Key Question for Lawsuit: Is Homebuyer Program Racial Discrimination?

Mark Merin, a longtime civil rights attorney, honored in 2011 by the Vanguard for his work on behalf of civil rights causes, is the attorney filing a civil rights lawsuit against the West Davis Active Adult Community, claiming that its Davis-Based Buyers Program “will perpetuate racial imbalance and discriminate against minorities by restricting sales to residents of Davis.”

The plaintiff, Samuel Ignacio, described as a Filipino/Hispanic man, claims that Davis, “city whose population is disproportionately ‘white’ as a result of historic racially restrictive covenants and red-lining practices” passed an ordinance that, if approved by the Davis voters, would restrict 90 percent of its units to “purchasers with a preexisting connection to the City of Davis.”

The result of this, claims Mr. Merin, “is the continuation of a racially imbalanced community and the exclusion of minority would-be purchasers in violation of the Federal Fair Housing Act.”

He adds, “The ‘residency requirement’ for 90% of the proposed sales is unlawful because in communities with populations that are disproportionately White and/or non-Hispanic 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.”

City Manager Mike Webb told the Vanguard that, as of the close of business on Monday, the city had not been officially served with the suit.

Jason Taormino, a member of the development team, told the Vanguard, “Discrimination is wrong.  It excludes people from bettering their lives.”  He added, “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.”

There is some question about the extent to which the Davis-Based Buyers Program is formalized and on the ballot.  Certainly it is not contained in the Baseline Project Features.

However, it is spelled out in the Development Agreement.

According to section 8 of the development agreement, “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.”

However, at the same time, the language 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 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.”

The city is also indemnified and held 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.”

Assistant city attorney Ethan Walsh told the Bee (see Sac Bee article) that the “developers are still refining criteria for buyers of units in the development, and that the city will weigh in on whether the restrictions are lawful.

“I think that they can put forward a program that is consistent with fair housing laws,” Mr. Walsh said.

“The preference program will be formalized during 2019 if the November vote is successful.  At that time we will work diligently with the City and would welcome input from anyone who would like to see this be a positive program that makes Davis a better and more inclusive community,” Jason Taormino explained.

Mr. Taormino told the Vanguard, “The City of Davis affordable housing program already provides preferences to specific groups.”

Unlike Baseline Project Features, the Development Agreement is an agreement between the developer and the city that can be changed with a simple majority vote of the council.  On the other hand, anything in the Baseline Project Features would have to be resubmitted to the voters for approval.

According to the Development Agreement, the Davis-Based Buyers Program would restrict the Affordable Housing portion of the project which represents 150 units.  The Baseline Project Features require the developer to set aside land sufficient for 150 affordable units, over and above claims in the Development Agreement that they “provide land sufficient for the construction of approximately sixty (60) affordable units or pay in-lieu fees.”

The affordable housing units would require one-third going to those who make at or below 30 percent of area median income and another one-third to those making at or below 50 percent of median income.

The Vanguard recently requested the city break down the demographics of existing affordable housing units, but the city lacks such data.

Mr. Merin told the Bee on Monday that the other opponents of the project are planning to attend this evening’s council meeting to “implore the city to avoid this costly litigation, withdraw its support for the project and move Davis toward becoming a more inclusive, representative community.”

However, he might not find a receptive audience from a council likely suffering from litigation fatigue.  If a suit is filed against this project, it will mean current pending litigation against four current projects, including Nishi, Lincoln40 and Trackside.

The developers recently settled a suit against the Hyatt House, and suits against the Marriott and the Hotel Conference Center have also settled.  A previous suit against Nishi went through the courts and was defeated, as was a conditional use permit for a counselor located next to Michael Harrington.

Jason Taormino stated, “I realize that we have a few people in town that are against any new housing but it feels like they have gone too far.  Grabbing headlines by invoking civil rights when it comes to stopping a neighborhood that will provide smaller homes near a hospital and health care plus provide more than twice the required affordable housing units doesn’t feel good to me.”

—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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49 Comments

  1. Eric Gelber

    Jason Taormino stated, “I realize that we have a few people in town that are against any new housing but it feels like they have gone too far.”

    Trying to tie this civil rights lawsuit to other lawsuits, or characterizing opponents of the ill-advised Davis-Based Buyers’ Program as anti development is both untrue and a misleading diversion. The City Attorney should have weighed in on the legality of this program before the Council approved the development agreement, not at this late date, and then, perhaps, this lawsuit could have been avoided.

