Last minute release questioned
Attorney's for the Massive Mace Business Park dubbed "ARC" provided the City of Davis with a letter and tables in preparation for the EIR scoping yesterday. The City posted these documents to the City Website and emailed them to select individuals. Unfortunately these documents have come under scrutiny for possibly containing misinformation.
The City of Davis did not vet the information before releasing it to the public and injecting it into the EIR process. In the words of City Manager Mike Webb, "These documents were submitted by the applicant and therefore are appropriate to posted to the city web site as such."
When asked if the "City has opened itself up to litigation by sending false and misleading information out in advance of tonight’s meeting," Webb stated, "The City, as you know, does not edit documents that are submitted by the applicant. "
The letter below details some of the problems with the applicant's last minute release:
To Mike Webb, Ashley Feeney, Sherri Metzker:
From: Rik Keller
I am writing this to discuss emails that Mr. Feeney sent me on 11/26 (4:55PM) and 11/27 (5:06PM) that contained responses to emails I sent out on 11/24 (11:00PM) and 11/25 (6:49PM), that were follow-ups and extensions to an information request that Colin Walsh emailed on 11/24 (9:06PM) regarding the Scoping meeting and Notice of Preparation (NOP) for the Supplemental EIR (SEIR) for the ARC project.
First, I want to thank you for your prompt responses during a busy pre-holiday shortened week. However, the actual content of these responses only serves to confirm and reinforce the statement I made on 11/25 that the City should prepare adequate and accurate information in advance of a Scoping meeting and reschedule the meeting until after such information has been circulated for an adequate amount of time to allow for adequate questions by citizens and interested agencies at the meeting, and provide a response deadline after that in order to provide for “meaningful responses to the proposed scope of the EIR." The City should also provide adequate time to address potential changes to the EIR scope after this process, and provide a revised schedule for the preparation of technical reports for the EIR that will rely on this scoping. Public scoping is a critical step for producing an adequate environmental review, and I would hope the City treats it as such, rather than as an afterthought tacked onto the project schedule at the last minute as it is clear that has been done so far.
The following is a summary list of the issues that I explain in detail subsequently:
- The City has not provided adequate information to the public to provide meaningful responses for the scope of the SEIR.
- The City and its consultant have not completed the Final Project Description that was scheduled for 11/25.
- In lieu of providing this the City has instead circulated inaccurate, misleading, and downright false information about a project comparison of the current ARC application/proposal to the previous Mixed-Use Alternative (“MU Alt”) in the EIR for MRIC.
- The City has allowed an attorney apparently representing the developer to provide inaccurate and misleading information directly to the public without vetting from the EIR consultant or, most importantly, the City itself.
- In doing this, the City has breached the public trust and compromised the SEIR scoping process. It has made itself complicit in distributing inaccurate information about the proposal. If the City continues with the Scoping meeting tonight as planned and presents this misinformation as planned it will then knowingly be complicit in the further spread of misinformation and falsehoods.
I will go through the responses provided by the City and the project attorney and discuss details about the problematic nature of them, the questions that have not been answered, the misleading and false information that has been provided.
Ash’s response on 11/26 states:
“While the notice for the scoping meeting was not an official NOP (as this is not mandated but voluntary) and did not include a detailed project description, it was not determined necessary to do so given that the proposed Aggie Research Campus project is very similar in scope to the Mixed-Use Alternative that was evaluated in the MRIC EIR. The meeting is intended to focus more appropriately on collecting comments related to the changes in circumstances that may have occurred in the project vicinity since the certification of the MRIC EIR in 2017, given that this is an important criterion to consider when preparing further environmental documents for projects…”
My comments on this:
- The City states that there is not an explicit legal requirement to prepare a NOP for the SEIR. However, it is standard practice for jurisdictions in California to do so.
- In order to justify its decision not to provide a legally-adequate NOP, the City should catalog SEIRs that have been prepared for projects within its jurisdiction and projects that the environmental consultants for this project, Raney Planning & Management, Inc., have completed that have not included a NOP.
- There is also a question that once a jurisdiction has decided to publish a NOP as the City of Davis had done on 11/15/2019 (entitled “Notice of Scoping Meeting and Preparation of a Draft Environmental Impact Report”), if it can legally provide a NOP that does not meet State CEQA law requirements in terms of the contents. The City needs to provide a legal justification for this that discusses precedent.
- The City directly admits that it has not provided an adequate “detailed project description” in this NOP, which is one of the State law requirements for a NOP.
- Even the minimal Project Description provided in the NOP contains factual errors. For example, it states “The project consists of the proposed ±212-acre Aggie Research Campus (ARC) site,” which is not true because the project size has been reduced to 185 acres (or 187, depending on the document).
- This email response did not address my primary concern in by 11/24 email: that the City did not provide sufficient information to allow “meaningful responses” to the SEIR scope
- The email also did not address my requests in my email on 11/25 that the City provide an update on the completion status of three tasks in the “tentative schedule” contained in the Raney proposal dated 10/25/2019 (and stamped 11/5/2019 for the City Council meeting)--these involved the completion of the Project Description.
