Commentary: Is the WDAAC Civil Rights Lawsuit Premature?

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Last week, a federal complaint was sent to the Vanguard and other media sources – to date, however, none of the parties have been served with notice of a lawsuit.

Mayor Pro Tem Gloria Partida pushed back against the suit, noting, “Lawsuits have become a norm, adding expense and time to every new development.”

She noted, “One of the reasons Davis’ racial diversity has remained low is that Davis’ sensible growth practices have essentially priced people of color out. The irony of this lawsuit is that it brings forward many of the ways our slow growth policies, which are really at the crux of why people are protesting this development, perpetuate segregation and impact members of protected classes.”

In the crux of her critique, she argued, “This lawsuit is not helping me or other people of color that need housing. It is not helping seniors that need specialized development. Worst of all is the bald face appropriation of civil rights issues to negotiate a desired outcome for a land use issue.”

I agree with the mayor pro tem, that this suit will not help people of color and I agree with the Enterprise editorial (or at least the part that doesn’t exacerbate the problem): “If Davis demographics worry you, the absolute best way to guarantee they never change is to build nothing.”

The question that many people will ask is whether the suit has merit.

Part of the problem is that it is hard to evaluate the impact of the Davis-Based Buyers Program, absent a clearly defined program.  Will the result of limiting buyers be to create a less diverse project?  Does such a project violate fair housing laws?

We can all speculate on the answers to those, but there is one thing that becomes clear – we do not know what this program will look like.

Much of the language of the Davis-Based Buyers Program is not formalized.  There is one section of it contained in the Development Agreement and that is probably intentionally vague.

How vague?  Vague enough that we could conceive a court may throw out any lawsuit, arguing that it is simply not germane or a live and active dispute.

For instance, in the Development Agreement, it states, “Prior to the issuance of any building permit, Developer and its successors and assigns shall (a) develop and implement appropriate local-connection requirements … ”

Language of that sort makes it clear that neither the city nor the developer have clearly established guidelines for the Davis-Based Buyers Program.

Instead, such details will be developed following the election and prior to the issuance of a building permit.  To date, there has been no “program” submitted to the city for review as required by the Development Agreement (“provide City with a copy of such verification procedures”).

Even more important is additional language, which makes it clear that the program must be “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”)…”

That creates an odd twist here because, on the one hand, the Development Agreement requires that the Davis-Based Buyers Program be consistent with, among other things, the Federal Fair Housing Act and yet, on the other hand, the developers are being sued for alleged violations of the Federal Fair Housing Act.

The plaintiff alleges in his introduction to the complaint: “The result of this ‘local resident’ restriction is the continuation of a racially imbalanced community and the exclusion of minority would-be purchasers in violation of the Federal Fair Housing Act.”

So how does a program that is required to be consistent with the Federal Fair Housing Act somehow be in violation of the same act?  How does one square these seemingly contradictory claims?

This is at the core of why we immediately deemed this to be a political rather than a legal claim – a claim at the behest of the opponents of the project.

Looking at this in the best possible light, the lawsuit seems to be premature.  If there were a legitimate claim about the legal issue – instead of political issues surrounding the election at the hands of the voters – the opponents of the project would simply have waited for the outcome of the election, allowed the program to be implemented, and then could determine that the program was indeed in violation of federal and state fair housing requirements.

This legal defense, of course, leaves the project open to a number of political complaints.  There are complaints that the program has been a centerpiece of the selling point of the project to the voters, and yet it is written in such a way that it could effectively disappear should a legal challenge prove successful.

However, that is a political question for the voters, not a legal issue that will lose in federal court.  There are a number of legitimate political issues surrounding the Davis-Based Buyers Program, but given the language in the Development Agreement, it would be hard to conclude, at least at this point, that the program is in violation of federal law.

—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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37 thoughts on “Commentary: Is the WDAAC Civil Rights Lawsuit Premature?”

  1. Rik Keller

    Classic attempted bait-and-switch on the part of the developers. Yet to David Greenwald, according to his twisted logic, this means that a lawsuit filed against the project is “political” and “frivolous” and “playing the race card”. All this despite the fact that he himself has said the program is of “questionable” legality” and the project developers have said it is “illegal” (before they tried to add language slightly increasing the geographic area).

    Let’s examine the classic attempted bait-and-switch of 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 repeateadly 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.”

    Then notice the shift to to trying to weasel further out of the program commitment:

    [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.

    Notice Taormino then try to say that the “restrictions” are not restictions but actually just “preferences:

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

    * 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. Ken A

      Rik and others in the No on L camp can correct me if I am wrong, but it seems obvious to me that this lawsuit was just an attempt to get another negative talking point in their goal to kill the project (not to get more people of color in to the WDAAC).

      P.S. If I am wrong I’m hoping that Rik and others will give the us the racial diversity numbers they want before they sign on as a supporter of the project and add their names to the list of supporters for the next Yes on L mailer.