     

    1. Howard P

      Except,

      Mr. Merin told the Bee on Monday that the other opponents of the project are planning to attend this evening’s council meeting to “implore the city to avoid this costly litigation, withdraw its support for the project and move Davis toward becoming a more inclusive, representative community.”

      Yet, the suit is about the “program”, not the “project”… and arguably, timed to torpedo the “project” in the vote, while the “program” is not a part of the vote… nor even finalized…

      A brilliant legal and political tactic… nuanced…

      The “program” was ill-advised, and wrong, as I have agreed with you before, as have many others.

      1. Jim Hoch

        ‘A shot across the bows’ derives from the naval practice of firing a cannon shot across the bows of an opponent’s ship to show them that you are prepared to do battle.

        1. Howard P

          aka coercion, and sometimes, as we have seen in other lawsuits, “blackmail”.

          And as son a Navy person, know the term, and the correct term, in a singular encounter, is “shot across the bow”… but, you may be right to use the plural, as it may be the intent is to set the stage, or continue the pattern of striking ‘fear’ into all of a ‘class’… i.e., all development… which makes sense if one opposes all new development.

          QED.

           

      2. Eric Gelber

        Howard – There are people who may be against this project because of the buyers’ program (and, in my case, also because of the age restrictions). That doesn’t make them against any new housing as Mr. Taormino’s statement falsely suggests.

        1. Howard P

          Am not arguing Mr Taormino’s statement… and agree with the problems with that…

          AM arguing based on Mr Merin’s… the anti-development folk are using a ‘tool’ (my opinion) for their agenda, knowing full well that they will appeal to voters who were “on the fence” based on other issues.

          My biggest problems with the project are drainage and infrastructure issues.

      3. David Greenwald

        Howard: Not sure that the political component of this is going to move the needle that much.  It seems like the use of lawsuits have been kind of played out.  We’ll see how today goes, however.

        1. Howard P

          The comments made @ CC tonight may be very instructive, one way or the other… it’s about how the threat of the lawsuit is used in “marketing” veiwpoints, which won’t play out until the election is over… note that this lawsuit (or threat hereof) is pre-vote (already filed), not post-vote.

    2. Rik Keller

      Classic attempted bait and switch on the “Taking Care Of Our Own”/Davis-Based Buyers Program: When is a contract/agreement/program not a contract/agreement/program?

        * Jason Taormino [10/9/2017; Project FAQs]: “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 Baselines 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.”

        * Every yard sign and piece of campaign promo literature has the “Taking Care Of Our Own” text and graphic prominently displayed as the central selling point of the Yes on Measure L/WDAAC project.]
        * The Taorminos published two articles within the span of 5 days [9/14/2018, 9/19/2018] on the Davis Vanguard an attempt to defend the “Taking Care Of Our Own” program as legal, yet they never mentioned that they did not think it is actually a program, and repeatea=dly referred to it as a program in the present tense.

        * Jason Taormiono [9/14/2018; Davis Vanguard; originally dated 1/17/2018; “legal opinion” provided by Matthew Keasling;  note: present tense rather than future conditional tense used throughout]: “The enumerated program details are specifically crafted to comply with direction provided by the Department of Housing and Urban Development and the courts to be in compliance with the Fair Housing Act…Therefore, the program complies with state and federal fair housing laws.”]

      * David Taormiono [9/19/2018; Davis Vanguard; note present tense]: “I am satisfied that our Buyers’ Program is appropriate and supported by significant legal precedence.”
      [After the lawsuit announced] Jason Taormino [9/24/2018; Davis Vanguard]: “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 [sic] in this case we look forward to working with the community to create the final program.”

      * Jason Taormino [9/25/2018; Davis Vanguard] “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.

      * David Taormino [9/25/2018, Sacramento Bee]: “Taorino [sic] said buyer restrictions for the proposed project are merely “preferences,”…”

      Read more here: https://www.sacbee.com/community/yolo/article218934870.html#storylink=cpy
      * Actual language in the Development Agreement [passed and adopted by Davis City Council on 6/19/2018): ‘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….”

