Air Quality Concerns Motivate CEQA Suit Against Nishi


The group Davis Coalition for Sensible Planning filed a CEQA (California Environmental Quality Act) suit against the city right at the deadline, hiring the Sacramento based firm, Soluri Meserve, to represent them in court.  In the court filings, it was revealed that Davis residents Susan Rainier and Colin Walsh are the two named individuals behind the suit.

The petition challenges the council’s February 6 decision on CEQA grounds, arguing that “members of Davis Coalition for Sensible Planning are residents of the City of Davis and have personal, community and environmental interests that are directly and adversely affected by the City’s approval of the Revised Project and issuance of the Notice of Determination (‘NOD’).”

In an email to the Vanguard, Ms. Rainer stated, “My concerns are clearly stated in the No position on the ballot.”

She argued, “It is not fit for human occupation.”  Ms. Rainier added, “It would be a fabulous place for (a) sun-tracking photovoltaic array that would be in the Community Choice Aggregate portfolio.  Being bound on all sides by freeway and railroad would prevent theft and hook up to PGE high power (which) is right there.”

She asked, “Would you live there? Would you want your children living there?”  She pointed to studies of childhood asthma and exposure to traffic.

She pointed out that the Community Health guide from the ARB (Air Resources Board) “[c]alls for sensitive buildings (housing) a minimum of 500 feet from freeway – Oops – that would be the railroad – that is even more toxic.”

The petition argues on CEQA grounds, “The City’s failures, set forth in this Petition, constitute a prejudicial abuse of discretion within the meaning of the Code of Civil Procedure and CEQA”
and that they have “no plain, speedy or adequate remedy in the ordinary course of law.  If the City’s actions regarding the Revised Project are effectuated, Petitioner and the environment will be irreparably harmed.”

In their petition they point out that the land has had agricultural uses dating back to the 1920s, and that the original project proposed 1920 beds with a mix of multifamily residential units and rentals as well as 325,000 feet of research and development uses with 20,000 square feet of accessory retail uses.

The original EIR, they cite, “determined that the Original Project would have resulted in significant and unavoidable environmental impacts to Agriculture, Air Quality, Greenhouse Gas Emissions, Noise, and Transportation.  The City certified the Original EIR on or about February 2016, and also approved entitlements for the project…”

A majority of Davis voters voted against the project in June 2016.

The project was then revised in 2017: “The Revised Project omitted all 325,000 square feet of research and development uses, increased the bed count associated with residential uses by approximately 250, replaced the for-sale housing with rental units, and modified the site’s access such that primary access would be through a railroad undercrossing between UC Davis and the Nishi Property.”

In January 2018, “the City released the EIR Addendum (SCH # 201512066) in which it determined that the Original EIR adequately assessed the impacts of the Revised Project and that there were no changed circumstances or new information that would require preparation of a subsequent or supplemental EIR, or recirculation of the Original EIR.”

The petitioner argues that there is new information and new circumstances which have come available and which constitute a change of conditions and should necessitate a new or revised EIR.

They argue that “the revised project will create new significant impacts on the environment that were not previously identified,” and “the revised project will create a substantial increase in the severity of a previously identified significant impact,” and “there is new information of substantial importance that was not previously available, which shows a new significant impact, substantial increase in the severity of previously identified significant impact, or mitigation measures that were not considered would substantially reduce one or more significant effects on the environment.”

They argue, “A lead agency’s findings that a supplemental or subsequent EIR is unnecessary must be supported by substantial evidence in the record.”  Therefore the city’s action “constitutes a prejudicial abuse of discretion in that the City failed to proceed in the manner required by law and failed to support its decision with substantial evidence.”

They list a number of failures to adequately disclose, analyze and mitigate and then they argue, “The City further violated CEQA by adopting findings that are inadequate as a matter of law because they do not contain the findings required when approving a project based on a supplemental or subsequent EIR, and because they are not supported by substantial evidence in the record.”

They add, “As a result of the foregoing defects, the City prejudicially abused its discretion by proceeding with an EIR Addendum and approving the Revised Project in reliance thereon.”

—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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12 thoughts on “Air Quality Concerns Motivate CEQA Suit Against Nishi”

  1. Keith O

    How many lawsuits do we currently have going against development in Davis?  I know of Nishi and Trackside but are there any others?  Are any of the proposed hotels currently being litigated?  How long before the new apartment projects might face a lawsuit?

