Potential irregularities underlying decisions made about the U-Mall site
April 18, 2023
There were significant errors, omissions, and mischaracterizations about zoning, the EIR, and contractual obligations.
By Rik Keller
Note: The following has been set to members of the Planning Commission and members of the City Council
I’ve been following the U-Mall/University Commons/The Davis Collection discussions with interest. I have decades of land use planning experience as a consultant for cities and counties since receiving my Master of Science in Community and Regional Planning degree in the mid-1990s, including general plan policy review and development, zoning ordinances, housing elements, and project consistency review. Based on my knowledge and experience in the field, I have some very strong questions about the process that the City has conducted.
Looking at the 3/8/2023 staff report for the Planning Commission in detail:
- There are significant errors, omissions, and mischaracterizations about the Mixed Use (MU) land use designation and associated Planned Development (PD) zoning district adopted for the site by the City Council on August 25, 2020. I believe these errors may be significant enough to re-open the discussion about a required residential component for the site and possibly require additional City Council votes;
- There are also significant errors, omissions, and mischaracterizations about the required environmental analysis under CEQA for the revised project. Specifically, because the project no longer has a residential component, the streamlining procedures that allowed for some CEQA analysis exemptions no longer apply, and additional EIR analysis appears to be required;
- Finally, many of the contractual obligations under Development Agreement (DA) no longer apply, but an amended DA was not completed by the project proponent and City Council.
In summary, there appear to be numerous shortcuts taken to approve the modified project that aren’t legally adequate.
As a note: In his 3/20/23 appeal to the 3/8/2023 PC decision, Councilmember Bapu Vaitla did question the consistency of The Davis Collection proposal with broader General Plan vision statements but did not directly address the specific language and requirements for the Mixed Use designation and the PD zoning district for the site.
General Plan Land Use Designation and Zoning District
One key issue is this assertion by City staff on page 9 of the 3/8/2023 staff report for the Planning Commission (my emphasis):
“The proposed project is consistent with the General Plan designation and Zoning for the
site…The [Mixed Use] designation allows and encourages a mix of retail, office, research, and residential uses on the same site or building as a means of supporting different land uses and achieving related policy goals. However, it does not require a mix.” https://documents.cityofdavis.org/Media/Default/Documents/PDF/CityCouncil/Planning-Commission/Agendas/2023/2023-03-08/05A-Davis-Collection-Project-University-Mall-Redevelopment.pdf
From what I’ve read in the public debate about the issue, it appears that this statement was accepted without question. However, after a thorough review of materials going back to their 2020 adoption, I can find no previous mention of the residential component of the Mixed Use (MU) designation and Planned Development (PD) zoning as being optional--this appears to be a novel interpretation put forth by City staff specifically for the recent meeting. I believe that an accurate reading of the actual language in the General Plan and Zoning Code indicates otherwise and that, in fact, a residential component is required for the property under the current land use designation and zoning district applied to it. It is important to remember that the new MU designation, General Plan Amendment, and PD zoning were approved simultaneously by the Council as the university Mall project itself, so this portion of the General Plan had the most specific guidelines for the property.
As part of the 3/8/2023 meeting, the PC approved Planning Application #22-50 for the Final Planned Development and Design Review for The Davis Collection project based on the Findings (Attachment 3). One of the findings states:
“1. Consistency. The proposed project conforms to the General Plan and is consistent with the objectives of the General Plan and Zoning, complies with applicable zoning regulations…”
This statement appears not to have been examined at all in the 3/8/2023 PC meeting in terms of the 2020 General Plan land use designation, policy language and new Zoning District language that were created for the “University Commons” project. A close reading of the actual language in the General Plan indicates that The Davis Collection proposal is not consistent with the fundamental purpose of the MU General Plan land use designation and PD zoning district for the site and the guidance of the specific new GP policy that implements it. The 2020 General Plan updates and PD zoning were passed by the City Council, and in 2023 the Planning Commission cannot change what the Council passed or override it; their job is to refine the PD into a Final Planned Development (FPD) and to ensure that the final project approved is consistent with what the Council passed.
The 3/8/2023 Staff Report states (my emphasis):
“The proposed project is consistent with the General Plan designation and Zoning for the site. The General Plan land use designation for the project site is Mixed Use, which was designated as part of the approval of the University Commons Project. The intent of the Mixed Use land use is to:
To provide sustainable and transit-oriented opportunities for medium and large-scale multi-story, mixed use development that integrates retail uses and/or office and research and development related uses with higher density multifamily residential uses. The Mixed Use designation is intended to create housing opportunities; retain and encourage healthy, active retail centers for the community; promote innovative design by integrating residential and nonresidential uses; facilitate neighborhood connections and convenient transportation alternatives in the vicinity of the project.” (p. 05A - 9)
While this excerpt from the Staff Report highlights an emphasis on residential components for the MU designation, the Staff Report did not mention the subsequent listed specific requirements that were adopted as part of the MU designation by the City COuncil in 2020
“The following special considerations shall be applied:
- Include a mix of high density residential uses with convenient retail and services for the daily needs of residents or with space for job-generating office uses and/or research and development (laboratory) uses.” (p. 04A - 130)
The intent of the MU designation is to integrate higher density multifamily residential uses with different types of commercial development, and residential uses are required (“shall be applied”).