       

      1. Eric Gelber

        What basis do you have for asserting that the plaintiff in this lawsuit, who is not a resident of Davis, but apparently would like the opportunity to buy a home in WDAAC, is associated with the opposition?

        I also don’t know who you think has asserted there should be specific racial diversity numbers met by WDAAC. What’s argued (at least by me) is that the proposed local buyers preference will create an additional barrier that will serve to perpetuate or exacerbate the City’s relative lack of diversity.

        1. David Greenwald

          “What basis do you have for asserting that the plaintiff in this lawsuit, who is not a resident of Davis, but apparently would like the opportunity to buy a home in WDAAC, is associated with the opposition?”

          For starters…

          1. The project and descriptions Were not publicized outside of Davis, so it seems unlikely that a person situated as the plaintiff would have known about it

          2. The complaint language is lifted almost verbatim from Rik Keller’s piece

           

          1. Don Shor

            I suppose we could just ask Rik Keller and Alan Pryor if they are acquainted with the plaintiff and/or had anything to do with the preparation of the lawsuit.

        2. Howard P

          Eric’s 1:08 post is informative… as is the attorney handling it (and his history), the timing of the suit (close enough to influence the election, and not allow much time for refutations)… good attorney/politician “tactic”… think the term another poster used, different nuance, was something along the lines of a gimack or ploy.

          Would be interesting to know if the plaintiff applied, and was rejected/put on waiting list, or a shill, an instrument.  At a 99.99% confidence rate, we’ll never know…

        3. Ken A

          I have a question for Eric.  If he knew a person of color that really wanted to buy a home in a new development that was not yet approved do you think he would: 1. Contact the developer and ask to put down a deposit to secure one of the more than a dozen homes that were available for “out of towners” or 2. File a civil rights lawsuit using language from the people that want to kill the project he “supposedly” wants to live in…

        4. Ken A

          Maybe Jason or his Dad can let us know if they have had any “out of town” people contact them and ask to be put on a waiting list.  With the exception of super high end stuff and subsidized units I have never heard of anyone putting down a deposit and/or asking to be on the waiting list to buy years before a project is expected to be completed and/or before it is even approved…

        5. Rik Keller

          David Greenwald said :”The complaint language is lifted almost verbatim from Rik Keller’s piece”.

          1) Have you heard of the internet? You can read about things published anywhere in the world from anywhere in the world. Check it out!

          2) You do realize that I didn’t invent the phrases and concepts I used in my articles, right? I summarized the research from dozens of sources that all use the same terms to describe the same history. My words parallel those from many, many studies and previous lawsuits. I researched everything I could find about the subject for weeks before I wrote my articles. It would be very strange indeed if a lawsuit regarding this topic did not use the common language used to describe those concepts, and did not research what has been written locally about the subject.

          3) Would you like to clarify whether you gave the following argument to Jason Taormino or whether you lifted it from him? In any case, this line of specious reasoning only came out immediately after the lawsuit was announced.

          [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.”

          vs.

          David Greenwald 10/4/2018: “For instance, in the Development Agreement, it states, “Prior to the issuance of any building permit, Developer and its successors and assigns shall (a) develop and implement appropriate local-connection requirements … ”

          Language of that sort makes it clear that neither the city nor the developer have clearly established guidelines for the Davis-Based Buyers Program.

          Instead, such details will be developed following the election and prior to the issuance of a building permit.  To date, there has been no “program” submitted to the city for review as required by the Development Agreement.”

  2. Ron

    The lawsuit helps point out that a key developer sales gimmick may not even be legal, due to its exclusionary impacts. 

    Prior to the vote, it is important for voters to understand that this gimmick may not even survive, if the development is approved.

      1. Ron

        “Talking about” legality in a theoretical sense does not drive the point home as well as a lawsuit does.

        There are likely folks who support the proposal because of the Davis Buyers (non-existent) program.  The idea for it apparently arose during the “focus sessions” (outreach) that the developers apparently conducted with some residents – per your own articles.  Do you think the developers told them that the program might be illegal?

        By the way, is it appropriate for developers to claim that they conducted “outreach” by essentially promising to implement a program that might be illegal? Is that the purpose of outreach, these days?

        1. David Greenwald

          ““Talking about” legality in a theoretical sense does not drive the point home as well as a lawsuit does”

          You’re basically advocating for a knowingly improper lawsuit – am I reading this correctly?

        2. Ron

          How would a lawsuit challenging a program (that you personally believe is illegal) be “knowingly improper”?

          Might a better question be, “how did this get past the city”, to reach this point? Does the city do any fiscal or legal analysis whatsoever these days, before allowing proposals to be presented to voters? (Or, have they abdicated that responsibility, as well?)

          In fact, do they do anything other than respond to development proposals? No planning?

        3. David Greenwald

          The city’s view was basically this is something that we’ll figure out when they start selling the homes, they didn’t see it as a land use issue and they put in a place where they can modify it after the vote as needed.

