The Soluri Meserve Law Firm has already filed two lawsuits against the city, filing California Environmental Quality Act (CEQA) suits against Lincoln40 and Nishi approvals. Now they are threatening potential action against Davis Live housing – earning a letter in response from the Thomas Law Group as well as rebukes from two commissioners.
In a letter from Patrick Soluri, received the day of the Planning Commission meeting, he accuses of the city of “eleventh hour tactics” that are contrary to the CEQA public disclosure requirements.
“In the nearly two months since then, no documents were circulated for public review until the staff report was released just days ago. That staff report includes, as an exhibit, over 2,000 pages of analysis and attachments, which in turn cite and rely on 1,000’s of pages of previously-prepared Environmental Impact Reports (‘EIRs’) and related documents,” Mr. Soluri writes.
He argues that the project must still be denied.
He notes that “in apparent recognition of the fatal flaws with the Project’s previously-claimed CEQA exemption, staff and the applicant now contend the Project qualifies for a completely different CEQA exemption, the ‘infill’ project exemption. But to qualify, all project-level impacts must have been sufficiently analyzed by a program-level EIR prepared by the City.”
He adds that “that EIR is legally incapable of providing appropriate project-level analysis because it is no longer current and could not analyze the impacts of building out the Project site as a ‘Residential Very High Density’ land use that did not exist when the General Plan EIR was prepared—and indeed is now being proposed with this Project for the first time.”
Second, he argues that “the Project applicant’s continued attempt to justify the previously relied upon exemption for ‘Sustainable Communities Projects’ is misguided.”
Third, he notes that “despite minor modifications to the affordable housing plan, the Project still does not meet the affordable requirements of applicable federal, state, and local law.”
He argues that “the Project obstructs achievement of several General Plan policies and objectives, and is inconsistent with the General Plan for that reason.”
Summing up his position is “a need for housing does not excuse meaningful environmental review, nor can it override the several fatal problems with this proposed Project. If the hearing is not continued, we again request that this Commission deny the Project until all legal requirements have been met.”
Leslie Walker from the Thomas Law Group pushes back: “That the City provided additional documentation to support the use of the exemptions, in part to respond to concerns raised by Mr. Soluri, does not mean that the project should be further delayed. The Planning Commission has discussed this matter at two prior meetings and the additional materials provided respond to request for additional information.”
She argues that the Infill Exemption precludes the project from further environmental review in two circumstances—first if the effect “was addressed as a significant effect in a prior EIR for a planning level decision,” and second, even if it was not analyzed in a prior EIR, “if the lead agency makes a finding that uniformly applicable development policies or standards, adopted by the lead agency or a city or county, apply to the infill project and would substantially mitigate that effect.”
Mr. Soluri expressly argues that the project does not meet affordable housing requirements because its affordable units are unavailable to families.
However, Ms. Walker pushes back that “CEQA does not provide a definition of ‘families.’” However, under existing law “an ‘eligible family’ includes a ‘family or individual’ meeting specified eligibility criteria and expressly includes a ‘single person.’”
Furthermore, “Housing and Community Development sets State Income Limits applicable to each county in the state and includes a schedule for various household sizes, including households of one to eight individuals.”
Ms. Walker notes: “The project will rent not less than five percent of the housing to individuals of very low income and therefore satisfies the requirements of Section 21155.1(c).”
The commission was not amused by the latest legal challenge.
Commissioner Greg Rowe retorted, “I can’t help but saying, Mr. Soluri please stop. You’re becoming a nuisance. I think he’s becoming sort of like the CEQA version of an ambulance chaser. He’s interfering with projects in the city that have been approved by the voters. So if you’re watching, please go back to Sacramento and leave us alone.”
Stephen Mikesell also took exception to the notion that city staff was using eleventh hour tactics “when we’ve got letters coming in before the meeting.” He said, “So I guess one has to know 11th hour tactics, to identify them.”
Earlier in the day, Mr. Rowe made an interesting comment on the Vanguard in general about the litigation: “If the Planning Commission had not regarded the EIRs for the referenced housing projects as meeting CEQA legal requirements, it is highly unlikely that those EIRS would have been recommended to the City Council for certification. It is my understanding that the City has yet to be unsuccessful in defending the adequacy and completeness of a project EIR.”
—David M. Greenwald reporting