By David M. Greenwald
Davis, CA – A few weeks ago I wrote a column arguing the ballot statements by the No on DiSC were “wildly inaccurate” and “exaggerated.” Despite the ruling by Judge Maguire, I largely stand by those comments.
I would argue that, from the standpoint of the law, for the most part Judge Maguire did the right thing—creating a very high hurdle for judicial action to actually strike a ballot argument. However, from a subjective standpoint, I believe some of the arguments by the opposition to DiSC to still be false and misleading.
Furthermore, I would argue if we read the full comments by the judge, that a lot of this was a close call and, when it was, he deferred to leaving the ballot statement—which he should do and is obligated to do by law.
In other words, the petitioner had a much higher bar to climb than the respondents and that’s how it should be.
So let’s quickly look at the five issues.
The first one is the one I probably disagree with the most. The issue of DiSC being “non-compliant” with the General Plan I don’t think the judge got right. He ruled that since the project necessitates a change to the current General Plan, the “Real Parties in Interest are entitled to express their opinion that the project is incompatible with certain goals and policies in both the current and proposed amended General Plan…”
My problem is, that’s not what they did. Nor did the judge seem to recognize that, at this point, every project requires a General Plan amendment. (In fairness, Judge Maguire is not a land-use expert and the attorney for the petitioner did not raise this point). In this case, I would argue, that while the statement is true as written, it is misleading as to imply some sort of violation with the law—a violation which is handled administratively through the amendment process and thus does not really exist.
In fact, if you read Chapter 5 of the General Plan, it specifically provides for a “University Related Research Park (URRP). On page 204, it notes, “Study opportunities to designate lands for “green” technology, high technology and University related research uses within or adjacent to the City.”
It continues, “Work closely with the local business community, community leaders and U.C. Davis officials in determining when and where such uses can best be accommodated in addition to the 25-acre enterprise site planned on the UC Davis campus.”
While it calls for a consideration of re-designating or rezoning land within the City limits, it also allows for the “designation of peripherally sited URRP” which shall only occur after “[i]t is determined that lands within the City limits would not meet the needs for ‘research-oriented’ Business Park uses.”
All of this was actually carried out over a decade ago during the Business Park Land discussions.
In 2012, Studio 30 report had analyzed available land, and recommended a “dispersed innovation model” whereby existing space would be fully utilized, but ultimately the report believed we needed to create around 200 acres of peripheral innovation space to fully leverage our assets.
Notably, Studio 30 found, “The current isolated and dispersed sites that are available and appropriately zoned are not adequate in terms of size, location, or configuration (and related constraints) to address the emerging market need of an Innovation Center.”
So, while it is true in a technical sense that DiSC is not in compliance with the current general plan (in part because the current general plan is in need of an update), the claim by the opposition is actually misleading if not false and the implication is not what they suggest.
Moving on to other issues.
The judge did find the evidence “clear and convincing” that the developer “made almost no binding commitments…” was “objectively false or misleading.” The judge writes, “The qualifier ‘almost’ imports an element of subjectivity or opinion, which brings the statement within the wide ambit of acceptable political speech.”
I understand the judge’s point but I would argue still that “almost no binding commitments” is misleading even if it is not objectively false. There simply aren’t no binding commitments. The opposition has narrowly defined binding as binding with the voters—and as we shall see, even there, there are quite a few binding commitments within the Baseline Project Features.
The judge did find on the statement about the Traffic Demand Management Plan being the only promise, “The Court finds clear and convincing evidence that this statement is verifiably false, because the Transportation Demand Management Plan is one of nine separate traffic-related commitments among the Baseline Project Features.”
Here he ruled in a minimalist fashion that they must strike the word “only.”
On the issue of “unmitigated greenhouse gas emissions,” the judge notes, “Petitioner argues that this phrase should be interpreted as a factual statement that the project contains no greenhouse gas emission mitigation measures. So construed, it would be objectively false.”
However, “Real Parties in Interest construe the phrase as a prediction that the project will result in significant unmitigated greenhouse emissions. So construed, the phrase would stand as an opinion ‘about the future effects … if the measure was enacted.’”
Once again, he’s splitting hairs. He ruled that he could not find the evidence clear and convincing. But the very fact that the meaning of the statement is ambiguous suggests it is misleading.
In most cases, having read and heard the No on H argument, I see their points. I think the phrasing could have been more clearly defined in a lot of cases that would have avoided these claims.
Nevertheless, I think it’s better that the judge not weigh in on these issues. The Measure H campaign clearly thinks these statements are false, they got a platform to express that and have additionally used the rebuttal section of the ballot arguments to do so as well.
The voters now have the information to decide whether they agree or not with the advocates of DiSC and, more importantly, they still get to decide whether this is a project they want.