Guest Commentary: Carson’s Attorney Files Motion Seeking to Deny Legal Fees to DiSC Opponents

by Alan Pryor

Councilmember Dan Carson revealed this week that he intends to go after Davis residents in court again.

In court documents filed late Monday, Carson said he wants the six residents who signed the ballot statement against Measure H to pay his attorney’s fees even though his lawsuit seeking to water down their No on H ballot argument was largely unsuccessful.  Carson is demanding fees despite the fact that Dan Ramos, the developer behind the Measure H DiSC project, has already admitted publicly that he footed the bill for Carson’s lawsuit. 

The Attorney for the No on Measure H campaign Beverly Grossman Palmer stated, “As I previously indicated, it is very unusual for a sitting councilmember to sue over a ballot argument.  To seek fees against his own constituents for defending their right to present their views to the voters would be even more shocking, should Councilmember Carson file this threatened motion for attorney’s fees.”

 Roberta Millstein, one of the authors of the ballot statement challenged in Carson’s lawsuit stated, “Carson’s developer-backed lawsuit will have the effect of stifling Davis’s long tradition of engaged citizen participation. Who will want to sign a ballot statement in the future if a developer can fund a punitive lawsuit against them? Carson’s lawsuit sets a terrible precedent.”

Alan Pryor, Principal Officer of the No on H campaign and one of the authors of the ballot statement stated, “Fortunately, Carson’s opposition brief is unlikely to be successful because it is clearly in the public interest for Davis voters to be able to write truthful ballot statements advocating against developments.” A judge is scheduled to hear the arguments from both sides on April 29th at Yolo County Superior Court.

The DiSC project is an outdated freeway offramp project that will put 12,000 additional cars on Mace Blvd. every day and increase greenhouse gas emissions by the City of Davis by 5%. The citizens of Davis already voted down the first iteration of this project less than 2 years ago.

Carson sought to have more than 80 words of the 300-word ballot statement against Measure H stricken. On March 30, 2022 Yolo County Superior Court Judge McGuire overwhelmingly ruled against Carson, making only 2 small changes suggested by the No on H campaign itself. One change simply modified the type of unit used to express the amount of greenhouse gases that would be produced by the project – similar to expressing a value in dollars rather than cents. The other change involved the following paragraph, which Carson had asked to be deleted:

“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. But figuring this traffic mess out later is not a plan!”

The judge let the first and third sentences of that paragraph stand as they were; the second sentence changed the word only and it now reads, “They promise to develop a Traffic Demand Management Plan if the project is approved” – at best a slight change in meaning from the original.

In dismissing Carson’s claims the judge also found the following arguments against DiSC were neither false or misleading:

“Rejected only 19 months ago by voters, DiSC is back. But it is still an autocentric, freeway-oriented, downtownthreatening project. It still has overwhelming traffic and environmental problems, and it is still non-compliant with the City of Davis General Plan.”

Indeed, during the hearing, Carson’s lawyer admitted that DiSC 2022 would not be compliant with the City of Davis’s General Plan as it exists today.

The judge also let the heading, “Unmitigated Greenhouse Gas Emissions” stand, as well as the statements, “Locally we are reeling from the debilitating impacts of drought and terrifying wildfires caused by dramatically increasing carbon emissions” and “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 No on H Campaign believes Councilmember Dan Carson has grossly overstepped his role and blurred the lines between his elected office and his personal advocacy for a development project.

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34 Comments

  1. Don Shor

    Both sides are seeking attorneys fees.

    The six Davis residents who were taken to court by Davis City Councilman Dan Carson over the No on H ballot arguments they had signed filed a motion last week seeking more than $71,000 in attorney fees from Carson.

    In his response to that motion, filed this week, Carson’s attorneys indicated that he will seek attorney fees from the No on H side.

    https://www.davisenterprise.com/news/both-sides-seeking-attorney-fees-in-disc-ballot-argument-dispute/

    1. David Greenwald

      Most likely neither side will get awarded attorney fees for a split decision. There is probably a slightly better chance that Carson gets them.

  2. Keith Y Echols

    “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. But figuring this traffic mess out later is not a plan!”

    Of course figuring out things later is a plan!  OTHERWISE NOTHING WOULD EVER BE BUILT!

    Bring back sanity to Davis.
    “No on Carson”

    I would like to see Alan Pryor run against Carson; just for the shear entertainment value.  Alan Pryor spends more time complaining about Carson than advocating for his side of the issue.

