Judge Denies Nishi Suit in Tentative Ruling

Barring a hearing today, it appears that Judge Peter Williams has denied the petitioner’s attempt to stop the Nishi student housing project.  If the decision by Judge Williams holds, this would be the second land use suit filed by the Soluri Law Firm on behalf of Susan Rainier that has gone down to defeat, with Lincoln40 having been affirmed earlier this year and the deadline missed to appeal.

In March of 2018, in the middle of the Nishi campaign for approval under Measure R, Davis residents Susan Rainier and Colin Walsh were named individuals behind the suit.  Despite the suit and claims by opponents about the air quality of the Nishi site, voters in June 2018 overwhelmingly approved Nishi.

The petition challenged the council’s February 6, 2018, approvals on CEQA grounds, arguing that “members of Davis Coalition for Sensible Planning are residents of the City of Davis and have personal, community and environmental interests that are directly and adversely affected by the City’s approval of the Revised Project and issuance of the Notice of Determination (‘NOD’).”

In an email to the Vanguard, Ms. Rainer stated, “My concerns are clearly stated in the No position on the ballot.”

She argued, “It is not fit for human occupation.”  Ms. Rainier added, “It would be a fabulous place for (a) sun-tracking photovoltaic array that would be in the Community Choice Aggregate portfolio.  Being bound on all sides by freeway and railroad would prevent theft and hook up to PGE high power (which) is right there.”

But Judge Williams denied claims of insufficient affordable housing, air quality and other concerns in a brief written ruling on Monday.

According to that ruling, “The project provides the amount of affordable housing as required by the City’s affordable housing ordinance.”  He notes, “Even if Ordinance No. 2525 was effective after the affordable housing plan was approved, petitioner has not shown that the City’s action was ‘arbitrary, capricious or entirely lacking in evidentiary support,’ as Resolution No. 18-023 and Ordinance No. 2523 were expressly conditioned on the outcome of the election.”

Judge Williams noted that the petitioner does have standing to bring forward an unlawful discrimination claim, however he rules that “petitioner has failed to establish that the project unlawfully discriminates based on familial status.”

Here they had argued that Nishi’s affordable housing component which rents to students by the bed violates fair housing laws by discriminating against families.

The petitioner added 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.”

But the judge rejected this claim, arguing that under existing case law the plaintiffs were required to show that the policy caused “a significant disparate effect on a protected group.”

On the EIR, Judge Williams ruled that the petitioner “has not shown that the City failed to proceed in a manner required by law.”  Here he writes, “Petitioner does not cite a portion of the administrative record where evidence was presented that the proposed developments would cause a new or substantially different cumulative impact from the EIR.”

Furthermore, he noted, “Petitioner has failed to establish that the City’s decision to prepare an addendum, regarding cumulative impacts, is not supported by substantial evidence.”

Here he cited case law noting, “A party challenging an agency’s decision under section 21166 has the burden to demonstrate that the agency’s decision is not supported by substantial evidence and is therefore improper.”

On the transportation impacts, he ruled the same, that they failed to establish a basis for their claim that the city’s decision to prepare an addendum “is not supported by substantial evidence.”

Here Judge Williams notes that “Petitioner has not provided sufficient legal authority that City must analyze traffic impacts or disclose modified delay figures in the addendum, based on revisions to the project. The City did not improperly rely on the general plan in the addendum.”

Finally, with regard to the air quality issue, Judge Williams writes, “Petitioner has not provided new information indicating that the project would cause an exacerbation of existing environmental hazards or conditions.”

Case law here is pretty clear.  From the 2015 California Building Industry Association versus Bay Area Air Quality Management District case, “it is the project’s impact on the environment—and not the environment’s impact on the project—that compels an evaluation of how future residents or users could be affected by exacerbated conditions.”

There will be a 9 am hearing on the tentative ruling.  If Judge Williams maintains his ruling, the petitioners would still have the ability to appeal the decision.

—David M. Greenwald reporting