Sunday Commentary: Can Opponents of Nishi Win By Sowing the Seeds of Uncertainty?

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Can Nishi opponents defeat the measure by 1000 paper cuts?  That is what it feels like the strategy is.

A big push has been to attack the uncertainty in the project.  Newsflash: there is always going to be uncertainty in projects.  While we have some features that are “locked in” with the baseline project features, many are not and probably should not be.

One of those that is not locked in is air quality mitigations.  The EIR establishes that the air quality issue has “significant and unavoidable” health impacts.  There is a belief by some that, even with mitigation measures, the air quality is too harmful to allow for even short-term student housing.

On the other hand, many believe that the mitigation measures, including a vegetative barrier, air filtration, and sealed buildings, can greatly reduce the particulate matter in the interior of the project.

This is contained within the EIR of the project but listed in the project Development Agreement, not the Baseline Project Features. (Editor, from BPF: “Open space shall include a continuous urban forest tree buffer between buildings and Interstate 80…”)

The BPF states: “There are other additional requirements for the Nishi Gateway project, including but not limited to, the mitigation measures set forth in the Final Environmental Impact Report, and the Development Agreement that, while important to the Project, are not Baseline Project Features and may be modified with the approval of the City, after the appropriate public process.”

Is that a reason not to vote for the project?  The voters can decide that.  Some have argued that the Cannery project is a good reason to lock all of this into the Baseline Project Features.  After all, the builders have come back to the council time and time again to ask for changes.

That is true.  But the last four requests for changes from the Cannery all blew up in the face the builders and not one of them even came to a vote of the council.  In fact, the only change that was approved was a Community Facilities District – apparently unbeknownst to anyone at the time, the developer was promised the opportunity to have the CFD come before the council for consideration.  Other than that, all of the recent changes have not gotten to a vote before they were withdrawn.

The idea that the council will simply acquiesce to any proposed changes by the developer – particularly something that would reduce protections for air quality – is mostly a scare tactic by the opposition.

We have heard this time and again.  We were warned that the council could change the affordable housing provisions with a 3-2 vote – except that the city manager and city attorney have stated on the record that they cannot.  We had the argument still that the developers could build the project without access to force a showdown.

Last week someone asked me whether I had heard if the developer would sue for Olive Drive access even though it is blocked by the project’s baseline features.

Let us be very honest here – there is no certainty in a Measure R process.  We live in a dynamic world where conditions change.  We can only make the best decisions at the time and hope for the best.

Hope may not be a strategy, but reality comes with no guarantees.  In the end, we make our best decision, and hope for the best.  If you think otherwise, you’re fooling yourself.

The fact is that we actually have no guarantee either way.  There is a little recognized secret here – Measure R is itself completely unproven.  Part of the problem is that Measure R has never passed a project and so there has never been an opportunity to actually see if the provisions work.

We believe that the provisions which require a new vote will be adhered to generally by the council, the city and hopefully the developers.  But we have no guarantees.

Because a Measure R project has never passed, the requirements under it have never actually been challenged in a court of law.  Until a court of law rules on certain aspects of the measure, we really do not know what a council can and cannot do to change it.

There is no way around that.  That means that the city attorney can weigh in about her opinion.  The city manager can weigh in about his opinion.  Individuals councilmembers can weigh in on their opinion.

But until and unless a court rules on this, it is only that – someone’s opinion.

So does that mean you should simply vote no because there are no guarantees?  That’s what I see being argued.  If this concerns you, vote accordingly, vote No on Measure J.

Does that solve the uncertainty?

Here again is the problem.  First, there will never be certainty until some project passes.  So you can use uncertainty as a blanket reason to vote no on all future Measure R projects.  Until this is tested in the courts, we do not know what will withstand legal scrutiny.

But if you do employ that strategy, there is a problem as well.  If Measure R proves untenable, if it proves impossible to pass a project under it – Measure R itself has never been tested legally either.  How many failed attempts does it take to show that Measure R is rigged?  How many would it take for a court, especially in a time of the housing crisis in California, to invalidate it?

Think it can’t happen?  Think again.  There are plenty of legal scholars who believe that most of these kinds of land use laws will eventually be challenged and invalidated.

Bottom line: there is no certainty in life.  Why should there be certainty in approving housing developments?

So what should you do?

