By David M. Greenwald
Davis, CA – Last week the ballot arguments for and against DiSC 2022 came out. The Vanguard noted a number of exaggerations and inaccuracies with the arguments. On Monday, Councilmember Dan Carson filed a lawsuit in Yolo County Superior Court “to strike false and misleading language from the ballot argument submitted by opponents for use in the Voter Information Guide.”
Carson, who is serving as as Honorary Chair of the Yes on H campaign and as a Davis voter, alleges that the statement submitted by opponents violates California Election Code Section 9295 because it contains “several statements that are objectively and verifiably false and/or misleading” about legally binding commitments and independent analyses for the project.
“Those analyses show that DiSC fully complies with the City of Davis General Plan, would improve area traffic conditions, and would fully offset greenhouse gas emissions to make it carbon neutral,” the campaign stated.
“All voters are of course entitled to their opinions, but Measure H opponents go beyond opinion to make provably false and misleading statements to try to mislead voters,” said Carson.
“There is already too much misinformation spreading in today’s politics. We want Davis voters to make their decision on Measure H based on the truth and facts. The ballot statement against Measure H includes so many falsehoods that we felt this action had to be taken so that voters are not potentially making decisions based on information that we can prove is inaccurate.”
The complaint names Alan Pryor, Michael Corbett, Stephen Wheeler, Darell Dickey, Juliette Beck and Roberta Millstein as respondents.
Carson is represented by Amber Maltie and Julia Botezatu of Nossaman, LLP.
According to the complaint several statements are “false and misleading” in violations of the California Elections Code and they are seeking judicial remedy.
Also named is City Clerk Zoe Mirabile and County Clerk/ Recorder Jesse Salinas.
The second sentence of the ballot statement states, “It still has overwhelming traffic and environmental problems, and it is still non-compliant with the City of Davis General Plan.”
According to the complaint, “This statement is in reference to DiSC 2022 and is partially objectively and verifiably false. Both Ordinance Nos. 2616 and 2617, adopted by the City Council as part of its approval of the project, made specific findings that the planned development is in conformity with the City General Plan.”
The resolution passed by council, states the intent to amend the city’s General Plan Land Use Element providing a “whereas” clause, “Whereas, the General Plan Amendment is appropriate in that it is compatible and consistent with existing General Plan policies.”
Therefore, “the court must delete the words “and it is still non-compliant with the City of Davis General Plan” from the Argument Against Measure H.”
Further, the complaint notes, “The Argument Against Measure H also makes specific representations about traffic mitigation obligations imposed on the DiSC 2022 project applicants that are false and misleading.”
The specific statements are as follows: “The Developer has made almost no binding commitments and has no viable ways to improve this traffic mess. Their only promise is to develop a Traffic Demand Management Plan if the project is approved.”
The complaint argues, “These statements must be deleted because they are false and misleading. If Measure H is approved, the underlying entitlements require specific and binding traffic mitigation measures.”
The complaints notes that between the DA and the Baseline Project Features, “collectively include dozens of legally and contractually enforceable promises and commitments by the project applicants to mitigate and improve traffic impacts from the project.”
Accordingly, the complaint argues that “the court must delete the words “no binding commitments” and the sentence “Their only promise is to develop a Traffic Demand Management Plan if the project is approved” pursuant to Elections Code section 9295 because they are objectively and verifiably false.”
Further Carson argues that the Argument Against Measure H’s use of the term “Unmitigated” before “Greenhouse Gas Emissions” is false and misleading.
Instead, he argues, “The Mitigation Monitoring and Reporting Program requires the developer to take extensive emissions mitigation measures. Indeed, the City will not issue permits unless the mitigation measures are satisfied.”
Thus the complaint asks the court to delete the “unmitigated” because “it is at worst false, and at best misleading.”
The argument also notes a technical error when it states, “Yet alarmingly, the Environmental Impact Report states DiSC is projected to produce 54 million pounds of new greenhouse gas emissions annually – largely from vehicle emissions. DiSC alone will increase the City’s carbon footprint by almost 5%, completely derailing the City’s ability to meet its carbon-neutral goal by 2040.”
The addendum to the CEQA quantifies greenhouse gas emissions “by metric ton and not by pounds, which is the industry norm.” “after converting GHG emissions from metric tons to pounds, the total amount projected in the DiSC 2022 addendum equals 44 million pounds as opposed to 54 million pounds, so the ballot argument is verifiably false.”
But the statements are also misleading.
The Development Agreement requires that “DiSC 2022 will achieve carbon neutrality by 2040. To achieve this goal each individual development must, prior to the issuance of building permits, demonstrate consistency with the City’s Climate Action and Adaptation Plan by demonstrating a fair-share reduction of GHG emissions.”
The complaint argues, “Given that the DiSC 2022 developments may not progress unless project applicants can show they are reducing greenhouse gas emissions in an amount equal to production, this statement is at best misleading and at worst false, and therefore must be deleted.”