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