Neighborhood Sues City over Approval of Trackside

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A few weeks after the city council approved the Trackside infill development at four stories, the Old East Davis Neighborhood Association has hired attorney Don Mooney and filed a CEQA suit challenging the city council’s “approval of the Sustainable Communities Environmental Assessment/Initial Study for the Trackside Center Project” and their “approval of Project on the grounds that such approvals violate the requirements of the California Environmental Quality Act (“CEQA”), Public Resources Code, section 21000 et seq.; Davis Municipal Code section 40.13A.020; and Government Code, section 65300 et seq.”

The Neighborhood, an unincorporated association, argues that the council’s “approval of the Project is invalid and void and fails to satisfy the requirements of CEQA, and the CEQA Guidelines.”

They also argue that it is inconsistent with the city’s Design Guidelines, Davis Municipal Code and the city’s applicable planning documents.

In the complaint, Mr. Mooney notes: “Petitioner is committed to the environmental values and well-being of the City of Davis and its citizens, including the Old East Davis area and its surroundings. The group is composed of persons whose personal, aesthetic, and property interests will be severely injured if the adoption of the Project is not set aside pending full compliance with CEQA and all other environmental laws.”

He adds, “As a group composed of residents and property owners, Petitioner is within the class of persons beneficially interested in, and aggrieved by, the acts of Respondents as alleged below.”

He notes that the “Petitioner participated in the administrative processes herein, and exhausted its remedies. Petitioner submitted numerous written comments on the Sustainable Communities
Environmental Assessment/Initial Study (SCEA/IS) and the Project. Petitioner and its members also participated in the City Council’s hearings regarding the Project.”

Accordingly, “Petitioner has standing to sue.”

Trackside is located at 901-919 3rd Street in Davis along the Union Pacific Railroad right of way.  It consists of a 0.69 acre site in the area designated as Old East Davis, and comprises a mix of residential, commercial, and retail uses.

The project calls for the removal of two existing one-story commercial buildings and the construction of a new four-story mixed-use building.

The council in November voted 4-1 to approve the project, with Mayor Pro Tem Brett Lee dissenting.

The city determined that the proposed project qualified as a Transit Priority Project under CEQA and initiated the implementation of a Sustainable Communities Strategies.  It released the Initial Study on July 11 for public review and comment.  At the time, the petitioner and its members submitted numerous comments on the Initial Study.

Under the first cause of action, the petitioner notes that CEQA “contains streamlining provisions for “transit priority projects” that are consistent with the general plan land use designation.”  In order to qualify, they argue, “the City relies upon the land leased from Union Pacific Railroad. This in turn supports the City’s determination that the Project qualifies as a Sustainable Community/transit priority project. The lease, however, is terminable for any reason on 30 days’ notice. Upon termination of the lease, which is not in control of the Respondents or applicant, the Project would no longer qualify for streamlining.”

The petitioner argues that there is “no guarantee that the lease will survive the life of the Project” and thus should not be considered as qualifying for the streamlined environmental review.  They argue, “The City’s reliance on Sustainable Communities Environmental Assessment/Initial Study violates CEQA because the Project fails to conform to local land use plans and zoning ordinances.”

Under their second cause of action, the petitioner argues that that the findings of fact violate CEQA guidelines in that they “fail to identify the changes or alterations that are required to avoid or substantially lessen the project’s significant environmental effects.”

Third, they argue that under the Davis Municipal Code, language states, “Wherever the guidelines for the DTRN conflict with the existing zoning standards including planned development, the more restrictive standard shall prevail.” The phrase “… including planned development…” applies to the Project.

The DDTRN (Davis Downtown and Traditional Residential Neighborhood) Design Guidelines for Mixed Use Building Mass and Scale display a schematic figure with the caption: “A building shall appear” to be in scale with traditional single-family houses along the street front.”

