My View: It’s Getting Hard to Defend the City’s Handling of WDAAC

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By David M. Greenwald

When the city approved the Cannery, there were two aspects of it that were particularly troubling—one was that rather than fill current housing needs, it was largely marketed to Bay Area transports, and the second was how many times the builders/developers came back to the table to renegotiate carefully considered provisions.

The out-of-towner concerns have often been misinterpreted.  From my standpoint, the problem is that we have a huge number of people who cannot afford to buy housing or are unable to buy housing in Davis, but who work here—and instead of addressing that population, the project has become a place where people with few connections to the community have moved because it is more affordable than the Bay Area.

My view of the Cannery has been that it was the wrong project at the wrong time.  Ironically, I think the developers saw the flaws with the Cannery when they designed Bretton Woods and developed the Davis-Based Buyers Program in response.

Overall, I largely supported West Davis Active Adult Community (WDAAC) because I saw we needed housing and was okay with the Davis-Based Buyers Program largely because I saw it as an opportunity to get people to downsize their homes and thus open existing housing to younger families.

As I have explained elsewhere, it might have been marginally less diverse than other developments, but that could be offset with both the 150 units of Affordable Housing and as well as the potential for move up.

The problem is that the city largely punted on the issue of legality of the program—which has always been questionable.  In so doing, they basically indemnified themselves and put it completely on the developers to work out.

That decision now takes the city largely out of the decision-making at this point.

At the Planning Commission meeting on Thursday, City Attorney Inder Khalsa explained: “This is not an enforceable obligation in the development agreement as between the city and the developer.”

Instead, she described, “The development agreement specified that the developer elects to do this program and he will present it to the city and that he will comply with all applicable laws. It does not give the city any approval or disapproval authority over the program.”

As Assistant City Manager Ashley Feeney put it in a text, “This an applicant program that they elected to do and was included in the DA to ensure follow-through on the commitment as Dave Taormino continued to talk about it throughout the approval process but it was his program not something the City initiated.”

He explained, “At the time of approval of the project, the City avoided taking on any approval or disapproval role over the program because of concerns that it can be difficult to operate a local buyers’ program in compliance with state and federal Fair Housing Requirements.”

That turns out to be a mistake, because now the city is on the outside looking in on the decisions involving the program.

Last summer, Dave Taormino attempted to remove the program all together, but backed down under pressure.

Critics have called efforts to modify the program a “bait and switch.”  I think that’s the wrong charge.  The bigger problem is attempting to create a program that is legal.

As Darryl Rutherford put it, “I don’t necessarily agree with some of the comments that this is a bait and switch, I think this is more of a project that’s trying to maintain fidelity to fair housing law but doing it in a way that’s pretty weak and lacking creativity and ingenuity in creating a program that a majority of voters I think were anticipating while addressing fair housing law.”

The problem with the city’s original approach, which was clearly attempting to keep their hands out of the Davis-Based Buyers Program even as they allowed it to go forward, is that they now lack the ability to fix the problems.

And so by keeping that piece open-ended they have allowed the specter of Cannery to creep back into this project—the very specter everyone was attempting to avoid.

So what is the remedy here?  Clearly the city has taken the approach that this isn’t their problem.  They will likely allow the developers to get sued, which I assume they will be at some point—the original suit was not ripe, but once they build this thing, it becomes a germane and litigable issue.

I think the better approach would be to renegotiate the Developers Agreement.

Ashley Feeney explained, “When he wanted to remove it last year that was a potential to have the DA reopened.  He withdrew it and developed this program.”

The city still has some leverage here and could renegotiate.

The other option would be to put the modified program on the ballot.  This would not be a re-vote per se, because the status quo is now an approval, but rather a vote to determine whether the public is okay with the modified buyers program.

All of this troubles me.  The process which had been fairly clean now looks sloppy.  And the problems here will make some people less likely to support future projects.  This whole process has opened uncertainty that Measure J attempted to avoid all together through the Baseline Project Features.

—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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20 thoughts on “My View: It’s Getting Hard to Defend the City’s Handling of WDAAC”

  1. Eric Gelber

    Here’s what the Development Agreement says about the Buyers Program:

    (8) 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 that are 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”), and provide City with a copy of such verification procedures, and (b) indemnify, protect, and hold City harmless from any and all claims arising out of Developer’s failure to comply with applicable legal requirements as set forth in or related to the Fair Housing Requirements in accordance with the indemnity provisions set forth in Section 500 of this Agreement. The provisions of this Section 201(8) shall survive the expiration or earlier termination of this Agreement.

    While the language does say the developer “elects” to restrict 90% of buyers to those with Davis connections, it requires that the terms be appropriate and comply with fair housing laws. Seems to me this gives the City grounds to further negotiate the terms if it believes they are not appropriate or don’t comply with fair housing laws.

