Judge Stephen Mock two weeks after hearing oral arguments on his tentative ruling, on Friday issued a ruling that adopts the tentative ruling. He writes: “Having considered all matters submitted in the papers and on oral argument, the record of respondent’s proceedings in this matter, the file in this case, and the applicable law, the Court adopts the tentative ruling.”
That means he has denied the Petitioner request for judicial notice. He has denied her writ of mandate ruling: “The City of Davis, in certifying the Final Environmental Impact Report and approving a General Plan amendment, Gateway/Olive Drive Specific Plan amendment, affordable housing plan, lot merger, and other associated entitlements for the Lincoln40 development project, substantially complied with the provisions of the California Environmental Quality Act as set forth below.”
He also ruled once again that the project was not exempt from “CEQA as a sustainable communities project.”
Previous: Nearly Three Weeks after Court Hearing, Plaintiff Files Motion to Amend Lincoln40 Complaint
It has been nearly three weeks since Judge Stephen Mock heard arguments following a tentative ruling against the petitioner in the case of Susan Rainier versus the City of Davis on Lincoln40. Once before, attorney Patrick Soluri attempted to amend his petition regarding the noise complaints and the court denied his motion to amend.
This week he has filed another motion to amend, even though it would be heard well after the hearing on the merits.
The petitioner wants the complaint as regards to noise to now read: “The EIR fails to adequately analyze the Project’s noise impacts, as follows: The EIR fails to adequately assess cumulative construction and operational noise impacts. Ambient noise levels at the Project site exceed General Plan thresholds. The Project-adjacent Union Pacific tracks and Amtrak station contribute to a heightened noise level at the Project site. Under such circumstances, CEQA requires an agency to assess whether a Project’s additional noise should be considered significant in light of existing levels.
“The EIR failed to estimate cumulative noise at sensitive receptors, and only considered construction noise impacts. The failure to engage in a meaningful cumulative noise assessment renders the EIR defective.”
This motion comes after Mr. Soluri argued, during the rebuttal portion of oral arguments, 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.”
But as many quickly noted, the ambient noise is coming from the freeway and occasionally railroad traffic, which the city has no control over.
Attempting to correct the record, the petitioner wants “to include an addition subsection under its First Cause of Action for violation of the California Environmental” whereby the petitioner alleges that the city’s Final EIR “failed to adequately analyze the Project’s cumulative noise impacts.”
The city in response argues that the motion is “late, meritless and should be denied.” They argued that this is simply the “Petitioner’s not-so-veiled attempt to plead around the Court’s Tentative Decision.”
The court, following the March 22 issuing of the tentative ruling, denied the petitioner’s ex parte application to file Second Amendment Petition, though they note: “trial court never heard actual motion after it properly denied ex parte application…” to amend “due to lack of diligence and because it was brought too close to the trial date..”
The city claims the motion “smacks of gamesmanship, undercuts the tentative ruling system, and wastes the resources of the court and opposing parities.” The city further argues that the petitioner “unnecessarily and unreasonably waited until the eve of the hearing on the merits, after this court issued its tentative ruling, to file its Motion.”
The city adds, “Petitioner did not address her failure to plead a challenge relating to cumulative noise impacts at any point prior to this court’s issuance of its tentative ruling on March 22, 2019.”
In response, the petitioner notes that the city and real parties of interest “do not take the opportunity to provide arguments specific to this motion, instead attaching their opposition to the OST as an exhibit and leaving it at that. The City and Real Parties arguments are thus unconvincing, fail to present legitimate arguments, and their opposition to Petitioner amending her petition remains disingenuous.”
They argue that granting the petitioner leave to amend “would not cause delay or prejudice.”
Instead they argue that the city’s conduct “demonstrates that it is not actually concerned with undue delay or prejudice.”
Instead: “Their significantly greater concern is avoiding adjudication on the merits of as many issues as possible. The City and Real Parties claimed that Petitioner failed to exhaust on every single issue raised in her opening brief.”
The petitioner responds: “By raising such dubious procedural claims, it is legitimate to question whether City and Real Parties would have ever been satisfied with the timing of Petitioner’s motion.”
Here they call the city and real parties, “frankly hypocritical.” They argue, “For the City and Real Parties to claim that granting Petitioner leave to amend would cause undue delay is confusing at best and a bad faith argument at worst.”
The court will hear this motion on Wednesday morning in Department 12.
—David M. Greenwald reporting