Commentary: Davis Will Lose by Winning in Court


By David M. Greenwald
Executive Editor

Davis, CA – There is a lot I agree with in Rich Rifkin’s column this week on Trackside.  Most notably, he writes, “If you think it’s arduous to build anything in Davis, the Trackside Center project makes your case.”

He rightly points out that attempting to get Trackside to the Supreme Court is unlikely to succeed.

For example, he noted the Supreme Court “has granted review in only 3.25% of civil petitions and overturned the appellate ruling in 1.86% of these cases.”

I would look at it another way, the court refused to hear the much more urgent Berkeley case despite the fact that the governor, legislature, UC, city of Berkeley and many others filed amici to request intervention.

In that case, the legislature and governor moved extremely quickly with a rare showing of unanimity to statutorily overturn the lower court’s ruling.  That’s not going to happen with Trackside.

Rifkin goes on to make the case that the development will actually benefit the neighborhood.  He calls this “a very nice building that will benefit Old East Davis. Once it is finished and occupied, I think most people in OEDNA will welcome their new neighbors and will agree that Trackside enhances the Third Street area.”

I don’t disagree with the neighbors that the process here was bad and I would, as I have argued many times before, argue that the proposed housing usage is not the greatest need.

But while I question a lot about the process and the project itself, the council approved it and what has happened since I don’t think is particularly healthy for a city that has enough trouble building housing to begin with.

In a tweet last week, Don Gibson for instance noted that it takes five years in legal delays to build a project.

So while Rich Rifkin argues that the neighbors will ultimately win by losing in court, I think the opposite is true for the average citizen—we lose by winning in court.  Or at least those citizens who wish to have affordable (small a) housing in general.  Not because this particular project was that important, but rather because the process is so difficult to get a project built.

We have made a lot out of Measure J.  The two projects passed by the voters in 2018 still have not broken ground.

Responding to such a point, Alan Miller, who lives in the neighborhood, noted that Lincoln40 (now Ryder) has been built while Trackside has gone nowhere.

He argued, “We are not an anti-development group, we are a historic-neighborhood preservation organization.  Big difference.”

I agree with him in part here.  I think they had legitimate reasons for concern about this project from the start—as did I.  However, I didn’t agree with the Superior Court ruling and think appealing the Appellate Court decision is a move that will fail and now simply delays things.

Still. as we have seen, a huge percentage of projects have in fact drawn lawsuits—most of them frivolous and quickly dismissed.  As I noted to Alan Miller, however, in the comment section last week, while it is true that Ryder was built relatively quickly at least by Davis standards, some of that was fortunate as it too had a lawsuit and only ended up not being appealed and delayed for another two years because the plaintiffs missed a filing deadline and it got dismissed.

I agree with Alan Miller who said, “I thought the Lincoln40 developers were being punished despite their best efforts to work with those most affected.  Those of us actually adjacent and affected were not the ones who had the major issue with Lincoln40.”

But the point is, lawsuits of this sort raised the costs and the time for these kinds of projects to get built.  You can argue legitimate and illegitimate, and that ends up being subjective.

At the end of the day, it’s entirely too difficult to build reasonable housing in Davis.  That raises the costs for everyone who doesn’t already own property in town.  It keeps people who want to work here and live here out of the community.

And I believe that slowly and over time it is lowering the quality of life for those who live in this community, our schools, our infrastructure, our amenities.

The city will likely prevail on Trackside.  But once again Trackside shows just how difficult it is to build housing in this town.


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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16 thoughts on “Commentary: Davis Will Lose by Winning in Court”

  1. Ron Glick

    “The city will likely prevail on Trackside.”

    There is serious argument to be adjudicated with Trackside, to what extent does a city need to adhere to its own planning documents?

    You might have it backwards. It could be that the city will lose by winning. If the people of Davis lose faith in the planning process, because the city isn’t bound by its promises, what happens to the planning process going forward? I don’t know but my guess is that master planning will be out the window and project by project battles will be even more heatedly fought out in the public arena.

    1. Keith Olson

      You might have it backwards. It could be that the city will lose by winning

      Ummm, the title of the article is “Commentary: Davis Will Lose by Winning in Court”


    2. Keith Y Echols

      Hopefully the people will learn there place and force their way into granular level decisions (like interpretation of the General Plan).  Hopefully it will motivate people to be more involved at the level of control they’re supposed to have and vote in or out the Council members that support or opposed the project.

    3. Alan Miller

      There is serious argument to be adjudicated with Trackside, to what extent does a city need to adhere to its own planning documents?

      That is exactly why we asking for review, despite what we well know are long odds.  What we have come to know as the answer to your question is:  ‘not at all, if they feel like it’.  Not only is the state taking away local control thanks to YIMBYs & Weiner, but even if we had a remotely current planning documents, the City will simply make an exception when they find it convenient, and they have ultimate power to do so.  Rifkin and his ilk believe this power is a positive.  We could not disagree more.

