“In certifying an Environmental Impact Report for the Project, Respondent prejudicially abused its discretion and failed to proceed in the manner required by law,” attorney Patrick Soluri of the Soluri Meserve Law Corporation writes in the latest petition to invalidate a City of Davis EIR certification, this time on Lincoln40.
They add that the city has “also prejudicially abused its discretion by approving the General Plan amendment, Specific Plan amendment, and other Entitlements because the Project is inconsistent with the Gateway / Olive Drive Specific Plan and City of Davis General Plan.”
Because of this, “the Project Entitlements and related approvals must be overturned.”
Previous efforts to stop development through litigation have proven costly, but ultimately unsuccessful. The plaintiff in this case, Susan Rainier, is joined by Colin Walsh in also suing the city on Nishi.
This petition argues that the city “acted arbitrarily and capriciously when certifying the EIR and approving the Project Entitlements.” They argue further that Ms. Rainier has “been harmed” by the city’s “failure to provide environmental documents that accurately and fully inform interested persons of the Project’s true impacts.”
At the March 13 meeting, Mayor Robb Davis noted that the city wasn’t even required to submit an EIR for the Lincoln40 project, because as a Transit Priority Project it was exempt from the need to do an EIR. The city, however, in an abundance of caution, went the extra mile to do an EIR on the project, hoping to avoid litigation.
However, the attorneys note, “In an apparent attempt to create a litigation fallback position if a court finds defects in the Project’s EIR, Respondent found that the Project was exempt from CEQA under Public Resources Code section 21155.1, which sets forth an exemption for ‘sustainable communities projects.’”
They argue that, in order to qualify for the sustainable communities projects exemption, “a project must among other things comply with certain environmental criteria.”
For example they cite the California Supreme Court which ruled that “[a]lthough CEQA does not generally require an evaluation of the effects of existing hazards on future users of the proposed project, it calls for such an analysis in several specific contexts [including] . . . housing development projects . . .”
They also argue that an agency is required “to assess the potential for exposure to significant hazards by preparing a preliminary endangerment assessment. If after preparing the assessment, the agency discovers a potential for exposure to significant hazards from surrounding properties or activities, the effects of the potential exposure must be mitigated to a level of insignificance in compliance with state and federal requirements.”
Here they argue that the city did not prepare a preliminary endangerment assessment for the project site and instead “prepared a Phase 1 Environmental Assessment for the Project Site, which revealed that there are multiple contaminated sites nearby containing significant levels of petroleum hydrocarbons and chlorinated solvents.”
They argue that “the Project Site has potential to expose future residents to significant hazards. Yet, the Project does not propose any mitigation for this potential exposure to significant hazards.”
They also present arguments that the project would also “exceed health standards with respect to air quality, noise, and hazardous materials.” They write, “To qualify for the sustainable communities project exemption, a project must also incorporate any applicable mitigation measures and performance standards set forth in the Sacramento Area Council of Government’s 2016 Metropolitan Transportation Plan/Sustainable Communities Strategy.”
And they argue, in this case, that the city failed to “incorporate any mitigation measures or performance standards.”
They argue, “In approving the Project and certifying the Final EIR, Respondent prejudicially abused its discretion because its decision is not supported by substantial evidence and because it failed to proceed in a manner required by law.”
The litigants also attack the city on issues of traffic and air quality.
They write: “The EIR’s conclusions that the impacts to Davis roadways are less than significant, or mitigated to a level of less than significant, are not supported by substantial evidence.”
Here they argue that the EIR “does not include a related projects list but assumes traffic conditions based on the General Plan at full build out.” Moreover, the EIR “does not account for modifications to planned projects, such as the Nishi development project, and therefore utilizes inaccurate trip distribution data when quantifying future cumulative impacts.”
They argue, “Because the EIR does not include accurate information for its cumulative impact analysis, its conclusions are not supported by substantial evidence.”
But on this front they are running against an existing court ruling that ruled on the traffic analysis – and the Nishi project, without access onto Richards, figures to have minimal traffic impacts at best.
Finally, they argue, “The EIR’s conclusions that the Project’s air quality impacts are less than significant, or mitigated to a level of less than significant, are not supported by substantial evidence.”
This is a similar challenge to one across the street at Nishi. They argue, “The Draft EIR does not quantify existing cancer risk levels for all nearby sensitive receptors from all toxic air contaminants and diesel particulate matter, including ultra-fine emissions.
“Existing cancer risk levels are significant because of the proximity to the Interstate-80 Highway and Union Pacific Railway. During construction, the Project will exacerbate existing conditions by contributing additional diesel particulate matter and toxic air contaminants from, among other sources, diesel-powered equipment. The EIR therefore fails to assess a potentially significant cumulative impact during construction phase.”
We have seen, in previous cases that have gotten as far as a court ruling, a substantial deference given to city processes – and most analysts believe that lawsuits like this will ultimately be unsuccessful, albeit costly.
At the March 13 meeting, Mayor Robb Davis pointed out that the litigation comes with a cost to the community itself.
The mayor explained, “I think that gets to this council’s willingness to be transparent and staff’s desire to be transparent. I think those are important qualities but they do add costs that mean that we can’t do other things.”
He said, “I think we need to consider the burden that we place on any project and what it means. It bothered me a little bit over the weekend.
“As a disclosure document it’s something that we can be proud of,” he added. “But does it really serve our community when we’re not required to – and it adds costs that otherwise could be going into a few extra beds.”
In a Facebook post this weekend, the mayor concludes that “there is zero empathy for students and their housing needs among those who bring such actions.”
Moreover, “[T]here is no attempt to offer an alternative that is ‘better,’ merely an attempt to block and scuttle projects.”
He writes that “the actions demonstrate a profound disregard for the environment by pushing students further from the city, and increasing commute times and greenhouse gas emissions.”
—David M. Greenwald reporting