Lawsuit To Be Filed Against WDAAC

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PLANNED WEST DAVIS ADULT COMMUNITY, IF APPROVED, WOULD PERPETUATE RACIAL IMBALANCE IN THE CITY OF DAVIS

(From Press Release) – The proposed restrictive West Davis Active Adult Community on the City of Davis’ November 6 ballot which advertises its purpose as a planned community “Taking Care of Our Own,” is being challenged in federal court because it will perpetuate racial imbalance and discriminate against minorities by restricting sales to residents of Davis. 

In a federal complaint filed Monday, September 24, by Sacramento civil rights attorney Mark E. Merin, plaintiff Samuel Ignacio, a Filipino/Hispanic senior on behalf and all other minorities outside of Davis, seeks to stop the project because it excludes those living outside of Davis from buying most of the 410 planned for-sale units.

Davis, a city whose senior population is disproportionately “white” as a result of historic racially restrictive covenants, red-lining practices, and previous University of California hiring practices, approved the project with 90% of its units restricted to “purchasers with a preexisting connection to the City of Davis.” The result of this “local resident” restriction, as alleged in the civil rights complaint, is the continuation of a racially imbalanced community and the exclusion of minority would-be purchasers in violation of the Federal Fair Housing Act.

Because the ordinance approved a zoning map change and the conversion of agricultural land to urban land use development, the changes approved by the Davis City Council in Ordinance No. 2534 must be put to a vote of the Davis citizenry, a vote now scheduled for November 6, 2018. If that vote is approved by the voters, a blatantly discriminatory project (marketed as “Taking Care of Our Own”) with an obvious disparate impact on minorities desiring to locate to the City of Davis will be authorized to proceed in violation of Sections
804(a) and 805(a) of the Fair Housing Act, 42 U.S.C. 3601 et seq.

Plaintiff Samuel Ignacio, a Filipino/Hispanic senior, filed the action on behalf of himself and all other similarly situated racial and ethnic minorities who desire to purchase residences in
the proposed West Davis Active Adult Community, for declaratory and injunctive relief against the City of Davis, Binning Ranch Holding Company, and J. David Taormino for approving,
marketing, and developing a housing project with a disparate impact on him and other prospective minority purchasers of units in the development.

The “residency requirement” for 90% of the proposed sales is unlawful, according to Merin, because in communities with populations that are disproportionately White and/or nonminority
they perpetuate segregation by excluding minority applicants who live outside the community from obtaining housing there. Residency requirements prevent minority families from moving to high-opportunity areas ensuring that overwhelmingly-White communities remain overwhelmingly-White.

Merin and other opponents of the West Davis Active Adult Community will appear at the Davis City Council meeting at 6:30 pm on Tuesday, September 25, to implore the City to avoid
this costly litigation, withdraw its support for the project, and move Davis towards becoming a more inclusive, representative community.

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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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50 thoughts on “Lawsuit To Be Filed Against WDAAC”

  1. Alan Miller

    This may shock RK, but I actually agree with this lawsuit, and do see that RK’s numbers are useful here is showing how this disparity would cause discriminatory housing practices.  This is because I have believed this preferential housing plan to be ludicrous, not-justifiable, obviously discriminatory, a thinly-veiled attempt to tug at the weak ‘what about the children and old people!!!’ heartstrings, and  unjustifiable in making Davis appear to leave out ‘outsiders’ and somehow attempt to only sell to ‘its own’.  So in this context and this context only, thanks RK for the history lesson and the numbers.

    1. Ken A

      As someone that does not like any discrimination at all I also agree that with the exception of actual skilled nursing facilities that target the specific needs of older people or maternity wards that target the specific needs of newborn babies I don’t think we should allow ANY discrimination based on age (sorry Rancho Yolo).  I feel even stronger that programs that discriminate based on a connection to a city are even worse.  I don’t have any problem if a developer builds a “senior friendly” community with built in bridge tables in the homes, and a community center that plays big band music on bingo nights, I just don’t think you should be able to restrict the age of the people that want to buy one of the homes.

