It was just two months ago in January that it appeared Nishi was headed to appeal and the process would take another six months to a year. No one appears to know why, but this week, the case appears to have ended.
The notice from the appellate court reads simply: “3-18-2020, ‘Abandonment’” noting that as of March 19, 2020, the disposition was “final” and that this was filed in the trial court on March 13.
Davis City Manager Mike Webb confirmed that the appeal was over in a text.
“Don’t know why,” he said. He informed the Vanguard that the city had switched attorneys in part due to the switch from Best Best & Krieger to Richards, Watson & Gershon—following a change in city attorneys last June where Harriet Steiner retired as lead city attorney after 33 years and the city replaced her with Inder Khalsa from RWG. The attorney who would have handled the appeal was Peter Pierce.
The Vanguard received no response as of publication time from Peter Soluri—although there may have been a change there as well.
On January 14, the City announced that the petitioners who lost at trial court last fall would appeal Yolo County Superior Court Judge Peter Williams’ decision denying the petition on the basis that the “petitioner has failed to establish that the project unlawfully discriminates based on familial status.”
It has been 21 months since Nishi became the first project to pass a Measure R vote in June 2018, when it won overwhelmingly by a near 60-40 margin.
However, Judge Williams denied their petition on all grounds. He ruled that the petitioners failed to establish that the EIR did not account for changed circumstances by a failure to update the EIR to account for the 5000 to 6000 additional vehicle trips each day.
Judge Williams also noted: “Petitioner has failed to establish that the City’s decision to prepare an addendum, regarding transportation impacts, is not supported by substantial evidence.”
In their arguments, plaintiffs’ Attorney Patrick Soluri argued that the affordable housing project violated fair housing principles by discriminating against families.
Mr. Soluri also countered that the city was ignoring their own consultants’ recommendation to do additional review, and they did nothing.
Mr. Soluri also argued the judge wrongly ruled that the issue of health risks is outside the burden of CEQA (California Environmental Quality Act). Here he argued that there is evidence the project exacerbates existing conditions, and this brings it 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.
However, this did not move Judge Williams, whose ruling remains: “Petitioner has not provided new information indicating that the project would cause an exacerbation of existing environmental hazards or conditions.”
He notes from case law that “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.”
The Nishi 2.0 project is a 700-unit, student-oriented apartment complex project, providing 2,200 beds, on a 47-acre site located between the University and Interstate 80. The city council approved the project in February 2018, contingent on voter approval. In June 2018, the voters approved the project with 60.6 percent of the vote.
The appeal was filed on December 2, 2019—this time within the statutory timeframe, unlike Lincoln40 which was filed too late and thus dismissed with prejudice.
“We as a City make providing fair and affordable housing that meets CEQA requirements a top priority,” said Mayor Pro Tem Gloria Partida. “In addition, Measure R gives a voice to our voters in this process. We are defending this appeal because housing is badly needed and our citizens’ votes should be upheld.”
“The voters of Davis spoke clearly that they approved of this version of the Nishi project that will bring more quality housing to town,” said Dan Carson, Davis City Councilmember. “I am concerned about the continued effort to overturn the will of more than 11,000 voters who approved of this greatly needed housing.”
“We knew the City was 100% thorough in their analysis and disclosures as required by law. More often than not these lawsuits have nothing to do with environmental impacts but rather are attempts to stop or extort the project. The court rejected the spurious claims and reached a sound decision based on the facts and the proper process that was followed,” Tim Ruff, the Nishi project manager, told the Vanguard.
The Vanguard anticipates a formal announcement from the city at some point that the appeal has been withdrawn and the project will proceed.
—David M. Greenwald reporting