Sunday Commentary: Could Measure J Withstand a Legal Challenge?

Covell Village in 2005

By David M. Greenwald
Executive Editor

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.

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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28 Comments

  1. Alan Miller

    Moreover, we have also not seen any legal challenges to them.

    Call Davis’ lord & savior:  Max Rexrod.  Here he’ll come to save the day!

    I keep pointing this out, that we have never actually seen a court challenge to Measure J.

    Such as in this and the previous paragraph.

    One avenue I was looking at was the Federal Courts.

    You are personally researching methods to get rid of Measure J ?  Odd behavior for someone who supports Measure J.  Most of us who are against Measure J don’t spent time researching how to get rid of it.

    With the shift in the court composition since then and a move to the right, there could be the voters to overturn it.

    The odd conservatives & progressives being in bed together on pro-development.  But heck, kind of makes up for that pesky issue of the threat to Roe, eh?

    Measure J has resulted in two thirds of the projects put forward being rejected by the voters.

    Not to mention all the projects never put forward because of Measure J.

    It also has put forward requirements that one might be able to argue has made it difficult to build the project,

    And one might be able to argue have prevented such projects from even being conceived.

    One question that might be entertained is whether Measure J makes it more difficult for the city to adhere to Housing Element guidelines.

    Perhaps one way to entertain that question would be to invite the question to the Davis Developer’s Ball.  I hear it is quite the soirée.

    including the ability to achieve maximum densities.

    That’s the goal, to ‘achieve maximum densities’ ?  What a wonderful Davis it would be . . . neighbor stacked & packed upon neighbor.

    1. David Greenwald

      “You are personally researching methods to get rid of Measure J ? Odd behavior for someone who supports Measure J. Most of us who are against Measure J don’t spent time researching how to get rid of it.”

      It would be odd behavior except you leaped to conclusions. Regardless, the bigger threat to Measure J is the current direction of state legislation.

        1. Ron Oertel

          You had it right the first time, Alan.

          David isn’t attempting to “protect” Measure J, with these types of articles.

          He has already said that he wants to weaken it (e.g., by removing specific requirements for proposals). The same thing that Dan Carson wants to do, despite claiming that he supported Measure J when running for office.

    2. Don Shor

      Most of us who are against Measure J don’t spent time researching how to get rid of it.

      What do you spend your time doing? Writing ballot arguments? Organizing opposition? Writing letters to the editor?

        1. Keith Olson

          So what’s your point, what does that have to do with anything?  Alan has his own job, part of your job is writing articles.   I too found it odd that someone who has repeatedly said they support Measure J to be researching how it could get overturned.

           

        2. David Greenwald

          My point is, his job is different than mine: therefore, “ Most of us who are against Measure J don’t spent time researching how to get rid of it.” That isn’t a relevant comparison point, is it?

          Point of fact, I wasn’t researching it.  I stumbled onto the Tahoe decision a few years ago when Justice Stevens died (he was the author of that opinion) and asked some folks in Tahoe about it.  The rest is based on current court cases as the result of the new state laws, it seems like a relevant issue for Davis to be prepared to look at as the legal landscape shifts on land use.  But maybe it would be better to bury our heads in the sand and not look into a potential issue.

        3. Richard_McCann

          I hadn’t considered a federal challenge to the law. For several reasons I follow what happens in these property restriction cases. It’s a mixed bag, bigger than just the Tahoe decision, but the general trend is towards limiting the ability to restrict government regulation of land. There’s a current case out of Idaho that will have important implications.

        4. Ron Oertel

          Are you referring to this, regarding the legal challenge in Idaho?

          https://www.agriculture.com/news/business/supreme-court-will-hear-idaho-challenge-to-clean-water-law

          Not seeing any connection to Measure J regarding the challenge to the clean water law.

          Again, maintaining existing zoning for farmland outside of city limits is not even remotely a “taking”.

          But it’s nice to know that you and David are on the side of the Pacific Legal Foundation.  The same side as the YIMBYs, for that matter (conservative / business “property rights” side).

          Strange, how some “progressives” have abandoned the environment, while embracing extremism regarding social issues.  It’s as if you all have pursued the worst possible goals regarding every single issue.

