Commentary: Opponents Called the Nishi Affordable Housing Exemption Illegal; Opponents Were Wrong

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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



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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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22 thoughts on “Commentary: Opponents Called the Nishi Affordable Housing Exemption Illegal; Opponents Were Wrong”

  1. Roberta Millstein

    why it is important not to make such sweeping claims.

    As I wrote, “I don’t believe there is anything illegal about what the city did

    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.

    I see.  It is OK to claim legality without a law license (as you did, David), but not OK to claim illegality without a law license (as Alan did)?

    If one is a problem, then so is the other.  Either mistake could affect the Measure R process.

    1. David Greenwald Post author

      Tell me, what recourse does Measure A have to false accusations that they broke the affordable housing law? I don’t have a good answer btw on the underlying problem, but I think you have to acknowledge that it is a problem.

      1. Roberta Millstein

        Tell me, what recourse does Measure A have to false claims that they are in accordance with the affordable housing law? I don’t have a good answer btw on the underlying problem, but I think you have to acknowledge that it is a problem.
         

        1. Roberta Millstein

          Not trying to be amusing.  Trying to get David to admit his inconsistency on this point.  If he thinks that non-lawyers shouldn’t be opining on the illegality of something, then he should also believe that non-lawyers shouldn’t be opining on the legality of something.

          1. Don Shor

            Seems like a major deflection from the main point, actually: you and the opponents of Nishi were wrong and you lost. And the opponents repeatedly and stridently made the false assertion that the project was illegal.
            Those of us who supported Nishi were told that what we supported was illegal and immoral. This is probably not a good day to be trying to make a false argument of equivalence.

        2. Roberta Millstein

          Seems like a major deflection from the main point, actually: you and the opponents of Nishi were wrong and you lost. And the opponents repeatedly and stridently made the false assertion that the project was illegal.Those of us who supported Nishi were told that what we supported was illegal and immoral. This is probably not a good day to be trying to make a false argument of equivalence.

          I never, ever made a claim about the legality of Nishi.  I only discussed the air quality issue.  So, I was not “wrong” because I never said what you accuse me of saying, and I still maintain that the air quality tests of that site should be done.

          There is never a bad day to argue for consistency.

          On the other hand, it is always bad to carelessly lump people together because they appear to be on the same “side.”

        3. Mark West

          RM: “Tell me, what recourse does Measure A have to false claims that they are in accordance with the affordable housing law?”

          “If he thinks that non-lawyers shouldn’t be opining on the illegality of something, then he should also believe that non-lawyers shouldn’t be opining on the legality of something.”

          Measure A was put on the ballot by the City Council after the City Attorney made the determination that it was legal. It was not a case of non-lawyers opining on a subject without appropriate training, but one of our elected representatives making a determination following expert legal advice. There is no inconsistency in David’s argument.

        4. Roberta Millstein

          Measure A was put on the ballot by the City Council after the City Attorney made the determination that it was legal. It was not a case of non-lawyers opining on a subject without appropriate training, but one of our elected representatives making a determination following expert legal advice. There is no inconsistency in David’s argument.

          David himself opined on the legality of Measure A.  It says so in the article above.  That is the inconsistency I am pointing out.

        5. Mark West

           “That is the inconsistency I am pointing out.”

          Again, there is no inconsistency. Alan Pryor’s statement ignored the legal finding made by the City Attorney and did so without legal basis. David’s statement was supported by the City Attorney’s finding. Only one of the two was based on false and/or fraudulent reasoning.

          “Either mistake could affect the Measure R process.”

          No, this is not true. If the City Attorney was wrong in her determination, then the opponents would have found recourse in the Courts, with the likely result being that the election was invalidated. There is no similar recourse for the proponents. One side has to defend its position in Court and therefore must have the data and professional analysis to back up its position, the other only needs to allow the ends to justify their means. That is the inconsistency that the community should address.

        6. Roberta Millstein

          Again, there is no inconsistency. Alan Pryor’s statement ignored the legal finding made by the City Attorney and did so without legal basis. David’s statement was supported by the City Attorney’s finding. Only one of the two was based on false and/or fraudulent reasoning.

          If non-lawyers shouldn’t give opinions on the illegality of something, then they shouldn’t give opinions on the legality of something.  David gave an opinion on the legality of something, but criticized others for giving an opinion on illegality.  You can’t have it both ways.

          No, this is not true. If the City Attorney was wrong in her determination, then the opponents would have found recourse in the Courts, with the likely result being that the election was invalidated. There is no similar recourse for the proponents. One side has to defend its position in Court and therefore must have the data and professional analysis to back up its position, the other only needs to allow the ends to justify their means. That is the inconsistency that the community should address.

          Whether there is “recourse” depends on when the illegality is discovered.  If the property is already built, then the ship has sailed.

  2. Sharla C.

    Mike Harrington also made this claim.  He called it a gift of public funds.  He repeated this claim over and over. He is a lawyer and is the person that wrote the reply which conceded that it was not in fact illegal.  I wonder how many people voted against Nishi based on this lie.  I wonder whether there are others.

    1. Howard P

      Aye, there’s the rub…

      If someone lies/speaks untruth about a portion of a project, and that results in a negative vote on a Measure R vote, there is no recourse…

      If someone lies/speaks untruth about a portion of a project, and that results in a positive vote on a Measure R vote, there is recourse!   The illegal portion can be overturned in a court of law, and if egregious enough, the whole vote on the project can be overturned/held invalid.

      Old lawyer’s trick… make sure a trial goes far enough, and if lies result in an acquittal (not a mistrial), the accused cannot be re-prosecuted… ‘double jeopardy’ applies… unless they told the lies in open court… then, then may be able to be tried on a new charge… perjury.

  3. Michael Bisch

    mor·al·ly

    ˈmôrəlē/

    adverb
    adverb: morally

    with reference to the principles of right and wrong behavior.
    “he believed the war was morally justified”

    in a way that is considered right according to the code of behavior of a particular society.
    “he insisted that his children act morally”

    Please explain, David, why you are giving Nancy Price a pass. Her morally right or wrong comment was way over the top and an outrageous insult directed at out city council and city staff. What is clearly morally wrong according to the code of behavior of our society is Nancy’s using her ends to justify her means. Her means cannot be condoned at all.

        1. Howard P

          David is right… it is morally right (justified) to say anything, anytime, to politically posture against a project (or any growth/development, for that matter), if, according to your own ‘morals’, development is “wrong”… it is also ‘free speech’.

        2. Howard P

          Lest someone parse that wrong (and I can see why)…

          Davis was right, she is entitled to her opinions, and to free speech… the part,

          it is morally right (justified) to say anything, anytime, to politically posture against a project (or any growth/development, for that matter), if, according to your own ‘morals’, development is “wrong”…

          was meant as a barb towards Ms Price’s actions/words… NOT David…

           

           

      1. Michael Bisch

        Huh? David, you simply shrug your shoulders at the person provably (publicly) acting morally wrong while she falsely accuses public officials of immoral behavior? It is truly an upside down world we live in. This type of behavior has to be called out. Her ends justifying the means approach is causing real harm to our community.

  4. Michael Bisch

    Howard, not sure why you’re bringing free speech into this. There’s all kinds of legal yet immoral behavior. Doesn’t mean it shouldn’t be called out & condemned. Particularly when the perp, in this case, was the one accusing city officials of immoral behavior. Nancy’s conduct is beyond the pale.

    If the cause is just, why the need for resorting to unethical means?

    1. John Hobbs

      “If the cause is just, why the need for resorting to unethical means?”

      Based upon Davis’ recent history, I’d have to say, “It’s the Davis way.”

       

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