Nishi Appeal and Lawsuit Apparently Done

Share:

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.

Even before the matter passed a vote, a group of citizens led by Susan Rainier filed a lawsuit, alleging among other things violations of affordable housing and also CEQA.

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


Enter the maximum amount you want to pay each month
$USD
Sign up for

Share:

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.

Related posts

37 thoughts on “Nishi Appeal and Lawsuit Apparently Done”

  1. Alan Miller

    Too bad there’s no need for Nishi anymore, with the U discovering you don’t actually have to have students present in order to teach classes.

    1. Keith Olsen

      Alan, I really think you’re on to something here.  Think of how inexpensive college would become, less college loans, less need for housing, less infrastructure costs, less pollution, less traffic in Davis, more parking available, etc.

      Of course some classes are hands on with labs and such but much of the campus and personnel wouldn’t be needed.  It would also solve the Davis housing ‘crisis’.

       

       

      1. David Greenwald

        Not if you read the experience that universities are having.  Most of them are simply showing that like the rest of society they were ill-prepared for this type of disaster.  This is a good topic for discussion, but not here.

        1. Alan Miller

          I think it should be pretty obvious that topics here stray WAY further than this and are not shamed.  Connecting the dots from this project being ready to go, and the new reality that may be upon us for the need for housing, is not that much of a stray, I would argue (but not owning the blog, have no power on this sans my charismatic charm)

        2. David Greenwald

          Yes it is obvious which is why we have rules.  There are several reasons for that rule, one is that for years it would devolve into a national political debate or go into the whacky.  In this case, I think it’s a good topic but not the topic of this particular article.

      2. Ron Oertel

        In my opinion, there are vested interests which would resist more movement toward online education.

        Doing so would result in less need for instructors/teachers, administration, infrastructure, etc. Might even result in fewer schools and colleges.

      3. Alan Miller

        Of course some classes are hands on with labs and such but much of the campus and personnel wouldn’t be needed

        Yes, I noted that in a comment yesterday – that Davis has a reason to exist for such, med & vet & so forth.  But many classes there is no such need.

  2. Don Shor

    So, in sum:

    The lawsuit had no merit.

    The appeal had no merit.

    The net result was a delay in fulfilling the wishes of the voters.

    There were material costs to the city from this.

    These facts should be considered in assessing future comments about development projects by the litigants.

    1. Ron Oertel

      Those conclusions are not supported.  However, some of those conclusions might be made regarding the Vanguard’s lawsuit against the city:

      ” . . . though Boylan can request attorney fees should he prevail in court.”

      https://www.davisenterprise.com/local-news/city-to-fight-lawsuit-seeking-police-records-from-picnic-day-incident/

      Some have made similar arguments regarding Trackside. As you know, the city lost that lawsuit, and is appealing the decision.

      1. Alan Miller

        regarding Trackside. As you know, the city lost that lawsuit,

        Trackside was a very different animal, and a very different lawsuit, despite persons on both sides of the affair trying to paint it as similar.

        1. Ron Oertel

          In my opinion, the lawsuit regarding Trackside can more readily be “attributed” to NIMBY-type concerns.  In that sense, some might view it as “less-legitimate” than the issues regarding Affordable housing at Nishi.

          I happen to think that “NIMBY” concerns are legitimate, at times (as in the case of Trackside). The reason being that it overwhelms the almost-adjacent small houses, and could set a precedent for the neighborhood.

  3. Ron Glick

    Looks like the plaintiffs gave up. Probably because they realized they were going to lose and end up wasting even more money. Better late than never.

  4. Alan Miller

    No one appears to know why,

    That’s not actually a thing.  That’s why society use to have things called ‘reporters’, who would find out . . . why.

    1. David Greenwald

      Seriously Alan.  I asked the city, the city manager did not know.  I emailed the opposing counsel – I have gotten no response.  The court is effectively closed.  Just what would you like me to do?  Stalk people?  At this point all we know is what I reported, I assume at some point there will be an official statement.  Reporting from this midst of the apocalypse, this is David Greenwald.

  5. Ron Glick

    Why don’t you look up the legal use of the term “abandonment?”

    I’m not a lawyer but from my reading it seems to mean the plaintiff gave up.

  6. Sharla Cheney

    If the same people file a lawsuit against a voter approved development in the future using the same or very similar arguments, could it be called frivolous and resolved much faster?

     

    1. Ron Oertel

      Are you claiming (without any evidence or reason for doing so – whatsoever) that the lawsuit was determined to be “frivolous” by the court?

      1. Don Shor

        Are you claiming (without any evidence or reason for doing so – whatsoever) that the lawsuit was determined to be “frivolous” by the court?

        Obviously she did not make that claim.

        1. Ron Oertel

          I think she is, Don.  What other entity (other than the court system) would have any influence whatsoever, regarding the following?

          ” . . . could it be called frivolous and resolved much faster?”

          Your 7:48 a.m. comment was just as bad.

          It’s unfortunate that the Vanguard has no interest in exploring the issues regarding the lawsuit, in-depth (e.g., regarding Nishi’s Affordable housing).  Other developers may attempt to copy that questionable plan.

          1. Don Shor

            She did not make that claim. You are skating on very thin ice here today, Ron, and my patience is very thin. I suggest you back off.

        2. David Greenwald

          Ron – we did explore the issues involved in the affordable housing in great detail – during the election.  The people voted for the project.  The time for debating the issue of affordable housing for this project has passed.

  7. David Greenwald

    We had an article on the arguments regarding affordable housing that arose in court and the ruling.  We also had a number of articles on the affordable housing itself during the election.  You are welcome to present other issues or even your own article.

    1. Ron Oertel

      Thanks, but someone else (who is now banned on here) has already done so, in a far more-effective manner and enlightening manner than I can.  For a period of time, you did allow that.

      I do acknowledge that he sometimes did so in a manner that is unnecessarily abrasive.

    1. Ron Oertel

      Truth be told, the people who actually know more about this particular issue no longer participate, on here. So, it’s just me, flailing about, falling into ice traps.

    2. David Greenwald

      Truth be told I wish people would stick solely to the issues and not the other personalities.  If they did, we would have a better discussion and other people would be able or willing to participate.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for