City Announces Nishi Development Appeal Withdrawn; Ruling in Favor of City Stands

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the Vanguard reported two weeks ago—the appeal of the Yolo Superior Court decision regarding the Nishi project has been withdrawn.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


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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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38 Comments

  1. Ron Glick

    I can’t help but find it amusing that Council Member Carson pounds the plaintiffs about stalling a project through the courts and CEQA when he was party to a similar CEQA lawsuit against West Village.

    Sure there are difference in the fact patterns. West Village wasn’t subject to Measure J/R and the court found one cause of action about traffic on Russell among many frivolous claims. However in both instances use of the courts stalled much needed housing for many years and made our housing shortage worse.

    Carson seems all in on Nishi but was all out when a housing project was in his own backyard. Sorry Dan, but your history on development doesn’t make you the best spokesperson for the city on CEQA lawsuits.

    1. David Greenwald

      There also wasn’t a public process for West Village that were is in the city. I do think the agreement with UCD and the West Davis folks was a huge mistake and has needlessly cutoff West Village from Davis.

      1. Alan Miller

        Much agree.  UC Davis has set up the roundabout connecting to Arthur/Russell so it’s connection-ready, and all it would take is a small reconstruction to put this connection in.  I suspect it’s only a matter of time before West Village is connected here.

      2. Bill Marshall

        There also wasn’t a public process for West Village that were is in the city. I do think the agreement with UCD and the West Davis folks was a huge mistake and has needlessly cutoff West Village from Davis.

        Forgetting the grammar issues with that, there was obviously a public process… remember the meeting that erupted into a shouting, somewhat physical ‘outreach meeting’ back then?  I know folk on both sides of that!  It may have been flawed, it may have been inadequate, in your view, or others, or whatever, but there was a public process, that went badly sideways…

        Had that “public process” meeting not occurred (and yes, it was flawed, by the West Davis folk!), why would UCD and the West Davis folk ‘made an agreement’?

        The “West Davis folks” (sic) @ the meeting was not necessarily representative, of ‘West Davis folk’!  They were the folk that showed up, with their own issues, not necessarily the neighborhood’s… please disclose the ‘signatories’ to that agreement!  If a written agreement, it should be a public record… and what authority did those signing have… they certainly did not speak for the Davis community at-large…

        Now, I agree with the fact that the upshot of “no access to Russell” (whether @ Lake or Arlington), was stupid, ill-intended by the West Davis folk, whether @ Lake or Arlington.

        More access points is good… disperses traffic… duh!  Good news…  that can be ‘corrected’… if the full community and UC chooses… doesn’t have to be a ‘fait accompli’…

        The situation you refer to would be accurately described as NOTSIU (Not On The Streets I Use)… a sub-species of a NIMBY, or maybe a cross-breed of a NIMBY and a BANANA.

         

        1. Ron Glick

          I don’t know who were the principals among the plaintiffs in the West Village CEQA suit but I know that Dan Carson  touted his participation in his campaign materials when he ran for office. As for UCD connecting West Village to Russell it’s simply not going to happen in any of our lifetimes. Emergency only access was part of the settlement to the lawsuit and nobody is going to reopen that can of worms.

        2. Alan Miller

          Good news…  that can be ‘corrected’… if the full community and UC chooses… doesn’t have to be a ‘fait accompli’…

          Let’s start a city initiative!  Can we collect signatures virtually in an emergency?

      3. Todd Edelman

        West Village is not “cutoff” from Davis. Multiple bus lines serve it from near the intersection of Russell and Arthur and in West Village itself. Bicycle access to Davis and campus is unparalleled. There’s plenty of car parking at West Village which could of course be used for more housing, oops!, and everyone there has easy access to 113 (and then 5 or 80), and just a few extra minutes to Anderson Rd and Downtown through La Rue etc. It’s actually excellent design. Traffic likely would not get “dispersed” through more roads. My guess is that right now it’s evaporated. There’s lots of cars sitting all day at West Village.

        1. Bill Marshall

          It’s cut off from vehicular traffic.

          Untrue… could be made true, had you written,

          It’s cut off from direct motor vehicular traffic (car) accessing Russell Boulevard.

