The city has formally announced what the Vanguard reported two weeks ago—the appeal of the Yolo Superior Court decision regarding the Nishi project has been withdrawn. The case is now concluded.
According to a city press release, 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 original lawsuit was filed on March 9, 2018, by a citizens group named the Davis Coalition for Sensible Planning (petitioners, self-identified as Colin Walsh and Susan Rainier) that challenged the voter-approved Nishi mixed-use development project. On October 24, 2019, the trial court entered a judgment in favor of the City of Davis and the project applicant, denying the writ petition in its entirety.
The plaintiffs subsequently filed a notice of appeal on December 2, 2019. The City Council reported out from closed session on Jan. 14, 2020, that it would defend against this appeal. Prior to any briefing in the Court of Appeal, petitioner filed a voluntary abandonment of the appeal on March 13, 2020.
The City did not pay any fees or costs in the abandonment of the appeal. In addition, the City has an indemnity agreement with the project applicant, pursuant to which the project applicant paid for the City’s attorney’s fees and costs.
“This group filed repeated lawsuits and appeals to try to block the Nishi project. It’s worth noting that they lost every single legal claim they made that came before the courts even after dropping some of their dubious claims before they could even be tested,” said Davis Councilmember Dan Carson.
Councilmember Carson stated, “After 11,638 voters approved Measure J and the Nishi project, the appellants then defied the will of the voters and filed a motion specifically asking that the Measure J/R vote of the public be set aside. I am glad to see the decision of the voters will finally be carried out so that we can take another major step forward to provide critically needed housing for our students and our community.”
However, he added, “like everybody else we are on pause while we all work through the current crisis.
“This was all thinly based,” Councilmember Carson told the Vanguard during a phone interview on Thursday. “Some of their more sensational claims, they announced them in the filing of this suit, but they actually dropped them before they would actually be tested in court.
“I don’t think any of us were surprised that the appeal would fail,” he said. “I’m not aware of the reasons why from the plaintiffs.”
Concern has been expressed that the litigation is an attempt to get multiple bites at the apple during the Measure R process. The process goes for review, it goes to the voters, the voters in this case overwhelmingly approved it, but a small number of people took it upon themselves to challenge it legally—and lost on every point they raised and succeeded only in delay and cost increases.
“That was the point I tried to highlight,” said Dan Carson. “In this case more than 11,000 voters prevailed in a hard-fought campaign. The opponents had every chance to make their case. The voters overwhelmingly did not agree with them.
“This was a one- or two-person attempt to veto what the will of the majority had decided,” he said. “That’s troubling.”
He added, “From the advice that I got from our legal experts, there was no there, there.”
The Vanguard reached out to other members on the council, but they declined further comment.
Nishi failed by 700 votes in its original form in 2016 where it provided both rental and for-sale housing as well as 300,000 square feet of innovation space. It came back two years later, down to an expanded rental housing project with only access to the university.
It became the first project to pass a Measure J/Measure R vote in June 2018 and has been held up in litigation ever since.
“The lawsuit never had a chance and was a waste of time,” Tim Ruff, the project manager told the Vanguard by email on Thursday. “They sued a disclosure document that was fully vetted – it didn’t sugar coat the impacts from the project. Our attorney and City attorney and staff did an excellent job. We’re thankful they dropped it.”
While the conclusion of the litigation clears the way for the project to proceed, there are a number of other steps needed by the developers in order to move forward. A big step will be approval for the grade-separated crossing to access the university—without which they cannot proceed, as the current design and approval has no access to the city via Olive Drive.
“We are working on our access design and engineering with the public agencies and UPRR [Union Pacific Railroad],” Mr. Ruff said.
—David M. Greenwald reporting