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Getting the Nishi Discussion Out of the Rabbit Hole: Part 2 of 2 (Red herrings? No, bad planning)


By Colin Walsh and Matt Williams

In Part 1, we detailed the three main reasons to vote against Nishi 2.0/Measure J that we gave at the CivEnergy forum on May 6: 1) bad air quality, 2) costs, and 3) lack of integrity in the process. If the City and the developer could rectify these three concerns by demonstrating that the air quality was acceptable for housing with an onsite study, by fixing the budget shortfall, and by returning integrity to the process, then housing could be built at Nishi – but then the project should be far larger than it is.  The current proposal is too small and does not make proper use of the site.

Instead of addressing these three serious concerns, the Vanguard spends the entirety of its May 9, 2018 article addressing the so-called “Red Herrings,” all of which were points of discussion stemming from audience questions. Here in Part 2, we show how each of the points the Vanguard raised are examples of bad planning on the part of the city, possibly due to the rush to put this matter on the June ballot at the request of the developer. Each of these concerns are real problems with the ordinance the City Council voted to put on the ballot. Clearly this ordinance should have been better vetted before going to Council. 

Site Access:

The current proposal will only allow private car access through a proposed tunnel under the railroad between the Nishi parcel and University. There is no agreement with the railroad to build the tunnel. The City and the University signed a Memorandum of Understanding (MOU) that is entirely non-binding. There are three whole paragraphs that describe all of the ways the University does not have to follow through. For example:

“21. This MOU does not, and is not intended to, constitute a commitment, contract or any other binding agreement or promise of any kind or nature whatsoever (or any evidence thereof) on the part of the parties with respect to any matter, whether discussed herein or otherwise, or impose any duty, liability or obligation whatsoever on other writings, communications or discussions between the parties to the contrary. Any party may terminate its involvement in this MOU at any time with notice to remaining parties.”

At the forum, the Yes on J side claimed that the lack of agreement from the University would kill the project. In response we pointed out that, unlike in the Nishi 1.0 measure, Nishi 2.0 would actually allow the project to begin construction without having agreement from the University or the railroad. The Yes side admitted that this was hypothetically true, but claimed it was a "red herring" because they would never do it, or would not be able to procure the funding to do so.

There is reason to believe the Nishi developers would want to trigger exactly such a crisis that could result in a connection to Olive Drive. The Nishi developers admit they still hold options for extensive real estate along Olive Drive that would be very useful and valuable if Nishi were connected.

Frankly we have no way of knowing if the developer intends this, but it is clearly sloppy work on the part of the city to leave this door open. This is not a “red herring” as Sandy Whitcombe claimed at the forum; this is just one way the loopholes left in the ordinance could be exploited if the developers were inclined to do so.

Nishi would be zoned to allow day cares and nursery schools.

The Vanguard article points out that the No side has previously spoken at Council calling attention to uses in the Nishi zoning that are wildly incompatible with a site that has hazardous air quality. City Ordinance 2524 setting zoning for the Nishi property specifically allows for auxiliary uses including:

  • Farm stand/outdoor market
  • Daycare
  • Nursery school
  • Outdoor entertainment, associated with permitted uses
  • Outdoor exercise areas
  • Urban agriculture
  • Small family and group day care homes

The City is requiring that the indoor air be filtered with 95% efficiency, but the zoning allows for all of these outdoor uses by right, meaning no city approval would be needed for these types of uses. It is well documented that children’s lungs are more easily damaged by the pollutants that are indisputably present at Nishi, and may be there at very high levels.

It is at best sloppy that the City allow these uses on the Nishi property, and at worst could lead to children suffering lifelong reductions in lung capacity from attending a daycare or nursery school  that had a play yard by the freeway.

The Yes side claims that this just isn’t going to happen. It is impossible to know for sure that it will happen, but the Nishi property is immediately adjacent to the largest employer in Yolo County, and that employer does not provide day care, so there certainly is financial incentive for day care to be opened at Nishi. What is certain is that we should not have to ponder if these uses will ever happen at Nishi. The City never should have included them in the zoning. That is not “a weird red herring” – that is arguing for the City to do its job and properly zone the property for appropriate uses by the freeway.

Affordable housing can be removed or reduced

The article goes on to say that “Mr. Walsh has also repeatedly asserted that the affordable housing program ‘is not in the baseline features so it can be changed on a 2-3 vote of a future city council.’” It is true that the affordable housing is not included in the baseline features. It is in Attachment L that is referenced in the baseline features. Under Measure R the baseline features cannot be changed without a city wide revote. The measure is silent as to whether attachments referenced in the baseline features are thereby incorporated as baseline features and there is no language in the baseline feature doing so.

Again, this seems to be sloppy work on the part of the City in the way the measure was crafted and it has sown a great deal of uncertainty into the possibility that the City Council would later be able to change the affordable housing on a simple council vote.

Once the City learned of this potential loophole, the City manager issued a statement that cites a city attorney opinion that a change to the affordable housing plan would be considered a change to the baseline features. Clearly the City saw that the language was not clear and need further clarification.

At the forum, it was pointed out by the Measure J opponents that the City Manager’s opinion failed to address the following language in the Attachment L affordable housing

If at any time Developer fails to fully rent the required number of Affordable Beds to qualified students for two consecutive years, the City may on its own initiative or at the request of Developer, consider and make modifications to this Affordable Housing Plan, including but not limited to expanding the availability of Affordable Beds to nonstudents, provided that any such modifications shall ensure to the satisfaction of the City in its discretion that Developer shall provide affordable housing in an amount consistent with the requirements of this Affordable Housing Plan.

The phrase "not limited to" opens the door to broad and unknown changes.

During the forum Mayor Davis argued that the reduction in affordable housing in the Nishi project from the City ordinance requiring 35% affordable housing to only 15% was consistent with the city’s intentions to provide affordable housing. The Mayor claimed that it was better to have a project built at 15% than nothing built because 35% was too high to work for the developer. Clearly this same argument could be used in the future to decrease affordable housing in the Nishi project.

Again, however, we do not know what will happen in the future. We do not know the developer’s intention, but clearly the City left in significant loopholes that could be exploited at a later time to radically change the project.

When the issues are evaluated in a rational and reasonable way, unlike the Vanguard’s pro-development hit piece, two things are clear:

  1. There are real concerns about the project’s environmental and financial health that should prevent the project going forward, as well as concerns about the integrity of the process.
  2. The city was very sloppy in rushing this project to a vote and left significant loopholes that could result in strange and unintended consequences down the road. These are not the main thrust of the argument put forward by the Nishi opposition, but they are also not red herrings; they are examples of uncertainty the City has cooked into the Nishi project by rushing it to a vote without properly vetting the ordinances.

For these reasons, we strongly urge that you vote “no” on Measure J.


John Troidl

Seems like it would be very difficult to fix the "bad air by the highway" problem for this proposed housing in any reasonable way. Why not just locate the housing where the air is not so bad? There, I said it!

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