          Of course, there’s a lot of “internal” conflicts with such arguments, as demonstrated by the lack of concern regarding the Davis buyer’s program, in regard to WDAAC.

        5. Ron Oertel

          Oh, and don’t get me started, regarding how these same progressives claim that sprawl doesn’t facilitate greenhouse gasses. Or, that “we’d better do it, since somebody else will, anyway”. (Kids use that type of excuse, with their parents. “Johnny did it, why can’t I”?)

          And unlike “them” (aka Johnny), we’ll be “saving the world” with our sprawl.

          And in the case of the YIMBYs (and those backing them financially), how their efforts increase gentrification (while claiming to be concerned about social justice).

          If it wasn’t for the corruptive influence of business interests behind all of this (including support for particular politicians who then push it through), it would be laughable.

  2. Ron Oertel

    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.”

    Please explain how maintaining existing zoning (e.g., farmland located outside of a city) is a “taking” under any stretch of the imagination.

    One question that might be entertained is whether Measure J makes it more difficult for the city to adhere to Housing Element guidelines.

    Tell that to entire regions throughout the Bay Area and Los Angeles area, which cannot expand their boundaries (and yet, are subject to the same type of requirements).  Some of which are controlled by voter-approved urban limit lines.

    By the way, there is an effort to overturn the state requirements and return local control.

    As far as the lack of construction since two peripheral proposals were approved, Nishi has to deal with the railroad undercrossing (which has nothing to do with Measure J).  Don’t know the status of Bretton Woods, but has the city released them from the Davis buyer’s program – which wasn’t even in the baseline features?

    Has the pandemic impacted any of this, as well?  For that matter, why has it been more than a decade since Chiles Ranch was acquired by a developer?  Why did the site of Davis Health Care sit empty for the past 5 years or so, since it was sold to a developer?  (NEITHER of these sites are subject to a Measure J vote.)  There’s probably other examples, as well.

    On a broader level, perhaps developers shouldn’t propose developments that they aren’t confident they can build.  Would they even risk their money in a campaign, attempting to do so?  Not to mention the EIRs, traffic studies, financial analyses, administrative costs charged to them by the city, ability to finance the proposal, etc.  Really?  They’re not going to analyze this, in advance?

    Of course, we do know that DISC (under any name or iteration) does not “pencil out” without housing. That’s why they withdrew several iterations of it, before it even reached the ballot the first time. Which actually indicates that they cannot build what the city originally pursued – a business park. (This is also the reason that several others failed – it doesn’t “pencil out” on its own.)

    In any case, was everyone happy with the changes that occurred at The Cannery?  (Again, not subject to or controlled by Measure J.)  Is that what David is advocating for?  Significant changes after approval?

    There are restrictions controlling peripheral development throughout the state, including (but not limited to voter-approved urban limit lines).  Measure J is only one such type.

    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.

    Again, this is David’s interpretation of that comment.  The actual HCD comment warns against “counting” proposals which are subject to Measure J, in advance of approval.

    You are personally researching methods to get rid of Measure J ?  Odd behavior for someone who supports Measure J.  Most of us who are against Measure J don’t spent time researching how to get rid of it.

    David doesn’t, as written.  He is attempting to weaken it – repeatedly.

  3. Ron Oertel

    If David and the city were actually concerned about state requirements, perhaps they could have considered that when they were pushing the megadorm proposals, which don’t count toward those requirements. 

    Similar problem with Nishi.

    If only they were warned in advance . . .

    Oh, wait – they were!  Repeatedly!

    And, if only there was a a council members is actually on the SACOG board, and should know this on his own.
    Oh wait, there is one!

    Well, at least they did a good job obtaining SACOG money in order to create the Mace Mess, so that’s something I guess. Too bad that it now takes city money to “undo” it. 🙂

  4. Eileen Samitz

    Wow, David. This is article is pretty disingenuous to say the least, which clearly, others have noticed as well.

    While you complain that “no unit have been built outside the city in three years” you make it sound like a goal.  The objective of Measure J has always been to preserve ag land and open space as much as possible, as well as to give the City negotiating power to get better projects. If the proposal that goes on the ballot is not a good project, the public gets to decide if it will approve it or not. Measure J is a citizen-based ordinance, and passed by 85% last time (as Measure D), yet, your attempts to undermine it are continuous.