      2. Alan Pryor

        Didn’t need a lawsuit to make that point…

        You are right, David. We have your own words to make the point that this is an exclusionary policy

        Point of my piece was that the argument against Measure L was a poor one.  I think you can see people like Eric have much stronger arguments to make.  Here’s a juicy one: Davis based buyer’s program means an all-white senior development most likely.

         

      3. Rik Keller

        David Greenwald: “Still don’t see any evidence that this suit has given the no side traction.”

        The fact that you are writing these increasingly desperate, poorly-thought out pieces with faulty logic and reckless accusations indicates to me that you know there is a lot of traction indeed.

  3. Eric Gelber

    The article, in referring to the development agreement, misleadingly omits the language setting forth details of the Davis-Based Buyers Program quoted in Rik’s comment. In other words, it’s not as undefined at this point as the article suggests.

    Much is made of language in the agreement requiring the program to be consistent with state and federal fair housing requirements. Well, duh. That language is mere surplusage. It goes without saying that the program could not violate fair housing laws.

    As to prematurity of the lawsuit—the lawsuit is against the City, not the developer. It challenges the validity of and seeks to enjoin the ordinance that approved the alleged discriminatory provision of the development agreement. The ordinance has already been passed, so the suit is not premature. It’s not necessary to wait for an alleged harm of a statute or ordinance to occur before challenging its validity.

  4. Jason Taormino

    Dear Vanguard readers,

    Taking care of seniors is a worthy endeavor and a community responsibility.

    The subject of the day seems to be the preference program which consists of three main tenants.

    1.  You work at UC Davis or in the town of Davis

    2.  You, at one point in your life, attended a Davis school or went to UC Davis.

    3.  You have a family member who lives in Davis. (e.g. your parents live in New York and you want them to move closer so you can help care for them)

    Please vote Yes on Measure L.

     

        1. Rik Keller

          David Greenwald: you are being intentionally misleading again. Despite the attempted walk-back by the developers who you are only too happy to echo, the program is well-defined and set out in detail in the DA. The only thing that needs to be developed are  technical things like exact verification procedures for the restrictions that are already specifically spelled out.

          At least you aren’t being quite as silly as David Taormino trying to backpedal saying after the lawsuit announcement that the program consists of  “preferences” not “restrictions”! (P.S. in the case law, residency preferences get struck down too).

        2. Eric Gelber

          Well, the Council already signed off on these specific parameters once, in approving the development agreement. If that was not the intent, the agreement should have said something like, “The developers intend to develop and implement a local buyers preference, the details of which will be specified later and must be approved by the Council.”

        3. Rik Keller

          Greenwald:  this is a silly argument floated by the developers that you are running with. The “additional steps” are minor things like verification procedures for residency. The program is already defined in detail and signed off on by the City

    1. Rik Keller

      Jason Taormino:

      You meant “tenets” rather than “tenants”, right? As this article documents in great detail, your project is targeted primarily to wealthy seniors: https://www.davisvanguard.org/2018/10/guest-commentary-wdaac-not-meet-real-housing-needs-davis/

      It also has an illegal (as you and your legal team have directly admitted) exclusionary program attached to it that is central to your marketing campaign with its “Taking Care Of Your Own” tagline that–to quote City Council member Gloria Partida–“rings with a distinctly Trumpian tenor that effectively delineates “us” from “them.””

       

  5. Alan Miller

    we do not know what this program will look like.  Much of the language of the Davis-Based Buyers Program is not formalized.

    In the least, this thing needs defining, pre-vote.

    1. Keith O

      In the least, this thing needs defining, pre-vote.

      Or we can go full Nancy Pelosi:

      “But we have to pass the “program” so that you can find out what’s in it….”

       

       

    2. David Greenwald

      I think it’s important to separate the political questions from the legal ones, especially when dealing with a lawsuit.  This entire discussion thread shows a lot of overlap between the two.

      1. Rik Keller

        Hahahaha! This coming from David Greenwald  who rushed to judgment and who has accused the lawsuit of “dangerously playing the race card” and being “frivolous” when he hasn’t even seen the full complaint.

        The only thing I can’t figure out is whether Greenwald is writing talking points for the developers that they then use, or whether he is simply repeating the developers’ talking points.

  6. Tia Will

    the opponents of the project would simply have waited for the outcome of the election, allowed the program to be implemented, and then could determine that the program was indeed in violation of federal and state fair housing requirements.”

    Wow. I am either misinterpreting this statement, or it flies in the face of many previous statements with regard to other projects. To be honest, I do not know which is true. I am thinking of the many instances in which complaints have been brought forth about projects by opponents at “the last minute”. In these instances people have been criticized for just seeking anything negative to bring up to “see what will stick”. And it is pointed out that if their concerns were legitimate, they would have been made much earlier in the process of the proposal. Here it seems we have a contention that opponents are bringing up a concern “too early”. Really? If there is a genuine concern, shouldn’t it be considered as soon as noticed?

     

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