Judge Hears Arguments on Nishi Suit, Inclined to Stick with Previous Ruling

Judge Peter Williams listened to approximately 90 minutes of arguments by both the petitioners represented by Patrick Soluri and defendants represented by former Davis City Attorney Harriet Steiner and Sabrina Taylor representing Nishi.  While he will take the matter under advisement and plans to come forward in two weeks with a final decision, he said he was inclined to stick with his tentative ruling denying the writ by Mr. Soluri and his clients.

Mr. Soluri was allotted about 45 minutes to make his presentation, where he raised a number of issues.

On the affordable housing issue, he argued that this was not simply an issue of the timing of the approval.  Here he argued that the city failed to change the affordable housing ordinance prior to their approval of the Nishi project, where they approved 15 percent affordable housing rather than the 35 percent required under law.

He argued that they had three options to rectify the situation, but “they didn’t do any of these.”

Mr. Soluri argued that instead they approved it and put it to the voters before revising the ordinance.  This he called a prejudicial abuse of discretion and it was never properly submitted to the voters.

Second he argued that the affordable housing project discriminates against families.  Here he disagreed with the judge’s ruling that found they needed to be able to able to show disparate impact.  Mr. Soluri disagreed and said this wasn’t a disparate impact standard – he said they made a facial challenge showing that this creates actual discrimination against families, therefore disparate impact is irrelevant.

The issue he found is that they rent by the bed and require the tenants to show that they are full time students.  Thus a family would not be able to move in with a child and rent an affordable unit by the bed.

In terms of their CEQA (California Environmental Quality Act) challenge, Mr. Soluri then argued that the EIR (Environmental Impact Report) failed to account for changed circumstances and that they need to update the EIR to account for the 5000 to 6000 additional vehicle trips each day.

He argued that the addendum never showed the impact of 12 additional projects on the change of conditions.  He argued that there was no meaningful cumulative analysis.

He further pointed out that the city’s own expert tells the city that they need to update their analysis to look at these changes, but the city “just didn’t do it.”

Finally Mr. Soluri disagreed with the judge that the issue of health risks is outside the burden of CEQA.  He insisted CEQA demonstrates that, because the project exacerbates existing conditions, this brings this into a CEQA issue.

He said the standard is that if they can show that the air emissions can lead to significant health risks, then new case law requires that analysis.

Former Davis City Attorney Harriet Steiner was back defending the lawsuit for the city.  On the issue of the timing of the Affordable Housing Ordinance, she pointed out that there was a change required in the AHO.

The item came concurrent with the council approval of the project.  They had their first reading on February 6, 2018, the second reading on February 26, 2018 and it became effective on the 30th day, March 22, 2018.

She then noted that in order for the Development Agreement and project to be finalized along with the affordable housing plan, it had to go to the voters.  “It was not effective until approved by the voters,” she argued.

Thus the final approval did not take place until June 5.  At that point, the affordable housing ordinance update had been in place for nearly three months.

“This was the appropriate order,” she argued.

Ms. Steiner, on the fair housing issue, attacked the standing of the plaintiffs to sue on this point.  Judge Williams had ruled that they had standing and didn’t seem inclined to change it.

Ms. Steiner also noted that the affordable housing ordinance carries a catch-all, that it must comply with all state and federal fair housing laws and thus this puts the onus on the developer when they attempt to rent to be in compliance with those laws or they must change it.

The proper process, she argued, echoing arguments on the West Davis project, is that the aggrieved person would have to sue at the time that they attempted to rent an affordable unit and were denied.

Sabrina Taylor addressed the CEQA concerns.  She argued that the project was anticipated back in 2014 when the Housing Element was put into place and noted that a large amount of growth was already baked into that EIR.

She said, if anything, the current project has a reduced impact over the original EIR.  She noted that this project has reduced parking and even more bike parking than the previous project.

The standard here is to look at the addendum, not the already approved EIR.  This project will generate about 5 percent fewer trips than the approved EIR.

Mr. Soluri then countered that the city was ignoring their own consultants’ recommendation to do additional review, and they did nothing.

Ms. Taylor responded that the city did a number of analyses and found that there was no change in circumstances from the original EIR.  They looked at 12 different intersections and only found that one was worse – and it was slightly worse and still within the city’s threshold.

Judge Williams again noted that he was leaning toward confirming his tentative ruling.  He will re-read the CEQA requirements and expects to return with a final ruling in two weeks.

—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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