Land Use/Open Space

Last week the Vanguard reported that the city of Davis had initiated foreclosure procedures against DACHA and put the entire array of properties up for bidding, the Davis Area Cooperative Housing Association which had been formed as a cooperative affordable housing project.  DACHA has been beset by lawsuits and back in 2008 the city loaned DACHA 4.15 million dollars in an effort to shore up its finances.

That loan reduced the carrying charges for its membership but also brought on more controversy and accusations.  The downfall of DACHA appears to be nearing completion.  Last year, Twin Pines Cooperative Foundation had won a judgment against DACHA.  Because of that judgment, they were assessed with a levy on their assets and have been unable to pay their loan repayments to the city.

On March 16, the Davis City Council by a series of 3-2 votes approved the Willowbank Park development with some proposed changes that Councilmember Stephen Souza helped put into place.  At the time the neighbors while seemingly appreciative of those proposed changes, were leery of the council doing this without ironclad assurances that they would be enforceable and carried out.

The problem here is that while developer agreements are binding, they are only binding between the council and the developer.  There is no assurance to the neighbors that conditions will be adhered to.  Moreover, as one neighbor raised this past Tuesday, by going ahead with the project before the council even saw concrete proposals for the townhomes, the council was effectively surrendering its leverage.

The strange saga of NewPath continues as now the city of Davis has filed a complaint with the California Public Utilities Commission CPUC) alleging that the telecommunications company had begun construction on four of its facilities prior to receiving a Notice of Proposed Construction and Application for Determination of Exemption from CEQA (“NPC”) from the Energy Division of the CPUC.

NewPath is a competitive local exchange carrier, authorized by the California Public Utilities Commission under a Certificate of Public Convenience and Necessity, to provide “full facilities-based competitive local exchange and access services… for the entire state of California.”

Yolo County Superior Court Judge David Reed ruled against attempts by Joseph Whitcombe to change the ballot language on Measure R and denied the temporary injunction.  According to Judge Reed, the language in Measure J had used the same title, it was approved back then, and has remained on the books for ten years. 

While the argument by the petitioner claimed that the title does not describe the measure accurately, the title need only be a title, and a way to a reference. The court finds that there is insufficient evidence of false or misleading language, therefore the request is denied

In a late breaking story yesterday, the Vanguard learned that Joseph Whitcombe has filed a suit in Yolo Superior Court against the city of Davis regarding the language of Measure R, which will renew Measure J, originally approved in 2000.  According to our sources, the main challenge is to the title, “The Citizen’s Right to Vote on Future Uses of Open Space and Agricultural Lands.”

It is unclear what the problem is with the title, which is the same as it was back in 2000 when the measure was on the ballot as Measure J.

One of the interesting questions that has emerged in the post-filing period for city elections is whether there is going to be a battle for the renewal of Measure J, which will be on the ballot as Measure R. 

It is worth noting that the ballot measure that requires a vote for land use changes and incorporation of open space and agricultural land into urban uses is so synonymous with its previous ballot designation, that the city will now be forced to have to adopt it’s common reference of Measure J.  Will it continued to be called Measure J or it’s actual name, the “Citizens’ Right to Vote on Future Use of Open Space and Agricultural Lands?”

Federal District Court Judge Garland Burrell quickly denied NewPath’s motion for a preliminary injunction.  The ruling is tentative and NewPath could attempt to argue and convince the judge to change his mind, but given the rationale by the judge, it seems highly unlikely that he would.

In part, in order to prevail on a preliminary injunction, the plaintiff has to show not only irreparable harm from changing the status quo, but also that they are likely to prevail in the ultimate litigation.  The Judge ruled that there is no evidence that shows that they are likely to prevail.  He concluded, “Since NewPath has not made a “clear showing” that it is entitled to the preliminary injunctive relief it seeks, NewPath’s motion for a preliminary injunction is DENIED.”

Friday was the deadline for ballot statements in the two Measures that will be on the ballot for Davis voters.  Today we will look at Measure R, which is the new Measure J’s designation.

Given the popularity of Davis seminal land use ordinance which requires voter approval on projects that the Council has approved which would convert agricultural land to urban uses, and to develop any land which is outside of the current boundaries of the city.

Last night, the Davis City Council spent three hours changing the development at Willowbank on the fly.  Developers and city staff came forward with some last second changes to close the gap between developers and neighbors.  However, there were still outstanding issues that remained.  Nevertheless the city council through a series of 3-2 votes with Councilmembers Sue Greenwald and Lamar Heystek dissenting, approved the Willowbank Development with new proposals and new language.

