Will Judge Reconsider Trackside Tentative Ruling Based on FAR Arguments?

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

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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

    These articles on development cases would be more informative with a little fact-checking. For example, look at these two reported statements:

    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.


    The city countered the argument by noting that they do not believe that the design guidelines trump zoning in this case.

    It would a simple matter for Greenwald to actually look at the relevant City planning regulations and quote/summarize the contents with a brief analysis. Instead we get idle speculation about which way the judge might be leaning based on a few statements and questions (which, as any court reporter should know, can be drastically misleading).



  2. Bill Marshall

    The judge’s tentative decisions on development cases would be more informed with a little fact-checking… which he apparently failed to do.  

    Passing guidelines inconsistent with zoning, then saying they trump zoning (which is “ordinance”, not “guidelines”) without amending one or the other, is stupid and irresponsible.

    But the judge appears to ‘flip’ as often as some at the highest level of US Government. More S & I?

  3. Craig Ross

    I wasn’t very impressed with the judge’s tentative.  He says he understands the deference has to be to the city – we’ll see if he follows through.

  4. Ron Oertel

    From article:  “Ethan Walsh, representing the city, . . .”

    Just wondering if Mr. Walsh’s services (in the city’s ongoing battle against its own residents) is being provided “free of charge”, and/or if he might have better things to do – regarding representing the interests of residents and the city, itself. (Other than forcing an unwanted development proposal.)

        1. Alan Miller

          Hey RO:  not helping!

          I’m as against the current Trackside proposal as they come, but trying to state that a contracted City attorney shouldn’t represent the City on legal matters is a bit of a stretch of both common and uncommon sense.  A group of citizens sued the City, the City has an attorney represent them in court.

    1. Mark West

      “(Other than forcing an unwanted development proposal.)”

      The City approved the project so it is not ‘unwanted.’ You may not want it, but the City does.

      1. Ron Oertel

        Mark:  I wasn’t actually referring to myself, but perhaps it’s a problem if the “city” is spending time and money to fight groups of residents impacted by given proposals, especially when there’s significant resulting legal complications.

        David seemed to referred to the attorney as working for a contractor on behalf of the city, so I’m wondering how much the city has spent on this so far, and how much more they’re willing to spend.


        1. David Greenwald

          Probably most of the cost is picked up by their risk management insurance YCPARMIA. Beyond that, someone would have to make a request of the city to see.

          1. David Greenwald

            Correction: brainfart. The developer would usually pick up the city’s legal fees.

        2. Mark West

          “I wasn’t actually referring to myself…”

          Yes you were.

          “I’m wondering how much the City has spent…”

          As Alan M. Stated, the City was sued and the City’s Attorney was there representing the City’s interests. That is the way things work. There would be no waste of resources if not for the actions of a small minority of residents.

        3. Ron Oertel

          Mark:  “Yes you were.”

          Actually, I wasn’t.  As I’ve already stated.

          Mark:  “There would be no waste of resources if not for the actions of a small minority of residents.”

          Regarding which party initiated the “waste”, that’s debatable.  But, the probability was certainly foreseeable.

        4. Alan Miller


          You referenced my comment, and then turned it into your stance, something I would never say.

          Regarding which party initiated the “waste”, that’s debatable.

          See RO’s comment above, on that I do agree.

  5. Ron Oertel

    Alan M.  ” . . . but trying to state that a contracted City attorney shouldn’t represent the City on legal matters is a bit of a stretch of both common and uncommon sense.”

    I wasn’t suggesting that the city shouldn’t use attorneys for legal matters.  However, I understand that the city makes choices regarding which legal matters to pursue/defend. Surely, the officials who make such decisions must have understood some of the probable legal arguments and possible ramifications before the proposal was even approved.

    Still wondering how much the city has chosen to spend, on this particular pursuit. Hope it’s mostly covered by insurance, as David suggests above.

    1. Ron Oertel

      As a side note/honest question, I’m wondering if the city had a choice regarding whether or not to legally defend its decision, once presented with the lawsuit.  And, what ramifications that could have regarding its prior approval, regarding what the developer might do.

      Perhaps those complications are what others are essentially noting, on here. (If so, thanks for pointing it out.)

      If the city essentially had no choice when presented with the lawsuit, that places even greater importance on the initial approval decision.

      Also, does the developer in this case “team up” with the city, or is the city on its own? How does this normally work?

        1. Ron Oertel

          No – I wasn’t suggesting that.  But, I am wondering what choices the city (and developer) might have, when presented with a lawsuit.  As David has now clarified, developers apparently pick up (at least some) of the city’s legal costs, in such cases.  So, if that’s the case, I guess they’re o.k. with the city proceeding at this point.

          I suspect that the problems with Trackside could have been avoided, and perhaps still could be.  As it is, I view it as costly fighting over a single additional floor.  And yet, when you look at the small, surrounding houses, it’s easy to understand the neighbors’ concerns.

          Seems to me that some kind of viable solution might have been achieved, prior to this point.

          From a larger point of view, Trackside might be viewed as setting some kind of precedent, one way or another. So in that sense, perhaps it has larger ramifications.

        2. David Greenwald

          Can now confirm that the developer is picking up 100% of the costs.  Sorry about my initial response, was thinking about situations of civil liability.

        3. Ron Oertel

          David:  Thanks.  That is good news, as far as the city is concerned.

          If developers are generally paying for the costs, it seems like it would be largely up to them (regarding the city’s responses to legal challenges).

          It will be interesting to see what happens after a ruling is made.

      1. David Greenwald

        Ron: Of course the city had a choice – but why wouldn’t they defend the decision they made? They view this ruling as having a lot of consequences.

        1. Ron Oertel

          Perhaps goes back to my original question, regarding why the city is choosing to fight its own residents in the first place.  And, why some of those residents support officials who make such decisions.  (Even if developers pick up the tab on behalf of the city, while residents pay out-of-pocket).

          But you’re probably right about consequences.  And so far, they’ve probably been “unforeseen” – from the city’s point of view.  (Same thing regarding Lincoln 40, and the arguments regarding the need for an EIR as I recall.)

          I guess we’ll know with more certainty, in about a month from now.

          I’m more interested in the ramifications for downtown, as a whole. As you know, some believe it should be massively “residentialized”, based upon justifications that are highly questionable. But, the parking meter debacle probably hurt that effort to some degree, regardless.




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