Back in mid-June the Water Advisory Committee voted to pursue a binding measure rather than an advisory one. It was a close and contested vote, as it wound up 6-4.
Chair Elaine Roberts-Musser at the time said, “WAC members who favored a binding vote felt the surface water project decision should be made by citizens because it is citizens who will pay for the project.”
She added, “[Some of the members] believed a binding vote is what was contemplated by the referendum that repealed the water rate increases [that the council passed in September]. There was also a view expressed that voters would be more likely convinced the proper alternative was chosen if the vote is binding rather than advisory.”
On the other hand, those in opposition expressed a concern that was raised this week. Ms. Roberts-Musser said, “The concern expressed was that a binding vote would not give the City Council any wiggle room should circumstances change, hence their preference for an advisory vote, to give the City Council more flexibility if issues should arise down the road.”
However, a few days later staff would seem to undermine that, recommending an advisory rather than a binding resolution.
“Staff recommends developing ballot language for an ordinance, to be submitted to the voters, that would define a conjunctive use project to include the current alternatives under consideration, including the broad parameters of the project alternatives being considered and the range of costs and possible range of customer rates.”
They add, “The language would direct the city to move forward on a conjunctive use project but would provide that the final decision to move forward on a conjunctive use project rests with the Council.”
Council never acted on that recommendation, but it came back this week.
It was something that Matt Williams, an alternative on the WAC but speaking as an individual, argued against on Tuesday.
He said, “I think there is no question that the community wants a binding vote. I think the challenge is how to make the binding vote not have the problems that have just been outlined.”
He suggested that the council simply run the Prop 218 process and then ask the public whether they should approve the rates for the given project. “I don’t think we end up with as much of a time horizon project if we do it that way,” he told the council.
“This is really what the community wants, for the community to speak as to whether this is a project that we want,” he said. “I think that if we go with an advisory vote, it’s going to engage people to be talking in the election about things that have very little to do with the project, but have to do with the process of democracy.”
“What I’d really like to make sure is what we have is a vote in March that is about the project and the fiscal aspects of it, not whether or not people are getting to talk about the project,” he added.
As we have reported and commentated several times already, the council made the decision to follow legal advice and went the advisory route.
However, the Vanguard‘s report yesterday cast real doubt on that legal advice.
What compelling legal argument came forward on Tuesday that compelled the council to go the advisory route?
What rationale was offered up? To answer that question, the city inexplicably brought in Iris Yang from Paso Robles.
She told the council, “The problem with a binding measure is, one it’s difficult to know what the scope of that would be.”
She argued it was difficult in a yes or no question for the council to know what it meant if the voters said the council shall not participate in the water project. She argued the converse was also true, if the voters said the city shall participate, “does that mean under any circumstance?”
“Having a measure that purports to be binding really confuses the issue because it really doesn’t tell you what your limitations are,” she argued.
That’s really not a legal rationale and it is not completely clear why a lawyer is offering practical advice. The lawyer should be laying out the law.
It turns out we already have a relatively good model for a binding resolution – Measure J/Measure R.
A Measure J or Measure R vote involves a land use decision that is nearly as complex as the water decision, and yet it is a binding vote. It authorizes a change in land use designations while establishing project baseline features.
In order to change those baseline features, council would have to go back to the voters. But there are other details that would be laid out in the development agreement.
Look at the language to Measure P: “Shall Resolution No. 09-132, amending the Davis General Plan to change the land use designations for the Wildhorse Ranch property from agricultural to residential uses, as set forth in the Resolution and establishing the Base Line Project Features for development of the Wildhorse Ranch Project be approved?”
It does not seem that difficult to incorporate language that would establish participation in the Woodland-Davis water project, establish a 12 million gallon cap, establish a cost that the project could not exceed, tie it to approved rates through the Prop 218 process, while granting the council the authority within those exact parameters to hammer out the remainder of the deal through the JPA process.
I am not attorney, but the idea that this is somehow insurmountable boggles my mind.
There is no compelling legal reason offered by either Ms. Yang or Davis’ City Attorney Harriet Steiner.
