The headline of the Enterprise article Sunday on the Nishi lawsuit caught my eye: “City won the battle in Nishi Gateway suit, but lost the war.”
It follows from a quote from City Manager Dirk Brazil who said, “It’s a hollow victory. We won the battle, but we lost the war.”
That got me thinking – did the city manager miss something here or is he just being coy? That is not meant as a shot at either the paper or the city manager, but there are some very important issues at stake here.
On the face of it is true: “The ruling comes more than a year after the Nishi Gateway project lost at the ballot box by only a few hundred votes.” So, clearly, you could argue that hey, the project is not happening therefore any victory in the lawsuit is pyrrhic at best.
But that ignores something fundamental here – the plaintiff in this case, Michael Harrington (among others), and the defendants, the city and developer, did not drop the suit when Nishi went down.
One of the big questions now going forward is whether Mr. Harrington will pursue an appeal. I would not give an appeal much chance of succeeding, but that may not be the point.
There is some question as to whether the city could use this EIR in the future if there is still ongoing litigation. If so, an appeal could lock up the project at Nishi for several years as it goes through the system. There is some indication that the developers here wish to proceed with a project.
One suggestion made to the Vanguard is that the best strategy for the city is to concede defeat – even in the face of victory – and do a new EIR.
But clearly that is not what the city wants to do. Rather, the city has basically a free opportunity to prevail in court, because right now there is no time ticking on a live project. The problem that the city has had previously is that there has always been a live project with financing and deadlines that have to come into play.
That meant the city settled on the water rates lawsuit, even though they had won in the preliminary rounds. The developer settled on the Hotel Conference Center lawsuit, that was in part based on the same traffic analysis as this one. The developers out on Mace and Second settled on the owl preservation suit.
There are several other pending suits and the city has basically been held hostage on them. The suggestion has been made that the city needs to incorporate litigation costs as the price for doing business, but that seems like bad business.
Mr. Harrington steadfastly argues that this is about good government and good environmental policy, but others would argue there are financial motivations involved in his decisions to sue – and therefore they believe that fighting him to defeat is the best way to discourage him and other litigators from going forward.
But there is another key element of this victory in court – Judge Sam McAdam now hands an advantage to the Lincoln40 project, which relies on the Richards-Olive corridor study and similar traffic analysis by the same company, Fehr & Peers.
The ruling by Judge McAdams would seem to validate the methodology and findings of the Lincoln40 studies.
There was a prevailing belief – even expressed by members of the Planning Commission – that the traffic analysis did not comport with people’s experience on the roadways.
As a city staffer explained to the Vanguard, “[T]here is sort of a reluctance to believe or trust the traffic analysis because it doesn’t comport with our own personal observations and experiences.”
However, the traffic study took traffic and vehicular counts from the properties on Olive Drive which are similar to the proposed Lincoln40 – specifically, the Lexington Apartments and The Arbors. That means that the baseline data driving this traffic analysis for impacts on Richards Blvd. and Olive Drive are based on how people are actually traveling from those apartment complexes.
Fehr & Peers Transportation Consultants found that the impact of the existing condition plus the project’s effect on peak hour intersections is “less than significant.” They write, “While the LOS grade does not change, additional delay occurs at Richards Boulevard/Olive Drive during the PM peak hour, which operates at LOS D, generally due to the increase in westbound vehicle and bicycle traffic.”
And, while we might have to wait for a solution to that additional delay, the delay is found to be only about 18 seconds and only in the PM peak hour commute.
The city, as we explained, believes that even without improvements to the corridor they can mitigate the impact of new development, simply through signal modifications. With the proposed improvements, they actually expect circulation to improve along the corridor.
But the more important thing is that, by fighting out the legal battle on Nishi, the city and developer will make it far easier for Lincoln40 to avoid a costly lawsuit that would delay construction of desperately needed student apartments.
Having a court decision that has already validated the methodology and adherence to CEQA (California Environmental Quality Act) of the Nishi traffic study will make it that much easier for Lincoln40, if their time comes, and may also act as a disincentive for would-be litigators to file similar suits.
So I would argue that, while the city lost the battle on Nishi, they may ultimately win the war by paving the way for development to go forward without the threat of additional future litigation – and that would be a big thing.
—David M. Greenwald reporting