’s hard to get fussed over it).

  10. Howard P

    Although not presented as such, as it stands, the EIR can be seen as a “program” EIR.  The ‘program’ is to evaluate several scenarios for the development of a specific property.  It may well be used to help answer the question “should the property be developed for ANY purpose”. Or, as the factual basis to say that none of the alternates (except “no project” of course) are acceptable.

    Program EIRs are not as common as project specific EIRs, but are frequently used by agencies.

      1. Howard P

        That is a question that I honestly do not know the answer to… my gut says “no”, as the record is pretty clear that it was developed in response to specific proposals… to recharacterize it now could create more problems than doing nothing (but I advocate action – either certification or rejection, with the reasons being articulated [“findings”]).

        Had the CC decided that, prior to getting a specific proposal, as a response to all the RFP’s submitted, with conceptual plans, they certainly could have done a program level EIR.  That would have been an excellent choice, but there would probably be a bunch of folk demanding that the program EIR needed to know the answers to a plethora of “what if” questions.  A “program” is kinda’ like a 2k foot high review… you can make out the landscape, see that there are cars, roads, etc., possibly see specks identifiable as people, but can’t read license plates nor determine facial features (some in town might not support not knowing, for certain, how many freckles on a given specks face).

        A program EIR has advantages… but pretty much always needs project level EIR’s that can ‘tier’ off the program EIR.  Can’t think of a good analogy for those unfamiliar with those docs.  But we’re not there now.

        But even tho’ I opine it is NOT a program level EIR, I see no problem if the CC either certifies it, or rejects it for cause.  I do think that we shouldn’t have the equivalent of a “dangling participle’…

        [Sorry all, for this “trolling” post]

      1. Howard P

        I believe all the new GP and/or major revisions, were done as a program EIR… I believe that all the Specific Plan EIR’s were done as program EIR’s… South Davis, Mace Ranch, Gateway/Olive Drive, etc…

        But after so many EIR’s I’ve been involved with over the years, I cannot give you a definitive answer, with documentation… haven’t seen one in Davis for awhile, and there are only so many memories you can store in the brain as RAM… not sure if the medical community can give my brain more RAM or hard drive (searchable) space.  That’s why the City keeps records.

        Oh, and in my opinion, it benefited the citizens of Davis, and anyone who wanted to develop the property within… a win-win… at least as to disclosure.

        Meant as a fair answer.

        1. Tia Will

          Howard

           not sure if the medical community can give my brain more RAM or hard drive (searchable) space”

          Nope. If that were possible, I would have scooped up more long ago.

          Meant as a fair answer.”

          Taken as such.

      2. Howard P

        Please remember a distinction… a GP, SP or other program may or may not benefit anyone in particular.  The CEQA process benefits everyone, as a disclosure document.  CEQA is not meant to decide, it is to disclose.

        Sorry that I’m ‘trolling’ again.

  11. Ron

    Wow – more than 40 already, and it’s still early in the day.

    From article:  “It is by no means clear that the developers are “really trying to get” get high-density housing approved.”

    Hmm.  Based on prior statements attributed to the developer, it seems pretty clear to me.  It’s also one of the alternatives in the EIR.

    From article:  “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.”

    Interesting that David apparently believes that the 80% claim is not speculative.

     

    1. Howard P

      Have heard here, and from other sources, that City planning staff  ‘encouraged’ the developer to propose high density housing… one account was along the lines of  “I’m encouraging you to eat your over-cooked brussel spouts… it’s good for you, and if you don’t no dessert for you tonight”.

      I too question the 80%, but even as low as ~40%, not convinced that would blow any of the analysis ‘out of the water’.

      If you have a 100% increase in a relatively small number, you still have a relatively small number.

  12. Ron

    From article:  “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.”

    The one bit of good news in the article.

  13. Matt Williams

    “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.”

    Question to everyone, the original proposal had no housing.  Would a new proposal containing 750-850 high density housing units be a substantial change to the prior proposal?

    If the answer to that question is “yes” then, by law, the new proposal would need its own new EIR. 

    If the answer is “yes” does it make the point made by the e-mail moot?

    1. Howard P

      Matt… absent the contention that 80% figure is too high as far as project-employed housing (which would be a flaw, the degree of which would require further analysis), the answer is no.  That was an alternative studied.

      Still, if and when (a hypothetical, and am sure you understand the problems dealing with hypotheticals with precision) a project comes forward, a focussed or a supplemental EIR would be a reasonable thing to consider.

      Just dawned on me… the CC could certify the EIR, and go on record as saying they opposed/rejected a specific alternative… (but only if the EIR was certified, as a basis of making that decision!)…

      This is getting curiouser and curiouser as Alice might say…

  14. Eileen Samitz

    The MRIC EIR should not be processed for certification for a number of reasons. One major problem is that the EIR is flawed in that it s making a ridiculous assumption that the vast majority of the 750-850 housing units would be occupied by MRIC workers. That cannot be legally enforced, and is so far fetched that it would not materialize, or be sustainable for so many units, even if it were legally enforceable.  It’s simply a ridiculous assumption. Worse yet, Ramos has been claiming that the mixed-use alternative is “superior” because of this seriously flawed assumption. So this is what Ramos is really after, 750-850 high density housing units or “a-city-within-a-city” on the edge of town with the commercial thrown in to try to convince voters to pass it on a Measure J/R vote. (Note: the Enterprise mentions 750 units in yesterday’s paper, but 850 units were in the EIR.)

