Monday Morning Thoughts: Measure R Threatened By Its Most Loyal Supporters

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


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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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33 Comments

  1. Ron Glick

    Good article David but I would add one point:

    “We as a community have become convinced that direct measures are more democratic.”

    There is an assumption that what we have with Measure R is direct democracy but it actually isn’t. It is only direct democracy for those who can vote. In Davis there are lots of international students who pay the rents but who don’t get to vote. There are also international members of the faculty who live here much longer but don’t get to vote. I was recently sitting next to someone at coffee who was telling their experience of going through the process of getting citizenship after being here for 25 years. Then there are our local “dreamers” who have lived here for most of their lives but are not allowed to vote. Also there are people whose immigration status allows them to be here but they are not eligible for citizenship or voting and finally there are undocumented people who do the farm work and much of the other hard labor around here.

    Bob Dunning has also joked about building a wall between here and Woodland. Like any joke what makes it funny is the kernel of truth that lies at its heart, that Measure R is Davis’ wall. Another kernel of truth in this case is that the fears that drive Trump’s supporters to chant “Build that wall” are not much different from the fears of those who  support so called direct democracy in Davis.

    1. Alan Pryor

      Another kernel of truth in this case is that the fears that drive Trump’s supporters to chant “Build that wall” are not much different from the fears of those who  support so called direct democracy in Davis.

      How about this instead:

      Another kernal of truth is the fears that drive opponents of Trump’s subservidence to business interests as unabashedly supported by Fox News and right-wing talk radio are not much different than the fears that our own leaders have capitulated to the developers’s interests as unabashedly supported by the Davis Vanguard.

  2. Bill Marshall

    Ron raises good points… I have others… for a vote that affects the community for many years, should transient students have sway, when they could be easily be influenced by free pizza?  Do they truly represent future students?  A vote is a snapshot in time.

    The CC is charged with land-use decisions… they have to think longer term…

    Measure J/R has always been a crock… there have always been remedies, via referendum, or recall of CC members…

    Would be surprised if certain folk would seek to reform Measure R as a 3/5 or 2/3+1 vote to affirm CC action… some, perhaps even more!

    Only way I’d vote for a Measure R revision is if it required that the wording was to reject a CC action. A referendum requires a 50%+1 vote to overturn… and even then I’d be holding my nose… there are other remedies, other than Measure R.  The truth is, proponents do not care much about “direct democracy”, although they wrap themselves in that “flag”… they just want to add one more hurdle.

  3. Rik Keller

    In the same breath, Greenwald states “now they might argue it has made it more expensive” and that campaign expenditures are “chump change” relative to development costs.

    i think this gets at the truth of the matter: campaign costs ARE incredibly minimal compared to development costs, so the idea that this has made housing more expensive in disingenuous. At the same time, this “chump change,” is actually massive in the context of local election expenditures; and so, for example, WDAAC spent $18 per “Yes” vote that they received which is not chump change at all. 

    The idea that these expenditures are “internal” to developers is also part of the problem. Disclosure is not transparency. The case of WDAAC illustrated this well: it is apparently an illegal shell entity without connection to a legitimate corporation and there is no indication of who was behind providing the money to it, what other intetests passed money through it, etc. Therefore, we have no way of knowing the money that these other interests might have provided to local leaders, campaigns, political blogs, etc.

     

    1. Craig Ross

      Given that Rik has chosen to block me, I know he won’t read this, so I’ll make these points more generally.

      The first problem is that while campaign costs (probably around $200 to $300K per campaign) are small compared to the costs of a project, Mr. Keller is not taking into account all of the costs.  The biggest is the impact of delaying projects and discouraging other projects.

      He states, “it is apparently an illegal shell entity” but I think he should be careful here.  There is no proof of that beyond conjecture.

      Mr. Keller is also apparently missing the point of the column which is that the more muck thrown around, the more likely it is to damage Measure R.  As an opponent of Measure R, that doesn’t bother me, but he’s silent on the harm he’s doing to his own cause here.

      1. Craig Ross

        The other problem on costs comes from the very pro forma’s – we can see the interaction between uncertainty, impact fees, and other costs on the ability of the developer to provide things like affordable housing.

