Judge Stephen Mock already ruled mostly in favor of the city and the developer a few weeks ago in denying the writ filed by Patrick Soluri, attorney for Susan Rainier. While the judge also denied that the project was exempt under CEQA (California Environmental Quality Act), he ruled that, under a substantial evidence standard, the city’s EIR (Environmental Impact Report) was sufficient.
Was the Project CEQA Exempt?
Attorney Patrick Soluri, despite the fact that the judge had already ruled on their side on the Sustainable Communities exemption, made the argument that this was simply a last minute ploy to cover up for an insufficient EIR.
“Even the final EIR doesn’t purport to include this sustainable communities exemption, it’s only at the 11th hour,” he said. “It was even properly noticed… The only public notice was that an EIR would be certified, no exemption.”
He argues that the city relies largely on “this PowerPoint,” and he argues “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.”
Andrew Skanchy, the attorney representing the city, during his time took except to this notion.
He disputed that there was some sort of attempt at the last minute to hide behind the environmental review. “That was not the case,” he said. “In the staff report, the city prepared a 30 page analysis of the exemption, and how the city fit within the statutory exemption requirements.”
He noted, “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.
He disputed that the only reference was in the PowerPoint but noted, “The staff report contained extensive analysis of the statutory exemption.”
Patrick Soluri during his rebuttal time that he reserved, explained that if the city’s position was accurate, “there would have been some discussion in the draft EIR that alerted the public – or the final EIR for that matter – that indicated ‘hey folks, we’re doing an EIR, but really, it’s not required.’
“There was nothing like that,” he said. “It was literally at the 11th hour that the city determined it was going to rely on the exemption.”
Did the city adequately analyze traffic impacts?
Patrick Soluri argued that there were two ways that EIRs analyze traffic impacts of a project and he argued, in this case, the city got both of them wrong.
“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.”
Because of this, he claimed, the city used the list approach as well. He said this was an implicit acknowledgment “that there were problems in the general plan’s growth projections.”
He argued that “it omitted really important projects” and “more importantly traffic implications from those large projects that will lead to additional congestion that just was not accounted for in the EIR.
“These underlying assumptions… are in accurate because they’re based upon outdated recitations of the projects in the study area,” he said.
Which projects? One of them is The UC Davis Long Range Development Plan, which he says will bring 11,000 people to the area.
“These are adding 1000s of additional vehicle trips,” he argued, and they didn’t include it in their analysis of the cumulative traffic impacts.
Chris Butcher, who represented the developer, tag-teamed with the city in responding to the petitioner, Mr. Soluri.
He argued 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.”
He pointed out that new laws preclude the analysis of auto delay for EIRs. The petitioner, he said, incorrectly argued that the city omitted additional projects it should have included, that if they had additional auto delay would have been caused.
“Pursuant to the new section, this auto delay is not evidence of a significant transportation impact,” he said. He pointed to this language: “[l]and use projects within one-half mile of a major transit stop or a stop along a high-quality transit corridor should be presumed to have a less than significant transportation impact. “
Judge Mock asked Soluri about more information regarding the traffic update.
Mr. Soluri responded, “Yes that element was updated. But all that it did was update plans and policies.”
He added, “There was never any update to development projects, none.”
One of the key points made by the city in response to this lawsuit is that many of the objections raised by Ms. Rainier in her complaint were not administratively exhausted prior to litigation.
For the city, this is not simply a technical point as Mr. Skanchy argues, but rather a fundamental point that, without raising reasonable objections, the city has no way to respond without litigation.
For the plaintiffs, the issue was raised that the city attempting to raise the exhaustion argument was an attempt to hide behind a procedural defense.
“Exhaustion is essential,” Mr. Skanchy argued. He pointed out that often public commenters will raise “very generic comments” – then opposing counsel comes in “and makes a very detailed argument that the city has never had a chance to address during the administrative process.”
He said, “The point of requiring exhaustion is so that the city can avoid litigation. If they’ve never had a chance to review these extensive very technical arguments opposing counsel is raising during the administrative process, they have no opportunity to avoid the litigation.”
Instead, they are forced to litigate “in an ambush style, gotcha litigation.”
Mr. Skanchy argues that the examples raised by the petitioner do not exhaust the points being raised.