    The really frustrating part is that the entire reason for even considering MRIC was for it to be a “commercial-only” project to bring revenue to the City, which is what Ramos repeatedly promised early on. Then, the “bait-and-switch” happened of him introducing 850 high density housing units with the commercial (i.e. mixed-use alternative), when one original concern was that the site was rather small for the acreage desired for an innovation park. So how was the site suddenly big enough to add 850 housing units? Any available space in the project should be used for maximizing the amount of commercial that can be located there to maximize the revenue from the project. Furthermore, 850 housing units brings significant costs and impacts to our infrastructure and City services with it long term so it winds up significantly diminishing (if not negating) any revenue it was supposed to bring the City.

    So, given the track record so far of the Ramos developers, including the “bait-and switch” stunt and the fact that the EIR is flawed, it makes no sense for the City to grant the certification of the MRIC EIR and, in fact, is counterproductive.  The value of the land would increase with a certified EIR and the developers could then just sell the land for a profit.

    1. Mark West

       “One major problem is that the EIR is flawed”

      “It’s simply a ridiculous assumption.”

      I assume you have professional qualifications for making this assessment, or at the very least, can provide a professional citation to support your position? If not, you are just spouting a ‘talking point’ that you and others who oppose the development have chosen to focus on. In other words, just more hot air and obstruction.

      The EIR should be evaluated by the CC and approved or denied based on that evaluation, not on how loud the opposition is, or how well they parrot their ‘talking points.’

      1. David Greenwald Post author

        The idea that the EIR is flawed is based on Eileen’s opinion that a given assumption about occupancy of the housing units is unrealistic. The problem is that it’s her opinion that the assumption is unrealistic and therefore her opinion that the EIR is flawed. Dan Ramos explained to me how they planned to insure maximum workforce occupancy of the housing units, whether it will work or not I cannot say, but I don’t think that makes the EIR any more or less flawed, per se. Especially since the council has made it clear that the mixed use alternative is off the table.

        1. Ron

          David:  “Especially since the council has made it clear that the mixed use alternative is off the table.”

          Not convinced that the current council has clearly stated this.  (In fact, I’m not sure that they can do so, e.g., legally.)

          It’s in the EIR, as well. (Was that put in there for fun, just to rile everyone up?) “Pay no attention to it”, because the council said “no”, and they’d “need a new EIR, anyway” – at least according to some who might be misinformed.

          Also, council membership changes within relatively short time periods.

           

        2. Howard P

          Then, the logical and process-appropriate thing to do is to have the City declare that, and reject the EIR.

          Doing nothing, neither certifying or rejecting the EIR, is a bad option.  Not professional, not leadership, and not fair to the developer, nor the community.  Therefore, doing nothing is inappropriate.

        3. Howard P

          Ron… re: your 10:59 post…

          Actually it is my opinion that the CC could completely reject the mixed use concept, but they, again, in my opinion, would have to certify the EIR first as documentation of a basis for that decision.

          In saying that, this CC cannot bind future CC’s.

        4. Mark West

          “The idea that the EIR is flawed is based on Eileen’s opinion that a given assumption about occupancy of the housing units is unrealistic.”

          And it was addressed in the EIR – see Master Response #3  http://documents.cityofdavis.org/Media/Default/Documents/PDF/CDD/ED/projects/Innovation-Centers/Mace-Ranch/Final-EIR/MRIC-Final-EIR-volume-I-2-(Ch-4-Letters-1-30).pdf

          Specifically, sensitivity analysis of the results was evaluated at several levels of employee occupancy from 0% to 100%. Eileen (et al.) might not like the answers, but to claim that the EIR is flawed due to a failure to address the assumption is simply incorrect.

           

        5. Colin Walsh

          The 80% number is flawed regardless of if the current council has indicated opposition to it. If it is flawed in the EIR it is flawed. By the time a new project is brought forward on this, it could be a new City Council. The EIR should not be accepted with a glaring problem like this.

        6. Mark West

          “The 80% number is flawed regardless of if the current council has indicated opposition to it. If it is flawed in the EIR it is flawed.”

          As Matt pointed out elsewhere, the 80% number doesn’t appear in the EIR. You are repeating a false ‘talking point.’

    2. Matt Williams

      Eileen Samitz said . . . “One major problem is that the EIR is flawed in that it s making a ridiculous assumption that the vast majority of the 750-850 housing units would be occupied by MRIC workers”

      Eileen, your statement as written is not consistent with the realities of the Draft EIR.  Specifically, the Alternatives Analysis chapter of the Draft EIR (see LINK) includes consideration and discussion of seven reasonable alternatives to the proposed project, as required per CEQA Guidelines Section 15126.6. Those seven alternatives were/are:

      1. No Project (No Build) Alternative;

      2. Reduced Site Size Alternative;

      3. Reduced Project Alternative;

      4. Off-Site Alternative A (Davis Innovation Center Site);

      5. Off-Site Alternative B (Covell Property);

      6. Infill Alternative; and

      7. Mixed-Use Alternative

      After analyzing and discussing all those alternatives page 7-203 of the Draft EIR comes to the following conclusion:

       
      A comparison of the proposed project to the project alternatives, discussed in detail above, is provided in Table 7-8, below. Although the No Project (No Build) Alternative would result in the fewest impacts in all resources areas compared to the proposed project, and all other alternatives even after accounting for anticipated mitigation measures, the No Project (No Build) Alternative would not satisfy any of the project objectives. The next most environmentally superior alternative is the Reduced Project Alternative. 27 This alternative would result in less impact as compared to the project; however, it fails to achieve the fundamental objectives of the City or the applicant to develop an integrated innovation center campus of approximately 200 acres in size, with sufficient land to meet demand over a 20 to 25 year period, and a critical mass of users of various sizes sufficient to support the necessary infrastructure and amenities to allow for a full range of research and market uses.
       