        * Actual language in the Baseline Features on the “Taking Care Of Our Own”/Davis-Based Buyers Program:  [blank] 

        * David Greenwald [9/25/2018; Davis Vanguard]:Unlike Baseline Project Features, the Development Agreement is an agreement between the developer and the city that can be changed with a simple majority vote of the council.  On the other hand, anything in the Baseline Project Features would have to be resubmitted to the voters for approval.”

      1. Eric Gelber

        Classic attempted bait and switch

        Yup. The City Council passed an ordinance approving a development agreement that clearly spelled out the parameters of the Davis-Based Buyers’ Program, which has been represented as a material feature of the project. The ordinance is now being challenged as unlawful because of that program. So, now the developers try to have it both ways and attempt to change the facts when it’s convenient, asserting, in effect, “The agreement doesn’t say what it says.” To quote Groucho Marx, “Who are you going to believe, me or your own eyes?”

        What other provisions of the development agreement do they plan not to implement?

  2. Keith O

    The plaintiff, Samuel Ignacio, described as a Filipino/Hispanic man, claims that Davis, “city whose population is disproportionately ‘white’ as a result of historic racially restrictive covenants and red-lining practices”

    LOL, I wonder where he might have heard that?

    1. Keith O

      The plaintiff, Samuel Ignacio, described as a Filipino/Hispanic man, claims that Davis, “city whose population is disproportionately ‘white’ as a result of historic racially restrictive covenants and red-lining practices”

      The very first sentence from an article just two weeks ago in the Vanguard:

      Part one in a series on discrimination and housing in Davis, this article provides an overview of mortgage loan redlining, restrictive covenants, and other discriminatory housing practices in the U.S., with examples from Davis showing the extent of discrimination in housing practices that excluded non-white populations from specific areas.

      http://www.davisvanguard.org/2018/09/davis-white-brief-history-housing-discrimination/

       

        1. Rik Keller

          “One big coincidence” that there has been massive amounts of housing discrimination for decades across thousands of communities in the U.S.? Nope, not a coincidence.

  3. Rik Keller

    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.”

    1. Jim Hoch

      “Not all developers or contractors seek to “get away with whatever they can.”” Correct some of them are just trying “drive shareholder value” though it can be hard to tell the difference.

    2. Don Shor

      Your statement was
      “all people with contractual obligations are the same: when it comes down to it they will try to get away with whatever they can.”
      This statement, which implies that all developers and all contractors are dishonest, remains false and offensive.
      I find no evidence that the Taorminos promised that the Davis Buyers Program would be part of the baseline features. Generally baseline features describe the physical aspects of the development. Their decision to put the buyers program into the Development Agreement rather than locked into the BF’s is prudent and reasonable.
      If you’re trying to suggest that my statement is somehow disproven by this distorted summary of our conversation, you have simply dug your hole deeper.
      Contractors and developers are not inherently dishonest. That was your implication. It is false. I suggest you stick to the facts and stop trying to impugn the character of your opponents.

      1. Ken A

        Don needs to remember that an increasing number of people in Davis (and other “progressive” areas of the US) believe “people should run both the economy and society democratically to meet human needs, not to make profits for a few.” So anyone that buys a lot, works for years to get the zoning changed and builds something making a profit is as evil as a guy who buys plants wholesale and sells them retail making a “profit”…

        P.S. You can learn more at http://www.dsausa.org/

      2. David Greenwald

        I get the sense, but haven’t confirmed it, that the city didn’t want the program in the baseline project features precisely because it hadn’t been tested.  That meant an invalidation of it by a court would not cause the project to go back to the voters.

        1. Ron

          David:  “That meant an invalidation of it by a court would not cause the project to go back to the voters.”

          Which would mean that the justification being used to generate support for the development (the Davis-based buyers program) would not be implemented, but the development would be built.

          Since there would be no Davis-based buyers program, there presumably would not be any further legal issues regarding that.

          The developers could then advertise and sell the units directly to non-residents (e.g., those living in the Bay Area).  A much larger pool of potential buyers, possibly driving up the sales prices.  (Facilitated by Proposition 5, as well – which is expected to be approved by voters.)

          The developers have a vested interest in the failure of the Davis-based buyers program, after gaining approval from voters.

