Commentary: Enough with the Weird Red Herrings

Colin Walsh (left) laughs during the forum on Sunday

The most memorable moment of the forum on Sunday came when Colin Walsh was pursuing another hypothetical nitpick of the Nishi project.  It is one thing to complain about legitimate concerns in a project like air quality, affordability and traffic, but what we have seen is a bunch of nitpicking at the developer agreement on these ticky-tack issues.

When Mr. Walsh pushed the issue of university access to the absurd, Sandy Whitcombe responded with the line of the day.

She argued and correctly, “There’s no way to get financing for a $100 million project telling the bank, oh and by the way, we don’t know how people are going to get here.”

She then said, “We need to focus on reality and the need and the merits of the project and not all these weird red herrings.  This is serious, let’s get rational.  People need housing.  This is good for everybody.”

This drew a huge amount of applause from an audience that, until that point, was relatively quiet.  She exposed the fact that there were absurd arguments being made here that don’t take into the consideration the fact that, in order to get built, a project needs financing and you can’t get financing on a wing and a prayer.

And the bigger fact of the matter is that this isn’t the first weird red herring that Colin Walsh has used in this campaign – it is just the latest in a string.

Back in March, Colin Walsh during public comment made the comment: “The other ordinance, that was passed that night, allows for zoning on Nishi.  Allows for urban agriculture, day cares, preschools, I can’t imagine are these indoor-only preschools.  Do these preschools not get a play yard?  There’s nothing in the ordinance that it’s an indoor-only preschool.”

This is a weird red herring.  Mr. Walsh is drawing on the fact that certain uses are permissible but that doesn’t mean they are likely.  There is no plan to build a preschool or day care at Nishi.  But that hasn’t stopped him from drawing on this example time and again to argue why people should not build the project.

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 seems pretty unlikely that this affordable housing will ever actually happen.”

In a post on Facebook, he asserted the baseline project features “redirects to the project development agreement. The affordable housing requirement is specified in the project development agreement which can be changed by the city council.”

In order to combat that, the Vanguard pressed the city to issue a legal finding that, in order to change the affordable housing component, they had to go to a vote of the people.

In consultation with the city attorney, Mike Webb on April 26 wrote, “On the  affordable housing issue outlined below, I would read the baseline features literally and say that any substantive change from the DA as approved by the City in February would require a new election.”

And while “the Plan expressly provides for modifications that the City determines are reasonable necessary to comply with Fair Housing Laws,” he states, “I would opine that any substantive change from the program laid out in Exhibit L would require voter approval.”

But even after that opinion, Colin Walsh has continued to raise this issue.

Colin Walsh pointed out on Sunday that “the affordable housing agreement is only referenced in the baseline features and only appears in the affordable housing agreement – which may or may not be changeable by a city vote.”

Robb Davis responded, “It’s the clear legal opinion of the city… that changes to the affordable would trigger a new vote.”  He said, “The fact that there’s a legal opinion on the table, makes it actionable now in a court of law – if any changes are attempted.”

Changes, he said, “would require a new vote on the affordable housing on Nishi.”

That led to the final exchange on Sunday over the undercrossing.

Robb Davis would point out that if the university does not permit the undercrossing, the project cannot happen.

He said, “That’s in the baseline features, if that doesn’t happen, no site can be occupied.”  He later added, “Nothing can go on that property unless there is an undercrossing.  We understand that.”  If the university does not allow the crossing, “then no development can house people on that property.”

Colin Walsh pointed out, “There is no requirement that there be approval before construction begins – there is no definition for what ‘construction begins’ means.”

Colin Walsh added, “So the site could get built out and no one could live there.”

He continued: “An election where the project was already developed and sitting there ready for occupancy, if that went out to the public…”  Mr. Walsh argued that the city could be forced to connect the project to Olive Drive under these circumstances.

As stated above, Sandy Whitcombe scoffed at the notion, saying, “There’s no way to get financing for a $100 million project telling the bank, oh and by the way, we don’t know how people are going to get here.”

And she said, “We need to focus on reality and the need and the merits of the project and not all these weird red herrings.  This is serious, let’s get rational.  People need housing.  This is good for everybody.”