      So, as flawed as you may believe the assumptions for the Mixed-Use Alternative may be, the reality is that those flaws didn’t result in the Mixed-Use Alternative achieving either of the top two alternatives with the “fewest environmental impacts.”  So what you are fighting for is to disqualify an analysis that put your “villain” in no better than third place out of seven.

      Further, if you read the assumptions laid out in the 31 pages of material in the 8.2 Mixed-Use Alternative Description section of Chapter 8 of the Draft EIR (the Mixed Use Alternatives chapter) (see LINK) there is no reference to any claim that 80% of the 750-850 high-density units will be occupied by MRIC workers.  In fact, using the search function I could not find “80%” (or any other related occupancy key words) in all 219 pages of the Chapter 8 Mixed Use Alternative Analysis. Nor could I find any of those terms in Chapter 7 Alternatives Analysis.  Given that, I would like to suggest taht tThe author of the e-mail (I don’t know who the author was since I was not included on the list of recipients) would do all of Davis a service by citing the explicit source of the 80% occupancy reference.

       

      1. Roberta Millstein

        Matt, you left out a key phrase.  According to the EIR, the second alternative “fails to achieve the fundamental objectives of the City or the applicant.”  Thus, at least as the EIR is currently written, the second alternative gets no further consideration.  It’s off the table.

        1. Howard P

          Thus, at least as the EIR is currently written, it gets no further consideration.  It’s off the table.

          That is not factually true…

          As I keep saying, the EIR is a disclosure document… not a decision document.

          “Fundamental objectives” are subject to change… not written in stone.

        2. Roberta Millstein

          It’s off the table as far as the EIR is concerned, which raises the question of why the fundamental objectives are in the EIR at all, if the EIR is only supposed to be looking at environmental impacts.  I don’t actually know why they are in the EIR – do you?  (This is a genuinely honest question – no sarcasm).

  15. Eileen Samitz

    I forgot to mention one of the most important reasons why the EIR should not be processed for certification, and that is because there is no application and therefore we don’t even know what the project is. Moving forward with EIR certification at this point would be a scenario of “putting the cart before the horse”.

    1. Howard P

      Eileen.. it needs to be processed… it does not need to be certified… it can be rejected as inadequate, flawed etc.  As long as it remains in limbo, the City, the EIR consultants, have an open “project” as it were… it is truly time to vote up or down.  I care not which.  I strongly believe, and have started to contact CC members, that they must act as soon as procedurally appropriate.

      no application and therefore we don’t even know what the project is

      Technically, I suspect it is ‘withdrawn/inactive’… to say there is no project, for analysis purposes, is technically incorrect in my opinion… each of the alternatives analyzed is ‘a project’.

       

      1. Ron

        Howard:

        From article:  “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.”

        Not sure what the difference is, regarding “processing” (as you mentioned), and “certifying”. Are further steps needed to “process” it?

        1. Mark West

          Processing, in this case, means to make a formal declaration to approve or reject the EIR based on an assessment of the quality of the product. Certify it, if it is warranted, or reject it if it is not. Either answer is ‘processing.’ Doing nothing is ‘punting.’

        2. Ron

          Mark:

          Your response regarding “processing” seems to be the same as “certifying/not certifying”, which is apparently not required.  (Actually, the statement attributed to Mike Webb states that the city has no legal requirement to “complete” it, either.)

          Mike’s quote is shown above.  Do you have a different opinion regarding the law?

        3. Howard P

          Ron… Mark is correct…

          Even if the CC is not “legally obligated” to act (and I’ve never said they were!), I believe the CC ‘owes’ the developer and the community a decision on the EIR.

          And, for the upteenth time, I care not what their decision is… I care deeply that they make a decision.  Punting, kicking the can down the road, burying their heads in the sand, whistling in the dark… pick your metaphor… is not acceptable, even if not illegal.

          CEQA was not meant to be a political or vox populi process… it was intended to disclose the consequences (good/bad/neutral) of making decisions…

          Should the EIR be put up to a vote of the people?

          Not acting is a clear message that the CC cannot make a rational decision.  That does not bode well for attracting commercial/innovation center projects.

        4. Roberta Millstein

          Even if the CC is not “legally obligated” to act (and I’ve never said they were!), I believe the CC ‘owes’ the developer and the community a decision on the EIR.

          I don’t think the CC owes them anything.  They have been an inconstant “partner.”  They put forward a proposal.  Then they want to change the proposal (to add housing). Then they withdraw the proposal.  Then they want a last second consideration of a new proposal.  Then they withdraw that.  Now there is no proposal on the table.  Thus, nothing owed.

          Not acting is a clear message that the CC cannot make a rational decision.