Do what we always do in life in the face of uncertainty.  Weigh the evidence.  Weigh the merits of the project.  Weigh the downsides of the projects.  And make your best decision based on reasonable and available information.

If you believe that the project is beneficial to the community, vote yes.  If you believe it will harm the community, vote no.  If you believe in shades of gray, then balance the facts on both sides and figure out which way you lean.

—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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30 thoughts on “Sunday Commentary: Can Opponents of Nishi Win By Sowing the Seeds of Uncertainty?”

  1. Don Shor

    On the other hand, many believe that the mitigation measures including a vegetative barrier, air filtration, and sealed buildings can greatly reduce the particulate matter in the interior of the project.

    This is contained within the EIR of the project but listed in the project Development Agreement, not the Baseline Project Features.

    The urban forest is included in the Baseline Project Features.

  2. Matt Williams

    Individuals have different reasons for opposing this Nishi project.  For me, uncertainty is the least of those reasons.  My personal reasons are as follows:

    —  Nishi 2.0 Will Cost Davis Taxpayers between $350,000 and $750,000 per year

    —  Nishi’s cash contribution to City has shrunk 90%  from $1.4 million down to $143,000.

    —  $650,000 per year of Community Services District revenues in Nishi 2016 have “vanished” in Nishi 2018.

    —  Nishi 2018 has no dollars for deferred maintenance of capital infrastructure.

    —  That is the same short-sighted, politically-driven thinking that created the current dilapidated state of our roads and the $8 million annual shortfall in the City Budget.

    Guess who picks up the fiscal difference … Davis taxpayers

    Further, the City’s planning process for this current Nishi project has been co-opted by politics and brinksmanship, and as a result suffers from a woeful lack of integrity

    —  All 5 Council members have said in public testimony that the 2018 Nishi project is inferior to the 2016 Nishi project.

    —  Analyses presented to city Commissions have been rushed and incomplete.

    —  The Ballot Argument authors have made no effort to acknowledge, explain or correct the misleading overstatements, despite having been made aware of them.

    The bottom-line for me is that the City needs to be honest and transparent with its citizens and taxpayers.

    1. David Greenwald Post author

      Covered under: “If you believe that the project is beneficial to the community, vote yes. If you believe it will harm the community, vote no. If you believe in shades of gray, then balance the facts on both sides and figure out which way you lean.”

      1. Howard P

        Yep, and succintly put.

        Had I found a perfect young lady to court, I wouldn’t have been married these many years… and had I found such a perfect young lady, she probably would have decided I was too imperfect for her… suspect the same is true, as to land use projects…

        1. Matt Williams

          Howard, you are arguing “Don’t let the quest for the good be the enemy of the mediocre.”

          I find it ironic that on Wednesday the Planning Commission held a hearing on a 7-story student housing project on Oxford Circle that “pencils out” for the team proposing it … yet Nishi won’t pencil out if any of its buildings go over 3-stories.

          I also find it ironic that Lincoln 40 was proposed and approved as a 5-story student housing project that “pencils out” for the team proposing it … yet Nishi won’t pencil out if any of its buildings go over 3-stories.

          It is worth noting that Oxford Circle project has a proposed density of over 68 units per acre, and Nishi 2016 had a density of 66 units per acre … Nishi 2018 has a density of 27 units per acre.

          One could argue that the slogan for Nishi 2018 is really “”Don’t let the quest for the good be the enemy of the poor.”

    2. Robb Davis

       

      Nishi 2.0 Will Cost Davis Taxpayers between $350,000 and $750,000 per year

      FBC findings on Nishi, January 8, 2018 (the only action they took in relation to Nishi)

      We also generally concur with the estimate that annual ongoing revenues and costs for the city from the project would be modestly net positive over time.

      We note, however, that the estimate does not reflect additional revenues that could result if Davis voters approve an increase in parcel taxes. Also, the estimate does not include revenues from Proposition C cannabis taxes or possible community enhancement funds that could result from the negotiation of a development agreement. Also, the EIR adopted for the original, larger, version of the Nishi project suggests that police and fire costs for serving the new residents could be nominal. (A new environmental review is now being conducted for the revised project.) Thus, in some respects, the net fiscal benefit of the project could be greater than estimated.

      Nishi’s cash contribution to City has shrunk 90%  from $1.4 million down to $143,000.

      Non-sequiter.  Two very different projects, one with revenue from commercial activity, unsecured property tax, sales tax.  I am not sure the point of this statement.  It is less.  It is a housing-only project.