They write: “The approved building does not appear to be in scale with traditional single-family houses along the street front. Given the mandatory standards set forth in 40.13A.020, the Project is inconsistent with the DDTRN.”

As such, “Respondents’ approval of the Project constitutes a prejudicial abuse of discretion and is contrary to law.”

Fourth they argue that the project is “inconsistent with the City of Davis’ General Plan and the Core Area Specific Plan.”

Land Use Principle states: “Accommodate new buildings with floor area ratios that can support transit use, especially within 1/4 mile from commercial areas and transit stops, but maintain scale transition and retain enough older buildings to retain small-city character.”

Policy UD 2.3 requires “an architectural ‘fit’ with Davis’ existing scale for new development projects.” It also states: “There should be a scale transition between intensified land uses and adjoining lower intensity land uses.”

The Project is not of “…a scale in keeping with the existing city character.”

They argue: “The Project is therefore inconsistent with General Plan Vision 2, item 4. The Project does not”…maintain [a] scale transition…” and is therefore inconsistent with General Plan Land Use Principle 4.”

They also argue that the project does not make “…a scale transition between intensified land uses and adjoining lower intensity land uses” and is “therefore inconsistent with General Plan Policy UD 2.3.”

The Project is also “inconsistent with the General Plan Policies on Historic Preservation. More specifically, the Project is inconsistent with Policies HIS 1.2, HIS 1.3 and HIS 1.4. These policies seek to preserve the historic features of the Project area and to maintain the character of historic resources.”

The council has scheduled a special closed session meeting for tonight to discuss this pending litigation and to respond accordingly.

—David M. Greenwald reporting



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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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62 thoughts on “Neighborhood Sues City over Approval of Trackside”

    1. Howard P

      Perfect!  The concept of a former investor in a project on the same dais with someone who sued the City on the same project!  A new revisit of the interactions between another pair of CC members… the Ruth and Sue show… we could go to PPV for the televised/streaming video, and lick the budget deficit in no time!  [Tongue deeply in cheek]

    2. Tia Will

      So we have a declared city council candidate who is party to a lawsuit against the city? “

      No, Don. We do not.

      Larry Gunter, previously a board member of OEDNA, stepped down from that position at the time of our new board elections during the first week of December. This was prior to discussion of and decision by the OEDNA to proceed with the lawsuit. Larry has recused himself from this decision making and has not been present during any of the discussions or votes with regard to the lawsuit.

       

        1. Tia Will

          I don’t have the list on me at the moment. I believe that a member of the board will be providing the current list and the website will be updated shortly….allowing for people’s holiday plans.

  1. Keith O

    I would hope that there’s someway the city can go after litigants if the city wins any lawsuit brought against them (us).  Perhaps making them pay for the city staff hours and legal costs for fighting such a lawsuit?

        1. David Greenwald

          Unless someone can show be very clearly defined case law on this, I just don’t see a case.  Abuse of discretion is a near impossible standard, especially since a body like the city council has brought discretion.

    1. Eric Gelber

      I’m really surprised to see Keith taking such a strong pro-government position, which would impede and have a chilling effect on the public’s right to seek redress for alleged violations of law by government entities. There should be a means for individuals to challenge government actions without risking sanctions should they not win. Merely because a plaintiff does not ultimately prevail does not mean the lawsuit was frivolous or brought for an improper purpose.

      There are circumstances where attorneys’ fees can be awarded to successful plaintiffs in suits against government entities—e.g., for violations of civil or constitutional rights, or where the action results in the enforcement of an important right affecting the public interest. But, in California, unless there’s a specific statute or a contractual provision providing for an award of attorneys’ fees to a prevailing party, the general rule is that each side bears their own costs of representation (referred to as the “American Rule”).

      1. Keith O

        No doubt you’re right, you’re the lawyer, but I do have a problem with people sueing others and even if the party they sued wins they still end up losing with having to pay lawyer fees and such.

        That’s my opinion and I’m allowed that, right Eric?