- The email also did not respond to my specific question of why the NOP was circulated before the Final Project Description has been drafted, approved, and circulated. Nor did it address how the City could expect that this would allow for "meaningful responses" given the NOP does not contain the Final Project Description.
- The City states that “the proposed Aggie Research Campus project is very similar in scope to the Mixed-Use Alternative that was evaluated in the MRIC EIR, “ however it does not provide any information with which to compare the two proposals. Based on my analysis below, there are actually substantial differences between the two projects.
- The email also states that “The meeting is intended to focus more appropriately on collecting comments related to the changes in circumstances that may have occurred in the project vicinity,” however it also does not provide any information on the changes in circumstances that may have occurred that would be essential in providing comments on the proposed scope
- It should be noted that if there are significant changes to the project itself that the SEIR also needs to address these. However, the City seems to be ruling this out before adequate scoping and comparison has been made, and has come to the premature conclusion that these won’t be addressed.
Ash’s email on 11/27 states that
“the applicant delivered a letter and two associated comparative exhibits today. Our team was able to get them uploaded to our webpage for the project before the holiday closure. Here is the link where you will find the uploaded materials…”
This letter on Taylor & Wiley letterhead dated 11/27 that in linked to on the City’s project site for ARC discusses preparation of the “subsequent CEQA analysis” and also provides a “list of ARC components that differ from the MRIC Mixed-Use Alternative.” The letter also describes attached tables:
“The distinctions and similarities between ARC and the Mixed-Use Alternative analyzed in the MRIC EIR are further displayed on two tables that are being submitted with this letter. We will publicly display these tables at the scoping meeting on December 2, 2019 for the benefit of those in attendance.”
As discussed below, taken together the list and the tables are incomplete, inaccurate, misleading, and downright false at times. In addition they mischaracterize the MRIC MU Alt itself and thus provide an inadequate basis for comparison to the new proposal.
- The attorney states that “Per our discussion this week, we understand that a few members of the public have questioned why the City has determined that the Aggie Research Campus (ARC) may utilize the environmental analysis conducted on the MRIC Mixed-Use Alternative as the basis of its environmental review and CEQA compliance”
- This was not a question that either Colin or myself raised, and it appears to be a strawman argument by the attorney.
- As stated in an email Mr. Feeney sent to Colin Walsh at 5:28AM 11/27: “I have previously requested that the applicant submit a comparison of the ARC proposal to the MRIC mixed-use alternative proposal. This implies that this was an outstanding request that the City had put into the developer previously, and not an immediate response to the questions that Colin and I raised a week ago.
- The attorney states that he is responding to an information request from Mr. Feeney earlier that week. This would mean that the request was after Colin’s and my initial information requests. This calls into question why the City waited this long to try to obtain even minimal comparative data between the projects. Can the City clarify when this critical information was requested from the developer and why this was not done prior to the NOP and scoping meeting announcement being distributed?
- There are large discrepancies between the attorney's description of the MRIC MU Alt and the actual contents of the MU Alt as described in the EIR. These are misleading at times, and downright false at other times. Given that the attorney's purpose appears to be to try to downplay any differences between the two, information it is irresponsible for the City to present this information.
- This information is posted under “Project Information” on the City’s website. And when someone clicks on the link for “Land Use Comparison Table for ARC and MRIC” it just provides the table. It doesn’t say it is from the developer’s attorney It is presented as if it is accurate project information straight from the City. The City also irresponsibly plans to present this information at the Scoping meeting tonight, further misinforming the public about the project.
- The City has allowed an attorney apparently representing the developer to provide inaccurate and misleading information directly to the public without vetting from the EIR consultant or, most importantly, the City itself. In doing this, the City has breached the public trust and compromised the SEIR scoping process, and has made itself complicit in distributing inaccurate information about the proposal.
Major discrepancies, misleading statements, misinformation, and falsehoods include the following:
Land use comparison
- There is a statement that “In sum, ARC proposes the exact type and scale of land uses that were analyzed in the MRIC Mixed-Use Alternative, at the same physical location, but on a footprint that has been reduced by 25 acres. Additionally, the site layout, including general land uses, roadways, points of access onto existing infrastructure, and nonautomotive paths of travel remain largely unchanged.”
- This is false is several respects, Most glaringly there are large discrepancies in open space/parks acreage and parking acreage, and the ARC development proposes a large number of single-family homes, something that wasn’t included at all in the MRIC MU Alt. Furthermore the summary data provides no supporting date from which to determine whether the net FAR ratios of the two proposals are as described.