      1. Eric Gelber

        I agree with Ken. Including the local buyers’ program in WDAAC is a classic case of the self-inflicted wound.

        Unlike the discriminatory local buyers’ program, however, federal fair housing law exempts senior housing from federal and state anti-discrimination laws under specified conditions. When familial status (primarily families with children) was added as a protected class to the federal Fair Housing Act in the 1980’s, seniors lobbied for the exemption so they could continue to exclude households–especially those with children–from their seniors-only communities. Because it’s lawful intentional discrimination, however, doesn’t mean it’s good policy.

         

    2. Ron

      Alan M.  “This may shock RK, but I actually agree with this lawsuit, and do see that RK’s numbers are useful here is showing how this disparity would cause discriminatory housing practices.  So in this context and this context only, thanks RK for the history lesson and the numbers.”

      I’m not seeing where Rik had anything to do with this press release.

      Perhaps you’re referring to previous/other articles.

    3. Matt Williams

      I agree with Alan and Ken’s core point, and also agree with Ken that Rik Keller’s articles have been very helpful in understanding how the past practices contribute to the present concerns raised in the lawsuit.

      As I said in my comment in another thread last night, it is important to be thinking about possible steps that Davis can take to “do better.”   As Harold Arlen and Johnny Mercer once said, “Accentuate the positive, Eliminate the negative, Latch on to the affirmative …”

    4. Rik Keller

      Thanks Alan. You’re welcome!

      But rather than just focusing on the legality of this one project, I do think there is a broader discussion to be had about inclusiveness and affordable housing in Davis.

      My next article will look at policies and programs that have had (or would have) the effect of continuing these exclusionary patterns. It will discuss their legal status. And it will discuss possible policies and programs to avoid continuing these past patterns and make the community more inclusive.

      For example, even without the “Taking Care Of Our Own” program, the vast majority of the WDAAC project would be an upper-income senior enclave excluding people based on income levels (and, by extension, race and ethnicity to a large extent). In contrast, one of the main policy goals of the Measure R provisions for projects intending to convert ag land to urban uses is the phrase “adequate housing supply to meet internal City needs.” As delineated in this statement in the 2007 City Of Davis General Plan Update: “the primary reason for city residential growth to provide housing opportunities for the local workforce.” The policy is intended to be inclusive and focus on the provision of lower and moderate income workforce housing. There is a strong argument to be made that the WDAAC project does not adequately address Measure R policy goals at all.

      1. Alan Miller

        would be an upper-income senior enclave excluding people based on income levels

        And that’s where we disagree . . . the world is full of stuff people can’t buy.  The only solution to that is communism . . . but I *think* that’s been tried in reality and hasn’t gone so well.

      2. Rik Keller

        For broader context, it is important to look at established law: the Fair Housing Act (1968) has been in place for 50 years. However one of its mandates has not been adequately addressed in all that time: the requirement for communities to put into place policies and practices that “affirmatively further fair housing.”  See this article for some context as recent efforts by the Trump Administration to kill an Obama Administration rule to finally start addressing this:

        The city and the housing authority intend to collaborate on another fair housing report despite a controversial decision by the Trump presidential administration to suspend the requirement to file one. The mandate had been strengthened by HUD officials in 2015 under former President Barack Obama.

        Originally the city had until 2020 to file plans to “affirmatively further fair housing” with HUD, but the government first extended the deadline to 2025, then eliminated it and finally killed a statistical tool intended to help communities comply with the rule.

        The 2015 regulation replaced a more passive requirement to analyze “impediments” to fair housing. Fair housing advocates had argued for years that a 1960s-era law requiring communities to promote fair housing in the use of HUD funds was not being enforced because of the weak rule, and they welcomed the 2015 regulation. Advocates have sued the federal agency over the suspension of the rule. [http://www.cambridgeday.com/2018/07/15/with-data-showing-racial-divide-in-housing-issue-of-discrimination-due-for-examination/]

         

      1. Matt Williams

        Don, your response does not directly answer the question. For all the Vanguard readers who are not as close to or as knowledgeable about the issue as you are, would you please share your synopsis of the portions of the document you linked that directly address the question I posed.

