Nishi Petitioners Attempting to Add Cause of Action

Earlier this week, the parties were in court, where Nishi is the latest project being challenged.  The petitioners, a group calling themselves the Davis Coalition for Sensible Planning, with named petitioners including Susan Rainier and Colin Walsh, who filed suit back in March 2018, are attempting to amend the suit to add a new cause of action.

On Tuesday, Yolo County Superior Court Judge Peter Williams tentatively approved the move to amend the petition.

City Attorney Harriet Steiner pushed back in court, arguing that it would be prejudicial given the need to alleviate the housing shortage in Davis.  Such a move, she believes, would delay the hearing on the merits to perhaps as late as August.

In court she argued, “We believe that the issues that are raised… were known to the petitioner 13 months ago.”

The suit filed by Patrick Soluri, who recently lost a similar suit against Lincoln40, has now attempted to add a cause of action which argues that Nishi’s affordable housing component which rents to students by the bed violates fair housing laws by discriminating against families.

In the suit, he argues that there are a “disproportionate number of residential projects being proposed and approved by the city of Davis that are intended to serve university students and not working families.”

It raises concerns that the city has fulfilled state-mandated affordable housing obligations “with student housing and not housing that is available to working families.”

The city, he said, does not want to argue on the merits of this cause of action.  And he blamed the city for the delays, arguing “the city took months and months and more months to provide us with the documents to prepare the administrative record in the case … If we’re pointing the finger in terms of who is the party responsible for the delay, it’s the city.”

The city in their response, attacked the Second Amended Petition as “untimely.”  Here they argue that the ill-timed motion has necessitated the need for the city and real party to respond to and have a hearing on the motion, “unnecessarily wasting both the City’s and Real Party’s… time and resources to address Petitioner’s request…”

They argue that these costs “by themselves prejudice the City and Real Party.”

While the petitioner claims this is in the “furtherance of justice,” the city responds that “this is a disingenuous claim because Petitioner had the opportunity to, and already did, respond to and address the City’s and Real Party’s arguments when it filed its Reply Brief.”

The city points out this is not just a “clarification” as characterized by the petitioner, but rather, “Petitioner seeks to add… substantive changes, essentially changing the Third Cause of Action to add new causes of action…”

They argue these new allegations “are an attempt to sidestep the arguments that the City and Real Party made in their Opposition Brief.”

The city further adds that “any delay in resolution of this litigation has significant and real world consequences given the City’s existing highly constrained supply of housing.”

They add that the only explanation for this late request which occurred on the eve of the hearing on the merits “is that Petitioner is scrambling to save its case by making this last-ditch effort to plead new causes of action.”  They add, “Petitioner cites to no legal authority for this baseless claim – because there are none.”

In the original petition, the petitioner challenged the council’s February 6, 2018, decision to certify the EIR on the grounds that the revised project is sufficiently different from the 2016 Original EIR approved in February 2016.

The petition notes: “The Revised Project omitted all 325,000 square feet of research and development uses, increased the bed count associated with residential uses by approximately 250, replaced the for-sale housing with rental units, and modified the site’s access such that primary access would be through a railroad undercrossing between UC Davis and the Nishi Property.”

In January 2018, “the City released the EIR Addendum (SCH # 201512066) in which it determined that the Original EIR adequately assessed the impacts of the Revised Project and that there were no changed circumstances or new information that would require preparation of a subsequent or supplemental EIR, or recirculation of the Original EIR.”

The petitioner argues that there is new information and new circumstances which have become available and which constitute a change of conditions and should necessitate a new or revised EIR.

They argue that “the revised project will create new significant impacts on the environment that were not previously identified,” and “the revised project will create a substantial increase in the severity of a previously identified significant impact,” and “there is new information of substantial importance that was not previously available, which shows a new significant impact, substantial increase in the severity of previously identified significant impact, or mitigation measures that were not considered would substantially reduce one or more significant effects on the environment.”

They argue, “A lead agency’s findings that a supplemental or subsequent EIR is unnecessary must be supported by substantial evidence in the record.”  Therefore, the city’s action “constitutes a prejudicial abuse of discretion in that the City failed to proceed in the manner required by law and failed to support its decision with substantial evidence.”

They list a number of failures to adequately disclose, analyze and mitigate, and then they argue, “The City further violated CEQA by adopting findings that are inadequate as a matter of law because they do not contain the findings required when approving a project based on a supplemental or subsequent EIR, and because they are not supported by substantial evidence in the record.”

They add, “As a result of the foregoing defects, the City prejudicially abused its discretion by proceeding with an EIR Addendum and approving the Revised Project in reliance thereon.”

—David M. Greenwald reporting