          No, it’s a clear message that they want to consider only serious proposals, not withdrawn or possible proposals.

          That does not bode well for attracting commercial/innovation center projects.

          Maybe it would be a signal that developers should have their act together a bit more before they bring things to the City.

        5. Ron

          Howard:

          You stated that the EIR “needed” to be processed.  I was just asking what that meant, from this point forward.

          Mark’s subsequent statement makes no sense to me, in light of Mike Webb’s statement.

          Regarding your opinion that the council should begin the process to certify/not certify for non-legal reasons (e.g., to “prove” that they can make a “rational decision”, attract commercial/innovation developments, and/or that they “owe the community/developer a response” – even though the developer significantly changed, and then ultimately withdrew their proposal), it’s certainly your prerogative to state so.

           

  16. Ron

    Matt:  “Question to everyone, the original proposal had no housing.  Would a new proposal containing 750-850 high density housing units be a substantial change to the prior proposal?

    “If the answer to that question is “yes” then, by law, the new proposal would need its own new EIR.”

    Matt keeps stating this (or something similar), but it seems to be disputed by other commenters (since it’s one of the alternatives in the EIR).

     

      1. Mark West

        I believe Ron is correct as well, but I still don’t see how it matters. Any project, whether analyzed in this EIR or not, will need to be approved by the CC and with a Measure R vote.

        1. Howard P

          To amplify, Mark, not only the Measure R vote, but from approvals from the CC would include:

          Pre-zoning and annexation
          Zoning including Final PD (likely)
          (likely,) Tentative Map
          Development Agreement (highly likely, as if I were the developer, I’d pretty much push for that to lock in previous approvals)
          Design Review

          Each step is a ‘discretionary act’ so each is subject to conditions of approval.

          Which is the origin of the “spanking machine” analogy… some of the above can be done concurrently…  cuts down on the ‘blows’…

  17. Greg Rowe

     
    The following commentary is based on 26 years working with CEQA, as follows:
     

    I served on and chaired the Chula Vista Resource Conservation Commission, 1984—89. This commission reviewed and wrote commentary on draft EIRs, which we forwarded to the city’s planning commission. My tenure included a period of rapid urban expansion, primarily through construction of large planned developments encompassing hundreds and even thousands of acres.  Never during my tenure on the commission did the City of Chula Vista entertain a request for certification of an EIR in the absence of an accompanying request for approval of the project itself.  Such a practice simply wasn’t done.  That’s the whole point of an EIR: to provide the lead agency (i.e., City of Chula Vista in this case) with the information needed to make an informed decision on a proposed project.

     
     
     

    Worked 1996-99 as economic development manager for the Oakland Chamber of Commerce. In this capacity I reviewed and wrote detailed comments on many EIRs for proposed development projects, primarily in downtown Oakland.  This work brought me into close contact with Oakland planners and economic development officials.  I likewise reviewed and provided comments on DEIRs for the Oakland Port Authority (which operates both the seaport and Oakland International Airport). Again, never in my three years of intensive work in Oakland did I ever witness an EIR being certified by the lead agency (city or Port) in the absence of the accompanying project; i.e., FEIRs and the projects for which they had been prepared were always dealt with simultaneously.

     
     
     

    1999-2002, Redevelopment Manager, Sacramento Housing and Redevelopment Agency (SHRA), a joint powers agency of the City of Sacramento and the County of Sacramento. In this capacity I coordinated program EIRs for proposed adoptions and amendments of redevelopment plans.  Again, during this period I never witnessed an instance of an FEIR being proposed for approval in the absence of lead agency approval of the project for which the EIR was prepared.

     
     
     

    Senior Environmental Analyst, Sacramento County Department of Airports (AKA, Sacramento County Airport System), 2002 – 2015. In this capacity I prepared environmental documentation for at least 100 projects, ranging from categorical exemptions to EIRs.  The largest project in which I was involved was the program EIR for the Sacramento International Airport  (SMF) Master Plan approved in August 2007, which resulted in construction of the new Terminal B that opened in 2011.  I also coordinated the EIR for the SMF jet fuel pipeline and storage tanks project, and the SMF water supply pipeline and storage tanks projects (the 2 large storage tanks on the south side of I-5 at Power Line Road).  In all of the projects for which an EIR was prepared during this period in the County of Sacramento (not just for the Department of Airports), the sequence of approvals was always identical:  (a) certify that the FEIR is adequate and complete; (b) Adopt CEQA findings of fact and overriding considerations [if applicable]; (c) approve the Mitigation Monitoring and Reporting Program [MMRP]; (d) and then and only then approve the project. 

     
    On this basis, while it would appear there is nothing in the CEQA guidelines that would inherently prevent the MRIC action proposed on the February 21 agenda, it would constitute a practice that historically has not been followed by any lead agency with which I have been affiliated.  For that reason, I’d advise the City to proceed with caution if for no other reason than to avoid setting a precedent that might be regretted later.
     

    [moderator] This ended up in the spam folder for some reason. Just releasing it now on Mon. evening.

    1. Ron

      Greg:  Thanks for posting the information, above.  (Also, thanks to Roberta regarding her post below, for pointing it out.)  If it wasn’t for Roberta’s posting, I would have missed yours, due to the technical problem which caused a delay.