    1. Alan Pryor

      Is the Davis-based buyers program part of the Measure J/R baseline features?

      It is spelled out in the Development Agreement not the Baseline Features. But it is a key component of the WDAAC  marketing strategy and prominantly featureed in all of their literature and on their website and is even the main “headline” on their pop-up at the Farmers Market.

      1. Eric Gelber

        It’s not in the Development Agreement? This is from page 12 of the Development Agreement attached to the Ordinance approving the Agreement.

        https://cityofdavis.org/home/showdocument?id=10680:

        (8) Davis-Based Buyers Program. Developer has elected to restrict ninety percent (90%) of the residential units within the Project, excluding the affordable housing and the specialized senior care, to initial purchasers with a preexisting connection to the City of Davis, and desires to sell or hold said percentage of market-rate residential units available for sale to households that include a local resident, defined as a person residing within the City or the Davis Joint Unified School District boundary, family of a local resident, a Davis employee, a Davis grade-school student, or an individual that attended Davis schools. Prior to issuance of any building permit, Developer and its successors and assigns shall (a) develop and implement appropriate local-connection requirements and verification procedures for such a program that are consistent with all applicable Federal and State fair housing requirements, including but not limited to the Federal Fair Housing Act (42 U.S.C. §3604), the California Fair Employment and Housing Act (Gov’t Code §12900 et seq.) and the California Unruh Act (Civil Code §51 et seq.) (the “Fair Housing Requirements”), and provide City with a copy of such verification procedures, and (b) indemnify, protect, and hold City harmless from any and all claims arising out of Developer’s failure to comply with applicable legal requirements as set forth in or related to the Fair Housing Requirements in accordance with the indemnity provisions set forth in Section 500 of this Agreement. The provisions of this Section 201(8) shall survive the expiration or earlier termination of this Agreement.

        1. David Greenwald Post author

          Interesting. I didn’t realize they put that into the DA. I think the enforceable part will still be in the CC&R. Also note this part: “hold City harmless from any and all claims arising out of Developer’s failure to comply with applicable legal requirements as set forth in or related to the Fair Housing Requirements in accordance with the indemnity provisions set forth in Section 500 of this Agreement.”

      2. Rik Keller

        The “Taking Care Of Our Own” (AKA Davis-Based Buyer’s) Program is in the Development Agreement, but not in the Baseline Features (or the Measure L ballot description).

        Just as a reminder, this goes against everything the project developers were promising as the project was going through the City approval process to be placed on the ballot: Jason Taormino stated earlier in the year (in the Project FAQs) that development agreements are weak documents and they pledged to provide stronger guarantees: “Development agreements are mostly boilerplate language mitigating risks, defining payment options and a few specific deal points. We expect all the significant deal points that are normally in a development agreement to be in the Baseline Features & Requirements so that they are evident to the voters.  The citizens then have a direct contract with the developer that is only changeable with a new vote.”  https://cityofdavis.org/home/showdocument?id=8285

        However, even though the “Taking Care Of Our Own” program is a central part of the project (much like the Affordable Housing Plan which is a skimpy document slightly longer than 1 page located in the appendices of the DA, but that’s a story for another comment), there is no “contract with the citizens” and no guarantees that it will be implemented. The developers purposely kept these very important “deal points” out of the Baseline Features because they want to avoid a binding contract and commitment to the citizens of Davis.

         

    1. Rik Keller

      Don: based on your theory that there is no legal standing for the plaintiff because just 10% of the homes will not have the locational restriction attached, what, in your view is the threshold for the minimum percentage or number of units that could be used to skirt disparate-impact claims under Fair Housing law? Would one unit be sufficient?