      If the people of Davis lose faith in the planning process, because the city isn’t bound by its promises, what happens to the planning process going forward?

      The planning process is already dead.   Faith in the process is already dead.  We know the truth:  planning restrictions become exceptions for the connected, wealthy and whenever/whomever is the current council majority feels like it.

      I don’t know but my guess is that master planning will be out the window and project by project battles will be even more heatedly fought out in the public arena.

      That’s my feeling as well.  When all power is concentrated to the top and the blinders to this are removed, those affected will be heard.

      1. Alan Miller

        Earlier Alan Miller wrote regarding:

        “The ruling by the trial court judge was at odds with a well-established precedent, giving cities discretion to approve one-off projects where they effectively change what is allowed on a given parcel without adopting a new general plan.”


        Rifkin and his ilk believe this power is a positive.

        In actuality, I’m not sure who Rifkin’s “ilk” are.  My claim about Rifkin’s opinion is untrue.  I appear to have made an incorrect inference.  Certainly Rifkin never said what I claimed he “believed.”  Those words don’t exist Rifkin’s current column or any past columns he has written. In fact, just the opposite. What Rifkin wrote in this respect is simply a recitation of the facts about court decisions in California.
        Rifkin never wrote that is the way Rifkin would like precedent to be. It is simply a matter of fact.  Rifkin was taught in pre-school (in Davis) that everyone has the right to their own opinions, but not the right to their own facts.   Alan Miller did not attend pre-school in Davis.
        Rifkin is happy to accept Alan Miller’s apology.

        Braaaaaaack!    Polly want a cracker!

  2. Ron Oertel

    I read Rich Rifkin’s article previously, and noted that he didn’t actually mention any way that Davis (however he’s defining that) will “lose”.

    Everything he said about the proposal was positive, with the exception of some muted criticism of the process.

    You’d think that with the title of his article, he would have spelled-out how Davis will “lose” by winning.

    1. Ron Oertel

      In my opinion, Ron G did a better job of explaining this (in his comment above), than Rich Rifkin did.

      Of course, if you’re in one of those old cottages/houses next to Trackside, the “downside” would probably be more obvious. Or, if you’re concerned about precedent in regard to the rest of the neighborhood and beyond.

    2. Ron Oertel

      Oh – I now see that David did not fully quote the title of Rifkin’s article.

      Rifkin states that old east Davis will “win” by losing, though he still doesn’t explain that.

      Perhaps he means going forward, the city will be more considerate of the neighborhood’s concerns?

      Given that they weren’t concerned before, what makes him think that they will be going forward? (There hasn’t been any significant change regarding the “type” of people on the council, and a couple of them are still leftover from the time that the initial decision was made.)

      And in my opinion, the concerns of the old east Davis neighborhood haven’t been fully appreciated by the rest of the city. Perhaps partly because the building itself isn’t that bad-looking.

      1. Ron Oertel

        I finally figured out what Rifkin was saying.  (Seems pretty obvious, now.)

        He’s saying that this building will be an asset to that neighborhood, and that the neighborhood will come to realize that.

        Could be.  I’d have to admit that of all the recent proposals, I’m having the most trouble understanding the opposition to this one.

        It looks like a nice, higher-end change.  I assume/hope that parking is sufficient as to not negatively-impact the neighborhood.

        Still – that adjacent, quiet alley is going to change a lot.

  3. Keith Y Echols

    I think the NIMBY’s (of which I am often one) need to take note.  The city’s housing element is currently out of compliance with the HCD.  If the city (any city) does not have a plan for the LIKELY development of housing to meet the RHNA numbers assigned to a city then the HCD will take over land management from city and approve projects through mistrial (warp speed that bypasses all other input).  One of the things that I’d imagine the HCD would consider in what is LIKELY to be developed is a city’s track record for approvals AND the time it takes to get project approved (which would include community input/interference).  

    1. Ron Oertel

      HCD is going to have its hands full, if it attempts to determine the “feasibility” of development locations/proposals in cities throughout the state.

      Especially in cities which are actually fighting them.  (Davis isn’t one of those cities.)

      If I’m not mistaken, the lawsuit behind Lincoln 40 (and Nishi) was based upon the fact that neither of them “match” RHNA requirements very well (such as Affordable housing available to everyone).  In addition, megadorm-style housing does not fully “count”.  (Some of us warned the city about this, but were ignored.)

      RHNA requirements are stratified into income levels, with the lower-income levels being the least-feasible.

      But again, good luck to HCD if they attempt to determine “feasibility” throughout the state, especially in those cities which are actively fighting HCD. Even more so, if public funding for Affordable housing doesn’t fully-cover the costs (or if those other cities don’t apply for those funds in the first place).

      My guess is that in 5-10 years from now, you’ll see what a massive failure the state’s efforts were. (Except perhaps in those cities such as Davis which go out of their way to comply.)

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