Last month, Judge Sam McAdam ruled against the city and for the plaintiffs on the challenge by the Old East Davis Neighborhood Association to the Trackside approval. The city disagreed with the ruling by Judge McAdam, who concluded that this was a transition area, and based on the totality of the circumstances in reviewing the entire record, he concluded, “Trackside is not consistent with the City of Davis planning provisions governing the transition between the Core Area to the Old East Davis neighborhood.”
He writes: “Nothing in the Staff Report or record rationally explained how a 47,000 square foot building constituted a transition project.”
But in the court arguments on Monday in front of Judge McAdam, attorneys for the city as well as the developer argued that the FAR (floor area ratio) was in compliance with city codes and the size and mass of the building simply reflected the large size of the lot.
Ethan Walsh, representing the city, told the judge, “The opportunity sites are specific sites within the city that were identified as a means to help the city achieve the goals of the Core Area Specific Plan (CASP) to add housing to the downtown area.”
The requirement at these opportunity sites is for housing at 40 units per acre in addition to being a mixed-use site.
Judge McAdam acknowledged that, in his ruling, he did not “process” the importance of this issue.
Don Mooney, representing the neighbors, noted that the average density should be 40 units per acre: “It’s not required that it be 40 units per acre, the goal is there be an average over those 20 sites.”
Judge McAdam told the parties the core question for the court is how having the largest building in the downtown in a transition area was consistent with the general plan.
Mr. Walsh pointed out that the transition zone is within “a building that is going to be there for a very long time.” He said they are transitioning between what is envisioned in the planning documents for the city and what is in the Old East Davis neighborhood.
He said, “They are transitioning between the downtown and the city through stepping back the building and looking towards the larger downtown.”
He pointed out this is a larger lot and the city is looking at this in terms of Floor Area Ratio (FAR). He said that “if you include the leased area, it is within what’s expected for mixed-use areas for the city.”
Mr. Walsh explained that they dealt with the transition through “stepping back” – by which he explained they would be closer to the scale of the neighbors on the Old East side and closer to a dense more intense use on the downtown side. “That’s the way they dealt with transition,” he said. “We think that’s a reasonable way…”
The FAR of the building is 1.59. The limits in the zoning are 1.5 – however with density bonuses for having a plaza and underground parking, it could raise the limit up to as high as 2.0. Without the underground parking, it is at 1.7.
Mr. Walsh continued: “The size of the building, that’s really a zoning issue…. This is consistent with the zoning for that site.” He added, “What you use the design guidelines… to design the project in a way that minimizes the impacts… They gradually stepped it back.”
Matt Keasling for Trackside argued that the site is more than just a transition site. “There are several layers as to what this is,” he said. He said that in the planning documents you achieve transition “by stepping back at the upper levels.”
Don Mooney argued that this comes down to the fact that “we’re on a transition lot” and the city is ignoring “the fact that the neighborhood that you’re transitioning from ideally should not be changing.”
The plan contemplates two to three stories and “we have a four-story building,” he argued. “Even the mayor in his comments acknowledged that what’s supposed to be in this corridor area is the two to three stories.”
Whether or not it’s consistent with the zoning is not the issue, he argued. “The issue is whether or not the building fits within that transitional zone.”
Mr. Mooney raised the issue that the FAR was contingent on the leased land – but argued that lease can go away at any time. “The Floor Area Ratio will increase (dramatically) if that leased land is removed,” he said. “It can be revoked (with notice).”
Another question that arose is whether one way to deal with size and mass would be to break up the building. The judge asked whether that was required by the planning documents.
“They still don’t… get that fourth story,” Mr. Mooney said. “That fourth story takes it out of the scope of those planning documents.”
Judge McAdam responded, “There are four story buildings nearby,” and he said, “I’m not sure going to the fourth story was dispositive. It’s one factor to consider among many.” He pointed out that his ruling was based on mass and scale rather than necessarily the fourth story.
Mr. Walsh, when asked about the materiality of it being a transition area, acknowledged that “it’s certainly relevant that it’s a transition area. I don’t think it trumps all the other policies that apply on this site.”
Mr. Walsh pointed out “the specificity is all in the design guidelines. The design guidelines are not trumped by the other documents.”
Judge McAdam read from a planning document that “concerns arise that these infill projects not have a negative impact on smaller scale buildings.”
Mr. Walsh pointed out that was from the Specific Plan section called “infill development in residential neighborhoods.” He said, “This is not a residential neighborhood.” He said it was adjacent, but not itself a residential neighborhood.
Mr. Keasling, in addressing the issue of whether they would be mandated to break up a building, said his answer was no, that “the size would be addressed by FAR.” He said, “This project is well within it.” He added, “That is controlled by the zoning code…. The size is really not an issue if your just looking at the controlling documents… none of those limit the square footage of this structure.”
He added that “new buildings are undoubtedly going to be larger.”
Don Mooney responded that the planning documents “talk about breaking up the perceived mass of the building by dividing the building into modules or into separate structures that are similar to buildings that are seen traditionally in the neighborhood.” He added that “separate buildings is encouraged.”
He said this was a legal basis for requiring the buildings to separated.
Judge McAdam noted that “there is evidentiary support for a reasoned design by the council.”
In response to the FAR issue, Mr. Mooney had two responses. First, the Davis Municipal Code indicates “the stricter shall apply.” He said if the building is not consistent with the guidelines then the design guidelines become the more controlling over FAR.
He said that “even if the FAR is consistent with zoning, the project’s not consistent with the design guidelines.”
His second point was tha “all of this depends on the leased land.” He said there was no guarantee that the lease would stay in place. However, Judge McAdam shot him down, and said “nothing in the record indicates that that lease is going to be rescinded. It’s speculation. The court’s not in the speculation business.”
Mr. Mooney responded that “it creates uncertainty.”
Judge McAdam responded that “there is no evidence that the railroad would exercise that right any time soon.”
The city countered the argument by noting that they do not believe that the design guidelines trump zoning in this case.
Judge McAdam agreed. He said, “I tend to agree.” He said that “it’s highly relevant and it shouldn’t be ignored.” But he added, “I don’t believe a single issue is dispositive.”
The new issue that he seemed to consider is the importance of the FAR.
Judge McAdam emphasized, “The court is well aware of the standard here… The court has a deference standard here.” He said that people have a level of expertise who have looked at this and the court is not substituting for that expertise. Instead, he stated that “everything has to be supported by the record” – he said the court tried to identify specific facts in an objective way.
Mr. Mooney, on behalf of the neighbors, asked for the judge to rescind the approval, and issue a writ requiring them to address the problems in the ruling before they can approve a new project. Judge McAdam noted he received the briefings on March 25 and will attempt to issue a ruling within 30 days of that date.
—David M. Greenwald reporting