More Legal Threats against Davis Live; Commissioners and Applicants Push Back


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He adds that “that EIR is legally incapable of providing appropriate project-level analysis because it is no longer current and could not analyze the impacts of building out the Project site as a ‘Residential Very High Density’ land use that did not exist when the General Plan EIR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

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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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19 thoughts on “More Legal Threats against Davis Live; Commissioners and Applicants Push Back”

  1. PhilColeman

    Commissioner Rowe should be publicly applauded for his candor in assessing the merits of the threatened legal actions depicted here. His pleadings for reason and relief, however, will have no effect. This law office, and otheres like it, will return.

    Such law firms actually thrive on this notoriety–this is their nitch market. As an aside, in further discussions of any frilious law suits by any firm, the firm-named identity be kept to a minimum. This is free advertising for other dormant NIMBY’s waiting in the wings.

    Repeating an earlier comment on the same issue, reform measures for frivilous lawsuits will not eminate from any of our three branches of government. The executive and legislative branches are heavily dominated by attorneys, all being members of bar association, and all paying dues towards self-preservation and continual expansion of the profession.

    The judiciary is 100% populated by attorneys and invoked legislation to ensure this monolopy. Some 3 years ago, the House passed reform litiquous law suit legislation. The American Bar Association rose up and bellowed, the White House threatened a veto, and that was the end of that.

    The proposed federal legislation proposal would have assessed court costs to plaintiffs should a filing be determined to be frivilous or harrassment using the civil process. No attorney lobby will support any sanction where THEY risked economic risk.  It’s the promise of increased personal net worth that is driving this runaway train in the first place.

    Repeating an earlier solution that is more politically viable, civil suits against government entities are reviewed for sufficiency by a tri-member panel of retired judges. It follows the sound legal precedent of a preliminary examination for criminal defendants. In both instances, there must be sufficient probable cause shown before the defendant is subjected to the time, cost, and rigors of a formal trial.

    This reform measure would have to be a populist movement as few non-attorneys in positions of government authority would support such an initiative. Conflict of interest laws in public service conveniently ignore the legal profession conflict found at every level government.

    California has one of the highest, if not the highest, attorney/population ratios in the world. Frivilous lawsuts are commonplace here from legions of under employed law firms. We have the power of initiative to put a frivilous lawsuit measure on the state ballot. There would be enormous push-back from literally every law firm in the nation, followed by many millions of dollars to defeat this measure. But the voting public still vastly outnumber attorneys in this state. And the people majority probably have had enough of frivilous law suits being used for political purposes.

    1. Tia Will

       It’s the promise of increased personal net worth that is driving this runaway train in the first place.”

      I do not doubt the veracity of this statement. However, I would point out that this is equally true for developers, builders, landlords, real estate agents, and virtually every one else involved in the issue of housing.

      There are actually simpler solutions still. Everyone be willing to take a small financial hit. Now before you start laughing, I am speaking as someone who did so for around 5 years. I had a home from which I had downsized. I was not ready to sell and did not need a lot of money. I rented for years for well under market. No harm done. I believe that virtually everyone in the real estate food chain, whether on the provision or on the prevention of development side could do with a little less “increased personal wealth” usually at no significant material harm to themselves if they were honest.

      1. Jeff M

        You are a crack up with this line of “thinking”.

        You are a very well compensated MD.  Real estate is not your profession nor your primary source of income.

        If you are a developer, development is your profession and your primary source of income.  This demonization of people that pursue profit generally seems to come from people that have never started or owned a business… but that get their income as a result of all of the people that start and own a business.

        1. Alan Miller

          This demonization of people that pursue profit . . .

          Personally, I don’t demonize those that pursue profit, as such, and I have owned my own business.  I do, however, demonize the demons (read: arseholes) who pursue profit, a hefty subset.

    2. Jeff M

      Thank you Phil.  There has been my opinion and soapbox that a great conflict of interest exists with the legal profession dominating the role of law maker since it is the same profession that benefits financially from the book of laws.

      It has been that way for some time, but it has been previously tolerable until the impacts had aggregated, the number of attorneys exploded, and the counter-punch from the small-government and business community was eroded, ironically, primarily from the legal profession having acquired political and government positions.

      Although not exclusively Democrat politicians, this types has the greater propensity for law and regulatory largess.  The Obama Administration, for example, implemented more new costly rules, laws and regulations than any other previous.  And of course California, the state dominated by Democrat control, is legendary for their constant creativity in creating more layers of lawyer-loving rules.

      There is a tendency for all systems to develop bureaucratic bloat.  It it some human nature to secure and protect power in knowledge of complexity… and to actually foment complexity as a barrier to competition.  It can also be used to block change… the critics exploit the complexity in the book of rules to combat and thwart the agents of change.  In private industry, long-standing successful companies are constantly fighting against bureaucratic bloat and inefficiency from over-complex processes and rules.

      Top company managers fight to keep the company nimble and flexible.  But there is really nobody fighting for the same in government (except Donald Trump at the federal level).  There is no fight in California because the lawyers hold all the positions of power and influence.  They have eroded so much capability for progress as the costs for compliance and law suit defense has skyrocketed.