One of the key new provisions was the incorporation of townhouses into one of the design features rather than standalone homes.  Everyone found the proposal intriguing, but Councilmember Sue Greenwald and Lamar Heystek repeatedly asked for a more concrete proposal before approval.  When the council proceeded to push through the item anyway, they voted against the project.

The rumors had been flying for two weeks from reliable sources that Community Development Director Katherine Hess would be making some sort of a lateral move out of the Community Development Department.  The rumors heated up last week but City Manager Bill Emlen did not return calls from the Vanguard on Friday.

The Davis Enterprise however, reported this development buried deep within their story on the proposed elimination of the Recreation and Parks Department as a way to close a 1.7 million dollar hole in the 2010/11 budget.

In November it was suddenly discovered that the city had issued 37 permits in the city of Davis allowing NewPath to construct a telecommunications network in the city.  However, when residents caught wind of this, it was discovered that the permits were improperly issued based on the city’s Wireless Telecommunications Facilities Ordinance. 

City Manager Bill Emlen and the City Council appeared to be caught unaware by these developments, but the City Manager quickly issued a stop work notice and revoked the Permits.  NewPath appealed that decision, but the City Council on January 19, 2010 denied the appeal and upheld Mr. Emlen’s decision.  NewPath as we reported a few weeks ago has filed a lawsuit against the City of Davis including a motion for a preliminary injunction.

Last week we ran a story that examined proposed changes to the city’s Housing element Update that was apparently reviewed by the State Department of Housing and Community Develop (HCD).

The HCD reviewed the city’s Housing Element Update, a process that began back in 2007 and was completed in 2008.  They made a large number of suggested revisions and apparently they need to approve the document before it is finalized.

The City of Davis underwent a lengthy Housing Element Update process back in 2007 that was eventually adopted in 2008.  While it was certainly a diverse committee, the work that they produced was commendable and seemed agreeable or at least tolerable to most.

What has apparently now happened is that the State Department of Housing and Community Development  (HCD) has reviewed the document and has made some recommended changes.

As the Vanguard reported on Thursday, February 25, 2010, the City Staff is bringing back the Willowbank Development after only small modifications despite the fact that the neighbors still have considerable concerns and they believe that they should be allowed time to work with the neighbors to reach an agreement most are willing to accept.

City Staff believes that the “after further neighborhood outreach it is clear that there is not universal support for this proposal or residential development of this site in general” however they believe “the proposed project presents a balance of fiscal neutrality, neighborhood compatibility, and marketability.”

Back in November, the City Council unanimously told the developers to go back and work with neighbors to resolve differences over the features of a 27-unit project.

The most controversial portion of the project was the reduction of he long-established 50-foot riparian buffer zone along the Putah Creek Parkway down to 30 feet.  This went against the recommendation of the Open Space and Habitat commission and was seen by the council as going too far.

The Vanguard learned earlier this week that developers for Covell Village have yet to turn in an application for the development.  That is still believed to be forthcoming, but the original word was that they would submit their application in January.  That has not occurred.

In the meantime however, supporters of the project and members of the Astroturf Organization CHA (Choice for Healthy Aging) are turning up the heat with an apparent letter writing campaign following the February 2 editorial by Robert Chason, another member of CHA in the Davis Enterprise.  Attempts to contact Robert Chason following our commentary last week have not succeeded.

The Vanguard has learned that the telecommunication company, NewPath has filed a lawsuit against the city of Davis stemming from the rescission of encroachment permits by City Manager Bill Emlen in December the subsequent denial of appeal by the City Council in Janaury.

On January 19, 2010, the Davis City Council unanimously voted to deny an appeal by NewPath on the rescission of encroachment permits by the City Manager Bill Emlen.  Bill Emlen made the decision on December 5, 2009 to rescind NewPath’s encroachment permits and related building permits for a proposed cell tower distribution system across the city.

The Vanguard in investigating how it was that encroachment permits were issued by the public works department has obtained copies of all of the encroachment permits that were issued to the company NewPath between October 21, 2009 and November 16, 2009.  Counter to claims made by the company at the time, the city directly ordered the company to work with the owners of a given property as a condition of building the facility. 

This condition was not adhered to and on that basis the city might have had the authority to pull the encroachment permits.  This is important because there is a reasonable possibility that NewPath will sue the city of Davis as they have other communities.

When last we saw it in early December, the Davis City Council unanimously voted to direct the City Staff to fulfill its agreement with the neighbors of the Montessori Day Care Center and determine if problems still exist with noise levels two years after the construction of the sound wall and three years after all parties (daycare center, neighbors and the City) had agreed to implement a list of mitigation measures to reduce noise.

The agreement between all parties on August 24, 2007 was that after the soundwall was constructed, there were be a re-evaluation of the noise levels to determine if other measures needed to be taken.