Sunday Commentary: Students Live in Housing Insecurity while Litigants Hold Up Projects

In the next few weeks we are expecting the full report from the UC Davis Affordable Housing Task Force to be released, with a response from UC Davis’ administration and recommendations for moving forward.  The preliminary data entered the discussion of Davis Live Apartments back in July and showed a significant number of students living without permanent housing at times, and in housing insecurity in general.

In the meantime, the city of Davis has approved over 3000 beds at Lincoln40 and Nishi, but those projects are being held up by litigation.

The litigation itself has many costs.  The first cost is that it is preventing the city from building additional approved housing.  Given it would probably take Lincoln40 and Nishi about two years to build and open the sites, we can assume that instead of opening for the fall of 2020, we are looking at 2021 if not 2022 for the opening.

As we have noted previously, the university is pushing forward with its plan for additional student housing.  But it is also looking like 2021, if not 2022, for likely opening dates there as well.

The bottom line: student housing is in high demand right now, we have data on homelessness, data on housing insecurity, and data on more students cramming into existing facilities.  Help is on the way, but it appears to be three to four years off rather than two years off.

Of course, the firm litigating all of these suits is Sacramento law firm Soluri Meserve.  Why they have gotten involved in Lincoln40 and Nishi is not known.  Local resident Susan Rainier appears to have filed these suits.  In addition, Colin Walsh’s name appears in the filing papers on Nishi.

The Soluri Meserve firm is also behind letters that appear to be setting up another potential suit at Davis Live apartments.  The project would provide housing for at least 440 students if approved on Tuesday.

Their target is city decisions to exempt it from further CEQA (California Environmental Quality Act) review.

In a letter dated July 25, they write 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.”

Staff had previously argued that it was exempt under a “Sustainable Communities Projects.”

But here is the thing: the project is an infill project.  The site contained student housing, albeit at a lower density.  The project has a relatively low number of parking spaces and will openly discourage vehicles stored on site.  So what level of CEQA review is needed for such a project?

In their letter, Soluri Meserve concludes that “a need for housing does not excuse meaningful environmental review, nor can it override the several fatal problems with this proposed Project.”

While that viewpoint makes some sense in general, the city at this point feels like they are “darned” if they do, “darned” if they don’t.

The cost of this litigation is substantial in a variety of ways.  We have already discussed cost delays.  There is also the cost of fighting the litigation, which has more and more become part of the cost of developing housing in Davis.

But the third way is that the city is forced to push developers to do full EIRs (Environmental Impact Reports) at great additional cost.

This was a point made by Robb Davis at the March 13 meeting, where the council unanimously supported the passage of Lincoln40.

Mayor Robb Davis noted that the city wasn’t even required to submit an EIR for the Lincoln40 project, because as a TPP (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.

Despite these efforts, the city received notice less than a month later that they were being sued, again by Susan Rainier.

Soluri Meserve, again representing her, writes, “Petitioner Susan Rainier intends to file a Verified Petition for Writ of Mandate (the ‘Petition’) under the provisions of the California Environmental Quality Act., Public Resources Code section 21000 et seq. (‘CEQA’), against the City of Davis (‘City’).”

The letter notes: “The Petition challenges Respondent’s March 13, 2018 decisions, and all subsequent actions, in approving: a General Plan amendment; Gateway / Olive Drive Specific Plan amendment; development agreement; affordable housing plan; lot merger; and other associated entitlements purporting to authorize the Lincoln40 development project, which includes a 249,788 square-foot multi-family residential building, parking areas, and various amenities (the ‘Project’).”

As Mayor Davis pointed out at the time, 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.”

The threat by Soluri Meserve at the planning commission clearly elicited anger from some of the commissioners, including some who would fall into the slow growth camp.

As 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 11th 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.”

Mr. Rowe also 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.”

The question left to ponder at this point – is this community to be held hostage by single litigants and out-of-town law firms with deep enough pockets to carry these suits against most projects?

Right now we have seen litigation against the following projects in recent years: Nishi 1.0, the Marriott, Hyatt House, the Hotel-Conference Center on Richards, Lincoln40, Trackside and Nishi 2.0.  That’s seven lawsuits.  If one is filed against Davis Live housing that would be eight.

And to what end?  What benefit has the community gained from any of these suits?  Has it improved planning or made it worse?  One thing that is clear, for several thousand students who are forced to live longer in housing insecure conditions due to the litigation, these actions have had a detrimental impact on their quality of live.