      One test that is used by the courts in determining whether a program or policy restricting eligibility by location predictably will cause a disparate impact is whether there is sufficiently large disparity in how a policy or program affects a class of persons protected by the Fair Housing Act compared with others (on a percentage basis, not absolute numbers). Given that the racial/ethnic disparities in Davis are multiple times larger than surrounding communities (particularly among persons 55+ years old)  a 10% exception would likely be viewed as mere tokenism.

      1. Don Shor

        based on your theory that there is no legal standing for the plaintiff because just 10% of the homes will not have the locational restriction attached, what…

        I don’t have a theory. I asked a question. The plaintiff can buy a home there, so I didn’t see how that plaintiff could claim discrimination.
        If 10% is tokenism, what % isn’t? If they retained 50% of the homes for Davis-related buyers, would that still be insufficient to avoid the disparate impact?

        1. Eric Gelber

          100% of the homes could be purchased by Davis (and Davis-connected) buyers, whereas only 10% could even potentially be purchased by outsiders. That puts outsiders at a decided disadvantage, which, given the racial/ethnic imbalance of Davis vs. the general population (of the region), would put non-whites at a decided disadvantage and, thus, would have a disparate impact on a protected class, of which the plaintiff is a member. Whether that disparate impact is substantial enough to comprise a fair housing violation would have to be determined by the court.

          I don’t know about the premature (ripeness) issue, without at least reading the complaint.

  2. Jason Taormino

    If you read the section of the development agreement which covers the Davis-Based Buyers program it should become clear that there is a requirement to “develop and implement” a program.  Therefore, the program has not been approved an in this case we look forward to working with the community to create the final program.

    1. Eric Gelber

      That’s misleading. The development agreement is not nearly as undefined as you imply. It’s not just an intent to develop and implement “a program.” It’s a determination to implement a program with specified parameters:

      Developer has elected to restrict ninety percent (90%) of the residential units within the Project, excluding the affordable housing and the specialized senior care, to initial purchasers with a preexisting connection to the City of Davis, and desires to sell or hold said percentage of market-rate residential units available for sale to households that include a local resident, defined as a person residing within the City or the Davis Joint Unified School District boundary, family of a local resident, a Davis employee, a Davis grade-school student, or an individual that attended Davis schools. 

    2. Rik Keller

      Jason Taormino: modifying a condition in the Development Agreement that is not in the Baseline Features does not require you to go back to the voters. This is why you made the following statement regarding a “direct contract” with the citizens of Davis back when you were trying to get the project approved to send to the ballot by the City:

      Development agreements are mostly boilerplate language mitigating risks, defining payment options and a few specific deal points. We expect all the significant deal points that are normally in a development agreement to be in the Baseline Features & Requirements so that they are evident to the voters.  The citizens then have a direct contract with the developer that is only changeable with a new vote.

      Can you explain why you have broken your pledge and why the “Taking Care Of Our Own” program and the Affordable Housing Plan, which are surely “significant” features/”deal points” of your project, are not contained in the Baseline Features or the Measure L ballot language?

      And now you are saying that you will be “working with the community to create the final program.”? What happened to the “direct contract” with the citizens containing “all significant deal points”?

      Can you also explain why you have misrepresented Measure R language calling for “an adequate housing supply to meet internal City needs,” to try to support your project when the phrase ‘internal needs” is embedded in Davis City Code, General Plan Update, and supporting documents as referring primarily to workforce housing at moderate and low incomes?

    3. Rik Keller

      Eric Gelber said:

      That’s misleading

      I agree. Davis Taormino just stated [my emphasis]:

      If you read the section of the development agreement which covers the Davis-Based Buyers program it should become clear that there is a requirement to “develop and implement” a program.

      However the actual language of the Development Agreement states:

      Prior to issuance of any building permit, Developer and its successors and assigns shall (a) develop and implement appropriate local-connection requirements and verification procedures for such a program…

      Note that this refers to developing and implementing requirements and procedures for a program that has already been defined.