While Mr. Walsh has unloaded a string of these red herrings, he is hardly alone in this regard.

For example, a poster on the Vanguard known only as “Ron” repeatedly has asserted, “Still not sure if the developer can sue the city (for access to Olive), if one (or both) of the parties does not agree to (or revokes access) through UCD.”

The problem as we pointed out is that the developer agreed to that condition.  The point he kept missing again and again is that the baseline features state that they have to have university access in order to occupy the residences.  That means to change it would require another vote.

Furthermore, the baseline features precludes them from vehicular access to West Olive: “There will be no vehicular traffic access allowed to West Olive Drive except for emergency vehicles, & public transit.”

This should be a non-issue, as the language is quite clear and explicit.

But he refused to accept that, responding, “[B]ut I’m not interested in engaging in extensive legal arguments, especially with non-attorneys who are obvious supporters of the proposal.”

This is a campaign of weird red herrings and convoluted hypotheticals.  I suspect that is a function of a general opposition to housing in the city without having a clear reason to oppose it, other than perhaps the air quality issue which is debatable at best.

—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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43 thoughts on “Commentary: Enough with the Weird Red Herrings”

  1. Tia Will

    This is serious, let’s get rational.  People need housing.  This is good for everybody.”

    I am going back to my argument against hyperbole. First, I support Nishi 2 just as I supported Nishi 1. But it is simply not “good for everybody”, no matter how much the developer would like to portray it as such.

    It is not good for those who:

    1. Genuinely believe there are serious health risks involved.

    2. Those who remain concerned about traffic impacts.

    3. Those who genuinely believe this space could be held for a better project in the future.

    To declare it “good for everybody” is as hyperbolic as is questioning whether anyone can get in or whether or not preschool children will be safe there. Once again, I am going to make a plea for making your own evidence based best argument and leaving it at that.

    1. David Greenwald Post author

      From the developers perspective, the project is good for all because she does not believe (and I agree) that there are serious health risks, that she does not believe that the project has traffic impacts and she does not agree that the space could have held a better project. Therefore she believes and can legitimately state that in her opinion, the project is good for all. Other people can argue that the project is not good for all and cite the reasons you list.

      1. Tia Will

        David

        I disagree. I have spoken with many developers over the past few years. I have never met one who in private conversation is not willing to admit that their proposal will have downsides for some people. I have however met many that in public conversation push the project as “good for all” even having just admitted to me in private that it will not be.

        I think I more honest response would be that they believe that the pros outweigh the cons for the majority. This I could fully respect from the developer’s point of view.

        1. David Greenwald

          The definition of downside for some people is part of the issue.  If you mean, some people will have to accept something they disagreement, I agree.  But who are people who are objectively negatively impacted here?

        2. Ron

          David:  Matt pointed out that the entire city is impacted by fiscal concerns.  He noted a range of possibilities, which aren’t being openly acknowledged by the city.  (Including the possibility of an annual deficit, in the amount of $750,000 per year.) Others, including Ray Salomon have noted similar concerns, as did EPS (regarding Nishi 1.0). Unfortunately, EPS is not being used, for this version.

          Others might argue that the air quality at the site will “objectively” impact those who would reside, there.  You’re already aware of those concerns, as well.

          One might also argue that limiting affordable housing to students only will negatively impact non-students (presumably including those in protected classes of populations), compared to an alternative development.

          Others have argued that approving a relatively low-density proposal will not provide the best use of the property, regarding the needs generated by UCD. (In other words, negatively impacting future students, and increasing development pressure on other parts of the city.) That applies to the lack of an innovation center component at Nishi, as well.

          And then, there’s the 700 parking spaces, and impacts to the city and region resulting from that.

          And, there’s the possibility of complications (as noted in this article), regarding approving a development for which access has not been agreed to.

          This is just a quick list, and I have no interest in discussing them further.  You’re already aware of the concerns, regardless.

  2. Ron

    Regarding the point I brought up (regarding landlocked properties, and the lack of an agreement with UCD and the railroad), here’s how David responded in another article:

    David:  “I don’t know the answer to legal options if UCD does not agree.  I suspect that’s their right to do.  But I don’t know.  Hence my lack of answer.”

