Over the last two council meetings, as many as 40 different people have spoken during public comment—expanding the full range of Davis’ political divide—to complain about BrightNight and the council agreement for a solar field. Tellingly, not one person has gotten up to defend the city’s deal.
In an op-ed this week, Mayor Brett Lee and Councilmember Dan Carson attempt to extinguish the controversy—this is the second attempt by the city to quell public concern, as the first was an FAQ that seemed to have little to no effect.
The commentary, as I read it and understand the complex issues involved, really does not address the core concerns raised. The chief complaints at this point appear to be that the city used a non-competitive process which resulted in a low-offer and thus left money on the table while failing to go through a full public process that might have identified deficiencies in the offer by BrightNight.
The mayor and Councilmember Carson lead with the issue of advancing or fulfilling the city’s climate action goals. Those are important goals, but by raising them they are giving prominence to an issue largely not in dispute.
“We have a lot of work left if we are going to do our part to address the huge challenges before us posed by climate change,” they write. “Accordingly, when an unsolicited offer came in the door late last year to consider the use of city land for a solar plant, we acted responsibly and in the public interest to consider this potentially significant step toward meeting the city’s ambitious climate action goal of achieving climate neutrality by 2040.”
The point in question is whether they did act responsibly in agreeing to what some consider a low offer and, as others have pointed out, there is no guarantee that the energy would even go to Valley Clean Energy.
Nowhere that I see in this op-ed do Mayor Lee or Councilmember Carson address this point.
They are correct in noting that the offer was “unsolicited” and that the “land has not been used since 2017.”
Indeed, one person told me that the NRC and Open Space Commissions have been looking into best uses for this land for at least five years. Had the city engaged the appropriate commissions, they might have asked other questions.
“City staff carefully vetted the credentials of our would-be partners before we entered into the option agreement,” they write. “In reviewing BrightNight’s offer, we carefully took into account the allowable uses of the land under Yolo County zoning, comparable solar lease rates, and comparable long-term orchard rates.”
That may or may not be accurate, but what they didn’t do is consult the city commissions or entertain any sort of public process.
They add, “This is not a done deal, in any sense of the word.” Here they argue: “We have not signed a lease with the firm proposing this project and will not make any binding commitment to proposed lease terms and conditions until the project proponent wins state approval to connect to the grid, obtains project financing (without a dime of city money), completes an environmental review, and obtains the necessary permits from the county.”
But this would appear to be at the very least misleading.
When City Attorney Inder Khalsa nearly two weeks ago was asked if they could reconsider, she said that at this point they are bound by the option agreement.
It is true that the option agreement allows the city to negotiate a lease agreement that has not been approved as of yet.
“The option agreement was executed and we are now legally bound by it, therefore there’s no way for council to rescind the option agreement through a motion,” she said. “We would look to the terms of the option for termination if the council wished for us to opine on that.”
Mayor Lee and Councilmember Carson argue: “The option agreement buys time for all of that work to go forward while posing no financial risk to the city and allows us the flexibility to write a final lease that makes sense for both parties.”
They ask, “Why didn’t we reject BrightNight’s offer and go out for a competitive bids for the use of the city land?” They argue: “Our would-be partner faced an April deadline to apply to the California Integrated System Operator for permission to hook up to the electricity grid. Going out to bid would have assured that BrightNight missed that deadline.”
But that still would have given the city the time to evaluate whether they were getting a fair market deal and run it through the commissions. It wasn’t ideal, but the way the city handled this invites second-guessing and criticism and undermines the public trust.
Mayor Lee and Councilmember Carson add, “Our analysis determined that a bid process provided little certainty that a more attractive deal would be produced and would certainly have delayed progress on this opportunity for addressing our climate change goals for at least a year or longer.”
A key question that they don’t address is if they went to an RFP process, would they have received another offer at least as good? It seems likely. But they appear to dismiss this possibility out of hand.
As one person put it to me: “If someone comes to buy your house for less than the market value of the house should you sell to them? Or should you go out and put it up for sale? City staff did not even ask around to find out if this was a one time offer.”
“A bid process provided little certainty” of a more attractive deal, but the way they went about this process guaranteed that a more attractive deal would not have been produced. From the city’s standpoint, what was the urgency to go through this process?
Mayor Lee and Councilmember Carson do acknowledge: “We do regret that our further efforts at due diligence did not give some city commissioners an opportunity to weigh in more fully on the option agreement.”
But they use COVID-19 as an excuse and they bury the acknowledgement toward the end of their piece.
They write, “There appears to be some confusing and conflicting messages out there about this issue. And based upon some of the inaccurate information that has been going around, it is understandable that some in the community would have questions about this agreement.”
But the city has now had the option to correct that record. They put out an FAQ and now an op-ed and my questions really have not been answered in any satisfactory manner.
In fact, I would argue that there are no answers that will make this seem okay—if there were, this op-ed would have resolved the issue and to me, someone with no dog in this fight at all, it does not.
On the contrary, I find the fact that people calling this deal into question has caused three of the five councilmembers to dig in rather questionable. The deal does not seem so great that the city couldn’t have backed off, gone through a public process and risked an RFP. Given the short-time frame, it seems unlikely that BrightNight had another option anyway.
—David M. Greenwald reporting