  2. Tia Will

    With regard to the point about costs of a lawsuit I would like to point out that OEDNA was fully willing to work further with the developers to come to a mutually agreeable solution. OEDNA made clear from the beginning that a development was desired at this site. The goal was never to block a project as many claimed. The goal was to work towards a win-win solution for the developers and the neighbors. The council saw this as a laudable goal in the case of the Hyatt project and was fully willing to impose a collaborative approach in that instance. OEDNA’s request was to be allowed further opportunity to reach a mutually acceptable solution. It was the developers who refused and the CC who conceded to their demands. OEDNA was in no way seeking this legal fight. Because I am opposed to adversarial processes as wasteful and unnecessarily divisive, I made two separate pleas to the CC to opt for a collaborative approach. This was denied. So who was really being adversarial and wasteful here ?  I don’t think  that you have to look further than the developers and CC majority to find that answer.

    1. Howard P

      In a vehicular crash, often it is deemed that the last person who could have acted to avoid it bears responsibility… OEDNA could have chose not to sue, and to work on the ballot box/recall/referendum instead… they chose not to.  Their doorstep… no one else’s…

      Mr Mooney should be able to treat family friends to many ‘holiday gifts’, albeit on the ‘lay-away’ plan…

      There are several assertions in his pleading that are either misleading or factually false… he knows that, but is depending on the “settlement” thing for his ‘payday’, perhaps… suspect he was paid a ‘stipend’ by OEDNA to make the pleadings, with a “contingency” provision… won’t be the first time… a lot of attorneys will do that… too many…

      One person’s “collaboration” = might be “we get to call the shots, or we’ll sue”… we’ll see… whether it has merit, or just a form of blackmail/retribution…

      1. Tia Will

         

        One person’s “collaboration” = might be “we get to call the shots, or we’ll sue”… we’ll see… whether it has merit, or just a form of blackmail/retribution…”

        That might be except for one small fact. Anyone who has ever read anything about adversarial processes vs collaborative processes with regard to any contentious issue, be it police, legal, development, medicine, knows that I have said for years that I believe in collaborative processes even if they do not result in the optimal result from my point of view. If anyone is being honest, they would admit that I have been consistent on this point the entire six years that I have participated on the Vanguard. So much so that a former commenter here used to regularly tell me that I might as well believe in unicorns and rainbows.

      2. Tia Will

        In a vehicular crash,…”

        If the crash was the direct result of a failure of road repair or mistaken signage that had been pointed out to the city repeatedly, would you contend that the city had no responsibility in the crash ?  I think that is a much more valid consideration than is the fault of who “could have prevented it last”.

  3. Jim Frame

    the general rule is that each side bears their own costs of representation( referred to as the “American Rule”).

    But the usual outcome is that the cost of defending the suit compels the defendant to settle, with attorney fees being part of the settlement (referred to as the “Lawyers Rule”).

     

    1. Keith O

      I hope the city doesn’t settle here. At least if a losing litigant had to pay attorney’s fees they would have to be pretty damn sure that they had a valid case in order to go forward.

        1. Ron

          David:  “the city has taken the position that it won’t settle anymore of these.”

          Perhaps I’m confused regarding this.  In any case, how do you explain the fact that some of the recent proposals have apparently moved forward without reaching a final judgement?  (For example, I’m thinking of Hyatt and Marriott, as you’ve noted below.)

          If I’m not mistaken, there was a settlement with Marriott (Residence Inn) which ensured that burrowing owls weren’t blocked from returning to their homes.  (Resulting in a small area preserved for them.) As a side note, I’d probably be interested in seeing them (from a distance), if I was staying at the hotel. (Another side note – I was a frequent guest at Residence Inns, in the past. As federal employees, I recall that we didn’t pay TOT, though.)

        2. David Greenwald

          Hyatt is still in litigation which is why it hasn’t broken ground.  Marriott had a settlement which is why if you go over there you can see an area fenced off for the owls.  That was the developer settling with the litigants.