The Staff Report also did not list the one new General Plan policy that implemented the designation adopted by the City Council in 2020 as part of the U-Mall approval:
“Policy LU U.l Promote compact development patterns, mixed-uses, and higher-development intensities that use land efficiently; reduce greenhouse gas emissions and auto dependence and the expenditure of energy and other resources; and that promote walking bicycling, and transit use, consistent with SACOG's strategies to facilitate and streamline the development of residential mixed-use projects and Transit Priority Projects.” (p. 4)
As a note, to meet SACOG’s “mixed-use residential project” criteria, at least 75 percent of the total building square footage must be residential, while Transit Priority Projects must have a 50 percent residential component. To be consistent with SACOG’s strategies, it is clear that the implementing policy for the MU land use designation requires a substantial residential component.
For final approval, the PC must find the project is consistent with the General Plan land use designation, General Plan policies, and zoning district provisions; to do so, they certainly should have looked at the provisions I cited above as well as the adopting language from 2020. However, the General Plan Amendment including the MU designation, the new GP policy and the PD zoning district were not provided to the Planning Commission by staff as part of their agenda packet. This includes language in the resolution adopted by City Council on 8/25/2020 (Resolution No. 20-125, Series 2020):
- “WHEREAS, amending the General Plan Land Use Element to create a new designation of Mixed Use provides for a combination of residential and non-residential uses in the same zone…”
- WHEREAS, amending the General Plan designation of the property to "Mixed Use" enables a project that reflects General Plan policies that contribute to infill housing within the City limits, contributes to a mix of uses in the neighborhood, and promotes transit use; and…”
- “The development and amendment contribute to the broad range of housing types and configurations….”
- The development and amendment provide residential uses which is an appropriate means of meeting the city's housing needs…”
- The development and amendment provide for the opportunity to reduce vehicle usage and vehicle miles travelled by placing residential units near the job producing non-residential uses and the surrounding commercial uses in the neighborhood; and
- NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Davis that the General Plan Land Use Element shall be amended to add a Mixed Use designation as shown on Exhibit A, and the General Plan Land Use Map shall be amended as shown on the map attached as Exhibit B of this resolution.
This language clearly shows that a residential complement is central to the findings and purpose for the MU designation. It is also clear that the City did not just intend for this new MU designation and associated requirements to apply to the former University Mall property. Staff stated:
“The initial approach for the General Plan Amendment designation related to the University Commons Project involved uses and description more specific to the proposal. However, staff determined that the more general Mixed Use land use was more appropriate and more applicable to other potential mixed-use projects within the City.” (Staff Report for 5/27/20 PC meeting, 05A - page 14 of 281)
At its 8/25/2020 meeting, the City Council also adopted an ordinance to rezone the parcel to Preliminary Planned Development (PD) #03-18 (University Commons). This new PD zoning district also had specific language requiring residential uses. Section 11 (Findings) of the adoption ordinance states:
“The proposed project with the adoption of the rezone will be consistent with the Zoning Ordinance, as the purpose of the PD District is to provide a suitable residential environment for a mix of housing types and cost including multi-family residential and student-oriented housing, and to promote creative approach and variety in the physical development pattern of the city….”
Additionally, the adopting language in Section 3 (Purpose) states:
- “The purpose of this planned development is to provide a mixed use district combining high density multifamily residential with retail uses and businesses…”
- C. Provide a flexible mixed-use project with residential uses, neighborhood and community-serving retail and services, offices, business services, employment
- D. Provide additional housing adjacent to the University of California Davis…
- E. Provide housing density proximate to UC Davis and the downtown area of the City of Davis…
Clearly, residential uses are a fundamental purpose of the PD zone that is applied to the property. But there is no specific language in the staff report that mentions this, and these statements of purpose were omitted from the staff report. The only description of consistency was this:
“The Zoning for the project site is PD 3-18, which it was rezoned to as part of the approval of the University Commons Project (ORD 2584 University Commons PD 03 18 Rezone). PD 3-18 establishes the permitted uses which are consistent with the Mixed
Use designation. The retail, service uses, and restaurants that are intended in the proposed project are permitted uses with up to 150,000 square feet allowed under the PD 3-18 zoning. The Davis Collection project proposes a total of 114,456 square feet of retail/restaurant uses.”