    And, he still doesn’t know.  Calling something a “red herring” is what one does, if they have no substantive comeback.  It’s simply a smearing, bullying tactic, to which the Vanguard subscribes to (and encourages, from others). And now, there’s an entire article using such tactics, attacking those who don’t even respond on the Vanguard anymore. While simultaneously ignoring the other substantive issues that were brought up (but not responded to).

    http://www.davisvanguard.org/2018/05/commentary-inaccuracy-nishi-affordables/#comment-382933

    1. David Greenwald Post author

      The landlocked property is not an important point. More important is that the issue is dealt with and was agreed to by the developer in the baseline features. That negates any possible lawsuit. The judge will say, hey you agreed to these conditions. They have no leg to stand on. So yes, this is absolutely a red herring. It is the creation of an issue from a non-issue.

      1. Ron

        Again, you don’t know that, and already admitted this, as noted above.  The same developer apparently owns both Nishi, and the failed Covell Village site.  Approving development and changing zoning to a property in which two parties (the railroad, and UCD) have not agreed to provide access is a recipe for challenges to Measure R, and/or other avenues in which to challenge restricted access.  Regarding its importance, that remains to be seen.

        Regardless, there certainly was a “dearth” of responses to many of Matt’s points regarding fiscal impacts in your other article:


        http://www.davisvanguard.org/2018/05/opposing-sides-clash-on-nishi-during-forum/

         

        1. Ron

          In reference to the comment above, this includes actions which might ultimately force the city to provide access, via Olive Drive.

          It will be interesting to see, especially if approved for development without access (and perhaps subsequently sold, to another developer).

        2. Ron

          That is not necessarily relevant, regarding legal options upon which challenges can be based.  You’ve already acknowledged that you don’t know.

      2. Howard P

        Ron… your ‘facts’ are screwed up… as are your conjectures… if you find yourself in a hole, quit digging… assuming you’re aware of being in a hole…

        1. David Greenwald

          I think it’s safe to say that given the language in the baseline features – we legitimately and reasonably know.  We don’t absolutely know, but a court would have to overturn Measure R to do it.  Is that possible?  Yes.  But it’s unlikely.

        2. Ron

          Maybe.  Maybe there’s other options (other than a direct attack on Measure R).  Certainly, legal challenges have been made regarding properties that have a lack of adequate access. But, it would take professional advice to determine that.

          Regardless, it’s rather disingenuous to label a concern as a “red herring”, when you’ve already acknowledged that you don’t know the answer.  (That was my primary point, today.)

        3. David Greenwald

          You are misrepresenting what I said.  When I said I don’t know the answer, it is because there are unknowable elements to it.  You never know what a court will decide.  Even attorneys don’t know what a court will decide.  That does not mean it’s a wild shot in the dark.  We have a reasonable belief that if something is included in the BPFs and the developer agreed to them, that it is going to be difficult for them to sue – if not impossible.  Therefore I again conclude that your view is not reasonable.

        4. Howard P

          Wrong on two counts, again Ron…

          You’re another supporter of the proposal, who doesn’t know. 

          I do not “support” the project, but am likely to vote “yes”… the least evil of the three proposals I have seen, but do not “support” it, except to the extent that it’s housing proximate to campus and, I DO KNOW… on a scale of 1-100, on access, I’m @ 95%, you appear to be at 5%…

          Need a bigger shovel/?

    1. David Greenwald

      That was before I recalled that both the university access and the lack of Olive Drive access are in the BPFs.  Once I remembered that, it changed my view of the legal issue.

      1. Ron

        You weren’t aware of what’s in the BPFs, at that time (earlier this week)?  I find that difficult to believe.

        Even if true, you’re simply not qualified to offer legal opinions.  Your first response was correct (and unexpectedly refreshing). If such honesty and acknowledgement was presented more often on the Vanguard, there would likely be greater harmony regarding issues. Instead, it’s politics as usual, focused upon a “win” regardless of impact.