        2. David Greenwald

          A lot of assumptions in that post Ron.  One thing I can say with some confidence, I think they are sincere in wanting to a build a project that serves Davis seniors who wish to downsize.  However, I’ve been skeptical from the start that it would (A) pass legal muster and (B) actually work as they envision.  Part of the second problem is that people moving from larger homes to smaller homes are not freeing up homes likely to be purchased by younger families.

        3. Ken A

          When David says: “people moving from larger homes to smaller homes are not freeing up homes likely to be purchased by younger families” I’m wondering.

          1. If David has talked to any local realtors about who is buying the large homes in town (maybe Ron told him that rich old single men from the Bay Area are buying up all the large Davis homes).

          and

          2. If he is aware that in just the past six months that multiple people I know personally who are under 40 with kids under 5 have bought large homes in Davis (and in El Macero).

           

        4. David Greenwald

          The exceptional anedote proves the rule.

          Do you believe that if built, the developer’s theory will hold that a sufficient number of younger families will move into existing housing stock?

          1. Don Shor

            At current median price ($650K) and 5% mortgage, they’d need to be able to make a monthly payment of about $3500. So if I recall my mortgage rules of thumb, the young family or any other homebuyer purchasing a median-price home in Davis would need an annual income of about $140,000.

        5. David Greenwald

          So there you go – not impossible, but that’s about twice median family income.  Why anecdotes are not helpful.  I knew a guy who made millions before he was 21 without a high school degree – does that mean not graduating from high school is a wise career choice?

        6. Ken A

          I don’t know why David is trying to back up his original comment that young families are not buying homes in Davis since it is wrong.

          Davis has a higher than average percentage of couples with advanced degrees and most people with advanced degrees make over $70K/year each and can afford to buy a home in Davis.

          Single people, childless people and old people don’t buy a lot of big suburban homes and most sell to young and slightly older families that still have kids living at home (this is not just an “anecdote” ir is a “fact”)…

          1. David Greenwald

            Maybe because there has been a long and slow decline over time of school aged families and children in Davis.

        7. Ken A

          In 1976 about 40% of women over 40 in America had four or MORE kids today only about 4% of women over 40 who are college grads have four or more kids and college grads with kids can’t move to Davis unless a home is for sale (without a lot of growth most people need to wait for someone to die or move to move before they can come to Davis and many that don’t want to wait for a home they like buy in South Woodland aka “New North Davis”).  These are the main (but not only) reasons that the number of school age kids living in Davis is shrinking.

  4. Ken A

    As I have posted I am not a fan of ANY government restrictions on who can buy something and I am really opposed to any race based restrictions like the ones on Miller and College Park circle in Davis in 1950.

    With that said is there ANY evidence at all that even a single person of color was prevented from buying a home in Davis in the 1950’s because of their race?

    Anyone can “CLAIM” claims that Davis, “city whose population is disproportionately ‘white’ as a result of historic racially restrictive covenants, but a claim without any EVIDENCE is worthless and as silly as a “claim” that Davis is disproportionately ‘white’ because the UCD basketball team has never made the Final Four.

    P.S. There is a LONG list of reasons why Davis has more white people than Woodland and less than Madison, WI (and more Asians than both Woodland and Madison, WI).  If someone were to interview 1,000 people in Davis asking why they live here and 1,000 people in the surrounding cities asking why they live or don’t live in Davis I’m betting that “historic racially restrictive covenants” won’t come up even once…

    1. Howard P

      any race based restrictions like the ones on Miller and College Park circle in Davis in 1950.

      Actually it was more pervasive in area and time… the covenants I’ve seen, were mid-forties to late fifties, and included portions of ‘Old North’, portions of the area north of E Eighth, south of Twelfth, between B & F… but did not exist city-wide during those time periods… not even close.

      1. Ken A

        Howard, thanks for adding more info, many people forget that Davis had a population of just over 3,500 people in 1950 (when UC Davis had less students than Davis High School has today) and even if people of color bought EVERY SINGLE deed restricted home back then “and” their relatives NEVER sold even one of them it would just make a small dent in the overall “whiteness” of Davis (racial homebuying restrictions were evil, but they didn’t have any meaningful impact on why Davis is “disproportionately white” today…

        1. Eric Gelber

          … even if people of color bought EVERY SINGLE deed restricted home back then “and” their relatives NEVER sold even one of them it would just make a small dent in the overall “whiteness” of Davis …

          It’s not just the direct impact of former discriminatory land use policies that has contributed to the current racial disparities. As a result of those policies, and likely other factors, Davis developed a reputation–that continues to this day–as a racially non-diverse community that is not particularly friendly to communities of color. WDAAC’s “Taking Care of Our Own” program will certainly not help to change that perception; it will only reinforce it.