        3. Ron

          Thanks – that’s what I thought, regarding Marriott.  (Never quite sure which parties are involved in lawsuits/settlements.)  In any case, the city’s “position” regarding “no settlements” does not seem to apply, at times.

          Regarding Hyatt, I thought that had been resolved, e.g., in regard to developer agreement to make a contribution toward a neighborhood park/playground?

          Regardless of whether or not one “likes” lawsuits, it seems that they can (and perhaps often do) result in “improvements” to a proposed development. (Perhaps something to at least keep in mind, in regard to the city of Davis and UCD.)

        4. Howard P

          As to your 4:11 post:  nor, should they… one is public policy, the other free will of an individual(s) on the private side.

          Hope we never get those two concepts co-mingled… at least on a decision-level basis…

        5. Howard P

          Ron, your 3:52 post, in part,

           (Perhaps something to at least keep in mind, in regard to the city of Davis and UCD.)

          Go for it… but I don’t want to pay for it… hire an attorney, whoever, and be a man and pay for it… don’t ask the City to pay for it… I’ll be very vocal in opposing that ‘fool’s errand’… read and saw Don Quixote/Man of La Mancha… tilting at windmills?

          They (UC) have much more (legal/financial) resources than Davis… what can I say…

          Now, if you were an attorney, your post makes perfect sense… they generally get paid, win or lose… the “American Lawyer plan”…

          BTW, agree that UC needs to ‘step up to the plate’, but legal actions… duh, that ain’t a happening thing as to being effective… the answer lies elsewhere…

        6. Ron

          Howard:

          If I’m not mistaken, one of the lawsuits (against UC San Diego?) resulted in a significant financial benefit, for that city (based upon Don’s brief comment to me other day, even though he clearly opposes such actions).  Not sure about the other two (Santa Cruz, Berkeley).

          Alternatively, there’s a permanent, ongoing (and ever-expanding) cost with continuing to accept and accommodate UCD’s plans.  Although it was never fully explained, the “analysis” regarding a single megadorm (Sterling) gives us some idea.

           

          1. Don Shor

            one of the lawsuits (against UC San Diego?) resulted in a significant financial benefit

            San Diego State.

        7. Ron

          Regarding the Santa Cruz / UCSC settlement, below are a couple of examples of the “benefit” achieved.  (No, I’m not saying that things would work out exactly the same way between Davis and UCD. Law is a complicated, unpredictable subject.)

          “UCSC agrees that under the 2005 LRDP new “average daily trips” (ADTs) to the main campus will be limited to 3,900 and to pay the City approximately $1.5 million (based on a fee of $366/new trip, equal to fee paid by private developers). UCSC will also pay city approximately $420,000 in ADT fees related to Delaware Avenue offices.”

          “UCSC and city each commit to pay up to $500,000 over a three-year period to implement “transportation improvements that are not included in the City’s current TIF [Traffic Impact Fee] Program.” In addition, each entity will pay $50,000 to plan and implement a public transportation system to reduce auto congestion. UCSC also agrees to discharge the campus’ prior LRDP mitigation obligations by paying its proportional share toward the Mission Street widening project, Empire/Heller signal project, and Bay Street overlay project.”

          http://lrdp.ucsc.edu/settlement-summary.shtml

  4. Ron

    Keith:  “At least if a losing litigant had to pay attorney’s fees they would have to be pretty damn sure that they had a valid case in order to go forward.”

    Just wondering:  In general, do you think that the city should have to pay plaintiff’s legal fees, if the plaintiffs prevail?  (Not making a legal argument, here.)

    I seem to recall that there was a brief acknowledgement regarding the possibility of legal action, during the council meeting (in which the development was approved). I’ll try to refrain from making any further comment regarding the wisdom of approving developments that seem likely to be challenged.