      2. Howard P

        David may not be (or might be) qualified to give legal opinions, but he is a better position to than you…

        I believe I am qualified to do so, in certain areas, at or beyond the para-legal level… one area is rights of way/access… I’ve had outside attorneys come to me for peer review/comment of their tentative opinions… within the limits of my working knowlege and my knowing the Codes… and the Court decisions, including appellate, related to those…

  3. Howard P

    You’d better run, Ron… at least you acknowlege I am not an ardent supporter of Nishi… je tu accuse of not knowing more than a few iota of the access rights/issues, and still claim I do… which you conveniently ignore…

  4. Ron

    Howard: You’re implying a lack of interest regarding endlessly engaging to “running away” from an argument (which you actually haven’t put forth – for what that might be worth from someone with a self-described paralegal-level of knowledge).  Unusual, regarding how you apparently have attorneys, fiscal experts, and whoever else seeking your guidance as you claim. (Understandable, if they’re seeking simply seeking your response regarding your knowledge of city codes related to traffic. Not quite the same, compared to the universe of legal possibilities.)

    Unlike some on this site, I’ve got other stuff to do.  I simply put forth a possibility, to which the correct response was initially put forth by David – e.g., “I don’t know”. (And certainly not a basis for subsequently claiming that such questions are a red herring.)

    David was either wrong the first time, or wrong the second time. (I wonder if it’s possible to be wrong both times?)

     

    1. Ron

      And, being “95%” certain that you’ll support a given proposal actually does make one a supporter.  (And, accounts for the consistently one-sided nature of your comments, regarding growth and development issues.  Often including a personal attack.)

      Strange how someone attacks Measure R (and its supporters), while simultaneously voting against Nishi 1.0 (as you acknowledged on the Vanguard, many times). Having your cake, and eating it too, as they say.

      Now this time, I really will be gone for awhile. Not even going to look at this crap, until sometime later.

    2. David Greenwald

      Ron: “David was either wrong the first time or the second time”

      How does stating I don’t know, being wrong.  I didn’t know, hadn’t looked into the issue previously.  When I did, I realized that it was covered under the baseline features and thus a non-issue.  You are grasping extremely thin reeds.

      1. David Greenwald

        This whole discussion is proving my commentary’s point by the way – we are focused on weird red herrings in this campaign rather than big core issues.

        1. Ron

          David:  “This whole discussion is proving my commentary’s point by the way – we are focused on weird red herrings in this campaign rather than big core issues.”

          To some extent, I agree.  That’s the result of continuing to deny that one doesn’t know the answer to questions (and offering no proof whatsoever to support shifting claims), while simultaneously focusing on such questions in articles and comments, in an apparent attempt to undermine credibility of those opposed to the proposal.  (Similar to hijacking an email, and critiquing sections of it while putting forth incorrect information, in the process.)

          Regardless, it is certainly a somewhat unique situation (due to Measure R, lack of agreed-upon access by two organizations, etc.).  And, involving a property owner who has already been negatively impacted (from their point of view), by Measure R (e.g., Covell Village).

          I would agree that it’s more interesting to focus on issues such as the failure of the city to openly acknowledge the deficit that this proposal can create.  Not many challenges, when that was brought up in the other article.

        2. Ron

          And by “proof”, I’m not disputing that it’s in the baseline features (that you somehow forgot about, despite its prominence as a key condition).  I’m suggesting that this may not offer immunity from legal actions.

          If you have references to case studies which show a similar situation (e.g., regarding something similar to Measure R, impacted property owners, approval of zoning changes and developments prior to obtaining access agreements, or references to advice from objective legal sources), then that might be a different matter.

          But, just stating something on the Vanguard doesn’t necessarily make it true.  And again, it was posed as a question, to which you ultimately made an unsupported assertion. Which wasn’t even challenged by anyone, until this article appeared.

          From my perspective, the Vanguard is not a place to turn to for objective assertions regarding development proposals, especially without proof.

        3. Ron

          To clarify, your acknowledgement that you didn’t know the answer wasn’t commented on until today, when you offered the baseline features as “proof” of immunity.  (That’s rather unusual – regarding those commenters who usually support you on development issues.)

          I’m content to leave it at that. If you want to pursue this, then knock yourself out. (And then blame others for bringing up the issue.)