      The larger question is why Taormino is attempting to back out of commitments by first not including the “Taking Care Of Our Own” program in the Baseline Features, and now by  trying to say that the program will be created later.

      1. Alan Miller

        “the developers” — generic; speaking of the team of City & developers as a generic not following through with their promises.

        Here promises are again being made.  Point is, some promises made were not followed, if not by strict legal interpretation, certainly by what was intended and understood by citizens.  Point is, don’t believe everything told to you by the team City-developer as a generic, pre-vote and/or pre-construction, and assume it is going to happen as you believe they are laying it out.

        The problem now for future developments is that when a previous team City-developer doesn’t follow through as promised — or says ‘oh, actually that isn’t legally binding’ or ‘oh, we have to do this now because of changed circumstances and we legally can’ — then they may be following the law, but the citizens don’t trust the team City-developer no matter the name on the latter anymore. Why should they?

        Fool us once . . . shame on you . . . Fool us a zillion times . . . shame on the citizens . . .

        I’m sorry I had to explain that.

        1. Don Shor

          “the developers” — generic; speaking of the team of City & developers as a generic not following through with their promises.

          So all developers are the same?

        2. Rik Keller

          Don Shor said:

          So all developers are the same?

          The way I would phrase it is that all people with contractual obligations are the same: when it comes down to it they will try to get away with whatever they can.

          The Taorminos pledged that their project would be different than some other past Davis projects and that they would put all significant deal points in the Baseline Features so that citizens would have a solid contract with them and know exactly what they would be getting. We can see how much that is not the case now.

          1. Don Shor

            The way I would phrase it is that all people with contractual obligations are the same: when it comes down to it they will try to get away with whatever they can.

            I was a landscape contractor for many years. Your statement is false and offensive. A contract is a mutual obligation. When we enter into it, we seek to fulfill the contract within the expectations of the customer, and our future business depends on our reputation for how we fulfill our contracts. A local developer has a reputation and a history — a portfolio, if you like. Not all developers or contractors are the same. Not all developers or contractors seek to “get away with whatever they can.” We heard this argument repeatedly during the Nishi campaign. It was false and offensive then and it is false and offensive now.

        3. Ron

          Just looking through the comments, now.

          Aren’t these the same developers who said that the small Wildhorse infill development wouldn’t “pencil out” unless the city sold the adjacent greenbelt to them?  (Which turned out to be incorrect?)

        4. Alan Miller

          So all developers are the same?

          Oh God NO!  Not by a mile, not by a thousand miles.

          The shining contrast in our neighborhood:

          Trackside – Lied to Us, Told us Different Stories, Gave Us Bad Reports and took months to get them, Faked a Ridiculously Tall Building to get the size they wanted, ignored the Design Guidelines, etc.  Total train wreck and now the neighborhood is suing the City over their acceptance of this.  In my opinion anyone associated with that team should be banned from ever doing business in Davis again — a horrible example of how to treat fellow Davis citizens.  Was adversarial from start to finish — and it ain’t finished.

          Lincoln40 – Came to us months before proposal submitted to the City or media, admitted impact and asked what we needed and wanted, hired Davis locals as liaisons and gave us total access, met with us many times, gave us a simple and accurate shadow study in the first meeting, worked out numerous issues, signed a mutually agreeable MOU, and continue to inform us as the project proceeds with total access.  Our understanding is they worked closely with all displaced residents and helped them find new housing.   Was cooperative from start to finish.

          So no, not all developers are the same.  The City would do well for its citizens to have the team that developed Lincoln40 be a shining example of how to do a development and treat the affected citizens with some level of human decency.

          1. Don Shor

            So no, not all developers are the same. The City would do well for its citizens to have the team that developed Lincoln40 be a shining example of how to do a development and treat the affected citizens with some level of human decency.