    “Rejected only 19 months ago by voters, DiSC is back. But it is still an autocentric, freeway-oriented, downtownthreatening project. It still has overwhelming traffic and environmental problems,

    Of course it’s autocentric.  What business park isn’t autocentric?  Are workers supposed to use solar powered Star Trek transporters?  Hot air balloons? Freeway oriented? Well yeah…it’s right next to the Freeway.   You want a major traffic mess?  Built that thing in the middle of town and watch the cars fill the inner city streets.  Downtown threatening?  That’s a crock.  Those businesses aren’t locating downtown.  There isn’t going to be a rival comic book store to Bizarro World popping up at DISC.  Barnes and Noble and Borders aren’t going to resurrect themselves to challenge the Avid Reader.  Oh I know!  I bet the fear is that Chic-Filet will open at DISC and endanger the downtown Raising Cain chicken place!  Environmental problems?  You can’t add people to an area without adversely impacting the environment.  Overwhelming traffic problems?…..yeah….that one’s a legit criticism.

    The No on H Campaign believes Councilmember Dan Carson has grossly overstepped his role and blurred the lines between his elected office and his personal advocacy for a development project.

    What does the opposition’s belief that Carson’s role should be?  He’s pro-development (at least in this case).  I suppose Ramos could file all these legal things himself.

      1. Ron Oertel

        Technically, I don’t believe that residency is a legal requirement for “standing”.

        For example, someone like Don Shor might have standing.

        The DiSC proposal site isn’t even in the city, but I’m not sure if that would prevent a claim of “standing”, either.

        There’s a bunch of articles on the Internet, if you want to explore this. But it seems like a key requirement is to experience a potential “injury” as a result of an action.

      2. David Greenwald

        From Election Code Section 9295:

        (b)(1) During the 10-calendar-day public examination period provided by this section, any voter of the jurisdiction in which the election is being held, or the elections official, himself or herself, may seek a writ of mandate or an injunction requiring any or all of the materials to be amended or deleted.

        1. Ron Oertel

          David: Thanks for the correction.  (I should have phrased it as a question.)

          In any case, it was tone-deaf (at best) to use a council member for this.  (Especially given the result.)

          Don: I intended no disrespect in using you as an example. Anyone on here is free to share and discuss personal information about themselves (and sometimes, others attempt to do it “for them” – with the Vanguard’s approval in violation of its own policies, even when it’s totally irrelevant to the article).

    1. Alan Miller

      >Bring back sanity to Davis.
      >“No on Carson”

      I would like to see Alan Pryor run against Carson; just for the shear entertainment value.  Alan Pryor spends more time complaining about Carson than advocating for his side of the issue.

      Wrong Alan.  Please keep your Alan’s straight.

      1. Keith Y Echols

        Wrong Alan.  Please keep your Alan’s straight.

        I believe it was Alan Pryor that wrote the article.  It was Alan Pryor that complained about Dan Carson and the YES on H’s legal tactics.  So how did I get the wrong Alan?

    2. Bill Marshall

      I would like to see Alan Pryor run against Carson; just for the shear entertainment value. 

      You’re probably right… not to mention the sheer entertainment value!

      Shears @ 2 paces would be best…

      1. Ron Glick

        We could make a fortune for charity. Alan Pryor vs. Dan Carson for the undercard and Greenwald vs Reisig as the headliner. Mano a Mano. UFC rules.

  3. wesleysagewalker

    What crocodile tears from the same group who filed to have their legal fees paid. The pearl-clutching and feigned indignation here would be quite amusing were it not so depressingly predictable. How many lawsuits have the members of No on H collectively filed against projects over the years? Now that they are getting some pushback on their extremist methods they have broken out into a jeremiad. When you play with fire, you eventually get burned.

    1. Ron Oertel

      If you’re “counting lawsuits”, you might want to include the one where Carson and his neighbors sued UCD.  Of course, they didn’t have developer money backing them up at that time.

      UCD’s plans had included a “planet-saving” innovation center on campus (which was subsequently abandoned).

      Had that lawsuit not been initiated, might the planet have been saved by now?

      1. Keith Y Echols

        UCD’s plans had included a “planet-saving” innovation center on campus (which was subsequently abandoned).

        If the “planet-saving” innovation center was on campus; then it would have likely caused traffic problems on Russell without providing any economic benefit for the city of Davis.  At least DISC  which will likely cause traffic problems on Mace; (in theory) provides an economic benefit for Davis.

