Harrington Drops Appeal in Nishi Lawsuit, Opening Door for Current Nishi EIR

Back in 2016, Michael Harrington and others filed a suit against Nishi, alleging 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.”

However, Judge Samuel McAdam, in a thorough and detailed August 2017 decision, denied each of the claims.  Mr. Harrington in October announced in a statement that they had appealed.

He indicated at that time that “we believe that certain aspects of the trial court’s decision after hearing are legally incorrect or need further clarification by the Court of Appeals. Those aspects include the traffic issue and the lack of affordable rental housing.”

However, last week without comment or announcement, he dropped the appeal, allowing the decision to be codified into law and removing any remaining cloud over the EIR.

Mr. Harrington declined further comment.

In his ruling, Judge McAdam denies any claims made by the plaintiffs.  He 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.”

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.

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 Mr. Smith failed to submit evidence that the information in the EIR is inaccurate.

Judge McAdam, as stated above, 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.”

Again, 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 (PTV Vissim, a traffic flow simulation software package) 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.  The city, as you might recall, has argued that the AHO 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 Rental Housing 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 petitioners appear to concede “its position lacks merit,” as he quotes them acknowledging the ruling in Palmer.

—David M. Greenwald reporting

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