      2. Alan Pryor

        Craig Ross states,

        “it is apparently an illegal shell entity” but I think he should be careful here.  There is no proof of that beyond conjecture.

        I assume he is referring to the fact that the parent company that filed the Fictitious Business Name (FBN) statement for West Davis Active Adult Community was subsequently dissolved thus rendering West Davis Activie Adult Community an invalid legal entity. I reproduced both the original FBN statement for the company from Yolo County showing the parent company and then reproduced the download from the Secretay of State showing the parent company has been dissolved. I invited the developer to show that another company has filed the FBN statement for WDAAC or that it was otherwise a legal entity by they have not responded. What more proof do you want?

        1. Bill Marshall

          I agree with Craig… you have shown no CV to give credence to your interpretations/assertions, as to the laws/regs (and little/no verifiable cites)… which make what you assert as “facts” less credible, as they have no verifiable third party cites.

        2. Rik Keller

          Bill Marshall: Alan Pryor has cited both the exact evidence (corporate registrations/dissolutions. etc.) as well as the exact FPPC regulations and guidelines. You are free to double-check any of these: it’s all easily verifiable.

        3. Craig Ross

          Alan is making an accusation.  An accusation is not proof. He has offered evidence.  Evidence is not proof.  There is a reason why we have due process of law.  Even a prosecutor who is trained in the law cannot by himself or by dint of accusation render proof.  Only the appropriate regulatory body and only through due process can that be discerned.

        4. Matthew Wilhoit

          There are at least three different reasons off-hand that I can think of for a company dissolution. It can be a voluntary dissolution by the shareholders as part of some corporate re-organization or it can be an involuntary dissolution by the CA SOS or FTB for the failure to pay taxes, annual fees or file reports.  For an involuntary dissolution there is a straight-forward procedure to file for reinstatement and that includes a look-back to the date of dissolution which means the company would be treated as if it had never been dissolved.  The real risk in continuing to act as a corporation after it has been dissolved is personal liability for the shareholders.

        5. Rik Keller

          Matthew Wilhoit: Once again you are avoiding discussing actual FPPC regulations/guidelines. You previously have provided “cutesy” references to fictional TV shows rather than addressing what the FPPC says about money laundering and the disclosure requirements for valid corporate entities.

        6. Matthew Wilhoit

          Rik, I posted this on an older thread but it seems more relevant here so allow me to repeat it.   I don’t pretend to be an expert in areas where I lack subject matter expertise. I have taken issue with the process, not with the conclusions.  Persuasive legal writing means setting forth the facts and the law, applying that law to your facts and then stating the conclusions. References to the law should be to primary sources like statutes and case law. Secondary sources like FPPC manuals should be used sparingly and only in support of your references to primary sources.   The most important part of persuasive legal writing is the analysis and application of the law to your facts. It is the meat in the sandwich.  You need to break the applicable law down into its separate elements and then show how your facts satisfy each of those elements. You need to support that analysis by showing on point case law, or if there is nothing on point then you need to look for analogous case law and draw parallels.  Alan’s piece is missing the application and the analysis.  It is an all bread sandwich.  That makes it unpersuasive, but it doesn’t mean it is wrong.  

          Have you ever stopped to consider whether the hostility and aggression in your posts hurts the causes and candidates you support?  You can’t bully me into agreement with you.  It is my human nature to take the other side in response to aggression. So for any candidate or cause you support the bar is set high from day 1 and it takes a lot of effort to ignore that aggression and separate it from the substance of the matter. Why would you ever want to make it harder for me to support your candidates and causes? It’s a shame because I bet we have a lot of common ground on many issues.

        7. Rik Keller

          Matthew Wilhout: have you ever stopped to consider that […] Alan Pryor did a very thorough job of documenting evidence and providing a direct reference to FPPC regulations and guidelines. In many bites at the apple now, you have not provided any counterarguments, preferring instead to provide irrelevant information to related to election/campaign finance law.

        8. Alan Pryor

          What more proof do you want?

          A regulatory ruling from an administrative agency that agrees with your legal interpretation.