—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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  1. Todd Edelman

    Even without any lawsuits there’s still a need for a minimal level of housing, near campus. High-quality emergency facilities such as the kind used after earthquakes, suitable for long-term residence (a year or two), with secure storage for belongings. Oh, and filtration systems for automobile and wildfire ultrafine particle fallout.

    If there was a flood and a lot of student housing was destroyed, this temporary housing would be built in short order, with e.g. funds channeled through FEMA.

    UC Davis should get it done. The stuff is reusable, so they can sell it when it’s no longer needed.

    By the way we’d have hundreds of more “beds” in the pipeline if we built housing in the same footprint used for car parking (Not Nishi, because the planned parking is too close to the highway; possibly not Lincoln40, Plaza 2555 or the newer project on Chiles, because the housing is not in the same structure or is on the land closest to noisy etc. I-80, but definitely Sterling 5th and Davis Live.). Parking is nice, but housing is nicer, right? The convenience of a bed is more important than the convenience of parking, right? Seriously, do I need to sue developers for more housing (in the same footprint)? (A side effect of a more responsible footprint is less car traffic, if there are complementary measures such as permit and possibly peripheral parking…)

    Eric Gudz and I will be examining my “responsible footprint” concept in a BTSSC sub-committee. 

    1. Richard McCann

      1) The FEMA trailers are notorious for being highly expensive and of poor, even dangerous, construction quality. That doesn’t seem to be a good solution.

      2) In our current transportation network, we can’t eliminate parking entirely from a housing site. –there is a lower bound currently. Cars will end up parked in the streets if there isn’t sufficient parking at a new site. Davis can’t construct the regional transit structure alone needed to accommodate all transportation needs yet. We can set a goal to achieve that level, but we’re not there yet.

      1. Ken A

        A “regional transit structure” may be a “goal” for some but everyone I know wants to load their kids, and dog in to their own SUV when they head out to go camping in the summer or to their ski cabin in the winter…

  2. Matt Williams

    David Greenwald said . . . “In the meantime, the city of Davis has approved over 3000 beds at Lincoln40 and Nishi, but those projects are being held up by litigation.”

    Given the dual focus of this article, (1) housing projects being held up, and (2) litigation, it is worth noting the stunning lack of progress on the Sterling 5th Street Apartments project’s 600-700 beds  The demolition of the existing Families First buildings was completed ahead of the scheduled December 2017 date, but the site has had no site improvement activity since.

    1. David Greenwald

      I met with the representative from Sterling earlier this summer and was told August with a goal of opening by 2020. I’ll have to follow up with him.

  3. Ron

    From article:  “Given it would probably take Lincoln40 and Nishi about two years to build and open the sites, we can assume that instead of opening for the fall of 2020, we are looking at 2021 if not 2022 for the opening.”

    I would assume no such thing.  It’s entirely possible that the litigants will win.  (Witness the recent court decision regarding Field and Pond, for example.  I’ve also pointed out a similar example in Sonoma county, regarding a decision to sell a publicly-owned hospital site to a developer.)

    1. David Greenwald

      The Field + Pond case illustrates the problem here. The litigants raised many causes of action, the judge found that there was a possibility of an impact on some of the species, and so on that basis (of a single cause of action) ordered an EIR. That’s at best a nominal win that doesn’t affect the litigants at all and yet costs the defendants greatly.

      1. Ron

        Seems like you have a lot in common with Rich Rifkin, regarding your views toward development in general.  And yet, even he noted the following (regarding Field and Pond).  (I italicized a pertinent section in the following quote.)

        “Despite the protests and a vote by the Planning Commission against the use permit, Yolo County Supervisors voted twice — once 4-1, a second time 3-2 — to grant Field & Pond’s owners, Dahvie James and Philip Watt, the right to hold up to 20 affairs on their property each year and operate a nine-room B&B.”

        As with the case in the Sonoma county example, the judge did not agree with the Yolo county supervisors. (I understand that some folks may not like it. But, these examples show that similar lawsuits apparently do indeed have a legitimate chance of being successful.)