      $650,000 per year of Community Services District revenues in Nishi 2016 have “vanished” in Nishi 2018.

      Correct. In the original Nishi project the FBC recommended a CFD (CC put forward a CSD instead) OR having the developer be responsible for maintenance.  In this version we opted to have the developer pay for the maintenance. DA Exhibit F states the following (please see final paragraph included here):

      Circulation improvements to serve the Property, including the grade-separated crossing to the UC Davis campus and any at-grade or grade-separated crossing at Putah Creek Parkway are solely the responsibility of Developer, at the Developer’s sole cost, subject to the of fee credits as set forth on Exhibit I . Notwithstanding the above, City and Developer shall collaborate to seek grant or other financing for grade-separated connection to UC Davis.

      City shall diligently pursue Richards/I80 interchange improvements, provided, however, that the City Council shall determine whether it has the available funds to construct the improvements prior to construction. City and Developer shall attempt to leverage local funds with SACOG or grant funding.

      Developer shall own and be responsible for all maintenance of roadways and pedestrian/bicycle infrastructure within the project area, and shall grant the City full public access rights over said facilities in a manner that is acceptable to the Public Works Director. The privately owned and maintained roadway, bicycle and pedestrian facilities shall be built and maintained in accordance with City standards or as otherwise acceptable to the Public Works Director.

      Nishi 2018 has no dollars for deferred maintenance of capital infrastructure.

      See previous point.  We don’t need it because the developer is responsible.

      That is the same short-sighted, politically-driven thinking that created the current dilapidated state of our roads and the $8 million annual shortfall in the City Budget.

      That is an editorial comment to which I will not respond.

      Guess who picks up the fiscal difference … Davis taxpayers

      Which fiscal difference

      Further, the City’s planning process for this current Nishi project has been co-opted by politics and brinksmanship, and as a result suffers from a woeful lack of integrity

      Further editorial comment to which I will not respond.

      All 5 Council members have said in public testimony that the 2018 Nishi project is inferior to the 2016 Nishi project.

      Correct.  We voted for the first project after extensive negotiations and community input.  It was a superior project in my view.  This is a good and necessary project in my view.  I would not have put it before the voters if I did not believe that. I am not sure what the point is here.

      Analyses presented to city Commissions have been rushed and incomplete.

      Analyis is another editorial comment to which I will not respond.

      The Ballot Argument authors have made no effort to acknowledge, explain or correct the misleading overstatements, despite having been made aware of them.

      Having read the ballot argument and previous comments by the commenter, I believe the issue is tax and impact fees.  Both statements are completely accurate.  This Council, with me in the lead, have laid out transparently the proportion of property tax collected in the City that actually stays in the City. The statement about tax receipts in the argument is based on clearly defined assumptions laid out to the FBC.  In addition, per the FBC recommendation, we have make-whole agreements to assure tax receipts for the County and the DJUSD.  In terms of statements that Impact Fees do not represent a community benefit. They do.  They are used to provide new infrastructure occasioned by growth. Ask the Bike Park Alliance if they believe that the impact fees used to pay for a new bike park at Community Park (impact fees collected from earlier projects just like they are being collected here) if those funds are a “benefit” to the community.  I am certain they will say they are.

      The bottom-line for me is that the City needs to be honest and transparent with its citizens and taxpayers.

      I disagree that we have lied to the community.  I disagree that we have hidden things from citizens.

    3. Richard McCann

      Matt, did you include the $3.3M in sales tax revenues during construction that EPS missed in their analysis? I posted an article last week on this calculation. It is often overlooked for these projects.

  3. Todd Edelman

    Sealed buildings. No guarantee that air quality in sealed buildings will meet formal requirements. – Vote for Uncertainty. Vote Yes on J.

    1. Todd Edelman

      My “formal requirements” are what’s in the FEIR, 95% of 0.1 micron particles removed before certificate of occupancy, re-tested yearly. As has been discussed recently, this might be relaxed.

      But let’s assume that they are not: My opinion is that passing them repeatedly will be very difficult, at best.

      Not letting people move in in the first place is one thing – though I don’t know this will work: Will the beds be reserved – how, via a lottery? – and prepared for move in near to the beginning of term? Will they be readied except for testing several months earlier so that any kinks can be worked out, if so how will the owners deal with all that “lost” rent?

