Can Nishi opponents defeat the measure by 1000 paper cuts? That is what it feels like the strategy is.
A big push has been to attack the uncertainty in the project. Newsflash: there is always going to be uncertainty in projects. While we have some features that are “locked in” with the baseline project features, many are not and probably should not be.
One of those that is not locked in is air quality mitigations. The EIR establishes that the air quality issue has “significant and unavoidable” health impacts. There is a belief by some that, even with mitigation measures, the air quality is too harmful to allow for even short-term student housing.
On the other hand, many believe that the mitigation measures, including a vegetative barrier, air filtration, and sealed buildings, can greatly reduce the particulate matter in the interior of the project.
This is contained within the EIR of the project but listed in the project Development Agreement, not the Baseline Project Features. (Editor, from BPF: “Open space shall include a continuous urban forest tree buffer between buildings and Interstate 80…”)
The BPF states: “There are other additional requirements for the Nishi Gateway project, including but not limited to, the mitigation measures set forth in the Final Environmental Impact Report, and the Development Agreement that, while important to the Project, are not Baseline Project Features and may be modified with the approval of the City, after the appropriate public process.”
Is that a reason not to vote for the project? The voters can decide that. Some have argued that the Cannery project is a good reason to lock all of this into the Baseline Project Features. After all, the builders have come back to the council time and time again to ask for changes.
That is true. But the last four requests for changes from the Cannery all blew up in the face the builders and not one of them even came to a vote of the council. In fact, the only change that was approved was a Community Facilities District – apparently unbeknownst to anyone at the time, the developer was promised the opportunity to have the CFD come before the council for consideration. Other than that, all of the recent changes have not gotten to a vote before they were withdrawn.
The idea that the council will simply acquiesce to any proposed changes by the developer – particularly something that would reduce protections for air quality – is mostly a scare tactic by the opposition.
We have heard this time and again. We were warned that the council could change the affordable housing provisions with a 3-2 vote – except that the city manager and city attorney have stated on the record that they cannot. We had the argument still that the developers could build the project without access to force a showdown.
Last week someone asked me whether I had heard if the developer would sue for Olive Drive access even though it is blocked by the project’s baseline features.
Let us be very honest here – there is no certainty in a Measure R process. We live in a dynamic world where conditions change. We can only make the best decisions at the time and hope for the best.
Hope may not be a strategy, but reality comes with no guarantees. In the end, we make our best decision, and hope for the best. If you think otherwise, you’re fooling yourself.
The fact is that we actually have no guarantee either way. There is a little recognized secret here – Measure R is itself completely unproven. Part of the problem is that Measure R has never passed a project and so there has never been an opportunity to actually see if the provisions work.
We believe that the provisions which require a new vote will be adhered to generally by the council, the city and hopefully the developers. But we have no guarantees.
Because a Measure R project has never passed, the requirements under it have never actually been challenged in a court of law. Until a court of law rules on certain aspects of the measure, we really do not know what a council can and cannot do to change it.
There is no way around that. That means that the city attorney can weigh in about her opinion. The city manager can weigh in about his opinion. Individuals councilmembers can weigh in on their opinion.
But until and unless a court rules on this, it is only that – someone’s opinion.
So does that mean you should simply vote no because there are no guarantees? That’s what I see being argued. If this concerns you, vote accordingly, vote No on Measure J.
Does that solve the uncertainty?
Here again is the problem. First, there will never be certainty until some project passes. So you can use uncertainty as a blanket reason to vote no on all future Measure R projects. Until this is tested in the courts, we do not know what will withstand legal scrutiny.
But if you do employ that strategy, there is a problem as well. If Measure R proves untenable, if it proves impossible to pass a project under it – Measure R itself has never been tested legally either. How many failed attempts does it take to show that Measure R is rigged? How many would it take for a court, especially in a time of the housing crisis in California, to invalidate it?
Think it can’t happen? Think again. There are plenty of legal scholars who believe that most of these kinds of land use laws will eventually be challenged and invalidated.
Bottom line: there is no certainty in life. Why should there be certainty in approving housing developments?
So what should you do?
Do what we always do in life in the face of uncertainty. Weigh the evidence. Weigh the merits of the project. Weigh the downsides of the projects. And make your best decision based on reasonable and available information.
If you believe that the project is beneficial to the community, vote yes. If you believe it will harm the community, vote no. If you believe in shades of gray, then balance the facts on both sides and figure out which way you lean.
—David M. Greenwald reporting