There are a lot of questions that the planning commission has to grapple with when the Mace Ranch Innovation Center (MRIC) EIR certification comes back for consideration, but by far the biggest one is going to be whether there is a project to certify.
Critics have argued that you cannot certify an EIR in the absence of the project. From the city’s perspective, they are apparently not disputing that. Instead, Community Development Direct Mike Webb reiterated to the Vanguard, “Our position is that there is a current proposal that is on pause.”
As staff writes, “At this time, the project application remains on hold but active. Neither the applicant nor the City has taken steps to withdraw or otherwise close the file.”
Staff further points out that, while in June of 2016 the applicants submitted a letter to the city indicating that they were “ceasing” their “processing efforts,” the letter also left open the possibility that the applicant team would “entertain a request” to recommence the project in the future if asked to do so by the City, and identified additional conditions on moving forward.
That was followed four months later with a request to seek certification of the EIR.
On May 24, attorney Alisha Pember of Adams Broadwell Joseph & Cardozo, in South San Francisco and Sacramento, wrote a letter on behalf of “Davis Residents for Responsible Development,” opposing certification.
The letter maintains that “the City may not certify the FEIR [Final Environmental Impact Report] at this time because there is no underlying ‘project’ that is currently ‘proposed to be approved or carried out’ by the City.”
Additionally, Ms. Pember writes that “the FEIR fails to accurately describe the Project because the Project’s description has been in constant fluctuation since the FEIR was released.”
Furthermore, she said that “the City may not certify the FEIR at this premature stage of Project development because it would constitute a ‘definite course of action’ that may improperly limit the City’s subsequent choice of alternatives or mitigation measures if the final version of the Project deviates from the version originally analyzed in the FEIR.”
Finally the letter says that “the Staff Report improperly concludes that certification prior to Project approval will bootstrap the Project approvals into a subsequent CEQA review standard which is only intended to apply to projects that have previously been approved by the lead agency.”
In their opinion, “The City must revise and recirculate the EIR prior to certification to analyze the most recent version of the Project that was proposed by the Applicant, and to correct outstanding errors in the FEIR.”
The attorneys later add, “The FEIR fails to adequately describe either the Project identified in the FEIR or the most recent versions of the Project that the Applicant has asked the City to consider. The City may not certify the FEIR until it corrects these errors in a revised and recirculated DEIR [Draft Environmental Impact Report].”
It seems unlikely that this legal challenge would go forward because, with the project on pause, the litigants don’t have the normal leverage they might have in terms of timeline.
While the attorneys argue that members of the association “and their families who live and/or work in the City of Davis and Yolo County” are the litigants, the question of standing certainly would need to be raised here.
The attorneys argue that there is no underlying project here – but the city has a strong case that there is, it is simply on pause.
For those who believe that there is clearly no project at this time, consider two possibilities. First, that MRIC could, in retrospect back in April, simply have allowed the certification process to go forward and then announced a pause on the project. Would there have been a fundamental difference?
Second, what would preclude the developer from announcing that they are requesting the city to recommence the original project?
Would either of these actions essentially change the fundamental facts about the project? And yet, in essence, the lawyers are arguing that those factors are legally binding over whether the EIR can proceed. That seems dicey at best, given it would not take much for the applicants to simply unpause the project and ask the city to proceed, only to pause it again after certification occurs.
Or to put this another way – is the act of pausing the project a legal status or simply a courtesy extended to the city?
That makes the status of the project much too fluid for status alone to determine whether an EIR can legally proceed.
Perhaps the stronger point that the attorneys have is their second point, saying “the FEIR fails to accurately describe the Project because the Project’s description has been in constant fluctuation since the FEIR was released.”
This too seems to be a difficult legal sell. The applicants introduced a project that was commercial-only. They then added an equal weight mixed-use alternative. In February 2016, the applicants asked the city to only evaluate the mixed-use alternative, but the council rejected that proposal which once again made the commercial-only alternative the one under consideration.
In June of last year, the applicants came back with a reduced-size proposal – again council suggested they could evaluate it, but before they could weigh in on it, the applicants pulled the project and put it on pause.
Again, that meant that the reduced-size proposal was never a formal part of the application.
The attorneys here are arguing that these proposals mean that the project is in constant fluctuation, but that is clearly untrue. There has never been a new formal application or official change to the project. The applicant has simply thrown out possible alternatives that it has pulled back on, for a variety of reasons.
Only a formal change to the project would trigger the need for re-circulation of the EIR.
In short, we believe that the case put forward by the attorneys is largely without merit. The planning commission and the city council, therefore, ought to consider the EIR on its merits and whether the EIR has been completed in compliance with CEQA.
—David M. Greenwald reporting