- To re-state this: the tables from the developer’s attorney make false statements that MRIC MU Alt had single family housing (and parking requirements).The EIR document itself states “The Mixed-Use Alternative includes up to a maximum of 850 residential, workforce housing units. The housing for this Alternative does not include detached single family housing." The City is incredibly negligent in posting this information without vetting it and verifying its accuracy
- The “Land Use Comparison Table for ARC and MRIC” on the City website states that the MU Alt had and Agricultural Buffer of 20.1 acres and 22.6 acres in Parks and Greenways. However, this is false information and drastically understates what was actually in the Alt.
- The MRIC MU Alt actually had 55.7 acres classified as Parks & Greenways + a 20.1 acre ag buffer = 75.8 acre total parks/open space, which was 36% of total 212 acre site area
- The ARC proposal shows 15.1 ac Parks & Greenways + 13.6/22.6 acre ag buffer (depending on the document looked at--it appears that the lower number is the figure actually on the site itself) = 28.7 acres total parks/open space = 15% of the total 187 acre site area.
- The ARC project as about 2.5 times less open space/parks acreage than the MRIC MU Alt, but by presenting false information about what the MU ALt contained, the developer has tried to claim that they are close to being equivalent. The City is incredibly negligent in posting this information without vetting it and verifying its accuracy
- There is not a description of the number of parking space nor of the total parking area of the project in the MRIC EIR for either the main project or the MU Alt.
- I understand that there was information somewhere else in project documentation that the proposal included about 9,000 parking spaces. However, I have been unable to locate this information.
- The EIR does state that for the main project “The parking ratios utilized for the proposal are consistent with those required by the City’s Municipal Code” and that "The parking ratios utilized for the office/commercial components of the Mixed-Use Alternative are consistent with those required by the City’s Municipal Code.”
- However, the table in the “Parking Comparison Table for ARC and MRIC” on the CIty website gives false information about what the City’s parking requirements are multiple times and thus provides a mistaken account of the actual parking required. The mistakes are so widespread that almost every single number in the table is wrong.
- The table misstates R&D/office/laboratory uses at 1,570,000 sq. ft. compared to 1,610,000 in the “Land Use Comparison Table for ARC and MRIC” and 1,510,000 in other project documents.
- The table states that “Advance Manufacturing” requires 1 sparking space per 1,000 sq. ft. floor area in City Code. This is false. City Code actually states “Multi-tenant buildings utilized typically by light industrial, research, service types of uses, where office use does not exceed more than thirty-five percent of building area: one space per four hundred square feet or major fraction thereof.” OR “Manufacturing plants, research or testing laboratories and bottling plants, one for each one and one-half employees in the maximum working shift.” Depending on what use is actually more consistent, the table likely understates required parking for these uses substantially.
- The table states that City Code requires one parking space for every 1.5 hotel rooms/units. This is false. City Code states “Hotel uses require “1 parking space per one space for each living or sleeping unit.”. The City would also require additional parking for the conference center uses, but these are totally ignored by the developer.
- The table states that the MRIC MU Alt and the ARC proposal both call for 40,000 sq. ft. of retail. As stated elsewhere, both projects actually include 100,000 sq. ft. of retail, so the amount of required parking for this is drastically understated by the developer.
- The table breaks down the residential parking requirements for single family and multi-family units. However, there were no single family units at all in the MRIC MU Alt. As discussed above, this is a substantial difference between the current ARC proposal and the MU Alt.
- The table also misstates what actual residential parking requirements are. It states that single family units require 1.5 spaces per unit, while City Code actually states that a minimum of 2 spaces are required: “SF detached units require “one covered and one uncovered off-street parking space for dwellings containing four or fewer bedrooms.” And likewise “Dwellings, duplex and single-family attached, one covered and one uncovered off-street parking space for dwellings containing three or fewer bedrooms, and one additional space for each bedroom in excess of three.”
- The table states that multifamily units require 1 parking space for every unit, while City Code actually requires more for any unit larger than 1-bedroom: efficiency/1 bedroom = 1 space, 2 bedroom = 1.75 spaces, 3+ bedroom = 2 spaces.
- Given all of these errors, a more realistic accounting of the number of parking spaces required by City Code in the MRIC MU ALt would be around 8,000 (or close to the 9,000 figure cited earlier)
- The proposal for the ARC for 4,340 parking space thus represents a figure that is about half of City requirements. However, there are no project changes from the MRIC MU Alt that would affect the parking demand.
- It is unclear whether the SEIR will update assumptions regarding travel demand/mode split and whether there is any data that would support halving the projected car traffic (and parking needs) to the site that were projected as 91% of all trips in the EIR. This looks more like an effort by the developer to try to keep the acreages/floor area the same of the developed numbers the same while the site size was reduced by 25 acres, rather than a realistic assessment of parking needs.
- It should be noted further that even using highly optimistic assumptions of non-car mode split, the MUA Alt in the MRIC EIR only showed a reduction of 13% of the car trips from the standard project.
- It should also be noted that the “Comparison of Land Uses by Type” table makes no effort to describe the actual area taken up by on-site parking. For example the 4,340 parking spaces in the ARC proposal would take up approximately 30-40 acres based on industry standards. But this is not accounted for at all.