By David M. Greenwald
Davis, CA – Up until a few years ago in 2018, there was a big question—would the Davis voters ever vote to pass a Measure J project? Well, in 2018, they answered that rather resoundingly with two yes votes by healthy if not large margins.
I think those votes generally convinced skeptics that Measure J wasn’t an absolute roadblock to housing. But here we are now, three years later and there has still not been a single unit built outside of the current city limits in more than two decades.
That is increasingly becoming a problem.
First, as we noted back in 2016 and 2018, in a lot of ways Measure J created the situation where Davis voters voted down the better Nishi project that would have provided for a range of housing and a fix for Richards Blvd. as well as 300,000 square feet of R&D space—in favor of a project that lacked Richards Blvd. access and therefore would not, as it was feared, worsen traffic conditions.
Thus the tradeoff between what are best practices in terms of project design and what can pass a Measure J vote.
But beyond that point is a less obvious one—does locking in project features through the Baseline Project Features make it difficult to actually build the project, given changes in the market and construction costs from the time of passage to the time when something is actually built?
That is definitely something to increasingly ponder. We saw DiSC recently attempt to address uncertainty by putting more of their commitments into the Development Agreement rather than the Project Baseline Features, only to see pushback on that—with them ending up relenting and putting most of their commitments into the Baseline Features where the voters gained trust but the developers lost flexibility, particularly for a project that is never going to be nearly as black and white as a housing project.
My point here is that we actually don’t know if Measure J is ultimately workable because we have never seen it work from beginning to end. We have seen projects that have passed Measure J votes, but we have still not seen any built.
Moreover, we have also not seen any legal challenges to them.
I keep pointing this out, that we have never actually seen a court challenge to Measure J.
One avenue I was looking at was the Federal Courts. Back in 2002, the court ruled in a 6-3 decision in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency that a 32-month moratorium on development did not “constitute a taking of their property without just compensation.”
But what is interesting is that the dissenters were the three most conservative justices at the time—Rehnquist, Thomas and Scalia. With the shift in the court composition since then and a move to the right, there could be the voters to overturn it.
Of course, someone would need to be willing to finance a court challenge and the patience to spend about 10 years getting the case through the courts.
You could argue that the 32-month moratorium pales in comparison to the voter requirements. It is hard to know how a court would view a voter requirement that could be viewed as a de facto permanent barrier to development.
Basically, Measure J has resulted in two thirds of the projects put forward being rejected by the voters. It also has put forward requirements that one might be able to argue has made it difficult to build the project, because of all the promises and expenses and requirements that are baked into the project due to the voter process.
But going the state route could be interesting as well. We have been following a number of recent court rulings where the local courts and the appellate courts have tended to favor projects over those attempting to stop projects.
One question that might be entertained is whether Measure J makes it more difficult for the city to adhere to Housing Element guidelines.
For example, in their rejection of the city’s Housing Element, HCD expresses concern about the impact of Measure J and other growth control measures on the city’s ability to deliver on its housing needs.
“As recognized in the housing element, Measure J poses a constraint to the development of housing by requiring voter approval of any land use designation change from agricultural, open space, or urban reserve land use to an urban use designation,” HCD writes. “Since the ordinance was enacted in March of 2000, four of the six proposed rezones have failed.
“As the element has identified the need for rezoning to accommodate a shortfall of sites to accommodate the housing need, the element should clarify if any of the candidate sites to rezone would be subject to this measure and provide analysis on the constraints that this measure might impose on the development of these sites.”
HCD also warns, “The analysis must evaluate the cumulative impacts of land use controls on the cost and supply of housing, including the ability to achieve maximum densities.”
Could that leave open the possibility of a challenge to Measure J by someone?
The state has attempted through legislative reforms to give HCD more authority. If HCD were to deem that Measure J makes it impossible or very difficult for the city to meet its housing requirements, could it then challenge Measure J?
Had Measure J been challenged right after passage, it might have withstood legal challenge.
But 22 years has seen four of six projects rejected, no housing built outside of the current city footprint, and a pretty drastic shift in the regulatory environment and potentially the court system.
It is hard to predict what the courts would do—and given the expense and length of time it would take to settle the issue, it might not be worthwhile for developers to challenge Measure J.
Still, I think a legal challenge is more likely now than ever and certainly more likely to succeed than it might have even five years ago.