  18. Matt Williams

    Food for Thought from pages 07-7 and 07-32 of Mace Ranch Innovation Center (MRIC) Update and Direction to Staff (continued from December 15, 2016 meeting)  item of 02-23-16 City Council Meeting Staff Report

    Page 07-7 — The results shown above assume that all 850 dwelling units included as a part of the Mixed Use alternative are occupied by at least one MRIC employee. To provide an understanding of how these results would change if fewer units were occupied by employees, additional sensitivity testing was undertaken for trip generation, VMT (Vehicle Miles Traveled) , and GHG (Greenhouse Gas) emissions. The sensitivity analysis examined the results if the number of units occupied by an MRIC employee was reduced to 75 percent , 50 percent , 25 percent , and 0 percent (no units occupied by an MRIC employee)

    Page 07-32 — Summary of Results The sections below present the summarized results of the sensitivity assessment forecasts for the Mixed – Use Alternative under the Modified Cumulative Scenario assuming that 0, 25, 50 , 75 , or 100 percent of the on – site housing would be occupied by residents who work at the MRIC.

  19. Colin Walsh

    All the bickering above aside, I have to say I just don’t see what benefit the City derives from certifying an EIR for a project that doesn’t exist.

    1. Matt Williams

      Colin, the benefit the City derives is by closing the EIR it stops spending recurring taxpayer money and stops devoting resources and staff time to cmplying with CEQA and State Clearinghouse requirements that apply to all open EIRs.

      Why do you want to perpetuate the recurring wasteful spending of taxpayer dollars on extending the life of a project application review process that ended April 14, 2016?

      1. Roberta Millstein

        Colin, the benefit the City derives is by closing the EIR it stops spending recurring taxpayer money and stops devoting resources and staff time to cmplying with CEQA and State Clearinghouse requirements that apply to all open EIRs.

        Why do you want to perpetuate the recurring wasteful spending of taxpayer dollars on extending the life of a project application review process that ended April 14, 2016?

        Matt, you keep talking about the “wasteful spending,” but we need answers to two questions before we can know that there is wasteful spending:

        1. How much is being spent?  If it’s just an occasional email, then it’s not significant.
        2. Can the EIR simply be withdrawn?  If so, then we don’t need to act on the certification question in order to achieve “closure.”

        1. Matt Williams

          Good questions Roberta.  Let me deal with them in reverse order.

          2a.  Based on what you know, what would “be withdrawn” look like?

          2b.  I think if you review all of my posts in this (and the prior) threads, you will find that my belief is that there are a number of options for closure, the most notable being a choice between complete/incomplete, a choice between adequate/inadequate, and a choice between accurate/inaccurate.

          2c. Section 21161 of the California Law – Public Resources Code – Division 13. Environmental Quality reads as follows:

          Whenever a public agency has completed an environmental impact report, it shall cause a notice of completion of that report to be filed with the Office of Planning and Research. The notice of completion shall briefly identify the project and shall indicate that an environmental impact report has been prepared. The notice of completion shall identify the project location by latitude and longitude. Failure to file the notice required by this section shall not affect the validity of a project.
          (Amended by Stats. 2007, Ch. 253, Sec. 3. Effective September 26, 2007.)

          Given that legal language your question might be better phrased as “Has a notice of completion been filed for this EIR with the Office of Planning and Research in Sacramento?”

          1a.  I do not know what the answer to that question is, but here are some guesses about the ballpark. More than $50,000 per year?  Probably not.  More than $25,000 per year?  Quite possibly.  More than $10,000 per year?  Almost certainly.

          1b. The same question works in reverse.  How much is closing the EIR going to cost the City?  What direct damages will the City suffer as a result of closing the EIR?

        2. Roberta Millstein

          Sorry, Matt, but that all seems like a lot of words to say “I don’t know” and “I don’t know.”  Well, I don’t know either, but your argument just isn’t persuasive without answers.  I suggest you find them if you want to persuade anyone.  You are the only one making this particular argument.

        3. Matt Williams

          Roberta, your arguments about Dan Ramos’ actual use of the EIR fall into the same “I don’t know” category.  Well, I don’t know either, but your “Evil Dan will cause us harm” argument just isn’t persuasive without answers either.  I suggest you find them if you want to persuade anyone.

        4. Matt Williams

          Roberta, one final thought that honors our mutual right (and ability) as two respectful people to disagree respectfully on this issue is the different ways each of us “frame” the issue.  I could be wrong, and please tell me if I am, but I believe you approach this issue spiritually, while I approach it secularly . . . and as you know from my comments to you after the OSHC hearings about MRIC several months ago, I respect you for the strength of your spiritual approach.

        5. Roberta Millstein

          Roberta, your arguments about Dan Ramos’ actual use of the EIR fall into the same “I don’t know” category.  Well, I don’t know either, but your “Evil Dan will cause us harm” argument just isn’t persuasive without answers either.  I suggest you find them if you want to persuade anyone.

          I am surprised at your reaction, Matt.  I thought you’d simply try to find out the answers to your questions, given your evidence-based approach.  The answers to my questions are inherently going to be more amorphous, but I think there is the past behavior of the developer and the behavior of past councils to support them.  And clearly, I am not the only one who has come to the same conclusion.

          Roberta, one final thought that honors our mutual right (and ability) as two respectful people to disagree respectfully on this issue is the different ways each of us “frame” the issue.  I could be wrong, and please tell me if I am, but I believe you approach this issue spiritually, while I approach it secularly . . . and as you know from my comments to you after the OSHC hearings about MRIC several months ago, I respect you for the strength of your spiritual approach.