    1. David Greenwald

      Every single project has been challenged in court.  Every. Single. One.

      the key is not the challenge, it’s prevailing in court.  And not one of the city’s projects has lost in a decision of the court of law.  No judge has ruled against the city on these matters.

      1. Ron

        David:  “Every single project has been challenged in court.  Every. Single. One.”

        You probably should qualify this based upon timeframe, at least (e.g., within the past XX years).

        Also, what about Hyatt, Sterling, B Street, The Cannery, Chiles Ranch, Grande, Willow Creek, various Affordable developments,  . . .?

        1. David Greenwald Post author

          Since 2012. Clearly not literally every single one (said for effect and it feels like it), but here’s a snapshot off the top of my head:

          Hyatt sued
          Hotel Conference Sued
          Sterling hasn’t been sued
          Cannery not sued
          Marriot sued
          Nishi sued
          Water project sued
          Trackside sued

      2. Ron

        David:  “No judge has ruled against the city on these matters.”

        How many have been judged in favor of the city? (And, are any of those decisions being appealed?)

        1. Howard P

          How many have been judged in favor of the city?

          All of the ones that haven’t been judged against the City [duh!]

          (And, are any of those decisions being appealed?)

          NOT an honest question!  [Duh]  Some have been appealed, and the appeals courts have rejected pretty much every one to date (re:  Davis… might be one or two in the 100 year history of the City of Davis)… [obviously, you lack facts]… I don’t know if there are any in the appeals ‘pipeline’… at least I admit that which I do not know…

          1. David Greenwald Post author

            Nishi was appealed. Harrington appealed and lost the Conditional Use Permit next to his house.

        2. Ron

          Howard:  “All of the ones that haven’t been judged against the City [duh!]

          Not an answer.

          Howard:  “NOT an honest question!  [Duh]  Some have been appealed, and the appeals courts have rejected pretty much every one to date (re:  Davis… might be one or two in the 100 year history of the City of Davis.”

          It was an honest question.  Suggest you refer back to David’s statement, before challenging my question.

          But o.k. – I see your response above, in which you state that there “. . . might be one or two in the 100 year history of the City of Davis”.

           

        3. Ron

          David:  “At least three went to a judge including most recently Nishi which is in the process of appeal.”

          O.K., so there’s two in which the final judgement completely sided with the city?  Which two are those?

      3. Tia Will

        If every single project is being challenged, I would think that there is a message here for developers, city staff and council that perhaps, just perhaps, the current process is dysfunctional.

  5. Ron

    Howard:  “SOP, Ron, if folks don’t get what they wanted/demanded… nothing new under the sun, here…”

    The court system supposedly doesn’t care about what folks “want/demand”. It’s a legal matter.

    Howard:  “Unless you were specifically looking for Keith’s personal opinion…

    “In which case, I ask for your personal opinion as to the question you asked…”

    I was seeking Keith’s opinion, since he had a pretty strong response regarding the issue.  (I already saw Eric’s response.)  Regarding my opinion, I’m satisfied regarding the current laws – based upon my understanding, at least.

     

    1. David Greenwald

      “t doesn’t work that way, regarding legal decisions”

      It does work that way, the legal system has been used (mostly ineffectively) as an extension of the political process.

    2. Howard P

      It is one thing to bring suit… totally another to have it adjudicated, and a decision rendered… easy to do the first… pretty sure less than $400… I maybe wrong on filing fees… am not a attorney/lawyer/”ambulance chaser”

  6. Ron

    I suspect that the neighbors of Trackside did not enter into this decision without a lot of thought, advice from counsel, and significant expense.  In other words, not a decision that was taken lightly.

    On a more personal (non-legal) level, it was gut-wrenching to witness some of the reactions regarding the city’s decision. (Some of which was expressed on the Vanguard, itself.)

  7. James R

    The irony of this lawsuit is clearly lost on OEDNA. That they seriously believe they are an aggrieved party is laughable at best. God forbid a couple homeowners see a few new people move into the neighborhood.