    Also, while you complain about no units not being built outside of the City, well Bretton Woods was approved and it is up to the developers to build it. Yet, you try to blame this on Measure J? When projects are approved, you cannot force them to be built.

    You also continue to ignore the fact that housing development is down nation-wide because we had a recession where the housing market crashed, and now a pandemic going on 3 years. These are the factors impacting housing more than anything else. Yet, you continuously try to blame Measure J.

    Also, while you continue to complain about not development outside of the City, what about the plethora of approved units withing the City? For instance, 5,000 mega-dorm beds have been approved, and where three of those mega-dorms have been built over the last three years. How about the Chiles Ranch project which was approved years ago, and yet still sitting dormant? Another project on Pole Line near 5th St, was just approved as well amongst others which have been built like the Grande project and the apartments on Chiles Road in progress as well as the huge Plaza 2333 apartment complex, and the mixed-use project with apartments near Kaiser in south Davis also approved.

    Yet, you conveniently try to blame Measure J? Nice try, but you are not fooling anyone with your poor attempts like this article, to undermine, and to try to motivate opposition to Measure J.

     

     

  5. Ron Oertel

    Has the Davis city council been asked to endorse the following? And, if anyone reading this doesn’t like the state’s directives, have you signed it?

    Below is the Official Title and Summary of the “Our Neighborhood Voices Initiative” as approved by the California Attorney General:

    “Provides That Local Land-use And Zoning Laws Override Conflicting State Laws. Initiative Constitutional Amendment.Provides that city and county land-use and zoning laws (including local housing laws) override all conflicting state laws, except in certain circumstances related to three areas of statewide concern: (1) the California Coastal Act of 1976; (2) siting of power plants; or (3) development of water, communication, or transportation infrastructure projects. Prevents state legislature and local legislative bodies from passing laws invalidating voter-approved local land-use or zoning initiatives. Prohibits state from changing, granting, or denying funding to local governments based on their implementation of this measure. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: Fiscal effects of the measure depend on future decisions by the cities and counties and therefore are unknown. (21-0016A1.)“

    https://www.livablecalifornia.org/livable-california-endorses-the-our-neighborhood-voices-initiative/

    1. Bill Marshall

      Likely, not.  (first question)  No, and not likely to (second question)….

      As to second question (as you’ve made it clear it is inappropriate to question what jurisdiction you reside/vote in) have you signed it?… fair is fair… you ask a question, you should answer, as I have…

      1. Ron Oertel

        I already figured that, regarding the first question.

        The second question apparently doesn’t apply to you, so no “answer” was needed.

        It’s a statewide effort.

        Let me ask you a question, directly: Is there any purpose regarding your comment, at all? What (exactly) drives you to make comments, when you have nothing to say?

  6. Ron Glick

    So who is going to bring such a lawsuit? Any landowner who took down Measure J in court would then go before the City to get a project approved. Good luck with that. They would be vilified and then the project would likely face a referendum. Remember local land owners, as much of the land around Davis is owed by local families, are part of the community. Also these families have other business interests so there is little pressure on them to take this on. Instead many see these parcels as a legacy for future generations to deal with when Davis finally has had enough with the negative impacts of the limit line.

    The leader in the limit line movement in California was Petaluma, where development restrictions were put in place in the 1970’s, resulting in fewer, larger homes, being built over the long term. This has made Petaluma real estate less affordable overall. The same can be said of Davis.

    Up until now the courts have upheld limit line ordinances. We now face a Supreme Court that will change many things that have long been considered settled law. If a change comes it’s much more likely  that Measure J gets invalidated by a precedent setting case in another jurisdiction that is applied locally rather than J itself getting overturned directly through litigation.

    Perhaps David should start a fantasy litigation league where people can pick lawyers and fantasy lawsuits to be filed by fantasy law firms. I’ll take Mark Lanier, Ben Crump and Tony Serra as my legal dream team draft picks.

    At least silent green isn’t in our future.

     

    I think two clear statements lay out the  goals and the subsequent reality of Measure J. The first  is Eileen’s remark that ” The objective of Measure J has always been to preserve ag land and open space as much as possible, as well as to give the City negotiating power to get better projects.”

