During the Nishi campaign last year, opponents of Nishi argued that the city gave away millions to the developer in affordable housing commitments. But they went further than that, when Alan Pryor in a late March op-ed argued that both the city and developer violated the city’s Affordable Housing Ordinance.
Mr. Pryor wrote in the op-ed that “the Davis City Council is currently wrongfully exempting the developers of the Nishi project from providing any affordable housing units as is otherwise required by the Affordable Housing Ordinance.”
In a response op-ed, then-Mayor Pro-Tem Robb Davis argued the city did not violate the ordinance.
Mr. Davis wrote that “the housing types in the Nishi project are exempt from the Affordable Housing Ordinance under the existing Ordinance provisions.” Thus, he said, “there is no violation of city ordinances in the decision we made.”
He added that “there was a clear policy decision made to exclude the project from the Affordable Housing Ordinance requirements. I acknowledge it is a policy decision with which citizens might disagree. Whether that means they should vote against the project is up to them as they weigh all its advantages and disadvantages.”
It turns out that the opponents of Nishi were wrong about the affordable housing ordinance being illegal. This raises an important issue – it is one thing to argue that the decision to exempt the project from the city’s Affordable Housing Ordinance was wrong. That is what Nancy Price did in her April 26, Op—Ed.
She writes, “I believe the more important question for voters to decide is whether this exclusive affordable housing exemption for Nishi is morally right or wrong and makes any economic sense for the City.”
But by casting the debate in terms of legality/illegality well before a court had a chance to weigh in on the actual law, case law and precedents puts a thumb on the scale.
As it turns out, the case that the Nishi Affordable Housing was exempt is unequivocally settled law. The law is so clear that the plaintiffs were forced to actually concede the point. While some of the Nishi ruling can be appealed, this part cannot.
The city in their response brief argued that the Affordable Housing Ordinance does not apply and that all of the multi-family rental and 210 stacked flat condominiums are exempt under the ordinance, which specifically exempts stacked flat condominiums.
The Davis Municipal Code “states that rental housing is not required to provide deed-restricted affordable units based on the holding in Palmer/Sixth Street Properties.”
The court notes, in Palmer, that the Costa-Hawkins Act “precludes local governments from requiring a developer to set affordable rental levels in private rental housing units unless the developer agrees to do so in exchange for financial assistance or other consideration from the local government.
“Local government is not required to provide financial assistance, and therefore, it is in the City’s discretion to decide if it wants to offer financial assistance,” the court writes.
Therefore, Judge McAdam writes that “the City was prohibited from requiring rent-restricted rental housing, unless the City decided to provide financial or other consideration for the rent-restricted units and the developer agreed to provide the units based on the City’s financial participation. Therefore, the 440 rental units are also exempt, and approval of the Project did not violate the City’s AHO.”
The most important point: “[P]etitioner appears to concede that its position lacks merit.” The judge writes, “Upon review of the City’s Opposition brief, Petitioner acknowledges the ruling in Palmer/Sixth Street Properties.”
This isn’t a gray area and a subjective judicial ruling – this is a concession by the plaintiffs that their legal position in fact has no merit.
It is one thing to argue as Nancy Price did that the city’s policy was immoral. We can have a legitimate discussion and people can agree or disagree. It is another thing for Alan Pryor and others to accuse the city of illegality.
Alan Pryor is not a lawyer, he is simply looking at the ordinance and making a layperson’s assessment of it. He probably had no idea about the Palmer case or its importance, but that’s actually the point and why it is important not to make such sweeping claims.
There is a fairness in the democratic process that is missing when the opposition can make sweeping accusations that prove to be 100 percent and unequivocally false, and yet cannot be proven as such during the time frame of the election.
This represents a problem for Measure R and, as someone who strongly supports the principles of Measure R, I see it as a problem which we somehow have to figure out a way to reconcile or we could face legal challenges to the measure itself.
This was a point I made last spring in a May 2016 column, “This Community Deserves an Honest Debate on Nishi.”
As I wrote, “I don’t believe there is anything illegal about what the city did, but, given the city’s needs for an affordable housing stock, I think the decision was rather appalling.”
And later, I pointed out, “To show that the project does not meet the exemption, we would need to see case law and here I think the opponents are playing fast and loose by co-mingling political arguments with legal ones.”
Alan Pryor made a series of arguments that “didn’t cite case law” and this was pointed out at the time – a huge problem.
Again, it is one thing to argue, as I did, that was it was foolish from a political perspective and also bad policy – but to claim illegality without a law license, as we now see with the court ruling, is irresponsible and it blemishes the Measure R process.
—David M. Greenwald reporting