Judge Denies Harrington’s Nishi Lawsuit

Despite the loss of Nishi, the suit filed against the Nishi project by a group calling themselves “Davis Citizens Alliance for Responsible Planning” remained active, as the Vanguard reported last September.

The suit, as summarized in the judge’s ruling, alleges that the Nishi EIR “failed to adequately analyze, discuss, and mitigate the project’s traffic impacts” and approval of the project “violated the City’s affordable housing requirements.”

Mr. Harrington, et al., allege that “(1) the EIR’ s traffic analysis relies upon unreasonable trip generation assumptions, (2) the City fails to document the validation of the VISSIM [traffic simulation software] model in respect to replication of the existing queue conditions, (3) the EIR fails to adequately analyze and mitigate vehicle miles traveled, and (4) the EIR’s traffic analysis is inconsistent with previous traffic analysis performed by the same consultant.”

Judge Samuel McAdam denies this claim.

When reviewing an EIR for legal adequacy, a court “does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.”  Moreover, “Courts apply an abuse of discretion standard when determining whether an agency complied with CEQA. Under that standard, a lead agency abuses its discretion if its determinations or conclusions on questions of fact are not supported by substantial evidence or if it did not comply with the procedures mandated by CEQA governing the contents of an EIR.

“The petitioner carries the burden to demonstrate that there is not sufficient evidence in the record to justify the public agency’s action. In order to do so, a petitioner must set forth in its brief all the material evidence on the point, not merely its own evidence,” the court writes.

Here the judge argues “the mere fact a plaintiff disagrees with the methodology employed by a defendant to measure a project’s potential traffic impacts does not require invalidation of an EIR, so long as it provides accurate information.”

In this case, Dan Smith’s opinion is simply that “there is no guarantee that any particular percentage of [the units] will be occupied by students.”  However, the judge notes that he failed to submit evidence that the information in the EIR is inaccurate.

Judge McAdam writes, “Petitioner fails to demonstrate that there is not sufficient evidence in the record to justify the public agency’s action, and therefore this argument does not support a finding that CEQA was violated.”

The judge rules on the second part: “It is unclear what petitioner is arguing as the traffic study in the EIR does not assert that ’20 percent of the employed residents in those 298 non-student dwelling units would be employed in the Project’s R&D-office component.’ This argument lacks merit.”

On the issue of the VISSIM model, the judge writes, “Petitioner fails to cite any legal authority that required the City to ‘formally measure’ existing queues. Petitioner also fails to provide any evidence to establish that using the VISSIM microsimulation software and the FHA Guidelines is insufficient to make an informed decision in a traffic study.”

The judge rules, “EIR contains substantial evidence supporting the use of the VISSIM model to replicate existing queue conditions. Therefore, this argument does not support a finding that CEQA was violated.”

On the issue of whether the EIR adequately analyzes and mitigates impacts based on VMT (vehicle miles traveled), the judge rules that the petitioner bases “its entire argument on the ‘peak’ trip numbers” and does not “discuss the methods used by the City in calculating the estimated VMT or provide any evidence that the method used was inappropriate.”

The judge rules that “there is enough relevant information and reasonable inferences from the information in the EIR that a fair argument can be made to support a conclusion that the City relied on a proper method in calculating the forecasted VMT.”

Finally, he notes there is “substantial evidence” to support the results obtained by the project’s traffic study.  The city argued that “it is not required to explain any apparent discrepancies between the two studies because the Hyatt EIR was conducted for an entirely different project, three years prior to the study for the current EIR.”

The city also explained the apparent discrepancies, noting “that the HCM 2000 methodology used for the 2011 study ‘does not consider the effects of queuing that extends into adjacent intersections.’”

The judge finds that “the City provided a reasonable explanation as to why the two studies have somewhat different results.”

The judge also denies the claim for a violation of the Affordable Housing Ordinance (AHO).  The city, as you might recall, has argued that the Affordable Housing Ordinance does not apply, as the stacked flat condominiums and family rental units are exempt.

In the case of Palmer v. City of Los Angeles from 2009, the court held that the Costa-Hawkins Act “precludes local governments from requiring a developer to set affordable rental levels in private rental housing units unless the developer agrees to do so in exchange for financial assistance or other consideration from the local government.”

Therefore, the judge rules that “the City was prohibited from requiring rent-restricted rental housing, unless the City decided to provide financial or other consideration for the rent-restricted units and the developer agreed to provide the units based on the City’s financial participation. Therefore, the 440 rental units are also exempt, and approval of the Project did not violate the City’s AHO.”

The judge notes that the petitioner appears to concede “its position lacks merit,” as he quotes them acknowledging the ruling in Palmer.

Back in September, the Vanguard was told that the Nishi EIR will be fought all the way through the courts, with the full expectation that whichever side ends up losing will appeal to the appellate courts.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

Related posts


    1. David Greenwald

      I don’t have a full answer and Harrington wouldn’t tell me this morning what he was going to do, only said he has 60 days to decide.

      This article from September I think lays out what he considers to be important here: https://www.davisvanguard.org/2016/09/nishi-lost-lawsuit-going-forward/

      From the city’s standpoint this could make Lincoln40 bullet proof against a lawsuit, now they can motion to quash anything that attacks the traffic report.

      1. Mark West

         “now they can motion to quash anything that attacks the traffic report.”

        Which also gives you a reason for an appeal, to protect their opportunity for future attacks and subsequent settlements.

  1. Robin W.

    David – When you are writing about decisions in legal cases, it would be nice if you could cite a link to the actual decision or upload a copy.  Thanks.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
Sign up for