During the Nishi and WDAAC (West Davis Active Adult Community) campaigns, we pointed out that Measure R campaigns have largely devolved into mudslinging affairs. The way that critics of projects believe that they have to defeat those projects is to throw as much mud as they can in hopes that some will stick.
In part that is because previous Measure R campaigns, I think, have contributed to developers understanding community concerns and attempting to mitigate those concerns. And in part that is due to a natural swing in the electorate that went from strongly anti-development from 2000 to maybe 2015 or so, to an electorate now more willing to approve at least some projects.
As we move toward the second opportunity for the voters to renew Measure J/Measure R, we can see both the good and the bad. The measure has allowed the voters the opportunity to reject bad projects (in their view) and slow down growth expanding our borders.
On the other hand, critics would argue that it has magnified the housing crisis, increased the cost of housing, and changed the incentive structure for what can and what cannot pass.
Up until this past year, I think critics would argue it has made development impossible – now they might argue it has made it more expensive.
But there are warning signs here that proponents of Measure R had better heed. As Bob Dunning points out in a column over the weekend, one of those warning signs is litigation. As he points out, “Why win with voters if you can go to court?”
He writes, “The ability to file a lawsuit when you feel as if you’ve been wronged can sometimes help to level the playing field given the power imbalances that exist in our society.
“However, it can also be used as a weapon to demonize someone who has done nothing wrong,” he argues. “Additionally, it can be used in an attempt to stop a project dead in its tracks unless a developer is willing to come up with a large stack of cash to make the lawsuit go away. Such a tactic might not fit the legal definition of extortion, but in common everyday language, that’s what it is.”
This is why he was glad to see the council “decided to ask the Yolo County District Attorney’s office to look into a lawsuit that was filed against a project on last November’s ballot.”
In a previous column, we have pointed out the sheer volume of lawsuits since 2012 in Davis. They are not just impacting Measure R projects – they are impacting all projects. Most have not been successful. Lincoln40 was scheduled to go to court in late January, then February 8 – now it will be heard, supposedly, on March 8.
The litigation is not likely to be successful, but it is delaying the building of the project, and it is raising its costs. Meanwhile, students are suffering from low vacancy, rising rents, and many are having to cram into more densely packed quarters.
Furthermore, a court has yet to rule in favor of the litigators in any of the projects. There have been some settlements. But the most recent lawsuit was too soon and was dismissed mutually because it was not sufficiently ripe. Why did it go forward? As Mr. Dunning points out, it was used, it would appear, in part to weaponize it to convince the voters there was something wrong with the project.
There is a danger here – the voters may be convinced there is something wrong, when there isn’t.
For example, on April 10, 2016, Alan Pryor wrote an op-ed accusing the city of Davis of violating their own affordable housing ordinance when they approved Nishi.
It did not get to court until after the election, of course, but it turns out that Mr. Harrington, who filed the lawsuit, and Mr. Pryor, who initially raised the claims, were wrong.
The problem was that none of them understood that the 2009 Palmer v. City of Los Angeles ruling held that the Costa-Hawkins Act “precludes local governments from requiring a developer to set affordable rental levels in private rental housing units unless the developer agrees to do so in exchange for financial assistance or other consideration from the local government.”
The petitioner was actually forced to concede this point. But it didn’t stop the opponents of the project from making false claims during the campaign and filing a lawsuit.
From our analysis one reason that Nishi lost in 2016 was the perception that the developers had cut corners on affordable housing. Nishi came back in 2018 and won. It is debatable whether that project was an improvement over the previous project.
Aside from litigation, there are claims and counter-claims that both sides violated campaign finance laws. The developers and now the city are arguing that the backers of the litigation were attempting to aid the opposition campaign to Measure L and therefore, by failing to disclose their campaign finances, they violated the spirit if not the letter of the law.
On the other hand, the opposition to WDAAC has come forward now with three op-eds in the last week accusing the project proponents of failing to disclose campaign spending, campaign money laundering and the use of dark money.
While it seems like a natural defense for the opposition to file a counter-attack – it may end up being a self-defeating endeavor.
As Ron Glick, an ardent opponent of Measure R pointed out on Thursday, “Do people still think Measure R works? I don’t.”
He continued: “Dark money funded lawsuits in this case and lawsuits on every Measure R project have become a feature of Measure R instead of a bug.”
Mr. Glick adds: “Now we have complaints and counter-complaints of violations of state election reporting laws. Its as if nobody in this small town is capable of complying with FPPC regulations. Of course the fact that Measure R planning has become more about what will pass at the ballot box instead of what is best for the community should not be lost on anyone.”
This is a real danger here – especially as the opposition resorts to increasingly hyperbolic charges in order to sustain their case.
Dark money, money laundering, dirty campaigns. We need to make sure that elections are run fairly and transparently. By that token, the appropriate authorities should look into the activities of both sides.
But I think the heightened rhetoric here could have lasting effects. And the rhetoric really doesn’t match the conduct.
We have had some serious scandals in the last two decades. I’m just not seeing it here.
One opponent called this the dirtiest campaign in Davis history. Really? Have we forgotten about Steve Gidaro of 2004? Mr. Gidaro in 2004 launched a fake and stealth attack in order to take out Stan Forbes and Michael Harrington. It worked.
Have we forgotten that Measure X filed in 2008 over $200,000 in late filings for the 2005 race? The Vanguard back in June 2009 reported on “additional filings made on April 3, 2008 revealed for the first time an additional $215,930.39 being spent on that campaign which now brings the total cost of that campaign to $601,205.14.”
Opponents in that campaign believed that the reported number may have still been too low and that the true cost of the campaign exceeded $1 million.
We as a community have become convinced that direct measures are more democratic. But there is a flaw in that thinking. The courts have ruled that money is free speech and therefore they cannot limit spending by the candidate him/herself or by the project proponent.
So in a Measure R project, for the developers who are going to invest likely hundreds of millions into a project, spending a quarter to half a million dollars on a campaign is chump change. And because it is generated internally, it does not track as campaign contributions would.
It may be that allowing the council to determine the final say on projects is the best way to keep so-called big money out of development projects. The typical council candidate raises money at $150 now apiece. A council election ends up costing somewhere between $20,000 and $30,000 as opposed to into the hundreds of thousands for Measure R races.
It is certainly something to think about as it is the efficacy of screaming loudly after the fact that Measure R votes are somehow dirty or tainted or end up in litigation.
At some point these efforts to defeat these projects may instead end up defeating Measure R itself.
While it doesn’t seem likely that Measure R will be defeated this time, the more opponents complain about the process, the less likely voters will be to support these processes into the future.
—David M. Greenwald reporting