          I have no idea what you’re talking about.  I am not a religious person at all.

        6. Matt Williams

          Roberta Millstein said . . . “I have no idea what you’re talking about.  I am not a religious person at all.”

          Roberta … “spiritual” is very different than “religious.”   My observations of the many times you have fought for the environment both as an individual and as a member of the OSHC is that your core beliefs regarding the environment are an integral, indivisible part of your spirit.

        7. Ron

          I’ve noticed a pattern, regarding Matt’s responses, which can be seen in the communications with Roberta, above.  Rather than directly responding to a logical argument, he sometimes “deflects” the conversation, by incorrectly attributing a perceived personal trait regarding the person he’s communicating with.  (And then, he attempts to frame it as a “complement”.)  A method of using “faint praise”, to deflect an argument.

          To top it off, Matt will then imply that he (alone) is using a “logical approach”.

          On a related note, I recall that Matt once described me as a “libertarian”, with no actual basis for labeling me as such.

           

           

        8. Roberta Millstein

          Matt, I never know what people mean by the word spiritual, and so, no, it is not a word I would use to describe myself. As a philosopher, and a philosopher of science in particular, logic, arguments, and evidence are my stock in trade. So, again, I ask you why you don’t simply tried to find evidence for your claims, since you have said many times that you take an evidence-based approach, which I appreciate.

        9. Matt Williams

          Roberta Millstein said . . . “Matt, I never know what people mean by the word spiritual, and so, no, it is not a word I would use to describe myself. As a philosopher, and a philosopher of science in particular, logic, arguments, and evidence are my stock in trade. So, again, I ask you why you don’t simply tried to find evidence for your claims, since you have said many times that you take an evidence-based approach, which I appreciate.”

          Roberta, rest assured I am taking the steps to better know the answer to the “How much is being spent? question, as well as the Can the EIR simply be withdrawn? question.  I have made a specific appointment on that very subject tomorrow afternoon.

          With that said, is it unreasonable to ask for equivalency in our mutual dialogue?  I agree with you that the answers to your questions are inherently going to be more amorphous, and I agree that an examination of the past behavior of the developer and the behavior of past Councils is a good place to start.

          What is the past behavior of the developer with respect to the use of EIR information from closed projects that ended in a “no project” status?

          What is the past behavior of past Councils with respect to the use of EIR information from closed projects that ended in a “no project” status?

          The answers to both those two questions are actually not amorphous at all.  Both are specific evidence-based questions, with easily verified evidence-based answers.

          If you are asking me to research and share answers to the questions I have posed, is it not reasonable to expect you to research and share answers to the questions you have posed?

           

        10. Howard P

          Matt… 3:01 post…

          The EIR is a City document… the applicant has no right to withdraw it, but if the applicant requested that the City abandon that, they could choose to, or proceed with an up/down (perhaps even ‘sideways’) action.

          I question if, for ‘good government’ reasons, the City should unilaterally delay action, nor abandon it.

        11. Matt Williams

          Howard,

          Roberta posed the question in the following language, “Can the EIR simply be withdrawn?  If so, then we don’t need to act on the certification question in order to achieve “closure.”  Quibbling over the specific terminology of her question would not get me any closer to uncovering the answer.  I knew what she meant, and I am 100% sure that the person I’m meeting with tomorrow will know what she meant as well.

          With that said, the language below is from Section 21161 of the California Law – Public Resources Code – Division 13. Environmental Quality.  Given that legal language the question as posed by Roberta may no longer be timely depending on whether a notice of completion been filed by the City for this EIR with the Office of Planning and Research in Sacramento.  The person I am meeting with should know the answer to that question as well.

          Whenever a public agency has completed an environmental impact report, it shall cause a notice of completion of that report to be filed with the Office of Planning and Research. The notice of completion shall briefly identify the project and shall indicate that an environmental impact report has been prepared. The notice of completion shall identify the project location by latitude and longitude. Failure to file the notice required by this section shall not affect the validity of a project.

          (Amended by Stats. 2007, Ch. 253, Sec. 3. Effective September 26, 2007.)

    2. Howard P

      Colin… the possible/likely benefit to the City, would be to inform City staff and CC what a new RFP/RFQ solicited by the City, for the purpose of a future innovation center, might better look like.

      But many just want to drop the whole thing, and my suspicion is they are afraid that an up/down vote would result in certifying the EIR.

  20. Matt Williams

    I have just sent Colin and Eileen the following e-mail:

    ————————————————–
    Colin and Eileen, if you can provide the source citation/link anywhere in the City’s MRIC documents for the 80% occupancy assumption I will come out 100% in support of your position.  All I have found so far is:
     
     “To provide an understanding of how these results would change if fewer units were occupied by employees, additional sensitivity testing was undertaken for trip generation, VMT (Vehicle Miles Traveled) , and GHG (Greenhouse Gas) emissions. The sensitivity analysis examined the results if the number of units occupied by an MRIC employee was reduced to 75 percent , 50 percent , 25 percent , and 0 percent (no units occupied by an MRIC employee.
     
     The Mixed Use alternative would generate fewer daily trips than the project as proposed so long as at least 60 percent of the units are occupied by at least one MRIC employee.
     
