In a recent column that has attracted some attention, Bob Dunning argues that Judge Samuel McAdam ruled correctly on Trackside and suggests that the city ought not “blame the judge for the law.” My problem – and I think the city has a similar view – is we don’t think the judge got the law right in this case.
Bob Dunning calls the ruling by Judge McAdam a “well-reasoned decision” and quotes from the ruling that “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 then quotes Dan Carson responding, “The ruling is a disappointing setback that undermines the authority of city officials to make difficult and complicated, local land-use decisions.”
Bob Dunning in effect compares Dan Carson’s well-grounded comment to President Trump, writing, “Carson, of course, can say what he wants, as can President Trump and anyone else who doesn’t like a judicial outcome.”
Comparisons to Trump are quickly becoming the new Godwin’s law, which is an internet adage that asserts that all discussions devolve to a comparison of Hitler. From my perspective, comparing a dedicated local public servant to President Trump – especially in a community like Davis – is hitting below the belt.
While I have agreed with Councilmember Carson on a number of occasions in the past, I think he’s essentially right. As we will argue, the law defers a great amount of authority to local communities for land use decisions and my problem with Trackside is that the judge subjectively usurps some of that authority in invalidating the project’s approval.
Bob Dunning responds: “McAdam’s ruling was all about local control. He was merely telling the city in very reasonable terms that it is required to follow its own guidelines. Rather than undermining and hindering the city, he was simply pointing out where Trackside was deficient.”
The problem is that Bob Dunning kind of leaves out some pretty important stuff.
As I noted a few weeks ago in my Sunday Commentary, I come down in a very similar position as Mayor Brett Lee.
“Although I voted against the Trackside project, I believe the City Council does have discretion to decide as it did on this development issue,” said Davis Mayor Brett Lee. “I am surprised that the court felt otherwise.”
Like the mayor, I opposed Trackside in the fall of 2017. Like the mayor, I do not believe that Judge McAdam got this one right.
The problem that Bob Dunning completely ignores is the standard of review, which is the crux of the city’s argument along with the issue of FAR (floor area ratio).
As the judge explained in his own ruling: “The proper standard of review is abuse of discretion.”
He wrote, “Under this standard, the Court must defer to the factual findings on consistency of the City unless no reasonable person could have reached the same conclusion on the evidence before it.”
“No reasonable person” is the standard. So that means four of the five Davis City Councilmembers were unreasonable in granting this (and even the fifth, Brett Lee, believes that the city had the discretion here). That means none of the city staff were reasonable. None of the dozens of community members who supported this project.
The reasonable person standard creates a high bar and Judge McAdam subjectively argues that the city violates it by going too large. In order to violate a reasonable person standard, the law can’t be subjective and here the problem with Trackside is, while yes it is a large building, with size and mass that exceeds other buildings, it’s also on a larger parcel which exceeds the size of other parcels.
There is a way to evaluate size and mass within the confines of parcel size. That metric is FAR.
The city presents what I think is a compelling argument that basically this is a larger lot than usual and, therefore, instead of mass and scale, we should be looking at floor area ratio.
Floor area ratio is the relationship between the total usable floor area and the size of the lot on which the building is located. A higher ratio means that the building is more dense. Higher buildings are going to have a higher ratio.
What the city is arguing here is that the FAR of Trackside is within the guidelines specified in planning documents and the only the reason that the mass and scale are larger than other buildings is that Trackside sits on a larger lot.
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.
Again, Judge McAdam rejected that argument, but is that objective or subjective?
Of course, none of these points in dispute get any airing by Bob Dunning.
Bob Dunning then plays judge and jury when he writes: “Can the city can appeal? Of course it can, but it will likely lose, given the depth and detail of McAdam’s ruling. The end result will be a loss of both time and money.”
What’s his legal basis for that viewpoint? The city very clearly believes that the judge overstepped his authority in ruling as he did. Based on the discussion during the oral arguments following the tentative ruling, Judge McAdam acknowledged he had not considered the FAR argument, which actually puts the project within the acceptable range of size according to the city’s zoning.
He uses the transition zone argument to overrule the city, but if the city is in fundamental compliance on FAR it is hard to argue that their approval marks an unreasonable departure from city planning documents.
That said, as I previously argued, the city is better off not continuing this fight. I think they made a mistake from the start approving this project prior to revisions to the Core Area Specific Plan, but that does not mean that the judge got this ruling right.
—David M. Greenwald reporting