This week, Yolo County Judge Stephen Mock delayed the court trial for Lincoln40 – the student housing project approved by the council on a 5-0 vote last March. When built, it will house 708 students. While the trial itself was just delayed by a little over two weeks, for students living in housing and food insecure conditions, these delays mean prolonging the current housing crisis.
It seems unlikely that Judge Mock would invalidate Lincoln40, particularly considering the circumstances of the housing crisis and the lack of glaring problems with the environmental review process – just as other judges have not found merit in previous lawsuits. However, what these suits do add is time and expense – a cost born not just by the developers but by the students who end up without adequate housing and having to pay more for the housing that they do have.
Best case scenario is that Judge Mock will hear arguments on February 8, he would then have about 90 days to rule – give or take, that pushes a decision into May and then, assuming he rules in favor of the city, the plaintiffs would have 60 days to appeal, pushing the green light to perhaps July. You would probably be looking at a tight timeframe of two years to get the financing approved and housing ready to go for September 2021 – already a delay of a year over the original hope of 2020.
For students, these are challenging times. The Vanguard met on Thursday with Aggie Compass and will have a follow up on our food insecurity series. Aggie Compass and the county service providers believe that around 43 percent of students are food insecure but are uncertain what proportion of those students are in serious enough condition to actually be missing meals.
Meanwhile, housing insecurity puts the number around 17 percent according to recent surveys. Unofficially the Vanguard has noted that in a number of locations such as the South Davis Safeway parking lot, you can see a number of vehicles with sleeping students.
In a recent letter from ASUCD Senator Alisha Hacker, she noted, “As the rainy weather saturates our city, I can’t help but think of my fellow students who have no protection from it. These are some of the students who inspired me to run for my senate seat.”
“When we came to UC Davis, we never expected finding housing to be an integral part of our college experience, yet all too often it is. Housing insecurity and homelessness are a real problem for UC Davis students,” she writes. “In fact, in a recent survey, nearly a fifth of students reported experiencing homelessness at some point during the last school year—whether that be couch surfing, sleeping in a car, in a public restroom somewhere, or worse.”
Ms. Hacker adds: “While I am energized about the recent passing of a few key student-oriented housing projects, I think it’s important to remember that our housing crisis in Davis is far from over. I am frustrated when I drive by sites with approved projects that are in limbo by lawsuits. Lincoln40 is a perfect example of this—an otherwise shovel-ready project that has been stymied now for the better part of a year because one person doesn’t want us to live in her backyard.”
So far the city council has passed a number of projects: Sterling Apartments, Lincoln40, Nishi, and Davis Live Housing. Two of those projects – Sterling and Davis Live Housing – have been allowed to go forward, with Sterling in the process of construction.
Nishi and Lincoln40 remain locked in litigation.
It would be one thing if there were serious problems that these lawsuits had to address. But the city went above and beyond the requirements by do a full EIR – when, as former Davis Mayor Robb Davis noted, 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.
Attorneys for the city continue to believe that the lawsuit is without merit.
In their response brief, the city argues – which is a point we have made previously, “Because few environmental comments were raised during the administrative process, Rainier’s Opening Brief relies almost entirely on new issues that were not administratively exhausted. On this basis alone, Rainier’s Amended Petition should be denied.”
The respondents note, “Rainier largely fails to explain how she satisfied CEQA’s exhaustion requirement as to any of the issues advanced in her Opening Brief.”
The city received a 2009 decision that points out: “Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.” And further that “no action or proceeding may ‘be brought… unless the alleged grounds for noncompliance… were presented to the public agency orally or in writing by any person during the public comment period….”
In addition the city does not believe that the lawsuit will survive on the merits either – indeed, they argue that it is “meritless” with substantial evidence to support “the EIR’s conclusions” arguing, “none of Rainier’s claims have merit.”
Given the statewide housing crisis and the local conditions, we don’t believe that a judge like Judge Mock is going to invalidate the council-approved project unless it suffers from serious flaws – and we just don’t see it.
The plaintiff’s lack of seeking legislative solutions probably will give the judge an easy way out, but, given the totality of the facts here, this is simply a tactic that will no longer work in Davis.
Since 2013, we have seen a number of lawsuits. None of them have been decided on the merits for the plaintiffs. The only “wins” for the plaintiffs have been for settlements and the city immediately recognized that settling lawsuits creates an incentive to bring about additional ones.
Each of these will be litigated until the end. We have already seen defeats for Michael Harrington on his neighbor’s Conditional Use Permit and Nishi. The Marriott did settle to allow for owl mitigation. The Hyatt House and Hotel Conference Center also entered into settlements. WDAAC was recently dismissed.
The remaining lawsuits are against Trackside, Nishi and Lincoln40, with the hope that Lincoln40 will resolve soon to allow the start of construction to house students in desperate need of housing.
—David M. Greenwald reporting