While those commercial issues are permitted uses in the zone, this statement glosses over and evades the issue here: that residential uses are a fundamental purpose of the zone and are required (“the purpose of the PD District is to provide a suitable residential environment…”). It would require a Zoning Amendment to be approved by the City Council to modify this.
In conclusion, the PC should not have been able to make a finding in its 3/8/2023 meeting that “The proposed project conforms to the General Plan and is consistent with the objectives of the General Plan and Zoning, complies with applicable zoning regulations.” The Staff Report did not present adequate evidence in the report to support this, and it contained errors, omissions, and mischaracterizations. The proposed commercial-only project is not consistent with the stated purpose and rationale of the Mixed Use designation and its associated zoning.
It appears that City Staff did not provide an accurate or adequate description of the General Plan and Zoning provisions that apply to the property, and the Planning Commission did not raise these vital questions in its approval on 3/8/2023. Indeed, the PC did not even have the amended sections of the General Plan and Zoning Code before them; lacking the key documents, the PC was forced to rely on staff’s narrative, which, as I have documented, was inadequate. This would seem to be an adequate basis to raise the issue again at the Planning Commission (if not the City Council) right away. A decision based on faulty information and assumptions provided to the decision-making body should certainly be revisited.
Parts 2 and 3 of my analysis covering CEQA/EIR and Development Agreement issues will follow in the coming days. As one indication of the level of deception going on, the EIR Consistency report prepared by Raney Planning and Management, Inc. for The Davis Collection in February 2023 states:
"Because the proposed project would be the first phase of development for the original project analyzed within the 2020 EIR, and future development of the 264 residential units originally analyzed within the 2020 EIR is anticipated to occur on-site in the future, the proposed project would still qualify as a Transit Priority Project. Therefore, consistent with the 2020 EIR, the City has streamlined the analysis provided herein, pursuant to CEQA." (p. 11)
The University Commons Project was eligible for CEQA streamlining under SB 375 for projects that are consistent with a regional Sustainable Communities Strategy (SCS) adopted by SACOG. However, with the removal of the residential component, it no longer applies under SACOG rules.
The EIR consultants are using a fiction that substantial residential development making up over 50% of total project floor area will still occur on the site later, and they are using that as a reason not to do the required additional environmental analysis now that TPP/SCS streamlining procedures should no longer apply. I am shocked that City staff went along with this characterization and that City officials let this slide.
To be continued…
In this detailed examination of the U-Mall/University Commons/The Davis Collection development discussions and approval by the City Council by Rik Keller, his conclusion raises even more questions that require answers when he writes:
"The EIR consultants are using a fiction that substantial residential development making up over 50% of total project floor area will still occur on the site later, and they are using that as a reason not to do the required additional environmental analysis now that TPP/SCS streamlining procedures should no longer apply. I am shocked that City staff went along with this characterization and that City officials let this slide."
By City officials, I assume this refers, in the end, City Council members.
I look forward to reading more in the "continuation" of this article.
Posted by: Nancy Price | April 18, 2023 at 09:19 AM
I see that this is one of those types of articles that's going to require actually reading it, and re-reading it.
I'm not used to those, on local blogs. :-)
Posted by: Ron O | April 18, 2023 at 09:34 AM
This raises very serious questions about the U-Mall approval by the planning commission and the staff report presented to them. I have personally gone through the packet presented to the planning commission. The PC was being asked to find the new plan to be consistent with what the council approved in 2023, but the approval docs were not included in the packet leaving the PC to rely on staff analysis alone. Looking at the documents as Mr. Keller has detailed here there are MANY inconsistencies. I suspect the City has once again left itself vulnerable to a lawsuit.
Posted by: Colin Walsh | April 18, 2023 at 10:56 AM
"I suspect the City has once again left itself vulnerable to a lawsuit."
Which might beg the question, "where are the YIMBYs when you actually need them"?
Though at this point, I suspect that any further action would result in NO redevelopment at all - unless Brixmor sells the site.
Posted by: Ron O | April 18, 2023 at 01:08 PM
Which might beg the question, "where are the YIMBYs when you actually need them"?
Greatest. Comment. Ever.
Posted by: Alan C. Miller | April 20, 2023 at 07:58 AM
Which might beg the question, "where are the YIMBYs when you actually need them"?
Yeah, you’d think the YIMBYs would be all over this, but crickets so far.
For that matter, where are Councilmember Bapu Vaitla and Planning Commissioner Darryl Rutherford? They were both making noise about the decision. But I emailed them both a few days before I published this, and they have yet to respond. There are multiple clear avenues to contest the decision if anyone was interested.
Posted by: R Keller | April 20, 2023 at 02:01 PM