There is a proposal on the agenda of the Planning Commission this week that would remove the Davis Based Buyers Program from the Bretton Woods project. I am troubled by the city’s approach to this issue and fear it has the potential to undermine the voters’ willingness to trust developer promises in future projects.
In 2018, the issue of the Davis Based Buyers Program was among the most contentious in the consideration of the West Davis Active Adult Community (WDAAC) proposal. Opponents launched a lawsuit against it and I pushed back calling it a “Dangerous Game Playing the Race Card on the Buyers Program.”
Lost in the controversy was the fact that at the start I said the program was vulnerable on legal grounds—even though I thought it was probably broad enough to pass racial muster because it allowed for anyone associated with UC Davis to purchase a home there. UC Davis is far more diverse than the city of Davis.
This is what I wrote at the time: “The irony is that opponents of this project really didn’t need to use the race card to attack the Davis-Based Buyers Program. The opponents are correct, this program is central to the developers’ story and their theory of this project. It’s vulnerable enough on legal grounds.”
Thus I never believed that the DBBP would pass legal muster to begin with.
The history is this. The Davis Based Buyers Program was placed in the Development Agreement. In September of 2018, it was legally challenged with the belief it was “discriminatory and violated the Fair Housing Act.”
In our view the lawsuit was not ripe, and we questioned whether the plaintiff actually had standing—the lawsuit was then withdrawn without prejudice.
In late December 2019, “the applicant submitted a request for DA amendment to remove the DBBP from the Development Agreement. City staff and the applicant has been in negotiations since then and have recently come to an agreement.”
That would remove the provision: “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…”
They reached the agreement with the city, saying “staff and the applicant have come to an agreement on the proposed amendment that would remove the Davis Based Buyers Program in exchange for a requirement that that all residences be 100% electric with no gas infrastructure being provided to the residential portions of the project. The project would also be required to comply with City of Davis REACH codes. This helps further the City’s effort in meeting carbon neutrality goals.”
All of this is fine, but that has nothing to do with the original theory of the project which was to ensure that the new homebuyers were not simply transplants from the Bay Area like the Cannery has turned out to be.
While it is true that the Buyers Program was not part of the Baseline Project Features, it seems that it would behoove the city and the developer to ensure that the public has full trust in this process.
My strong suggestion would be to put the matter back on the ballot. In a way it is a freebie for the developer anyway. They already have approval of the voters for the project, they are simply gaining permission to make this change.
There are several other considerations here that I think need to be addressed.
In the staff report, staff writes, “The legality of the provision would be difficult to enforce.”
This is troubling. Neither staff nor the city’s legal counsel acknowledged this back in 2018 when the project was going to a vote. This was sold to the voters as a mechanism to ensure that the people purchasing the project would be from the community rather than Bay Area transplants.
I think we need to better understand what was known at the time of the approval of the project by the city and what was told to the voters.
Second, it is worth noting again that this provision was in the Development Agreement but not the project’s baseline features. That means that the city has the discretion to renegotiate the terms of the Development Agreement with the approval of council, but they are not required to put the matter on the ballot.
Staff has decided to trade the DBBP for the electric and reach agreement, even though the two address very different issues.
This again drives home the need tomorrow for the council to put all promises into the project baseline features in very explicit terms.
My third point is a warning. The Cannery has been strongly criticized, and I think rightly so for making agreements with the city and then having to change them after the fact. The issue of the CFD definitely looms large, but they have also had to restructure various aspects of the development itself.
Now we are seeing the same thing with Bretton Woods and I will wager a guess that we will see the same thing with Nishi.
Some of these changes could very well trigger new votes, given the requirements of baseline features. It is a reminder again that we have never tested whether Measure R is workable from the statement of allowing enough flexibility to actually build a project.
As we have seen with both Cannery and now Bretton Woods, that may prove a lot more difficult than we initially conceived.
I’m not saying this to let the city and developers off the hook, so to speak, but we should watch to see how practical these protections and necessary campaign promises actually prove in a real market as opposed to in theory.
Bottom line for now, however: removing the Davis Based Buyers Program is a major change that should necessitate a new vote to maintain voter trust.
—David M. Greenwald reporting