    The Mixed Use alternative would generate less VMT than the project as proposed so long as at least 35 percent of the units are occupied by at least one MRIC employee.
     
     The Mixed Use alternative would generate less GHG emissions than the project as proposed so long as at least 53 percent of the units are occupied by at least one MRIC employee.”    
     
     

    Matt

  21. Eileen Samitz

    There is no project application, so it makes no sense to certify an EIR when there is no project defined. And the City gets nothing out of allowing the certification of an EIR for a non-existent project except risk.

    Furthermore, the EIR is flawed because there is no legal way to have any percentage of the housing to be occupied by MRIC workers either initially or to sustain it. The main argument for the mixed-use alternative to be “superior” was based upon the unwarrented assumption that a significant amount of the MRIC housing would be occupied by MRIC workers. Plus they based their unwarranted assumption on just one MRIC worker occupying the units. Well what about the roommate(s), spouse, other family members etc who do not work at  MRIC.  So what about the commuting, circulation, traffic and other impacts from the other co-residents per housing unit? The mixed-use alternative conclusion being “superior” is based upon flawed assumptions so the MRIC EIR is flawed.

    1. Matt Williams

      Eileen Samitz said . . . “Furthermore, the EIR is flawed because there is no legal way to have any percentage of the housing to be occupied by MRIC workers either initially or to sustain it.”

      Eileen, here is some interesting food for thought.

      Would I be right or wrong if I said to you that, “There is no legal way to have 100% of the housing in a privately-owned apartment complex to be occupied by UCD students either initially or to sustain it.”

      1. Matt Williams

        Eileen, its a straightforward question and it is very directly related to your point. The question is … Is the following statement correct or incorrect?

        There is no legal way to have 100% of the housing in a privately-owned apartment complex to be occupied by UCD students either initially or to sustain it.

        1. Howard P

          I do (at a 90% level)… the point strongly appears to be that there are no differences in controlling MRIC or student housing restrictions… one looks at plausibilities, and does a poor man’s Monte Carlo assessment on possibilities, which is exactly what the EIR does.

          Eileen supports more student housing, but opposed any housing at MRIC, based on past comments, made in the public record here…

          But I defer to Matt to any clarification he wants to make as to his purpose in asking that question.

        2. Ron

          Howard:

          I’m not totally sure what you’re referring to when you mention (90%), the reason you’re mentioning it, or the basis for it.

          Regarding student-oriented housing, I understand that Eileen supports this primarily on-campus, where it can actually be reserved for students at the 100% level.

          Again, I have no idea why Matt introduced that statement, and apparently Eileen doesn’t either.

        3. Howard P

          Ron to be clear, I meant at a 90+% confidence level (actually closer to 95% CL), I believe that if the EIR is certified, it with withstand a legal challenge, if one is made… if you or others think it should be at a 99.99% confidence level, I can’t do that…

          The basis is personal and professional experience with EIR’s (many)… the reason I said 90+%, is because sometimes you can end up with a squirrelly judge on a bad day.  Opinion, based on experience…

           

           

           

        4. Ron

          Howard:

          It seems that you and Matt are (now) apparently talking about two entirely different subjects (% of housing for reserved for students at for a theoretical private development – other than the one at MRIC), vs. likelihood/success of lawsuits regarding the city’s risk of certifying the MRIC as a statistical probability. Is that correct?

          It seems that neither Eileen nor I brought up either of these issues, regardless.  Hey – maybe we can bring up a third unrelated subject, just for the heck of it?  Maybe something regarding the likelihood that the MRAP will be used, as a result of protests related to the MRIC?  🙂

          P.S. – A more “important” post was submitted by Greg Rowe, above.

        5. Howard P

          You are correct, to a certain extent, Ron…

          Matt and others are talking about the validity of assumptions used as to percentage of  housing folk would would work at MRIC… I agree with Matt and others that the percentages were ‘bracketed’, and analyzed, and therefore the document is valid as to assumptions.

          My %-ages were a way of figuring out what odds I’d offer as to my contention as to the EIR being able to withstand a legal challenge, if certified.

        6. Ron

          Howard:

          Thanks for clarifying.  Still not sure why Matt brought up his original point, regarding percentage of students housed at a theoretical, private development (other than the one proposed at MRIC). Nor am I sure of the reason that you speculated regarding the statistical likelihood of a successful legal challenge. (I have doubts that anyone can accurately predict this – even attorneys who work with this subject.)

          Regarding your statement:

          “I agree with Matt and others that the percentages were ‘bracketed’, and analyzed, and therefore the document is valid as to assumptions.”

          I believe that you’re correct that the percentages were “bracketed and analyzed”, but I (and apparently others) don’t necessarily agree with your conclusion that the document is valid as to assumptions.  If the council chooses to proceed with the certification process, I am reasonably confident that these types of assumptions will be challenged.

  22. Jim Frame

    And the City gets nothing out of allowing the certification of an EIR for a non-existent project except risk.

    On the contrary, while we have every right as a city to be very selective as to which projects we choose to encourage, the viability of those desirable projects depends upon the availability of anchor tenants and financing.  If a certified EIR moves the needle even a little bit on attracting either of those, that’s an advantage to the city.

    I also disagree that certifying the EIR poses any risk to the city.  As has been stated many times, a certified EIR is not a project approval document, it’s a disclosure document.  The approval mechanisms are entirely separate, very strong, and not threatened by the existence of a certified EIR.