            Re WDAAC:
            “The developers reached out to the community, took tons of input, implemented those changes and it’s a great project.”
            — Eileen Samitz

        5. Ron

          Alan M:  Wondering if the Lincoln40 developers are larger/non-local.  (Perhaps such developers are generally better-able to accommodate the goals of communities such as Davis, due to having more resources and broader experience.) And, are less-likely to engage in arguments regarding the goals of the communities that they are seeking approval in.

          Just a theory. (Sometimes, I wonder if there’s a sense of “entitlement”, from smaller developers who are used to getting their way in the past, in local communities.)

          In any case, I believe that the Sterling developers are not local, either.

        6. David Greenwald

          Lincoln 40 – non-local

          Stelring – non-local

          Nishi – local

          WDAAC – local

          Trackside – local

          Cannery – non-local

          I’m not really seeing a pattern here.

        7. Alan Miller

          Re WDAAC:
          “The developers reached out to the community, took tons of input, implemented those changes and it’s a great project.”
          — Eileen Samitz

          I don’t agree with ES about much.

          Trackside says they reached out to the community, too.   Which is true as stated, and hardly the whole story.

        8. Alan Miller

          if the Lincoln40 developers are larger/non-local.  (Perhaps such developers are generally better-able to accommodate the goals of communities such as Davis

          I think you are trying way too hard.  Simple truth:  some people are just arseholes.

        9. Ken A

          Ron needs to remember that (according to Zillow) the average Wildhorse home has gone from ~$700K  back ~2014 when Paso Fino was first proposed to ~$800K today (making  the deal easier to “pencil out”).  When prices are going the other way when a developer is building the deals get harder to “pencil out” and is why so many developers end up with money losing projects and/or are forced in to bankruptcy…

        10. Ron

          Ken:  Maybe so, but wasn’t the decision made (to proceed without obtaining the city’s greenbelt) back when the houses were worth $700K? If so, then it “penciled out” even back then.

      2. Rik Keller

        Don: you completely mis-read my post. All I was saying is that by people “getting away with whatever they can” is that if it is not spelled out in the contract, it ain’t gonna happen. And if there is wiggle room in the contract, you can be sure wiggling will commence.

        And what we are dealing with here is the developer purposely leaving stuff out of the contract.

        1. David Greenwald

          “If it is not spelled out in the contract, it ain’t gonna happen.”

          What was left out of the contract purposefully?  My understanding with regards to the buyer’s program is that the city wanted the language out of the DA and put into CC&Rs and that the developer asked the city to put the language into the DA.  That was one reason I thought it wasn’t in the DA – I don’t think it was at the council meeting when the project was approved.

        2. Rik Keller

          David Greenwald: neither the “Taking Care Of Our Own” nor the Affordable Housing Program are in the Baseline Features (there is some extremely vague language about affordable housing in it)

          I have asked the question of the Taorminos multiple times on this forum now about why their pledge to put every significant project deal point into the Baseline Features was broken. Zero response.

          Even today after I asked again, Jason Taormino got on the forum solely to try to dissemble about the level of commitment to the “Taking Care Of Our Own” program in the Development Agreement.

        3. Rik Keller

          Don Shor: a short play in three acts

          Act I. Me yesterday

          The way I would phrase it is that all people with contractual obligations are the same: when it comes down to it they will try to get away with whatever they can.

          The Taorminos pledged that their project would be different than some other past Davis projects and that they would put all significant deal points in the Baseline Features so that citizens would have a solid contract with them and know exactly what they would be getting. We can see how much that is not the case now.

          Act II. Don Shor yesterday:

          Your statement is false and offensive. A contract is a mutual obligation… Not all developers or contractors are the same. Not all developers or contractors seek to “get away with whatever they can.”

          Act III. today. Jason Taormino today:

          Jason Taormino, a member of the development team, told the Vanguard…l “I am surprised that a civil rights attorney would file a lawsuit against a housing preference concept that is not formalized and that is not on the ballot in November.”

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