There are still those who do not see from a practical standpoint whether it makes a difference. I do not know that it does or that it will. From my perspective, if it does not make a difference, the default should be with a binding vote.
At this point however, I have two concerns.
My first concern is that the vote seems to precede rather than follow the determination of the Prop 218 process. I have a big problem with that.
First, I believe the Prop 218 process itself is flawed – and no, I do not think the reasonable thing to do is try to change the process in Sacramento while we operate under the current flawed process.
Second, a huge question before the voters is going to be the rates. Other than the rates, everything else is somewhat peripheral. Am I philosophically opposed to having a JPA, a private operator, working with Woodland? Or is it a concern that people may not be able to afford the rates?
The voters need to be able to vote on all of the core issues, and the Prop 218 process is different from a voter approval process.
My second concern remains simply that I see no compelling legal justification not to have a vote that is binding.
To me, this is a principle as much as anything else. I think the voters deserve the right to have the final say on whether to go forward with this process.
Iris Yang threw out a huge straw man when she said that if 80 percent of the voters voted against the project, “and you went against them, then I think you would find out what would happen at the next election as to whether or not they appreciate the consideration that was given to the outcome of that vote.”
She said, “The same thing is going to happen a few weeks later when the property owners are going to vote on the rate increase, if you get a majority protest and the rate increase is not approved, then that’s going to restrict what you can do with respect to that project.”
“You’re going to have a pretty clear reading, it seems to me from those two ballot measures,” Ms. Yang said.
I agree with her, if this looks like a Measure P or even a Measure X scale no vote, there is no doubt. It’s easy to govern when there is broad consensus.
The problem is that it seems just as likely, if not more likely, to be a far closer vote.
So picture the scenario – it’s advisory, it’s a nail biter, the scale of the Target vote, Steve Pinkerton pulls the council into closed session, and he and Harriet lay down the law and how much it is going to cost the city. They make the decision to tweak the rate structure, put up a Prop 218 process but move forward with the rest of the project.
They say they won’t do it, but they haven’t been pulled into the closet with the attorneys yet.
Is that a likely scenario? It’s hard to know. It’s better for the voters, better for our leaders if we avoid the possibility and clarify that a vote is binding, giving them the flexibility still to finish the project.
For me, this is a principle – a trust bestowed upon the citizens of Davis from their leadership. But it’s more than that.
—David M. Greenwald reporting
Agree David except for your Measure J and Wildhorse Ranch comparison. Covell Village too. In those cases the votes were NO and the proposed developments “went away”
In the case of water, from all I have heard from most, a NO can not mean no more pursuing of a water solution.
If NO, especially if binding, then what?
First, my disclaimer. I have no have no financial, professional or personal ties to any group interested in this matter. I am writing merely to express my difference of viewpoint from that of the Vanguard on this issue.
[quote]Back in mid-June the Water Advisory Committee voted to pursue a binding measure rather than an advisory one. It was a close and contested vote as it wound up 6-4.[/quote]
It seems clear from your opening paragraph that there were reasons compelling enough for 4 members of the WAC to favor an advisory vote well before the lawyers weighed in with their final opinion.
[quote]the city inexplicably brought in Iris Yang of Paso Robles[/quote]
I do not see this as “inexplicable” at all. I see it as a wise decision for two reasons. First, it has been stated that
Ms. Yang has special expertise in this area. Would many not have been very critical of Ms. Steiner had she rendered an opinion they did not like from a position of lesser expertise ? Also, with regard to Ms. Steiner, regardless of the quality of her actual performance, she has been so vilified in these pages if not in the community as a whole as to make any opinion she might render fodder for those who have decided not to trust her opinion under any circumstance. As Matt Williams has pointed out in a different context, I would like the discussion to be about the project, not about peripheral issues such as the skill set of the city attorney.