    The second is Alan response to the notion of maximum densities “That’s the goal, to ‘achieve maximum densities’ ?  What a wonderful Davis it would be . . . neighbor stacked & packed upon neighbor.”

     

  7. Ron Oertel

    This has made Petaluma real estate less affordable overall.

    Compared to what?

    There’s places in Sonoma county that are more expensive than Petaluma.  There’s also urban limit lines throughout the county.  I believe the entire county is (at least) as expensive as Davis, and many places in that county cost a lot more than something comparable in Davis.

    https://www.planbayarea.org/sites/default/files/sonoma_pda_map-4.26.pdf

    They also have minimum-size lot splits, in rural areas throughout the county.  In other words, zoning.  (You should see some of the ill-advised lot splits that were allowed in the “old days” – some 50 plus years ago. Permanently compromising the resulting parcels.)

    In addition, there’s a robust land trust program in place.  You can even see some of the land that they preserved when entering Sonoma county from the east, along Highway 37. (This ensures that the land, while private, remains farmland.)

    (Next, we can move on to discuss its neighbors – e.g., Marin, Napa counties if you’d like.  Now, those counties would really bother some of the “build everywhere” people.)

    The second is Alan response to the notion of maximum densities “That’s the goal, to ‘achieve maximum densities’ ?  What a wonderful Davis it would be . . . neighbor stacked & packed upon neighbor.”

    My guess is that this will never pencil out – a YIMBY pipe dream.  However, it might pencil out in areas that are already very expensive, where technology companies (which created the problem in the first place) have been supporting politicians who support efforts to house their employees – which then prices-out existing residents.

    The first is Eileen’s remark that ” The objective of Measure J has always been to preserve ag land and open space as much as possible, as well as to give the City negotiating power to get better projects.”

    That’s right – you already know what the alternative is. Look around the region if you want to see it.

     

    1. Ron Oertel

      Do you have data to back that up?  And, a comparison with comparable cities which considered (but did not implement) urban growth boundaries?

      In other words, a control group to compare it to?

      I don’t think so.

      Regardless, Petaluma continued to sprawl eastward, after that ordinance went into effect.

      Fortunately, it did not seem to spread westward very much.

      One thing to note is that urban growth boundaries can also constrain “demand” (e.g., in the form of limiting additional employers which create demand for housing).

    1. Ron Oertel

      I skimmed it, and will look at it again.

      But again, no (direct) cause-and-effect.

      How about if you compare it to places like San Jose and Los Angeles (which accommodated quite a bit of sprawl during the subsequent period), and the rise in the cost of housing there?

      Or more recently – Austin – the market which has seen far higher price increases in recent years than anywhere in the Bay Area (or Davis, for that matter)?

      One also has to look at the demand side of the equation, and the reason for it. Which is always related to job growth (unless it’s a desirable area in other ways).

      Not to mention other factors.

  8. Alan Miller

    I am not against an urban limit line, nor am I against one for Davis.  I am not against what Petaluma has done and am glad they are not spreading human virus (beings) across the hills and valleys in every direction.  I believe the cities on this side of our valley should establish green buffers such as Vacaville – Dixon to prevent cities from growing together.  I believe Woodland – Davis has an informal agreement on such a buffer but not sure if it is official.  My opposition to Measure J is that is a sh*tty way to decide what gets built and where, has all sorts of backfire unintended consequences, and what started out as a preserve farmland measure has morphed into more of a preserve-my-house-value measure.

    1. Ron Oertel

      and what started out as a preserve farmland measure has morphed into more of a preserve-my-house-value measure.

      Not the case, with DiSC.  If anything, that would increase demand (and prices) for housing.  (Though I’m pretty sure that what will happen instead is a full-bore effort to sprawl even more, such as that proposed for the Shriner’s property – and no doubt, the other “half” of DiSC.)

      And frankly, I suspect that the 300 units of rental housing will be at least partially-occupied by students.

      I don’t count the Palomino Ranch proposal as “sprawl”, though it would be a loss. Nor do I count the space inside Mace curve as sprawl. (But both would contribute to traffic, and are not accounted for in the traffic analysis for DiSC. Not to mention Shriner’s or the other half of DiSC.)

      In this particular case, it’s the growth advocates that are attempting to create “housing shortages”.

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