Commentary: Plaintiff Puts Forward Bad Arguments during Lincoln40 Hearing

It was always going to be an uphill battle to get a judge to change his mind on a tentative ruling, but what we saw on Friday from Patrick Soluri was just bad.  One might go so far as to call it embarrassing.  There were factually inaccurate arguments and even nonsensical ones.

Judge Stephen Mock issued his tentative ruling a few weeks ago – mostly favoring the city by denying the petitioner’s writ.  On Friday he allowed both sides to have 75 minutes of oral arguments before taking the matter under advisement.

Patrick Soluri pressed the case that the city had used the sustainable communities exemption as a crutch to prop up a weak EIR (Environmental Impact Report).

He argued that the city relies largely on “this PowerPoint,” and he added “this is not an attempt to notify the public about the exemption, it’s an 11th hour attempt to provide an insurance policy because it’s an implicit recognition that there are problems in the EIR and that if by some chance a law suit is filed… the city can hold this out as saying… any claim is mooted.

“That is the opposite of good faith, public disclosure,” he said.  “It is a concession that there are serious issues that prompted this last minute insurance policy in the first place.”

The problem here is that he is factually wrong.

On July 26, 2017, the Planning Commission was asked to give comments to staff on the Draft EIR.  At this point, staff reported that the Lincoln40 project qualifies to be exempt under CEQA (California Environmental Quality Act) because it is a Transit Priority Project.  Then it states, “Notwithstanding this determination, the applicant agreed to staff recommendation to proceed with the EIR preparation.”

This is hardly the 11th hour.  They haven’t even gotten all the comments on the Draft EIR.  It’s eight months before the Final EIR is certified and the project comes to council.

This might not seem like a big deal, but this is the theory that they rest their argument on – that the city knew their EIR was defective and put forward this as a crutch at the 11th hour.  But the Draft EIR is not even commented on yet when this is unveiled.

Both the city manager and the city attorney, separately, told me that while they believed the project was exempt, they went forward with EIR certification out of an abundance of caution as the exemption was pretty new and untested in court.  It was always meant as a parallel process.

As Andrew Skanchy put it: “The city went above and beyond the requirements of CEQA.  Even though it was statutorily exempt, the city prepared a full Environmental Impact Report…  This was belt and suspenders overkill.

“They did extra credit,” he said.  “That is not representative of trying to do something nefarious.  It was an attempt to be fully transparent and disclose to the public what was happening.”

Mr. Soluri is entitled to his opinion, but here he has his facts just plain wrong.

A second point that was raised poorly by the petitioner was the traffic study.  At first, Mr. Soluri argued that the traffic study relied on the General Plan, and that those impacts only went into January 2010.

“The summary of projections in the EIR relied on the general plan,” he explained.  The general plan that the city relied upon,” he argued, only went into January 2010.  “That’s the general plan that the city relied upon,” he said.  “Growth projections through 2010, this was now six and seven years later.  Those growth projections are simply outdated.”

Chris Butcher, representing the developer, countered that “the general plan, transportation element was adopted in 2013.”  That update analyzes the city through 2035.  “The claim the city relied on old data is simply incorrect.”

Prompted by Judge Mock, Mr. Soluri acknowledged, “Yes that element was updated.  But all that it did was update plans and policies.”

So he initially claims falsely that the EIR relies on the 2010 traffic projections, then when called on it, he acknowledged that this wasn’t true.

Mr. Soluri then changed the argument in doubling down on the claim that the study was outdated: “There was never any update to development projects, none.”

But we were forced to wonder what projects he was talking about.  He mentioned Sterling as an example.  But most people from Sterling are not going to drive to town via Richards Boulevard.  The idea that Sterling is going to add a lot of cumulative impact to Richards is not realistic.

He didn’t mention Nishi, but Nishi would have minimal impacts on Richards since it has no Olive Drive access.

Then there is the LRDP (Long Range Development Plan) which he mentions as adding 11,000 people – but that’s a misread of the LRDP (in terms of the numbers of new students added) and also it is somewhat questionable as to whether the LRDP will have a huge impact on traffic at Richards Blvd.  After all, the whole point of the LRDP is to add more students on campus where they do not have to drive through the Richards corridor to get to campus.

In fact, the university is adding more housing on campus than they are adding students over the next ten years, by building capacity for 9000 new beds – most of which will be on the west side of campus.

If anything, the LRDP will decrease traffic entering at Richards because it will take students living out of town and give them housing on campus.

At least with this one we can argue it is subjectively false rather than factually incorrect.

Finally, maybe the most curious point of all, but probably less important, is his gaffe on the noise ordinance.

During his rebuttal time, Mr. Soluri argued that the EIR was insufficient in addressing noise impacts because, when analyzing the impact of the construction of the building construction, the city never analyzed the noise impact above ambient noise levels.

