[* This (special) column continues analysis and commentary of the immediately prior article (- Part Three -), upon the legal briefs related to California Clean Energy Committee’s (CCEC’s) CEQA lawsuit against Gateway 2 project approval by Woodland City Council. *]

____  Unlawful, Erosive Commercial Use Policies  ____

A subject of central importance to the relationship between areas of existing commercial zoning (such as the city’s downtown area, the East Street corridor) and the Gateway 2 project — and also key to this new development project’s “program” (please see latter sections of Part Three) — is the concept of:  “Adequate retail demand.”

“Adequate retail demand” is the operative measure within diverse planning analyses related to qualifying determinations of the “phase-by-phase” build-out of Gateway 2 — for approval of specific commercial uses.

The basic idea (with this project-impact mitigation scheme), is to create future “market studies” that in some manner evaluate demand for specific, project-proposed commercial uses and measure that demand against the existing availability of such project-proposed uses, which must also — “consist primarily of regional retail uses that do not include entertainment and other uses that would compete with downtown.”

This key conceptual formula deserves more critical examination, involving pertinent material (related to obvious and uncontested CEQA violations noted in Part Three) not included in consideration process for Gateway 2.

The point of this brief and incisive examination is to demonstrate that this conceptual formula for Gateway 2 (phased) commercial use-approval: “Adequate retail demand[, consist[ing of] primarily of regional retail uses that do not include entertainment and other uses that would compete with downtown” — is inherently “inconsistent” and totally irreconcilable with Woodland’s General Plan.

Woodland’s General Plan contains numerous “guiding principles,” etc., regarding its downtown area:  (i) “revitalize the Downtown district as the heart of the city,” (ii) “intensify Downtown Woodland as the principle retail, cultural, restaurant and commercial district of the city and region,” (iii) ensure that Downtown remains the sole central business district for Woodland,” (iv) revitalize and maintain the East Street Corridor as an economically-viable and physically-attractive mixed-use corridor,” (v) “retain and enhance Woodland’s quality of life, its separate identity and small-town characteristics.”

CEQA requires identification and discussion of “inconsistencies” between a proposed project and relevant general plan documents (as noted in Part Three). Such identification and discussion did not occur within the CEQA process for Gateway 2.

____  Display Of Adverse Consequences  ____

Let’s see if a few such — legally crucial “inconsistencies” — may easily be displayed through simple (hypothetical) applications of this mitigation formula.

(i)  Particular project-proposed uses must “consist primarily of regional retail uses that do not include entertainment and other uses that would compete with downtown.”

If particular uses are not presently within the downtown area (even if they have historically been there), does such current absence legally constitute relevant lack of “competition” for purposes of evaluating “adequate retail demand” within this use-approval formula?

If so, since such commercial uses do not now exist downtown, these uses may then lawfully be approved for location at Gateway 2?  The answer, based on blunt terms of such an unreliable mitigation formula, would likely be inclined toward approval of uses not presently existing within the downtown area.

Wouldn’t these resulting use-approvals clearly become significantly erosive of the (General Plan) prioritized policy / potential for commercial activity to be located within the downtown area, decimating historically valid uses, and thus — blatantly “inconsistent” — with the Woodland General Plan principles quoted above?

(ii)  “Adequate retail demand” — registered within broad, future “market studies” accomplished when / after economic growth durably resumes — may well indicate increasing population (on the city’s eastern edge), expanding markets and new demand for particular project-proposed uses — above that perhaps (seemingly) capable of being realistically / conveniently served by such existing downtown merchants, for example, or also new market demand for uses previously but not currently within the downtown area (new-book store, toy store, quilt shop, etc.).

An argument could then be advanced for approving commercial uses at Gateway 2 — which are even similar or identical to those historically within the downtown area — but would for some reasons or interpretations regarding expanding market demand be understood to not directly compete against downtown merchants.