    It also gives the developer the option of dumping the Program entirely.

  2. Ron Glick

    “This whole process has opened uncertainty that Measure J attempted to avoid all together through the Baseline Project Features.”

    You dare to criticize the holy grail of Davis politics, Measure J. Yet you backed it for ten more years when speaking up might have mattered. To paraphrase Colin Powell, you supported it, you own it. You are kind of like Coca-Cola protesting the new voting law in Georgia after it was passed.

    Of course Measure J has been a great success for property owners in the City of Davis as well as for those opposed to growth, with not a single unit of housing, subject to the ordinance, having been built in over 20 years.

    The buyers based program was what people claimed they wanted. Now that it has been shown to be illegal and discriminatory people are claiming bait and switch. Of course without measure J all of this would have been avoided or easily fixed. Instead we have a project stuck in limbo without the partners and capital needed to build it.

  3. Tia Will

    “I largely supported West Davis Active Adult Community (WDAAC) because I saw we needed housing and was okay with the Davis-Based Buyers Program largely because I saw it as an opportunity to get people to downsize their homes and thus open existing housing to younger families.”

    I have been consistently opposed ( from the beginning) to the WDAAC both on historic grounds and on its own merits or lack thereof.

    The experience of the Cannery, the pitfalls of which have been covered on the Vanguard many times informed my opinion. It did not provide the ability for locals to have affordable housing as touted and was revised many times, not to the benefit of the citizens of Davis. I saw this project as much the same for the following reasons:

    1. The developer never provided more than his own subjective assessment for why this type of housing would address the greatest needs for housing in Davis, even when pushed to present such data.

    2. There was a presupposition that people who lived in larger homes in Davis would choose to downsize and sell their existing property, as opposed to keeping it for rental purposes. I know for fact that people sometimes do not make that choice. No data was presented to suggest what proportion of homeowners would make that choice.

    3. There was the presupposition that people would not take advantage of the loose association with Davis ramifications. It does potential Davis-connected renters or workers zero good for these homes to be purchased by people from the Bay area who have a tenuous connection that allows them to qualify.

    4. These objections existed long before the legal issues arose.

     

     

     

  4. Jim Frame

    not a single unit of housing, subject to the ordinance, having been built in over 20 years

    Nishi 2.0 was approved by the voters under Measure J in 2018.  It was stalled by a lawsuit — not by Measure J — until a year ago.  Whatever is holding it up now is unrelated to Measure J.

    Similarly, WDAAC was approved by the voters, and the DBBP wasn’t part of the mandatory features.  Measure J isn’t holding up WDAAC.

    Blaming Measure J for the lack of new housing in Davis is a charge unsupported by objective evidence.

    1. Dave Hart

      I agree, Jim.  Without Measure J, we would probably have two or three massive Mace Ranch developments with sound walls and no “there there”.  People in this community are voting for developments that are reasonably designed to integrate with the existing community.  I agree that nobody honestly thinks the DBBP was integral to the yes vote any more than it’s absence led to a yes vote on Nishi 2.

      1. Alan Miller

        we would probably have two or three massive Mace Ranch developments with sound walls and no “there there”.

        And yet you praise Lincoln 40 and Sterling as visually attractive?  Is there ‘there there’, in your eyes?

        As to be there being no ‘there there’, one can choose to simply not go ‘there’, or live ‘there’, to these fictitious developments that were never built.

        But Bretton Woods? Priceless!

    2. Bill Marshall

      Jim…

      Absent the JeRkeD measures, both Wildhorse and Mace Ranch Park were subject to referendums (petition-based, negatively focused)… so, the only apparent rational explanation is that negative measures (overturning) are not likely to succeed (Wildhorse and Mace Ranch Park exist)… the exception was “X”, which reversed Covell Village(s), and prompted Measure J… unless I remember wrong, Covell Village WAS NOT SUBJECT to “J”, but was rejected by referendum, which is still a “tool” for the no-growthers… what was now called Bretton Woods, Nishi, even tho’ approved by the JeRk process would have also, might have been denied by referendum… not at all sure about that, but can’t preclude that possibility either…

      Covell Village was NOT a good project, as proposed, so I actually voted to kill it… Bretton Woods, as proposed, was a somewhat bad/not good project, as proposed, so I voted against it, although I was tempted to vote for it, to ‘tweak’ the no-growthers… my ‘better angels’ prevailed…

      The referendum process is sufficient… we don’t need the JeRkeD mechanism… unless one is a BANANA, and/or, zero/negative ‘growther’… they have a strong ally in the JeRkeD mechanism

  5. Alan Miller

    The bigger problem is attempting to create a program that is legal.