      What happens if an apartment fails the inspection? Will it have several opportunities to re-rest? Will it lose its c.o. etc. so that residents have to move? Will there just be a fine? If students have to move out temporarily who will pay for it? According to the Davis Live developers, more and more students are sticking around in the summer, so any inspection at the end of term which would not have much effect in a typical dorm situation could result in the displacement of many. If inspections are staggered, how will students be able to focus on school?

      Here’s my new, groovy idea: UC buys a 250 ft. wide path, from the ghost interchange at Kidwell, then roughly east about one mile south of Putah Creek and then up towards West Sac across the bypass. In middle of the path in between two near-urban forests they build a re-routed I-80 with three lanes in either direction, including a dedicated express bus lane. If and when private vehicle declines, the third lane could be de-paved and planted.

      The now-freed up I-80 going through Davis to Richards is transferred to ownership of UC Davis and becomes available for housing, institutional  and commercial use, part of which becomes the new Eisenhower Campus of UC Davis. The eastern section from Richards to the city’s eastern border is transferred to the City of Davis, and mostly zoned for mixed use. Alternatively some of all the former Old 80 Route becomes ag land again, e.g. for people eminent domain’d out of the areas south of Putah Creek, unless of course a linear farm area does not make sense.

      There’s no rocket science with any of this: It’s exactly what they’d do in Europe.

  4. Jeff M

    If Nishi #2 goes down at least we can get to work scrapping Measure J/R because it will be clear at that point it was a mistake and will continue to be more harmful to the community.

    I believe there is state legislation percolating that would nullify the use of local ordinances that put housing development project decisions in the hands of local voters.  The NIMBYs are out of control and unfortunately for them their time of malicious blocking power will be eliminated.

    There is also the irony of RDAs being scrapped by the state to feed the perpetual mooching state employee unions… lead by the California Teachers Association union… in that the students get to launch into a life where there is much less affordable housing…  affordable housing that RDAs would have otherwise funded.

    The adults demonstrate their selfish greed in so many ways that result in more financial difficulty for young people.  You would think the young people would be angry about it.  Unfortunately they seem to be protesting about all the wrong things these days.

    1. Matt Williams

      Jeff said . . .  “The adults demonstrate their selfish greed in so many ways that result in more financial difficulty for young people.  You would think the young people would be angry about it.  Unfortunately they seem to be protesting about all the wrong things these days.”

      There is a certain wisdom in what Jeff has said above.  Arguably the decision to propose Nishi 2018 at 27 units per acre compared to the 66 units per acre of Nishi 2016 and the 68 units per acre of the Davis Live Student Housing proposal on Oxford Circle meets Jeff’s description.  The result is that Nishi 2018 leaves 3,000 students without beds because of that choice to reduce the density of the project.

    2. David Greenwald Post author

      I find it interesting that neither jeff nor Matt were at the housing townhall we held where the students were not only angry but let Matt Dulcich have it.

        1. David Greenwald

          At least 67 (the number that signed in).  Not sure your point.  How many students protest other activities?  How many people show up to council on a hot topic?

        2. Matt Williams

          What percentage of the student population are 67 students?   How representative of the student population are they? Is there selection bias in that cohort of 67?

        3. David Greenwald

          Should we also negate people who attend council meetings because they are a small percentage of the populace?  Again, not sure of your point.  Students are angry.  i talk to them all the time.  Many suffer in silence.

        4. Howard P

          Bottom line… the folk at public comment at CC are petty much like the student turnout at the forums… miniscule %-age wise, no real credibilty as to the “public” sentiment, so you are both right, and both wrong.   Look at your arguments as to “representation”…

          David,

          Many suffer in silence.

          As do non-student residents… your point?

          Works towards the two-edged sword…
           

        5. Matt Williams

          David, you may want to double check your definition of “a lot.” 3,500 students protesting would be a 10% sample.  350 students protesting is a 1% sample. 70 students protesting is a 0.2% sample.  Is a 0.2% sample “representative.”

          You are attempting to “spin” a message to your liking.  Nothing more, nothing less. Accept that.

          1. David Greenwald Post author

            By that definition, no protest is significant. But that’s not generally how people gauge protests. My original point was there are angry students, you’ve distorted and warped that point beyond any recognition. You’re attempting to explain something away without any empirical backing, nothing more, nothing less.