As the city grows in upcoming decades and commercial activity increases, such expansion may, upon these terms of project-impact mitigation, be potentially approved for location at Gateway 2 — rather than within the downtown area.

____  Council Recipe For Institutionalizing Urban Sprawl  ____

Obviously, another generalized and centralized orbit of vast commercial activity is by Woodland City Council approval clearly being contemplated to (unlawfully) occur within the 100+ acres of the combined Gateway projects.

This is a solid, if devious, planning recipe for the structural integration and entrenchment of a “program” of enhanced urban sprawl.

Of course, this basic planning trajectory directly frustrates and obstructs the downtown revitalization goals (above) established within the Woodland General Plan and is entirely “inconsistent” with its relevant provisions.

The basic concept / formula of: “Adequate retail demand[, consist[ing of] primarily of regional retail uses that do not include entertainment and other uses that would compete with downtown” — is a cynically contrived, legal planning-lever, fashioned to pry historical and future commercial uses from the downtown area and force them into a condition of legally allowed / (perhaps) imperative, instant use-approval for location at Gateway 2.

___  Very Revealing City Views About Urban Decay, Solutions  ___

The city’s responding brief points to the core portion of the urban decay analysis within the Gateway 2 process of consideration, as defense against CCEC’s claims of an absence of analysis and discussion of General Plan “inconsistencies.”

This pertinent excerpt from the Gateway 2 environmental process and the city’s responding brief is quite revealing:

“Recent historical date and interviews with real estate professionals suggest that downtown Woodland does not directly compete with Phase 1 of the Woodland Gateway project. In the short term, the potential overall retail saturation of the [Retail Market Area] may have a direct effect of delaying investment in Downtown Woodland. The proposed project retail space would have little incentive to focus resources on the redevelopment of downtown. However, in the long-term the proposed project would relocate two auto dealerships, allowing additional redevelopment sites consistent with the Downtown Specific Plan. In addition, the project has the potential to increase the number of shoppers in Woodland through increased capture of retail sales activity, providing downtown with the opportunity to capture a portion of those shoppers. In the short term, the retail-purchasing public has limited dollars to spend and may not be able to patronize both downtown and Gateway 2.”

Since Gateway retailers and downtown merchants now directly compete in many commercial uses (appliances, food, clothing, drugs, furniture, pet-supplies, general merchandise, etc.), the opening statement of this analysis is suspiciously inaccurate.

Precisely what “data and interviews” are involved in this erroneous generalization?

This excerpt then states the “short-term” severe problems for downtown, yet rolls on to “long-term” project justification existing because of the fraudulent assertion that this project “would relocate two auto dealerships.”

The city was put on notice during the approval process for Gateway 2, that this clearly fraudulent assertion existed within this pertinent project justification of the record, but the city described such annoying factual matters as “speculation.”

The only other justification for long-term benefits to the downtown are stated to be an “opportunity to capture” some potentially new shoppers originally drawn to Gateway 2. Petrovich’s project leaves downtown the leftovers and scraps of its new commercial viability; the excerpt concludes by noting that the short-term outcome is adverse to downtown.

So, is this pitifully inaccurate and fraudulent little shard of documentation, the pivotally important “urban decay analysis and discussion,” the “identification and discussion of inconsistencies” within the city General Plan — that is lawfully required to be accomplished by the city?

Apparently so — as the city’s responding brief can point to nothing else of any relevant substance or significance. In fact, as noted by the CCEC reply brief, whatever urban decay analysis was contained within the environmental process of Gateway 2, the mitigation which was actually adopted by the city council “over-rides” that material with “unlawful delegations” of policymaking authority (please see Part Three of this series).

___  Hanky-Panky Planning Rejection Of Mixed-Use Alternative  ___

A convoluted flap broke out in the briefing phase, over city rejection of a necessarily considered (by CEQA) mixed-use (commercial – residential) project alternative.

Apparently, the city initially claimed justification for rejecting this alternative because it was not wholly retail oriented, leaving only 93 acres of commercial zoning within the 154 acres of the originally proposed version of the Gateway 2 project.