    If the CC believes the MRIC EIR meets the tests of adequacy, then I think they should certify it.

      1. Howard P

        Well, based on about 29 years of experience, I can tell you at at ~ 90+% certainly level, if such a lawsuit is filed, it will not be upheld… anyone can file (or threaten to file) a lawsuit… doesn’t mean they’ll win… in the meantime, until a person in a black robe adjudicates it, the EIR would retain its “certified” status (if it is certified… it may not be), and it seems the applicant is not in such a hurry, that this would bother them too much… if you want a 250 page tome, reducing that level to 0.1% (or less), it ain’t happening.

        Folk… at the end of the day it only takes 3 folk in town to decide whether the EIR goes to “Final Jeopardy”, and  out of the same 5 to either certify it or reject it, hopefully articulating why, for the record..

        Speculations/suppositions/unsubstantiated ‘concerns’ as to ‘what if’s’, will hopefully not sway the majority of the CC on either decision… either way.  If you have ‘facts’, feel free to share them with the CC… those might sway them on either decision…

    1. Howard P

      To amplify Jim, certification is first hurdle… not an approval of a specific project, as there is none. To paraphrase what they say in the financial world, ‘future approvals are not guaranteed, based on past approvals’.  The applicant does understand that, and most professionals do as well…

  23. Roberta Millstein

    I recommend that people read Greg Rowe’s comment above. It might have gotten missed since, apparently, it was caught up in the spam filter and only released later.

    1. Howard P

      Read it… may have been his experience, but the facts (agency, preparer, etc.) may or may not be the same as to competence… some of those project EIR’s look quite different as to scope and ‘sensitivity’… I have reviewed and seen project EIR’s, program EIR’s and GP/SP level EIR’s (a GP/SP and/or program EIR have no specific ‘project’, as the ‘project’ is the GP/SP, and or “program”).  Have not seen one successfully ‘successfully’ challenged in court.

      I do not doubt that was Greg’s experience(s), but do not think that applies here… I stand by my posts on this.

      Greg even gives the caveat, that he is ‘not aware of’ any agency that has done so… I am… and feel absolutely no obligation to inform you, or elaborate further… I know I could never convince at least three or you, so trying to do so would be ‘quixotic’ at best.

      My ‘caveats’ have been elaborated on earlier today. Five people need to weigh the evidence and the record, and make two decisions, as I’ve pointed out earlier.

      Thinking folk should indeed weigh Greg’s comments and mine… my experience was based in Davis/Yolo County, not Chula Vista.

       

      1. Howard P

        One line had a missing phrase… “competence of agency staff and/or EIR preparer”.  I do not question Greg’s competence at all… because I do not know him nor his credentials…

      2. Roberta Millstein

        Howard writes:

        Have not seen one successfully ‘successfully’ challenged in court.

        How does this relate to Greg’s comments?  What he says, in summary, is:

        On this basis, while it would appear there is nothing in the CEQA guidelines that would inherently prevent the MRIC action proposed on the February 21 agenda, it would constitute a practice that historically has not been followed by any lead agency with which I have been affiliated.  For that reason, I’d advise the City to proceed with caution if for no other reason than to avoid setting a precedent that might be regretted later.

        I don’t see him say anything about what would hold up in court.

        Howard further writes:

        Thinking folk should indeed weigh Greg’s comments and mine… my experience was based in Davis/Yolo County, not Chula Vista.

        But you are anonymous.  I give more weight to comments that people are willing to stand behind their comments with their name, especially when it’s a claim based on someone’s experience instead of an argument that can stand alone.

        1. Howard P

          Rest assured, have also corresponded separately with the Mayor, under my own name, and he knows my credentials well (as do several other posters on this site, including but not limited to, David, Don, Jim, Matt… and David consented to my level of ‘anonymity’), and the point you seem to miss is, that you will not vote on tonight’s action, so I feel no need to secure your opinion, nor vote.   That is reality.

          Guess you missed the part that he has never been involved with the certification of an EIR that did not have a specific ‘project’… I have, and said so.  For elaboration I added the part on lack of successful challenge.

          Done…. fini… will watch the ‘fun’ from home tonight…

           

        2. Roberta Millstein

          Guess you missed the part that he has never been involved with the certification of an EIR that did not have a specific ‘project’… I have, and said so.  For elaboration I added the part on lack of successful challenge.

          Are you talking about the “program EIRs” that you discussed above?  If so, why should your experience with program EIRs be relevant to this project EIR, and why should Greg’s lack of experience with program EIRs count against him if this is a project EIR?

    1. Howard P

      Channel 99 is not functional as to CC meeting, (but as a kid, thought Barbara Felton was going to be my ‘true love’), and have to re-boot, etc. to get the streaming video to stop the “hiccups”… anyone else having this problem or is it time for me to get a new laptop?  Otherwise, I’ll contact Robert Schultze tomorrow… very distracting, to say the least…

      My grandfather and namesake was born in Butler County, as was Felton… so I’m from Mars (Butller Co.,PA)… (she’s about 21 years older than me)

  24. Ron

    Matt:  “I have always found Agent 99 superior to Channel 99.  It’s a shoe in”.

    That’s incorrect.  It’s a “shoe phone”.

    I suggest that you take a time out, in the “cone of silence”!

     

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