        1. Ron Oertel

          I don’t believe that the planet-saving innovation center was planned for that particular area.  Ironically, the lawsuit claimed to be concerned about the “loss of ag land” resulting from the housing (and resulting traffic).

          At a Dec. 19 news conference at the site of the new neighborhood, members of West Davis Neighbors criticized the campus for planning to build housing on what is now agricultural land, for not further scaling back the size of the neighborhood and for “minimizing environmental damage caused by the project.” The group also issued an appeal for donations to its litigation fund.

           
          https://www.ucdavis.edu/news/residents-sue-over-loss-ag-land

          Judge Bonnie Sabraw dismissed all arguments raised by the petitioners, called West Davis Neighbors, and found that UC Davis had completed “reasoned, good faith analysis” of all of the potential environmental impacts to the neighborhood project and that the evidence in the case demonstrated “a full and fair airing … of the different alternatives.”

          https://www.ucdavis.edu/news/judge-dismisses-uc-davis-neighborhood-lawsuit

          without providing any economic benefit for the city of Davis.

          You suddenly believe that a business park operates in “isolation” from everything else?  UCD would have supposedly received all of the claimed “profit”?

          By the way, why do you suppose that UCD abandoned its plans, given that the innovation center really wasn’t the focus of the lawsuit (and was in a completely different location)?  Do you suppose that they might have concluded that it wasn’t profitable for themselves, after all?

          Why do you suppose that they’re requiring such extreme government subsidies to approve Aggie Center? (Right next to their medical center, at that!)

          I’m quite certain that (even if DiSC is built), you’re not (personally) going to benefit even one thin dime from it, especially after they build all of the other proposals surrounding it (e.g., Shriner’s, Palomino Place, the space inside of Mace curve, the “other half” of DiSC – probably as a housing development).

          You’re not going to get a summer camp for your kid out of this (or whatever you claimed).

          You will have extra costs when you’re personally stuck in traffic that will continue spreading throughout the city.

          Ask yourself why all of the previous developments haven’t paved Davis streets with gold. (Or in any other city, for that matter.)

          Sure – it will be “different” this time, or so you claim. Might as well sign up for that summer camp now, just in case it’s approved. 🙂

        2. wesleysagewalker

          Ron, DiSC is projected to add $3.9 million in annual net surplus revenues to the City of Davis General Fund at buildout along with millions in new revenues to DJUSD, and Yolo County via property taxes and other taxes that will accrue to these entities. None of these taxes would be received by the City of Davis, DJUSD, or Yolo County if this project was undertaken by UC Davis. These are some of the economic benefits that DiSC will create that would not be accrued if the project were undertaken by UC Davis. This is the reality of projects that are developed within the City of Davis versus those undertaken on UC Davis owned land. Moreover, if the project were undertaken at UC Davis, there are much thornier issues regarding IP which is another reason why DiSC is a great complement to the research that is being done at UC Davis by providing better opportunities for firms to locate in Davis, develop IP, and collaborate with university researchers in an environment that is more conducive to private research and development.

          Your expectation that one project will singlehandedly address the City of Davis’ financial revenue shortfalls is, in my opinion, rather myopic. The thrust of your argument seems to be that if it doesn’t solve every problem that it isn’t worth doing. There are no silver bullets. DiSC is an important part of Davis’ economic development strategy that has been discussed and articulated for more than twenty years. It diversifies the City of Davis’ revenues, adds job and housing opportunities to allow more people to live and work in Davis, and provides a host of community benefits and amenities.

          Whenever you and the No on H side are pressed on what your alternative plan would be to raise revenues to pay for the high level of amenities and services that the City of Davis provides to its residents and businesses, you fall back on “infill development” as your solution of choice. But the City of Davis is already pursuing this path via its updated Downtown Plan. Moreover, I find it amusing that you and many other members of the No on H group have consistently opposed infill redevelopment for all of the somewhat sizable projects that have been proposed in Davis in the last five years–if not longer. So, consider me skeptical that your proposed alternative of substantial infill development is something you truly support.

          The reality is that Davis needs to pursue multiple avenues to raise revenues through economic development which it is already doing. Each element of this effort will not individually solve all of Davis’ revenue needs, but collectively, their revenues and benefits will create a path of fiscal sustainability for the City.