“EIR never said here’s ambient, the noise from construction will increase ambient by x,” he said.  “They simply never did that.  But that’s what’s required under the general plan.”

Mr. Butcher pointed out that there was no evidence in this matter, and that the city doesn’t enforce its noise ordinance.

“That’s actually completely incorrect,” Patrick Soluri countered.  “The evidence that the city does not enforce its noise ordinance is found in the fact that the ambient noise right now exceeds the noise ordinance levels.  So clearly the city doesn’t enforce its noise ordinance, because if it did, ambient would exceed the current levels.  It’s really that straightforward.”

Except for one problem – the ambient noise is coming from the freeway and occasionally railroad traffic, so what exactly is the city supposed to do?

As one person in the city put it: “We do enforce our noise ordinance, but we must stay with what’s in our jurisdiction so I-80 and RR noise we cannot enforce.”

Mr. Soluri was probably never going to win this.  I was given a number of examples of the court issuing a tentative ruling, a city providing clear evidence that the judge wasn’t following the law, and the judge then issues the same ruling 90 days later.

But in this case, the arguments posed were just incorrect.  From our standpoint, Mr. Soluri just makes a series of bad arguments in his attempt to rescue a lawsuit that probably never should have been filed in the first place.

—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. Rik Keller

    I haven’t been following this case, so I don’t have opinions about its merits. The analysis in this article doesn’t help to shed much further light on it though.

    For example, there is no explanation as to whether the old General Plan projections were actually used in the EIR or not. If it is true—as the plaintiff claims—that only plan and policy language was changed in the Transportation Element update (and Greenwald presents no evidence that it is not) then the underlying outdated projections could have still been used. The two sides have competing claims on this issue and there was no attempt by Greenwald to figure out who is correct.

    It is also interesting that there seems to be a blatant false statement by the developer’s representative hiding in plain sight in the article that was not commented on—the extent to which the City actually enforces its noise ordinance. The representative claimed that the City does not, while there is an unnamed City source quoted who says that they do.

    1. Rik Keller

      If David Greenwald was interested in providing actual analysis of the arguments, he could have, for example, looked into what the City of Davis General Plan, Chapter  21 (Noise) actually says. There he would have found such information as:

      * “The major noise sources in the Planning Area are: roadway noise from traffic on Interstate 80, Highway 113 and arterial streets; railroad noise from the Union Pacific and California Northern Railroad…. Existing residential areas which are subjected to the highest levels of unmitigated roadway noise are residences in close proximity of Interstate 80 and along many arterial roadways.”

      * “Policy NOISE 1.1 Minimize vehicular and stationary noise sources, and noise emanating from temporary activities.
      a. The City shall strive to achieve the “normally acceptable” exterior noise levels shown in Table 19 and the target interior noise levels in Table 20 in future development areas and in currently developed areas.
      b. New development shall generally be allowed only in areas where exterior and interior noise levels consistent with Table 19 and Table 20 can be achieved.
      c. New development and changes in use shall generally be allowed only if they will not adversely impact attainment within the community of the exterior and interior noise standards shown in Table 19 and Table 20. Cumulative and project specific impacts by new development on existing residential land uses shall be mitigated consistent with the standards in Table 19 and Table 20.
      d. Required noise mitigation measures for new and existing housing shall be provided with the first stage and prior to completion of new developments or the completion of capacity-enhancing roadway changes wherever noise levels currently exceed or are projected within 5 years to exceed the normally acceptable exterior noise levels in Table 19.”

      *In Table 19, for the following two areas of existing/projected ambient noise levels at 60-70 dBA and 70-75 db, respectively, have requirements for detailed noise analyses.

      “CONDITIONALLY ACCEPTABLE: New construction or development should be undertaken only after a detailed analysis of the noise reduction requirements is conducted, and needed noise attenuation features are included in the construction or development.
      NORMALLY UNACCEPTABLE: New construction or development should be discouraged. If new construction or development does proceed, a detailed analysis of the noise reduction requirements must be conducted and needed noise attenuation features shall be included in the construction or development.”

      Based on this, my conclusion is that the defendent’s argument–that the General Plan policies that require a detailed noise analysis don’t apply–is false. Greenwald’s article already quotes an unnamed City official that states that the City does indeed enforce its noise ordinance. And the General Plan policies and implementation actions require a detailed noise analysis for areas that exceed the ambient noise level threshold of 60 dBA regardless of the source.

      1. Craig Ross

        Did you by chance read the 83 page Noise Report in the Draft EIR?  It appears that they did everything required including disclosing project specific impacts and mitigation measures.

  2. Craig Ross

    The problem with the noise ordinance argument is that the city has no control over the ambient level from a freeway and rail line- so whether the city enforces the ordinance or not, the argument is a bad one.  An awful one.

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