        2. Ken A

          When Eric writes: “Davis developed a reputation–that continues to this day–as a racially non-diverse community that is not particularly friendly to communities of color.” I’m wondering if he can list the towns nearby that are MORE “particularly friendly to communities of color” is is Winters or Lincoln or Rocklin?  Since people of color can’t move to Wakanda they need to pick a real city and if they have left of center political views and went to a top 25 school they will do fine in Davis.  If they have right of center views and went to a “lesser” college (or heaven forbid didn’t go to college) people of color with get the same snobby (we don’t want your kids in a playgroup with our UC, Stanford and the Ivy League kids) treatment as the “white trash”in Davis that didn’t go to good schools (and does not drive a hybrid car and compost)…

        3. Eric Gelber

          Ken – I said nothing about whether Davis is or isn’t, in fact, friendly to people of color. I referred to its “reputation.” Do you dispute its reputation, deserved or not, as a racially non-diverse, elitist community, not particularly friendly to minorities? Do other local cities (e.g., Sacramento, Woodland) have a similar reputation? Do you think a housing development with a slogan, “Taking Care of Our Own” will help counteract that reputation or reinforce it? What message does that send? It might as well say, “Keep Out.”

        4. Jim Hoch

          I referred to its “reputation.”

          Why should anyone care about that? Do people who like Oak Park move out due to it’s “reputation”?

          We are certainly not looking for more population.

    2. David Greenwald

      “If someone were to interview 1,000 people in Davis asking why they live here and 1,000 people in the surrounding cities asking why they live or don’t live in Davis I’m betting that “historic racially restrictive covenants” won’t come up even once…”

      That’s likely a true statement as written.  But after reading Rothchild’s book, I’m not convinced that such convenants and restrictions do not have an influence on residential patterns over time – even if most people are completely unaware of them at this time.

      1. Howard P

        even if most people are completely unaware of them at this time.

        “Are” or “were”?  The folk who did those CC&R’s are likely dead.  And they (CC&R’s) are no longer in any force or effect… not for over 50 years…

        What is the statute of limitations for what folk did?  And what their ancestors should feel ‘guilt for’?  50 years?  100 years, 500 years, 1000 years, 5000 years?

        Statute of limitations for descendants (guilt) should be 50 year, max.  For “perps”, maybe 100…

         

        1. David Greenwald

          You’ve missed most of the point here. The first of which is that Ken said if you polled people, and my point in response was that most people are not aware of them at this time. The second point is not whether or not there is guilt, but rather whether or not there is a lasting effect from them.

      2. Cindy Pickett

        Schelling’s model of racial segregation demonstrates how quickly residential segregation can happen even when individuals are not trying to segregate themselves. The initial policy (like red lining) can create the initial separation but it is perpetuated because people generally like to be with others who are like them (homophily).

        1. Jeff M

          because people generally like to be with others who are like them (homophily).

          I agree, but what to do about that?  Maybe forced integration?

          Or, I have another idea… how about we all agree to stop politicizing race, and start focusing on common and binding values?  Is a black Ivy-league-educated millionaire politician more likely to want to hang with a black tribe, or a tribe of Ivy-league-educated millionaires?  Of course this is a rhetorical question.

           

        2. Ken A

          I remember reading about Schelling’s model years ago and that he focused on both “racial” and “religious” segregation.

          Just like the percentage of people that only want to live next to people of their race is dropping like the rock the percentage of people that try to live next to people of their (religion) and walk to worship services every weekend is dropping even faster (like the number of people that actually attend worship services every weekend).

          I was talking to a Jewish guy that was in college in the 70’s and somehow the fact that I had a lot of Jewish fraternity brothers came up and he was surprised to hear that just a few years in the early 80’s that many historically Christian fraternities had Jewish members and he was really surprised to hear that his historically Jewish fraternity not only had Christian members but by the mid 80’s had a Latino Catholic president.

          I’m betting if I called my nephew at Cal he could not tell me the religion of more than a couple of his fraternity brothers since like race is is not something that most young people focus on (or ask about when they are looking for an apartment or a home).

           

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