When the finally approved project became only 61 acres in total, the city’s previous rationale for rejecting the mixed-use alternative became suspect.

CCEC’s reply brief questions legal validity of the entire process of rejecting the mixed-use alternative, highlighting a strange shifting of justifications — from not enough commercial zoning (CCEC disputes) with all other impacts being equal (CCEC disputes), to one of increased demand for public service and utility impacts (also disputed).

“The City was fully informed that it had failed to support the rejection of the mixed-use alternative and had the opportunity to remedy that error,” describes the CCEC brief. “It only adopted the public service and utility impacts as a rationale after the public comment period closed.”

If the city has trouble understanding why objections to certain portions of its project justifications are limited, implies the brief, this is because “the public was not informed,” regarding these shifting rejection rationales.

The CCEC brief repeatedly charges that there exists no (legally required) “substantial evidence” within the administrative record to support city council rejection of the mixed-use alternative, simply an unlawful charade of shifting speculations and conclusory rationales.

____  “Narrow And Ineffective Alternatives Analysis”  ____

Above, is the title heading from a section of CCEC’s reply brief.

Along with a possibility of mixed-use, the major angle on alternatives for Gateway 2 would have been feasible “off-site alternatives,” such as locations within the city’s core and at its northern edge (which is commercially underserved).

Another significant shift occurred in the project and its justifications when its size was reduced from 154 to 61 acres.  Offsite alternatives to Gateway 2 were not considered, based upon the 154 acre size of the original project proposal, rather than the approved 61 acre project.

“Nothing suggests that sites of comparable size to the approved project [ ] were ever considered. The alternatives analysis was seriously flawed and it did not provide a reasonable range of alternatives,” declares the CCEC reply brief.

The city’s responding brief initially states that off-site alternatives are not required to be considered in every situation.

Correct, but the legally authoritative: “rule of reason” dictates that in situations such as this — where the location and relationship to the city’s core area represent an ultimate concern and environmental impact — proper investigation of off-site alternatives is essential.

The city’s responding brief eventually retreats to an incredible argument that the excised 93 acres of agricultural land adjacent to Gateway 2 should legitimately be considered as part of this project.

In other words, to be genuinely comparable, according to the city’s brief — any valid off-site alternative to Gateway 2 must have included an adjacent 93 acres of farmland.

Preposterous — is a kind word to describe this embarrassingly awkward argument of the city’s responding brief.

____  Astonishing Item  ____

CCEC’s reply brief also contains the following extremely interesting item, related to the city council rejection of off-site alternatives:

“Further, the city’s refusal to consider off-site alternatives was based on the erroneous legal conclusion that it lacked ‘authority to distribute of control the distribution of commercial potential.’  The City has the authority to adopt land use regulations.”  (Emphasis added.)

It seems clear that the historical (and ignorant), city-council attitude of “free-market always rules” — has unduly and very prejudicially influenced its official actions regarding Petrovich and his Gateway projects.

Astonishingly, such a view is directly contrary to the very concept of land use regulation, and as CCEC’s reply brief implies — this bizarre attitude adversely inclines the city council toward dysfunctional land use decision-making — such as its mammoth blunder approving Gateway 2.

Such valuable political artifacts are being uncovered, for our civic good, through the process of this CEQA lawsuit.

____  Additional Legal Claims  ____

Remaining are a large number of additional aspects to this overwhelmingly comprehensive CEQA lawsuit:  deferred climate mitigation and significant and unanalyzed impacts related to (i) urban heat island effect, (ii) flooding and excavation impacts. (iii) energy impacts, (iv) farmland conversion impacts.

The city’s responding brief does not well contend in this setting, as it has not successfully contended with CCEC’s comprehensive and incisive claims, up to this point.

The next article of this series will be a report on what Judge Maguire has to say about this important case — at its court hearing on April 12.

Please stay tuned.