          Oh sure! Like Taormino and Boutin and the City Council and the Davis Vanguard all relied on an administrative ruling from the FPPC when they ealleged “dark money was subverting the Davis electoral process” when they erroneously claimed the No on L campaign illegally did not include the Merin litigation costs in it’s campaign expenditures.

          In fact, these allegations were made without a shred of evidence. They didn’t even bother to look up and/or rely on any FPPC Disclosure Guidance Manuals. They just made the stuff up and parroted each other while disclaiming that it’s not like “Vladimir Putin or the Koch Brothers” while inferring that it is.

          You guys are complaining that we only relied on the FPPC’s exact regulations when making our defense and allegations of misdoing by the Yes campaign while Taormino and Boutin and the Council and the Vanguard and you guys did not rely on any legal cites at all – nothing except wild speculation! Talk about a double-standard! This may be the lowest point of the Davis Vanguard’s capitulation and shame.

        9. Matthew Wilhoit

          Rik, I apologize for any condescending insults.  It was never my intention when I started responding for it to devolve to that.  I agree with you that Alan did an excellent job setting out facts and an OK job in setting out the law. Then he jumped to a conclusion. In my above post I said that doesn’t mean his conclusion is wrong.  That doesn’t mean it is correct either.  I will leave it to the DA and the FPPC to review Alan’s complaint and decide if there is any merit to it.

        10. Rik Keller

          Matthew: thank you. For my part I also  apologize for the devolution of the discourse.

          My intention is to stick to the issues, including specific allegations of FPPC violations. Of note, the City Council last night unanimously voted to forward the allegations against Yes on Measure L/WDAAC and the Davis Vanguard to the Yolo County DA and State FPPC.

  4. Rik Keller

    The subtext of this article is that it is, as I predicted in a comment a few days ago, the opening salvo in the upcoming David Greenwald/Davis Vanguard campaign to provide Measure R amendments. The more truthful title should be:

    Measure R Threatened By Developers’ Most Loyal Supporter, The Davis Vanguard

    1. Rik Keller

      A second subtext of this article: the evidence of illegal campaign actions by the project proponents pointed out by project opposition makes the opposition look bad. Welcome to the topsy-turvy world of the Developer’s Vanguard!

      1. Craig Ross

        I think David was actually nice to you guys in not hammering you on your conduct.  You’ve seemingly managed to alienate most of the people on here – most of who were on your side during the election.

        1. Alan Pryor

          I think David was actually nice to you guys in not hammering you on your conduct.

          Your freakin’ kidding, right? David and the Vanguard has continually accussed us of being liars and mudslingers throughout the entire campaign.

          Just look at the opening salvo in his very first paragraph in this article,

          “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.”

          Just as one egregious example: Recall when David “sat down” with Taormino to write an article highlighting the 150 lies, mistatements and falsehoods promulgated by the No on L campaign. That may have been the most laughable example of just how far the Vanguard’s jounalistic integrity has sunk and just how far he is willing to subserve the Vanguard to the developer’s interests.

          1. David Greenwald

            “Recall when David “sat down” with Taormino”

            Bear in mind the Vanguard had just published three op-eds of more 10,000 words written by you. Mr. Taormino wanted the chance to respond to criticism. It seemed like the fair thing to do. I made the same offer to you and you either declined or ignored my request – several times.

        2. Craig Ross

          That’s pretty accurate from where I sit.  You threw dirt the entire campaign, the only problem was it didn’t stick.  In the meantime, you’ve missed the point – you are harming yourselves right now by our continued tone.  Don’t believe me?  Look at the half a dozen or so people all of whom supported the No on L position, see if they think you’re helping the cause.

        3. Alan Pryor

          You threw dirt the entire campaign, the only problem was it didn’t stick.

          Uh…it stuck with 45% of the voters – apparently even with you. And it stuck with a campaign budget of $8,900 vs. north of $300,000 spent by the Yes side.