    Seems to my the have created a program that is legal now.  Selling hot air and not selling teeth is perfectly legal, and that is what this latest iteration is.  It is a program in name only – in reality, it is nothing. And therefore . . . legal.

    1. Bill Marshall

      Selling hot air and not selling teeth is perfectly legal, and that is what this latest iteration is.  It is a program in name only – in reality, it is nothing. And therefore . . . legal.

      You got it!  By George, I thin you got it! [Actually, always thought you “got it”]

      Wish the others could… THAT would be a good step in giving faith to “the vote”…

      Why do I keep thinking of a supposed P.T Barnum quote, in this matter?  Something about a “certain group of people” being born every minute… but, that might be ‘profiling’, so won’t go there…

  6. Jim Frame

    You don’t think a lot more would have been built in the last 20 years without JeRkeD?  Srsly?

    There’s no way to know.  Without J/R any annexation proposals would likely have been challenged by lawsuits, and between 2008 and 2014 or so there likely wouldn’t have been any proposals due to the severely depressed financial market.  The outcome of City Council elections might also have been affected by annexation approvals.

    The only thing we know for sure is that there have been 2 housing developments approved under J/R and none has yet broken ground.  I expect both to be built within a few years, after which the “no new housing under J” canard can finally be retired.

        1. Ron Oertel

          How much (more) sprawl would you like to see? In addition to what occurs throughout the region?

          How much of it is going toward fulfilling the “need” to move out of the Bay Area?

          How much infill has there actually been?

          How much has UCD built?

    1. Jim Frame

      If any housing ever gets built after approval the narrative will change to it takes 20+ years to build anything under Measure J.

      And that would likewise be a falsehood.  If Bretton Woods builds in 2022 — which seems likely — the lag time attributable to Measure J/R will be on the order of 1 year rather than 20.  Most of the delay will be due to normal design, finance and construction processes, plus some legal wrangling.

  7. Bill Marshall

    This whole topic, and folks’ angst over it is silly… the ‘program’ has always been a PR sham… no reasonable way to monitor or enforce… obviously so… anyone who voted one way or the other on the stupid JeRkeD measure, based on ‘the program’, borders on the ‘ignorant fool’ classification…

    Mace Ranch Park has CC&R’s… you cannot park your car in your driveway for example… must be parked in the garage… yeah, right.  Architectural controls, including getting permission from the HOA for color of exterior paint, landscaping, etc. … yeah, right… it was patently ‘a joke’…

    The City reviewed CC&R’s because the Developer, PC, or CC wanted to put ‘constraints’ on the project… CA made clear to staff that the City could not enforce the provisions, but a real HOA could particularly for common use/common obligation purposes… we reviewed and commented on the CC&R’s to that end , in effect as a third party review, but never ‘approved’, nor ‘enforced’, CC&R’s… it is/was a ‘private matter’, particularly as CC&R’s always have provisions for amendment, changes, etc.

    The so-called ‘Davis-buyer-preference’ program is, in effect, CC&R’s… anyone who thought differently, … well, can I interest you on a timeshare in owning a portion of an above river structure linking two major boroughs in NYC?  For a limited time, I can offer you a guaranteed income stream for only $10,000 down and $250/mo.  But you need to act in 48 hours… call 1.666.555.9876, as operators are standing by…

    1. Alan Miller

      Mace Ranch Park has CC&R’s… you cannot park your car in your driveway for example… must be parked in the garage

      Let me guess, that neighborhood is almost 100% white and Asian.  How do they feel about a repair car up on blocks on the lawn?

      Architectural controls, including getting permission from the HOA for color of exterior paint, landscaping, etc. … yeah, right… it was patently ‘a joke’…

      Also racially biased . . . for instance probably nixed bright pastels commonly found in Latino/a/x neighborhoods (that I personally find rather joyous).

      So Davis CC&R’s are racially exclusionary.  I don’t say that as a joke . . . I think such provisions are.

  8. Richard_McCann

    First, it’s not necessary for older homeowners to SELL their houses to families to improve the housing situation here; renting may make it more affordable for lower income families, and yes, even students, who don’t have the assets needed to buy a house.

    Second, we can see the effect of Measures J/R/D in the lack of proposals for new housing. The measures deter developers to even begin the process. Reversing the process in a manner akin to rejecting rate proposals under Proposition 218 (voters must submit enough signatures in opposition to put it on the ballot) would be a much better alternative. (And we should have a set of default baseline features that the voters approved in the first place that can’t be negotiated away by city staff.)

    I found this opinion article by Richard Alcauskas in the Sunday Enterprise to call it as it is. We live in a segregated community and too many of us are fighting to preserve that barrier.

    https://www.davisenterprise.com/forum/commentary-progressive-davis-still-manages-to-segregate-itself/

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