          As for these additional potential developments, all of them will have to conduct EIRs to consider and mitigate any impacts and most will be subject to voter approval via Measure J/R/D, so you will undoubtedly have ample opportunities to inveigh against them when and if they ever come before the Davis electorate for consideration.

        3. Ron Oertel

          Though I haven’t looked at the fiscal analysis this time, I can tell you that there was a wide range of potential outcomes in regard to the first proposal which failed.

          It is not up to “me” (or anyone else) to address the reasons that the likes of you and your developer friends consistently put forth the same type of “solutions” that created the fiscal challenges in the first place.

          Your entire argument is that the “table scraps” (and one time-fees) will “save the city”. And that those scraps won’t (also) be eaten by all of the housing proposals that will be forthcoming, in that same area. (Including on the “other half” of DiSC, no doubt.)

          There’s reasons these proposals keep failing, and there’s reasons that they keep adding housing to the mix.  (Here’s a hint – it’s not due to developers’ concerns regarding any “housing crisis”, nor is it due to any concern that they have regarding any city’s “finances”.

          Tell you what:  Let us know when the Woodland development has even ONE announced commercial tenant, years after failing in Davis (and adding 1,600 houses during its 7-mile move).

          Again, city finances are NOT personal finances.  Developer profits are not city profits.

          In contrast, costs associated with traffic ARE personal costs. As are a lot of the other costs associated with developments – permanently.

          Tell us why, again – that the new developments along 2nd Street (also on land previously owned by the Ramos family) haven’t “saved the city” from itself, so far. Including a brand-new hotel, that (for no apparent reason) the DiSC developers want to duplicate right across the street from it.

           

        4. Ron Oertel

          Honestly, the downright gullibility (and inability to recall recent history, as well as ongoing examples) on the part of some people never ceases to amaze me.

          I guess this is how most sales jobs work (to some degree), in reality.

          It seems like the Vanguard is (mostly) dominated by sales people, in regard to development proposals. Hoping to convince any gullible passerbys. Honestly, there’s no practical difference between developer advocates and car salesmen. My apologies in advance to the car salesmen (or women).

          Probably about time for the moderator to cut-off comments from the one guy questioning the sales people, don’t you think?

        5. wesleysagewalker

          Ron, the developments along 2nd Street have added millions in taxes to bolster the City’s coffers, yet this is a fact that you seem totally unwilling to countenance. Providing the high level of amenities and services that are an important part of making Davis such a nice place to live and work costs a considerable amount of money–it is all spelled out in the City budget.

          This all-or-nothing approach you seem to be taking is utterly devoid of nuance or thoughtful analysis. One project will not solve everything, but why would you believe that it would?

          The City of Davis has a shortfall between expected revenues and expected outlays. This will have to be addressed one way or another and DiSC/Measure H provides substantial revenues to address this funding gap. This is something that you and the No on H group seem to consistently duck or else engage in handwaving about some theoretical infill development projects for which none of you have any professional experience or subject matter knowledge. And nevertheless, you persist in these claims with not a moment’s hesitation that perhaps you are wrong and have no idea what is or is not feasible and achievable through infill development in Davis.

          City finances ultimately are personal finances through higher taxes, reduced services, and greater out-of-pocket personal expenditures by Davis citizens and businesses to maintain the quality of life that defines Davis. This claim of yours betrays the lack of considered thought that should define public policy discussion. Thankfully, this is why the City Council engaged in thoughtful deliberation and negotiated for a suite of amenities DiSC will provide to Davis.

          If DiSC really is some long con as you seem to allege, can you explain why it has been endorsed by every sitting Davis City Councilmember? What is their benefit in approving a project that does not, on the whole, improve Davis? Of course there are tradeoffs, but this is the essence of economic thinking. Anyone who insists otherwise is engaging in utopian thinking.

        6. Ron Oertel

          This all-or-nothing approach you seem to be taking is utterly devoid of nuance or thoughtful analysis. One project will not solve everything, but why would you believe that it would?

          “All or nothing” has nothing to do with continued sprawl.

          Let me ask you a question:

          Why is it that cities (in general) depend upon continued sprawl?  Could it be the one-time fees, in a hopeless attempt to continue the Ponzi scheme?

          If DiSC really is some long con as you seem to allege, can you explain why it has been endorsed by every sitting Davis City Councilmember? What is their benefit in approving a project that does not, on the whole, improve Davis? Of course there are tradeoffs, but this is the essence of economic thinking. Anyone who insists otherwise is engaging in utopian thinking.