        1. Howard P

          Ron… you neglect the difference between judgement on ‘information’ (process), rather than overturning an action (legislative decision)… HUGE difference… in Yolo, amounted to a “foot-fault” (tennis), where a good serve is negated, but there is another serve… a “technicality’ if it were… calling for a re-do, with no prejudice as to outcome…

          Commissions are advisory, not generally decision makers… where Planning Commissions have discretionary power, the CC is the “Court of Appeals”… many commissioners are way too “full of (themselves?)”… as are those who are apologists/supporters of those who like their decisions/recommendations, then accuse CC of something approaching ‘treason’, if the CC goes the other way… CC is elected, commissioners are appointed.

        2. Ron

          Regarding the case in Sonoma county, the judge actually cancelled the sale of the property to a developer.

          Regarding Field and Pond, I’m wondering what might happen if the EIR does show an impact on an endangered species as a result of the proposed use.  Will the county then just ignore such a finding?

          Regarding Nishi and Lincoln 40, I don’t recall that the Vanguard has actually discussed the basis or details of the lawsuits.  (Mostly, just a lot of noise, complaining, and assumptions regarding the imminent “failure” of the lawsuits.) If a lawsuit claims that the Affordable housing is exclusionary, for example, might the proposals actually have to be changed? (Again, I don’t recall any discussion on the Vanguard regarding the basis or details of those lawsuits, or what might happen if the litigants succeed.)

          Also, for voter-approved development proposals (such as Nishi), I’m wondering what the ramifications are, if the “modified EIR” that was used is found to be inadequate.

        1. Howard P

          Ahhh… but one group chose to be… the others had it forced upon them…

          Another area of the law that should be revisited… the opportunity to have the defendant recover any/all legal costs to defend a questionable lawsuit… and maybe even damages for costs of delay… think it’s time to do that…

        2. David Greenwald

          The problem you have is what is a questionable lawsuit?  After all, for the most part all suits have to pass summary judgment.  If they do, then is it questionable?

        3. Jim Hoch

          The point behind CEQA was to allow people without funds to challenge projects based on environmental considerations. If you do not support that goal then just repeal the whole thing.

        4. Howard P

          Jim, your 5:49 post:

          One group chose to build something, the other group had it forced upon them.

          Wrong, in my view… the “other group” had their chance to make their points, and possibly prevail… they lost the “match”, but had the fair chance to compete.  Public arena… nobody was forced to do anything… or do you feel “forced” to accept my exercising my first or fifth amendment rights with what I do with my property?  Weird.

          Now, if I compelled (forced) you to do something with your property, that would be a different matter… perhaps you feel/felt “forced” to accept the results of the 2008, 2012 and/or 2016 elections… too bad, so sad…

          Your very ‘dull’ point about CEQA is scary… CEQA was intended to disclose ENVIRONMENTAL impacts of s “project”… not to direct decisions, nor to provide a fishing ground for lawsuits… tu ne comprends pas!

        5. Jim Hoch

          “tu ne comprends pas” You may find a “miroir” helpful in this situation. 

          “nor to provide a fishing ground for lawsuits” They would have made it more difficult to do in that case. 

          “the “other group” had their chance to make their points, and possibly prevail… they lost the “match”, but had the fair chance to compete” Apparently our legal system is new to you.

        6. Howard P

          So, Jim, you believe, or are of the opinion, that the “legislative intent” for CEQA was to stock the lake for better fishing, as to lawsuits?  Interesting perspective…

          One I do not share… but wasn’t on the floor of the legislature when they crafted/amended the Act.

          If you are correct, guess the 40 years working with the Act, attending classes/updates, and being a practitioner was truly a fool’s errand…

          Will have to amend the old saw,

          Q:  What’s the perfect weight for a lawyer (and/or lawmaker)?  A:  8 lbs, but that includes the urn…

        7. Jim Hoch

          “you believe, or are of the opinion, that the “legislative intent” for CEQA was to stock the lake for better fishing, as to lawsuits?  Interesting perspective…”

          While there are sometimes “unintended consequences” they are far outnumbered by “intended consequences”. If an action by the legislature generates numerous lawsuits, and that action is not amended, it is reasonable to presume that was the unstated intention.

          As an example, the stated intention of the LCFF was to provide for additional educational opportunities for disadvantaged students. It was widely rumored during the legislative phase that the real purpose was to transfer large sums of money to politically connected unions. Several years in the unions have all the money and the students have the satisfaction in knowing that their teachers and administrators are better paid.

          Don’t be marketing victim.