[quote]He said, I think there is no question that the community wants a binding vote[/quote]
With all sincere respect to Matt Williams who has spent an enormous amount of time and energy on this matter and knows far, far more than I will ever know about the details of this project, I think there is a question about what the “community” wants with regard to an advisory vs binding vote. There is certainly a very vocal subset of the community whose members want a binding vote. I think there is also a less visible subset of the community whose belief is that we elect city council members to, in due diligence spend the time gathering and analyzing data in conjunction with such boards, commissions and experts as they deem necessary, make sound decisions for the community. For this reason, I favor an advisory vote. I am willing to admit that I have not spent the same amount of time as have either the members of the WAC or the CC in analyzing all the pros and cons of these issues. I personally think it is time to let our elected leaders do what we elected them to do.
[quote]Or is it a concern that people may not be able to afford the rates?[/quote]
I will counter this with the question that I asked you previously. Under what circumstances do you see water as less expensive in the future ? Do you really believe it is going to be less expensive or more affordable for our children to secure water than it is for us now ?
[quote]So picture the scenario – it’s advisory, it’s a nail biter, the scale of the Target vote, Steve Pinkerton pulls the council into closed session, and he and Harriet lay down the law and how much it is going to cost the city. They make the decision to tweak the rate structure, put up a Prop 218 process but move forward with the rest of the project.[/quote]
[quote]a trust bestowed upon the citizens of Davis from their leadership[/quote]
Trust is a two way street David. You seem to demand trust from the leadership while at the same time casting aspersions on the integrity of the leadership. To me this is not a matter of dishonesty, but rather realism. Is it not the duty of the council to listen to concerns about “the law” and “how much it is going to cost the city” in making sound decisions for the city ? Do you really believe that the voters have full access to all of the data when they make their decision ? Or do you not think the public is more likely to be swayed by the emotionalism inherent in such comments as we have read on this blog about “Taj Mahal” projects and “fraudulent rates” ?
I would rather have the decision made on the basis of facts and a relatively dispassionate assessment of the realistic options rather than on the emotionally charged name calling which has already started up again from the Harrington camp in naming Krovoza as a “water carrier” for the developers.
“If NO, especially if binding, then what?”
The Council goes to their Woodland counterparts and says,” Our hands are tied, we must renegotiate our agreement and take it back to the Davis voters if you want to partnership with us in this project”. They can renegotiate and apply for a penalty waiver(IMO, a given) or build their own system at much higher cost. We apply for a waiver(if penalties were assessed). Our Public Works Director stated that only if the voters reject the proposed rates(and project) would we be able to avoid penalties,assuming we are continuing to actively pursue dealing with water quality issues. We continue to clarify/refine the West Sac option which are left unanswered as the WAC was forced to make a decision by a conjured “deadline”(shades of the arm-twisting of the Planning Commission when they were evaluating Whitcomb’s Covell Village project.)
[i]The Council goes to their Woodland counterparts and says,” Our hands are tied, we must renegotiate our agreement and take it back to the Davis voters if you want to partnership with us in this project”. [/i]
If Davis voters reject the JPA, Woodland will not be renegotiating anything. They will be done with Davis.
[i]They can renegotiate and apply for a penalty waiver(IMO, a given) or build their own system at much higher cost.
[/i]
Woodland will not be applying for any penalty waiver. They are going forward with the project with us or without us.
[i] We apply for a waiver(if penalties were assessed).[/i]
The only basis for a waiver is having a mitigation plan in place or underway. If the voters reject the JPA, there will not be such a plan.
[i]We continue to clarify/refine the West Sac option[/i]
The cost of the West Sac option has been identified, as have the general terms. They are not favorable to Davis. However, if the votes reject the JPA the West Sac option will be the only option, and at that point the terms will certainly not become more favorable.
“I do not see this as “inexplicable” at all. I see it as a wise decision for two reasons. First, it has been stated that Ms. Yang has special expertise in this area. Would many not have been very critical of Ms. Steiner had she rendered an opinion they did not like from a position of lesser expertise ?”