          Todd is basically correct in his facts… will offer no opinion on his opinions, tho’…

           

           

  2. Alan Miller

    A fundamental question is: will there be demand?  Will CV-9 forever change the way college is carried out?  Will there be a temporary or permanent drop in student population?  Will the economic collapse mean there is not sufficient cash in the system for tenants to support rents necessary for newly constructed projects?  Will there be a sharp decline in foreign student admissions in the fall and beyond?  Is it even a good idea for people to live in close-quarters such as dorm-style living?

    This isn’t specific to Nishi — I was in favor of N-1, and voted for N-2 with nostrils pinched.  Talking generally for Nishi, Sterling, Lincoln40, West Village, etc.

    1. Keith Olsen

      I read a recent article that predicted up to 20% of colleges may end up closing in the next 10 years.  I don’t know if I believe that but it does show that things are going to change.

      Since the article is from 3 months ago it doesn’t take into consideration the effects that COVID 19 will have on higher education either.

      https://newscetera.com/archives/18418

  3. Ron Glick

    UCD will be here in ten years. If 20% of universities close in the next ten years UCD will not be one of them.

    As for Alan’s question about whether its even a good idea for people to live so close together I say no and have been consistently against densification for years. It should be no surprise that New York City, the most heavily impacted place in the country right now, is also one of, if not the densest place in the US. Dense cities have always been hit hardest in contagious epidemics.

    The social darwinism of densification that is so common a belief here in Davis overlooked the same thing that is the fatal flaw of all social darwinism, nature selects.

    1. Keith Olsen

      UCD will be here in ten years. If 20% of universities close in the next ten years UCD will not be one of them.

      I agree, but we don’t know how many international students they will lose and what hit UCD will take to their budget with the COVID crisis.  Also, with the increasing use of online classes what effect will that have on college revenue?

      1. Bill Marshall

        with the increasing use of online classes what effect will that have on college revenue?

        Or, UCD, other college expenses?

        Or, will the source of revenue change?

  4. Keith Echols

    I still don’t understand why anyone other than UCD and the developers wanted this project in the first place?  I remember when supporters for the Nishi project came around door to door to talk up their project and just assumed that support for more student housing was a good thing.  I don’t care about student housing.  In fact I want more students driven from the town and back on to campus.  Other than a quick development fee cash grab, I don’t see what the city gets out of it either.

    1. David Greenwald

      Isn’t for all intents and purposes, Nishi without Olive access, on campus?

      What does the city get out of it?  Housing for students that will not have to jam into SFHs?

      1. Bill Marshall

        Isn’t for all intents and purposes, Nishi without Olive access, on campus?

        Can you/we stop with untruths????  Starting to wonder…

        Nishi will have bike/ped/EVA access!!! Just not MV… get a freaking clue… you are feeding in to the misinformation about this project… truth will (hopefully) set us free… or perhaps your misinformation is the point?

        Just saying…

         

        1. Bill Marshall

          Words are everything…

          Saying that, knowing pretty much all the history of the “Nishi property”, and having seen Nishi 0.5, Nishi 1, Nishi 2… as to Nishi, the last was the third iteration as to development proposals… few know that… Nishi 0.5 was actually approved before Measure R… Tentative Map approved… it was as disastrous (my opinion) as Nishi 1.0… I believe Nishi 2.0 is viable… something I supported when it was first proposed, as a concept, when I met with City/UCD folk.  Actually, ~ 2010…

        2. Bill Marshall

          What is the untruth?  I said “for all intents and purposes” not it is “in fact”

          Word play?  Back – pedalling? No, you are always wise and omniscient… my apologies for thinking, experiencing otherwise.

    2. Mark West

      “I don’t care about student housing.  In fact I want more students driven from the town and back on to campus.”

      I don’t understand why anyone today would believe they had the right to choose or restrict who, or what type of person, is allowed to be a resident of Davis.

      “I don’t see what the city gets out of it either.”

      New property tax revenues and the opportunity for more residents to find appropriate housing. We could have done better on both accounts if not for Measure R.

      1. Ron Oertel

        I don’t understand why anyone today would believe they had the right to choose or restrict who, or what type of person, is allowed to be a resident of Davis.

        Not sure, but I believe that’s exactly what Nishi does, regarding its Affordable housing (e.g., prohibits non-students).