One example was the re-circulation argument, that the EIR needed to be re-circulated because new information was added. He argued, “He had one citation to demonstrate exhaustion of that argument.”
He argued, after reading the comment, “There was no statement, please circulate the EIR because there is new information.” He added, “The city did not have the opportunity to respond.
“As a result,” he argued. “That argument was not exhausted.”
He argued that “that’s an example and it’s true for almost every one of their citations to demonstrate exhaustion.”
On habitat loss, he noted the petitioner argued that “the cumulative habitat loss was inaccurately analyzed in the EIR because mitigation to address construction activities does nothing to address habitat loss.”
Mr. Skanchy pointed out that this was “an excellent argument” but “it was not” exhausted.
“The city did extensive analysis of this, they need to know why people think it’s inadequate. If they don’t know that, they can’t correct it. CEQA is intended to be a collaborative process between the public and the lead agency,” he said.
Exhaustion is critical and exhaustion did not occur here,” he added.
Mr. Soluri has a different take, of course.
“The standard for exhaustion is not as Mr. Butcher has suggested,” he said. “The standard was whether the exhaustion was fairly applied of the issue.”
He argued that citizens are not experts or land use lawyers, “and to require the level of precision suggested by the city here would stifle any kind of opportunity to challenge projects going forward.”
He read, “Less specificity is required to preserve an appeal on an administrative issue than a judicial one.”
Sufficiency of the EIR
The basic argument raised by Mr. Soluri is the insufficiency of the EIR. One area where he demonstrates this is with the lack of soil studies.
“It’s important to note that the draft EIR contained no analysis at all about the JF Wilson facility,” he said. “There is no evidence that the Draft EIR discussed this issue at all, it was solely in the final EIR.”
Planning Commissioner Marilee Hanson had asked, “What analysis will be done about the newly found plume issue?”
“The final EIR comes out with a completely new analysis of this issue,” he said. The problem, he said, was that all that was looked at was soil vapor, rather than general soil contamination. “These were issues that were just not addressed in this soil vapor study.”
He argued, “The substantial evidence standard is not the appropriate standard because we have a whole issue that was just overlooked.” He argued that it was unquestionably overlooked in the Draft EIR, “in the Final EIR, it just doesn’t analyze these other possible exposures and exposure pathway.”
He argues this court should apply the independent judgment review rather than the substantial evidence standard.
Even if the final EIR cured the deficiencies of the draft EIR, he added, “recirculation was required.”
Chris Butcher, representing the developer, disagrees – believing that the points are addressed in both the Draft and Final EIRs.
“All the petitioner’s points are addressed in the EIR,” Mr. Butcher stated. “They’re simply arguing they weren’t addressed in the fashion that they should have been addressed.”
Here, he said, the petitioner merely disagrees with the conclusions in the EIR “and argues that additional tests or methodologies should have been used.
“Those are substantial evidence question, which this court concluded, and under the substantial evidence standard of review, the EIR more than complies with the law.”
Mr. Butcher went on to do a very thorough rebuttal of each of the petitioner’s points.
For example, with respect to the contamination plume, Mr. Butcher said, “The EIR adequately evaluated the potential health impacts associated with existing contaminated water located approximately below the ground surface.”
He argues, “The city does address this issue. The petitioner just believes it should have been addressed differently.”
Mr. Butcher went through in great detail all the studies done with respect to that and concluded that “the project would not mobilize contaminants in the soil vapor or the groundwater.”
He argued that in contrast to the petitioner’s claims, this is not solely contained in the final EIR. He added, “Addressing further issues in the final EIR does not render an EIR invalid.”
He also argued that there was an analysis of soil, in contrast to claims by the petitioner. He noted a 2016 study which found, “No TCE in the soil” – the summary is in the draft EIR.
The petitioner argued that because that study was just north of the site, it wasn’t good enough. They had to do one on the site.
“That’s not the law your honor,” he responded, citing additional case law to back up his point. “An expert can make a judgment on existing evidence without further study…”
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, 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, that the city doesn’t enforce its noise ordinance on noise.
“That’s actually completely incorrect,” he said. “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 straight forward.”
With that, both sides rested and Judge Mock will take the matter under advisement.
—David M. Greenwald reporting