          “Economic thinking” is what’s led to continued sprawl.  Hoping for the leftover crumbs, while developers are the ones who get rich.  (Might sound like a cliche, but it’s simply a reality.  Ask your clients how much they stand to make from this. For that matter, how much do YOU make from this?)

          I can tell you that I make NOTHING (financially), for my efforts. Even if “my side” wins.

          My “win” will be preservation of an urban boundary (and prime farmland). (Oh, and some avoidance of local gridlock.)

          Regarding the council members, you’ve got the wrong bunch in there (which unfortunately, is usually the case – in just about every city in the region).  Led by the guy who is suing his own constituents, and asking them to pay the developer’s legal fees.

          Sounds pretty costly, to “only” remove the word “only” (and change units to something more relatable).

           

           

    2. Ron Glick

      Wesley, I’ve had the same thought about those who have filed lawsuits complaining about becoming respondents but I think there is an even more interesting irony. Many of the No on H activists are the same people who have defended Measure J without any amendments. Now they complain about another unintended consequence of the ordinance they so vehemently support.

       

  4. Bill Marshall

    It seems like the Vanguard is (mostly) dominated by sales people, in regard to development proposals. Hoping to convince any gullible passer-byes.
    Probably about time for the moderator to cut-off comments from the one guy questioning the sales people, don’t you think?

    Nah, Moderator has repeatedly opined that folk should self-limit comments…

    “Sales people” is a refreshing new angle for you… as opposed to:

    especially after they build all of the other proposals surrounding it (e.g., Shriner’s, Palomino Place, the space inside of Mace curve, the “other half” of DiSC – probably as a housing development).

    We’ll see if it “sells”…

    1. Ron Oertel

      They (normally) work on one thing at a time.

      But in this case, they apparently aren’t all on the same page (as two of the proposals are already forthcoming, including Shriner’s and Palomino Place).  And since DiSC creates demand for 1,269 houses (per the EIR) that won’t be accommodated on site, they will subsequently use that as a justification.

      Apparently, they all work for different dealerships.  Though I guess there was a temporary split within the existing DiSC dealership, with the “other half” laying low for the moment.

      In any case, it’s easy to see all of this coming from a mile away.

      As it was when they added housing to MRIC/ARC/DiSC/DiSC, after failing multiple times to even “launch”.

      But yeah, I’m sure that “this time” will be different, and the city will be saved financially by these developments. 🙂 All of the other times were just “practice sessions” which didn’t turn out so well. (And not just in Davis.)

      Too bad that they have no commercial tenants, though. At least they have that in common with the Woodland development proposal.

      1. Bill Marshall

        42nd verse, same as the first… most salespeople keep with their ‘pitch’… it’s how they troll for new ‘fish’…

        We’ll see in June…

      2. Ron Oertel

        42nd verse, same as the first… most salespeople keep with their ‘pitch’… it’s how they troll for new fish…

        Don’t know who that’s directed to, but yeah – that is indeed how they fish.

        We’ll see in June…

        Indeed.  Followed by June (or November) of the following year, the year after that, the year after that . . .

        All while claiming that their aim is to help the city with their finances, housing “crises”, or whatever else is the soup of the day.  (But by all means, don’t look at “their” finances in regard to these proposals.  That’s “private information”.)

        Now, if you want to ask about mine, I have no financial stake in the outcome -as already noted. Nor do most bystanders in this.

        They stand to lose, in terms of traffic, loss of open space, etc. And that will continue, as long as it continues to be entertained.

  5. Ron Glick

    Cross complaints from the campaigns. I have no idea how this plays out or who wins what. That will be decided on Election Day. What I do know is the lawyers want to be paid and will be paid. How do I know? Its simple. A lawyer will decide who will pay the other lawyers in the room.

    I did enjoy the quote from the No campaign’s lawyer. Its clear she thinks she should get paid by Yes on H.

  6. Ron Oertel

    Ooh – lookey at what was just “algorithmed” to me, instead of David?

    Car-centric California is on its way to outlawing the construction of new freeway lanes in most of the state, instead diverting billions of tax dollars toward green projects to achieve racial equality and climate goals.

    California seeks to curtail freeway expansion, citing racism and environment (msn.com)

    Does this include the hoped-for “Lexus Lane”, on I-80? The lane that DiSC is counting on, as part of its (own) “mitigation” – but will actually be funded by the government in future decades, after even MORE sprawl is approved in the region?

    Hell, who wouldn’t want to claim credit for that?

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