    The real aggrieved party here are the thousands of renters in Davis who see year-over-year rent hikes because of no-growthers like OEDNA continue to block any additional growth.

    1. Robert Canning

      There’s no irony here at all. And almost no no-growthers as you call them. Currently there is no one living on the Trackside site. The developers want 27 units and claim they need that many to get a return on their investment. The neighborhood, the oldest in the city and a designated historical zone, believes that a three-story building with a few fewer units (or reconfigured ones) that lives within the City’s current zoning and guidelines for development around the downtown core is a reasonable compromise. The City’s use of SB375 “streamlining” to avoid mitigation of impacts is, we believe, outside the law and the City has overstepped its discretion. These SB375 cases are fairly new and there are no published appeals court precedents as yet. (Yes, there is one Superior Court case which decided against the plaintiffs, but that actually cannot be cited – although the City will probably try).

      The neighborhood association is more than “a couple homeowners” worried about new arrivals. The neighborhood has over 500 apartment units that turnover annually so a few new residents in an appropriate Trackside project would not even be noticed.

      And in fact, a well-designed building that lives within the zoning and guidelines would be welcome in Old East Davis.

      1. Don Shor

        The neighborhood, the oldest in the city and a designated historical zone, believes that a three-story building with a few fewer units (or reconfigured ones) that lives within the City’s current zoning and guidelines for development around the downtown core is a reasonable compromise.

        We are aware of what the neighborhood thought was a reasonable compromise. The city council was aware of your position. They disagreed and voted otherwise. And now you want a judge to overrule them.
        Is that how you think a representative democracy should work?

        1. Eric Gelber

          They disagreed and voted otherwise. And now you want a judge to overrule them. Is that how you think a representative democracy should work?

          I have no opinion on the merits of this particular lawsuit; but, that’s how checks and balances work in our representative democracy—as a safeguard against abuse of power by any branch of government. Constitutional government can be inconvenient and inefficient; but it beats the alternatives.

        2. Tia Will

          Is that how you think a representative democracy should work?”

          There are many ways in which I think that representative democracy could serve us better. But given our system as it currently exists, my answer is “yes”. That is exactly how our current system was designed, with three branches of government, not just two. The third, the judicial branch, is designed for exactly this purpose, to adjudicate when there is a dispute over the legality or just application of the law.

      2. Howard P

        Old East is not the “oldest in the City”… close, but no cigar… no older than “Old North” nor College Park.  Stick to facts.  Good for the kharma.

        1. Howard P

          First house, will concede (have no concrete evidence to the contrary)…  College Park, yeah, I ‘stretched a bit’ on that (realized later) … first “subdivision”, well, all the area between A to tracks, somewhat beyond were “Davisville”, before incorporation… see,

          https://www.walmart.com/ip/Old-Topographical-Map-Print-Davisville-California-Quad-USGS-1907-17-x-21-94/113119463?wmlspartner=wlpa&selectedSellerId=4284&adid=22222222227055010833&wmlspartner=wmtlabs&wl0=&wl1=g&wl2=c&wl3=156225578335&wl4=pla-267128812031&wl5=9032434&wl6=&wl7=&wl8=&wl9=pla&wl10=113728480&wl11=online&wl12=113119463&wl13=&veh=sem

          So, if you will concede that the Core Area, as a subdivision, is as old as “old east”, I’ll do the same… but clearly, “old north’ was “sprawl”… as was College Park…

  8. Tia Will

    James

    because of no-growthers like OEDNA continue to block any additional growth.”

    I do not know anyone in OEDNA who is a “no growther”.  For example, I was for Nishi. I was neutral on Sterling as I am likely to be on Lincoln 40 which is much closer to my own home than is Trackside, pending more information. I would love to see a conforming project at Trackside and have said so here on many occasions. But please, don’t let any of the factual statements by the people involved get in the way of your false assumptions.

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