I’m critical of her because I don’t see what she adds to our understanding of the difficulties of the binding election – Harriet Steiner made similar claims a few months ago and I don’t find either particularly compelling. I don’t see in fact anything in her discussion that a lawyer is actually needed for. There is no legal analysis, not citation of case law, in fact there is almost no legal analysis. If you see it differently, I’m all ears but I put this to the several councilmembers and none of them were able to cite any legal authority that was authored either.
“If Davis voters reject the JPA, Woodland will not be renegotiating anything. They will be done with Davis.”
That’s their choice and frankly their loss. That’s a $30 million decision for them – at least.
“The cost of the West Sac option has been identified, as have the general terms. They are not favorable to Davis.”
That’s an interesting characterization. The terms are not that bad. First, the overall cost is still 12.5% less. Second, Davis has a contract, so the notion that Woodland can unilaterally do things is not completely accurate. Third, yes Davis will not have control over the project, but to a remarkable extent once they agree to the JPA, Davis will have little more say.
Personally, I think Davis rejected the West Sacramento option too quickly so if the worst thing that happens with a no vote is going to West Sacramento, we actually have A LOT less to lose than Woodland does.
Medwoman: Trust? You are going to trust the crew who gave us the need for the referendum? And last year they were telling us the town was going to heck unless we approved a 18 mgd project, and now they say 12 is about right? You are the most naive blogger on the DV.
Medwoman: “[i]I would rather have the decision made on the basis of facts and a relatively dispassionate assessment of the realistic options rather than on the emotionally charged name calling which has already started up again from the Harrington camp in naming Krovoza as a “water carrier” for the developers.[/i]”
Agreed.
David
” I’m critical of her because I don’t see what she adds to our understanding of the difficulties of the binding election – Harriet Steiner made similar claims a few months ago and I don’t find either particularly compelling. I don’t see in fact anything in her discussion that a lawyer is actually needed for. There is no legal analysis, not citation of case law, in fact there is almost no legal analysis. If you see it differently, I’m all ears but I put this to the several councilmembers and none of them were able to cite any legal authority that was authored either.”
Please note that I made no comment whatsoever about the quality of the advice ultimately given. What I was objecting to was your use of the word “inexplicable” with regard to why the CC brought in an outside expert. I stand by my statement as written for the reasons I gave.
And, I see that Michael Harrington has chosen to illustrate my point about his use of emotionalism and name calling with respect (or lack thereof)
for those who happen to disagree with him. I may indeed be the most “naive” blogger on the DV. But I am not so naive as to buy into the notion that MH is of any purer motive than are the members of our elected leadership. Nor am I so naive as not to be able to see through his hyperbolic and yes, Michael “threatening” tactics.
Woodland leaders are scared to death Davis residents will assist with a rates referendum up there.
But here Woodland is, mucking around in our decision making process by imposing an artificial deadline that our staff and CC are using as justification to push this ill conceived project past ratepayers whom cannot afford it
I feel sorry for the poor and middle class Woodland ratepayer. Their CC leaders are completely bankrupting the town in order to get more water for urban sprawl
Medwoman: I can see “inexplicable” as too strong a word, but given her lack of real legal advice, it seems the resources expended were probably wasted.
David
You maybe right, but as I stated previously, one doesn’t ever know the value of a “second opinion” until one has heard the opinion.
MH
“Woodland leaders are scared to death Davis residents will assist with a rates referendum up there. “
Scared to death ????? No implied threat there at all….eh ?
And, if Davis residents were to assist with a Woodland referendum, I suppose you might spin that as something other than ” mucking around in their decision making process”.
David, any renegotiated JPA would also have to go before the voters. So if the Davis electorate rejects one, why wouldn’t they expect Davis voters to reject another one? And if the voters reject the JPA, on what basis would Davis council members go to Woodland and try to renegotiate the JPA? I thought you considered a ‘no’ vote on this to be a rejection of the Woodland project overall.
“I thought you considered a ‘no’ vote on this to be a rejection of the Woodland project overall. “
I’m not certain I have ever said that. I would consider a no vote to be a vote against the specific project parameters. I don’t think most people are philosophically opposed to the concept of the JPA or partnering with Woodland.