        New property tax revenues and the opportunity for more residents to find appropriate housing.

        As I recall, some (and maybe all) of the models showed a long-term fiscal loss from Nishi. Which is not surprising.
         

  5. Don Shor

    Development of Nishi, completion of West Village, and the other smaller projects currently underway or in the planning process, combined with a temporary flattening of enrollment at UCD, could finally lead to a favorable rental market for those who most need that.

    It’s time to stop taking these litigants seriously as they try to flout the will of the voters and obstruct every project. The lawsuit was without merit. They lost at the ballot box and they lost in court. That should be considered as other projects are considered: this complete disrespect for the planning process and the outcome of elections is quite telling as to the merits of their positions.

    1. Ron Oertel

      Hmm.  How do you feel about the Vanguard’s lawsuit against the city?

      To clarify, the one that the city won’t be reimbursed for regarding its own costs, and which may entail city payments to the Vanguard’s attorney?

      ” . . . 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/

      You, David, and Dan Carson ought to be ashamed of your comments.

      Really? Dan Carson and David Greenwald are going to criticize someone else regarding a lawsuit, after engaging in their own?

      Seems like the “David Vainguard” is a good moniker, after all. (Gee, where did I hear that?) 😉

      1. Don Shor

        If he is reimbursed because he prevails in court, it demonstrates that the suit has merit. The suit against Nishi had no merit, obviously, since it failed both initially and on appeal.

        You, David, and Dan Carson ought to be ashamed of your comments.

        No, our analysis is correct, so there is nothing to be ashamed of.
        I suggest you stick to the topic.

        1. Ron Oertel

          “The suit against Nishi had no merit, obviously, since it failed both initially and on appeal.”

          That is a lie.  The appeal was withdrawn.  The reason for that wasn’t provided.

          The city has also lost a decision, and is appealing it (with developer backing, apparently).

          In contrast, there aren’t a plethora of repetitive articles on another blog, attacking David for suing the city. (Note that this started on the Vanguard even BEFORE the appeal was withdrawn.)

          It’s completely on-topic.

          1. David Greenwald

            “That is a lie. The appeal was withdrawn.”

            That ignores the ruling of the trial court.

        2. Ron Oertel

          Read the title of the article.  The appeal was withdrawn.  No judgement was made based upon the appeal.

          In fact, the actual issues were never really discussed on here.

          1. Don Shor

            Never mind. I’m done with this. Ask your buddy why he withdrew his appeal, and let us know what he says.

        3. Ron Oertel

          Had the Vanguard not gone out of its way to create enemies, David might have been able to obtain a response, himself.

          But, it would have required an examination of the actual issues, to begin with.

          There’s nothing inherently “wrong” with disagreement, if it’s handled in a respectful manner.

          1. David Greenwald

            “There’s nothing inherently “wrong” with disagreement, if it’s handled in a respectful manner.”

            Ron: “That is a lie. ”

            Ron: “You, David, and Dan Carson ought to be ashamed of your comments… Seems like the “David Vainguard” is a good moniker, after all. (Gee, where did I hear that?)”

            You were saying?

      2. David Greenwald

        A lawsuit is the only enforceable remedy for non-compliance of the California Public Records Act and the cure is the release of the records.

  6. Ron Oertel

    That ignores the ruling of the trial court.

    So does your defense of the city’s appeal, regarding Trackside.

    Regardless, the city doesn’t agree with your interpretation of the issues raised in your lawsuit.

    Your attacks against those in the Nishi lawsuit predated the initial ruling, as well.

    It seems that you “pick and choose” the decisions that you agree with. That is certainly your right, but is also one that you seem to want to deny others.

    A lawsuit is the only enforceable remedy for non-compliance of the California Public Records Act and the cure is the release of the records. the issues raised in the Nishi lawsuit.  (The issues that you never fully discussed.)

    By the way, are non-students permitted in Nishi’s Affordable housing?

     

     

        1. Alan Miller

           

          There’s nothing inherently “wrong” with disagreement, if it’s handled in a respectful manner.

          RO, DG calling you out at 3:49am on your hypocrisy regarding this matter – he is not wrong.

          Yours Truly,

          — The Hypocrisy Police —

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