        6. Matt Williams

          David, I suspect that the NFL players protesting at the start of their games would disagree with your point that no protest is significant.

          My point is not that the protests are not meaningful, but rather (1) that they are not representative of an across the board student sentiment, and (2) they are more about partisan politics than housing.

          I have gathered data from UCD’s Student Housing and Dining Services office and it is quite illuminating.  The Davis apartment vacancy rate reached 0.3% in the Fall of 2001 and dipped even further down to 0.2% in the Fall of 2002.  Since that time there have been no apartment complexes added to the city, and the number of on-campus beds has seen no increase (new beds added have for the most part been replacements for earthquake vulnerable beds removed).

          In the years between Fall 2001 and present, UCD has added 10,560 students to its enrollment (3 Quarter average enrollment), and with its current Faculty/Student ratio of between 13% and 14% and its Staff/Student ratio of between 25% and 28% has added approximately 4,400 faculty and staff.  That is an addition of a minimum of 15,000 beds to the Davis housing demand and an addition of no beds to the Davis housing supply.  So my question to you is two-fold … (1) where were those student voices in the 17 years since Fall 2001, and (2) are some of the current protesters auditioning for employment?

          1. David Greenwald Post author

            “David, I suspect that the NFL players protesting at the start of their games would disagree with your point that no protest is significant.”

            Not what I said either.

          2. David Greenwald Post author

            “So my question to you is two-fold … (1) where were those student voices in the 17 years since Fall 2001, and (2) are some of the current protesters auditioning for employment?”

            (1) Frog in boiling water phenomenon
            (2) Ask them

    3. Richard McCann

      Jeff M, unfortunately the redevelopment agencies (RDAs) had been badly abused by too many cities, and the crowning blow were the eminent domain proceedings that handed private property from one individual to another private individual. The better solution is to go back to the old system where we scrap Prop 13 and allow locals to keep a much bigger share of property taxes. That gets to the same solution more cleanly.

      1. Jeff M

        Maybe 5%-10% abused the program…. but they were the poster child for the propaganda campaign to support the teachers union – governor Brown raid of the RDA cookie jar.

  5. Tia Will

    Jeff

    I see many students working in favor of Nishi. Maybe the students are “protesting” according to their values instead of yours. Isn’t that what we are supposed to be doing? Thinking for ourselves and acting in accordance with our own values?

    1. Jeff M

      Sure, go ahead an protest your values against your own long-term self-interests.  We have seen how that works out before.

      Young people are idealistic.  They have not yet lived enough of a life to have a well-rounded perspective what actually contributes to the things they think they value.  It has always been that way and the adults in charge are supposed to show some restraint in support of those boring fundamentals, and to sacrifice their selfish wants in support of what the young people NEED, not just want they WANT.

      With the ME-FIRST Baby Boomer generation we have a huge population of under-developed adults that don’t sacrifice their selfish WANTS.  But the kids don’t know any better and mistake this cohort of under-developed adults as their allies in political and social resistance.  They end up without affordable housing and rail against the man while standing next to someone 35 years older also railing against the man… when it is that 35-year older someone that the kids should be railing against.

      Some have noted this a natural cycle of previous adults having dealt with so much struggle and trauma sacrificing of themselves so their children can have a better life and with progress in each successive generation develops a lack of understanding and lack of perspective for what struggle and sacrifice really looks and feels like (instead of the trauma of losing a cell phone and being without for a week… or the trauma of someone saying trigger words).  My sons basically say that they agree with this.  That there is some macro human biology at work to cycle back to a time of fantastic REAL struggle and trauma after progressing to a point where FAKE struggle and trauma have to be manufactured in a life that has grown too easy.   In other words they tell me to give up criticizing the snowflakes, crybullies and their enablers as they are going to destroy their good lives despite what anyone else says or does.  I am not ready to give up yet.

      1. Howard P

        In other words they tell me to give up criticizing the snowflakes, crybullies and their enablers as they are going to destroy their good lives despite what anyone else says or does.  I am not ready to give up yet.

        Words truly spoken by a snowflake, cyber-cry-bully and perhaps his ‘enablers’ (won’t go to political ‘classifications’, parties, local or national leaders who are the enablers of that viewpoint)… heed well the words, particularly the adjectives used…

        Telling…

        Perhaps someome who “has his”, and defends that, so that not one iota goes to someone else?

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