      I look at lawyers as being leeches that such the lifeblood from enterprise and progress.  Sure they are useful in material conflict, but too much of that conflict is because of the stage that the lawyers established.

        1. Jeff M

          Oh geeze… maybe I need to write the article on the social damage caused by too many thin-skinned people.   As in people that would take a side over an issue because someone hurt their feelings.   I think that is what children do until they grow up.

          I use a lot of lawyers in my professional life.  And all of them provide a useful service.

          And I really fail to understand your sensitivity is here.  I don’t blame people for pursuing their self-interest.   I blame a system that allows itself to be exploited.  I blame people like you that are prone to turn the identity of lawyer and/or politician into some protected victim class that needs to be defended from criticism.

          Frivolous lawsuits are enabled by a larger and larger book of rules… and there are a lot of lawyers in the position of making the rules.

        2. Jeff M

          Jeff… your “skin” seems to be translucent.

          And very easily irritated…

          Two different thing Howard.  Yes, I am easily irritated with demonstrations of lack of rational thought, but not at all thin-skinned.

          If the dots connect in criticism, I can accept it… I even seek it.  I know hundreds of thousands of things more than I did a few years ago, but I know that know much less than what I can know.  My main irritation is when I have to waste time debating people that not only fail to contribute to my existing knowledge, but that dig in their heals holding onto their fixed-mindset of falsehoods… incapable of making a rational argument that supports their beliefs, and then resorts to criticizing me for causing people to splinter off.

          I would never pick a side of any issue because someone having an opinion said something to hurt my feelings.  That is what children do.

      1. Eric Gelber

        Also another lesson by Jeff on how to stereotype and demonize groups of people (in this case, lawyers) and offer arguments based on presumed facts. For example, lawyers don’t “dominate the role of law maker,” as Jeff asserts. Based on a 2015 survey published by the National Conference of State Legislatures, only 8% of California’s legislators are lawyers (compared to 27% who are business persons).



        1. Jeff M


          Although I do agree that the percentage of lawyers has declined somewhat due to the competition of the the “professionalized political class” including campaign aides, lobbyists, members of think tanks, and employees in public-interest jobs… lawyers are still the dominant single profession over all for all political offices in California.

        2. Eric Gelber

          So, if you are proven wrong on one argument “lawyers dominate the role of law maker,” you shift to a completely different assertion–again without citation–that lawyers are “the dominant single profession over all for all political offices in California.” Excluding political offices for which a law degree is a requirement (e.g., district attorney, Attorney General, judge), what’s the basis of your new claim?

          Also from Jeff today:

          “I use a lot of lawyers in my professional life.  And all of them provide a useful service.”
          “I look at lawyers as being leeches.”

          So, we can conclude that in Jeff World: My lawyer=good. Your lawyer=bad. Talk about a system that views the world based on self interest.

        3. Jeff M

          So, if you are proven wrong on one argument “lawyers dominate the role of law maker,” you shift to a completely different assertion–again without citation–that lawyers are “the dominant single profession over all for all political offices in California.”

          Ok, I will give you the semantics win.   But I have to say that this is the type of thing that irritates me because of the point I was making is easily logically supported by the fact that lawyers are by far the single largest professional cohort in federal and state politics.

          No, I am not in any way saying that my lawyer is good and the other lawyer is bad.   The issue is the conflict of interest being a law maker and working in the profession that exploits laws to make money.

          A more granular comparison would be like bankers being the dominate single cohort of politicians sitting on the committees that make bank regulations.  Or environmentalists being the dominate single cohort of politicians making environmental regulations.

          Each will pursue their professional interest.  I support people pursuing their own interest.  What I don’t support is systems that allow the pursuit of self interest to be corruptible and damaging to the system.

          Democracy as designed in this country is supposed to be government by the people for the people… not government by lawyers for lawyers nor government by the ruling professional class for the ruling professional class.

      2. Alan Miller

        In private industry, long-standing successful companies are constantly fighting against bureaucratic bloat and inefficiency from over-complex processes and rules.

        Let’s be honest, there are also many long-standing successful companies that are bending the government laws specifically in their favor with voter initiatives, legislation, and tax law ‘reform’.  Again, not demonizing all long-standing successful companies, just the demons.

  2. Ron

    From article:   “So if you’re watching, please go back to Sacramento and leave us alone.”

    Should probably add:

    “But, will keep your number on hand, for the oversized development that I’ll oppose near me, in the future.”  (That’s when I’ll “find Jesus”, regarding my view of your services.)

    (Comment not directed at anyone, or at any specific development.)

  3. Jerry Waszczuk

    Of California’s 190,000 active attorneys, as many as 19,000 may have unreported criminal activity, from DUIs to more serious offenses, according to the State Bar of California.

    1 attorney per 210 people., Big business

    1. Alan Miller

      “It’s a shame that the county has wasted taxpayer money going this far. They should have done it right the first time.”

      I don’t know the issues on this one so not giving an opinion.  I do agree that some lawsuits are just anti-growth or for lawyer/litigant gain, but some, not all.  The above quote from the sited article is also part of the problem.

      1. Ron

        I believe that the attorney who made that statement recently ran for supervisor, herself (but lost to someone who received support from business/real estate interests).  Makes one wonder how different the county’s decision would have been in the first place, had she been on the board.

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