  5. Rik Keller

    If one were interested in a serious discussion of pros/cons of direct democracy and land use planning one could, for example, cite this article and use its framework for discussion:  Reconsidering the Use of Direct Democracy in Making Land Use Decisions, UCLA Journal of Environmental Law and Policy, 19(2): https://escholarship.org/content/qt7b22c5nw/qt7b22c5nw.pdf

    For example:

    “Once again, however, the case against mandatory referrals is not overwhelming. There are countervailing considerations, particularly where the voters have put in place a jurisdiction-wide policy through direct democracy. For example, they may have approved a comprehensive amendment to the local general plan, or re-adopted by vote the existing plan. Then, to make sure that the jurisdiction-wide policy is not impaired through subsequent piecemeal amendments by the local elected officials, who may be hostile to the overall policy, the voters may have included a mandatory referral provision. For example, in the ordinance considered by the California Supreme Court in its 1996 decision DeVita v. County of Napa,245 the voters ratified an urban growth boundary designed to locate intensive development within that boundary and to preserve Napa’s world famous agricultural resources outside those limits. The ordinance required that individuals seeking to change the boundary, or develop outside of it, must submit to a vote of the people.246

    Subsequent decisions of this type have at least the potential of raising significant policy issues, for they can call into question the basic policy choice made by the voters in establishing the boundary. Accordingly, because these exceptions implicate the basic policy decision, requiring voters to pass on them seems reasonable. The landowner’s attempt to seek an exemption from or alter the core policy provision of the overall scheme is the critical fact. 247 The case is strong here for allowing a mandatory referral, even though some of the specific decisions referred to the voters may not always rise to the level of implicating the basic, fundamental policy choice.

    In short, the possibility that major policy choices are made through decisions on small tracts justifies the continued exposure of such decisions to the initiative and referendum, and it justifies the judicial holdings upholding mandatory referrals.”

  6. Alan Pryor

    Once again, David, you continue to support the developer-driven story-line here even in the face of incontrovertible evidence to the contrary. I know you fancy yourself to be quite the legal dandy but you really ought to actually read court rulings more carefully before spouting out incorrect legal information.

    A perfect example is your complete misreading and contiual misrepresentation of the Nishi I affordable housing lawsuit. As in this article, you have often stated that I did not understand or even know of the existance of Palmer v LA when I raised the argument that the City had violated its own affordable housing ordinance and you claimed this lack of knowledge was what resulted in the City defeating Harrington in defending itself.

    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.

    There is a little problem here in that you are flat out WRONG! The only question is whether you are misrepresenting the facts out of ignorance or intentional malice.

    In fact, courts have repeatedly held that rezoning land for a development project is exactly a form of “other consideration” as specified in Palmer v LA. Had that been the only criteria that was considered by the court, without a doubt Harrington would have prevailed in his lawsuit.

    But the City did NOT argue that point in their defense (e.g. that rezonong was not an “other consideration”). The City instead argued the point that they had a clause in their affordable housing ordinance that specified the City’s entire affordable housing ordinance ordinance was in abeyance until there was legislative action clarifying the provisions of Palmer v LA. The plaintiff’s lawyer, Don Mooney, simply acknowledged that argument by the City when they declined to further prosecuture the case.

    So contrary to your continued misrepresentations to the contrary, Palmer v LA was absolutley applicable in the lawsuit because although the City did not provide financial assistance, the City otherwise clearly provided “other consideration” in terms of rezoning. This would absolutely have rendered Palmer v LA NOT applicable in the resolution of the lawsuit had the City not argued that it had inserted a clause, a poison pill if you will,  in its own affordable housing ordinance that suspended the entire ordinance until Palmer v LA was resolved legislatively. In other words, the City argued that as long as Palmer v LA was not resolved legislatively, they actually had no functionaing affordable housing ordinance on the books so how could they be in violation of it?

    That is exactly what the City argued in its own defense in the court trial and that is why they petitioner choose not to press the case further. And that is exactly why the City scrambled to redo their Affordable Housing Ordinance as soon as possible thereafter – because they technically did not actually have a functionally applicable affordable housing ordinance on the books at that time.

    How many times do I have to explain this to you, David? Please stop spouting your own incorrect version of reality because you think it denigrates me and Harrington. Your continued misrepresentations to this effect actually only displays either your own legal ignorance or intentional attempts to mislead your readers

  7. Rik Keller

    As an update: last night the City Council voted unanimously to forward the campaign finance/disclosure allegations against Yes on Measure L/WDAAC and the Davis Vanguard to the Yolo County DA and State FPPC.

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