    1. David Greenwald Post author

      The Hyatt House I believe is the only other one going. People think they can use these to delay or obstruct projects, but as soon as developers stopped settling, it became really expensive. It’s why Harrington isn’t suing this time for example.

      1. Keith O

        That’s good that the developers stopped settling and I hope the city will also fight these lawsuits.  Make it expensive for the plaintiffs and much of this will stop.  I still think it’s wrong that plaintiffs who persue questionable lawsuits don’t have to reimburse the defendants if they lose.

  2. Ken A

    It would be interesting to ask the people in the “Davis Coalition for Sensible Planning” what other “sensible planning” activities they have been involved with or if they have a single goal of stopping the Nishi Development in order to keep Davis home values and rents high.  Back before the last Nishi vote quite a few local apartment owners had “No on Measure A” signs in front of their offices and in front of many of their apartments.  It would also be interesting to ask if any local Apartment owners have contributed money to hire the attorney.

  3. Ken A

    A friend grew up in Menlo Park on Felton Dr. and the Google maps “measure distance” feature says the home he lived in for 18 years (that his parents still own) is ~75 feet from the railroad tracks.  If it is so “dangerous” to live within 500 feet of a freeway or railroad it does not seem to have any negative effect on all the people that live within 100 feet of the tracks and freeways on the SF Peninsula.  Just six months ago someone paid $3.5 million to buy th1s home just 120 feet from the railroad tracks:

    Near Palo Alto High School some homes are under 50 feet from the railroad tracks.

    1. Howard P

      My experience was the similar/same… ~250 feet from US 101 (‘source’)… 1955-1977; parents lived there 1955-2001 (and, they smoked!). No EPA, No clean Air, No emissions standards during most that time… 5-20 mpg.  No asthma.

      From the kids I knew who had asthma, almost all had childhood obesity issues.  As they matured, and got to a more average weight, asthma all but disappeared.  By HS.

    1. Tia Will


      The report’s goal was to get past anecdotes and divisive rhetoric, and document the widespread non-environmental litigation abuse of CEQA which we believe undermine the state’s environmental, climate, social equity and economic priorities.”

      I question the objectivity of an “study” that states part of it’s goal is to demonstrate the admitted bias that environmental, climate, social equity and economic priorities are being undermined. An object study would begin with a hypothesis and then determine whether or not that hypothesis was data supported. It would seem that the authors started with their desired conclusion and then worked backwards. Even then, they only concluded that 49.1%, a near equal split of cases fit their preconceived assessment.

  4. Tia Will

    I appreciate the posts of Ken and Howard with regard to their community health observations. I remain convinced that the most telling argument with regard to the actual experience of those living along Olive Dr., the direct correlate to the experience probably for the Lincoln40 residents, and the nearest correlate for future Nishi residents is that there is no asthma, nor COPD data available epidemiologically in terms of increased ER visits for these conditions to suggest that residents of this area are at higher risk.

  5. Alan Miller

    “It is not fit for human occupation.”

    Oh give me an effiing break.  I’d actually believe these people if — in between Nishi I and Nishi II, they had been fighting to remove children from Olive Drive and other toxic chicken noodle soup locations in town, or fighting at the state level to stop all development within 500′ of a freeway or railroad, and have state taxpayers pay to relocate all sensitive communities from residential buildings with 500′ of freeways and railroads and turn all these buffer zones into dense urban forests.

    “Would you live there? Would you want your children living there?”

    I actually live 70′ from the two mainline tracks of the Union Pacific as well as the junction with the Cal-Northern.  When westbound trains start up after waiting for a passenger train to clear the depot, the heavy full-throttle running of the up-to-six 3000 h.p. diesels literally drenches my house in a thick cloud of black diesel smoke.  So yes, I would live there.  And though anecdotal, my last cat lived to over 20.5 years and lived there its entire life.  And the cat didn’t die of lung cancer.

    Is it healthy to live in a sea of diesel exhaust?  Of course not.  But how dangerous, only risk managers can give odds, and not very accurate ones at that.  Until a government entity actually decrees that certain levels of certain types of certain air pollution for a certain exposure over a certain time make human habitation legally wrong, assertions by you or some college professor aren’t going to change the right to build there.

  6. Keith O

    Just received my fifth call from a college student, so he says, advocating for my vote on Nishi.  I told him I already told the other callers I was voting yes but if they keep calling me I might change my mind.

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