        8. David Greenwald

          “It was widely rumored during the legislative phase that the real purpose was to transfer large sums of money to politically connected unions. “

          There is this odd disconnect in the perception of how powerful teachers unions are compared to the actual compensation received by teachers.  On the other hand, look at how much prison guards and fire firefighters make.  Way the heck off topic, but needed to point this out.


        9. Richard McCann

          Jim Hoch,

          You said “While there are sometimes “unintended consequences” they are far outnumbered by “intended consequences”. If an action by the legislature generates numerous lawsuits, and that action is not amended, it is reasonable to presume that was the unstated intention.” In my many years of working on state policy issues, I strongly disagree with this statement. Legislators are just not that smart, and even the lobbyist aren’t clever enough to figure out all the angles and consequences. The better explanation is that once a serious flaw is found, an interest group arises that benefits from that flaw and resists the changes to fix it. In the case of CEQA, which was intended as means of injecting simple, clear information into the decision making process, it was hijacked by those who exploited what was meant to be a simple backstop enforcement mechanism. Now the environmental attorneys and non-profit groups have a vested financial interest in continuing this flipped priority. Meanwhile EIRs have evolved into impenetrable legal defense libraries that add little to the decision making process.

        10. Jim Hoch

          Richard we will just have to disagree on this. I believe that people who own legislators think about this stuff. The obvious beneficiaries have been lawyers and the construction unions.


        11. Ken A

          It is important for David and others comparing “teacher” pay with “firefighter” or “prison guard” pay is that firefighters and prison guards work a lot of overtime and many work MORE than double the hours of a typical teacher in a typical year.  Sure firefighters get paid for sleeping but most are away from home twice as much as most teachers (if you look what the average teacher makes in two years it is pretty good money)…

  4. Tia Will

    Having no legal information, I will merely report the facts first hand. Regardless of it’s legal status, work has begun on the Lincoln 40 site. I awakened on Monday to the dulcet tones of nearby demolition like sounds. Actually, it turned out to be the beginning of the now completed removal of every tree across the tracks from the base of J street. All of them, despite the discussion of preservation of as many as possible. This has opened a clear “vista” that used to be a green screen and will now be a direct view and sound scape into the parking lot behind Lincoln 40.

    As you may remember, I was a vocal advocate for this project. I will be reporting on progress as it continues not because I oppose it, I still see it as the “greater good”, but because I would like to point out that there is no project, ever, that is good for everyone. I think it is important that those who will live there, and those that will benefit in anyway from their living there are benefiting at someone else’s cost.

    1. Howard P

      I think it is important that those who will live there, and those that will benefit in anyway from their living there are benefiting at someone else’s cost.

      Think UBI…

      I think it is important that those who will benefit in anyway from a UBI are benefiting at someone else’s cost.

      Think… be consistent…

      1. Tia Will

        Think… be consistent…”

        What makes you think I haven’t thought of that. I am and have been completely consistent on this. I believe that in a wealthy society, everyone should have enough to survive without worrying about housing, food, health care, education. I would favor a mixed economy in which the “social safety net” is absolute but in which there is capitalism for luxuries. Yes, their will be “costs”, and we all see that when it is affecting us directly. But many do not see the “cost” or at least choose not to see it when they are not affected. Also, the costs are variable. For the people who had to move out after having lived there for 30+ years so that students could move in, the costs were very steep. For me, not so much, a matter of sound,&  sights I do not want ( a very large parking lot). But for the people who approved it and are benefiting financially – no cost at all, only gain. I favored the project because I saw it was for the greater good, but not without real loss.

        It is this that I would like people to recognize when they make blanket statements like “this is better for everyone” or “it benefits the whole town” when in fact…. no it does not.

        1. David Greenwald

          I would say, getting back to the “benefit the whole town” is not synonymous with benefiting every single individual in the town. I view community benefit as a net plus rather than a unanimous benefit.

  5. Dave Hart

    Thanks for that, Richard.  I must say I do object to blaming legal action on “out of town attorneys” (I’m not an attorney, married or in any way related to one in any way) since attorneys represent litigants and Ms. Rainier is the litigant.  This legal play is squarely on her.  Attorneys are merely the hired gun.  Interesting that she is affiliated with the University whose general inaction on student housing has created such a shortfall of student housing.  I suppose that is coincidental if not ironic.

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