  5. Tia Will

    David

    If you mean, some people will have to accept something they disagreement, I agree.”

    No, I am referring to actual, objective adverse consequences. Consequences that are admitted to by the developers in private but often denied, trivialized or claimed “beneficial to all” in public.

    Let’s take a few recent developments:

    1. Sterling – the residents in the area will objectively have to deal with more student traffic and noise probably at all hours than they are having to deal with currently.

    2. Trackside – the adjacent neighbors will objectively be experiencing increased 24 hour traffic and noise since the location will now include housing as well as what are now day time only businesses.

    3. Lincoln 40 – displacement of current residents, Olive Drive impacts in terms of traffic, noise, parking, impacts on the extreme southern residents of OED.  Of note, in my experience, the representatives of the Lincoln 40 project located within 1.5 blocks  as the crow flies from my house were completely open and honest about the effects my neighborhood was likely to experience and to the best of my knowledge treated everyone else involved the same way.

    It would be inaccurate for any of these developers to claim that their project was “good for everybody” objectively or subjectively. Nishi of course, due to its location has less impact on surrounding neighbors. But I still consider it a highly subjective statement, or hyperbole if you will,  to claim it will be “good for everybody.”

     

    1. Howard P

      1.  How does student traffic differ from other (regular?) traffic ?  You seem to differentiate… why?

      2.  How much more traffic and noise, on a 24 hour basis, than the existing, adjacent neighborhood generates?

      3.  All impacts have been disclosed, and weighed against other needs/benefits…

      The “good for everybody” is indeed wrong… and, quite likely, ‘hyperbole’… “good for the community”, pluses and minuses considered, might well be true

  6. Todd Edelman

    Red Herring: When aliens come to visit Davis, they’ll not be able to alight at the Nishi space and instead will land on the Quad, establishing diplomatic relations with UC Davis before the City of Davis. (They also will not land in Central Park because they will think that the ridiculous law that makes dockless bikes lock to bike racks – thus making flaccid one of the great benefits of dockless bikes – applies to them.)

    Herring: People will live later in other polluted places, and they’ll compare them to their stay at Nishi, Fine Particle Living Next to Campus, generally non-conclusively.

    Red Herring: The presence of I-80 through the heart of a small town will so infuriate aliens that they will not make contact with humans.

    Herring: The presence of I-80 is accepted, even by people normally quite cynical of the serenity pledge.

    Red Herring: When the first residential building at Nishi does not achieve the EIR-required mitigation on interior air-quality despite the admirable efforts of the trees and shrubs who settled along the Rive Nord of I-80 and gradual reduction in combustion-originating ultrafine particles from the metallic herring of all colours a-swimming Sacramento and anti-Sacramento headings due to the continued braking of vehicles headed in the former direction whilst descending from the bridge over Old Davis Road, there will be a law supported by 50% +1 of Davis residents that braking is illegal on this section and all the way to the state capitol. So no one will drive this way to get off at Richards or Mace; instead they will go via CA-113 and Russell or Covell.

    Herring: When the first residential building at Nishi does not achieve the EIR-required mitigation on interior air-quality despite the admirable efforts of the trees and shrubs who settled along the Rive Nord of I-80 and gradual reduction in combustion-originating ultrafine particles from the metallic herring of all colours a-swimming Sacramento and anti-Sacramento headings due to the continued braking of vehicles headed in the former direction whilst descending from the bridge over Old Davis Road, the City will sue itself over the over-promised mitigation. By the time the case makes its way to the US Supreme Court in 2039, I-80 will be largely benign except for the presence of the wild university students living in areas formerly used by the transportation conduit, as the high speed rail convulses lovingly along the cleft between Nishi and campus.

    1. Tia Will

      Alan

      Over 70 comments, and nobody’s mind was changed 😐

      Respectfully, we have no idea if that is true or not. On one very controversial issue several years ago, I was approached by a woman who told me that a friend of hers had changed her mind on an issue about which I was passionate based on my articles. Change is made one person at a time. Most of our readers never make a comment. Most will never seek us out to tell us. But sharing ideas may certainly provide perspectives that less vocal members of our readership may not have considered.

       

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