An attorney representing the city of Davis, Binning Ranch and David Taormino filed a motion on Tuesday in the U.S. District Court, Eastern District of California. The Rule 12(b)(1) Motion seeks the dismissal of the Complaint.
Attorney Steve Boutin, representing the defendants in the case, told the Vanguard, “As reflected in our papers, we strongly belief that Plaintiff’s claims are neither timely nor meritorious.”
A court hearing is scheduled for January 24, 2019 to hear the motion, “but the federal court judge has discretion to make a ruling solely based on the papers filed by our side and those to be filed on behalf of Plaintiff. As such, the Court may rule on our Motion to Dismiss any time after we file our Reply brief on January 17, 2019.”
Davis Mayor Brett Lee declined further comment while City Manager Mike Webb told the Vanguard only that the city is in agreement with the motion to dismiss. It was further noted that the lawsuit would not prevent the project from moving forward and would only deal with issues of home buying after completion of the units.
The lawsuit filed in Federal Court alleges that the project would perpetuate racial imbalance and discriminate against minorities by restricting sales to residents of Davis.
The suit was filed by Samuel Ignacio, a Filipino/Hispanic senior on behalf and all other minorities outside of Davis, and argues that the project with its provision limiting purchase by those living outside of Davis, is in violation of Fair Housing laws.
The “residency requirement” for 90% of the proposed sales is unlawful, Mark Merin, the attorney filing the suit alleged, arguing that “in communities with populations that are disproportionately 
White and/or nonminority they perpetuate segregation by excluding minority applicants who live outside the community from obtaining housing there. Residency requirements prevent minority families from moving to high-opportunity areas ensuring that overwhelmingly-White communities remain overwhelmingly-White.”
The Vanguard has learned that Samuel Ignacio, 64, is a current resident of Sacramento but lived much of his life in Vallejo.
There are questions about whether he would even have standing to sue in this matter, as it does not appear from publicly available records that he has a history of gainful employment or the ability to purchase a unit at WDAAC.
In their motion dismiss they argue that the plaintff’s claims “are constitutionally and prudentially unripe and, in addition, Plaintiff lacks Article III standing.”
The plaintiff’s claims “are all directed at a contemplated “Davis-Based Buyers Program” referenced in a proposed, but not executed, written development agreement.”
Mr. Boutin argues, “Succinctly, the agreement that is the foundation of the Complaint has not yet been entered into. As such, there is neither a final, binding agreement nor final terms to adjudicate. There is no actual, live controversy. The action was prematurely filed addressing issues that may or may not ever occur.”
In their motion the defense argues that at the time of the filing, September 24, 2018, none of five necessary conditions had occurred or been satisfied.
However, voters did approve Measure L in the election on November 6 and the County Elections Office was set to certify the results on Monday, December 3, 2018.
Neither of these had occurred when the suit was filed.
In addition, “The Parties to the Proposed Development Agreement must execute the agreement in the form… This has not occurred.”
Further, Mr. Taormino must develop “appropriate local-connection requirements and verification procedures,” subject to approval by the City of Davis, and implement them, and “those yet-to-be determined procedures would have to be in violation of fair housing laws and exclude Plaintiff as a potential purchaser. This has not occurred.”
Finally the city must issue a building permit – which has not occurred either.
Thus Mr. Boutin argues, “This case was at the time of filing premature, and remains premature.”
Mr. Boutin also notes – as the Vanguard has on several occasions, that the Development Agreement “enunciates in mandatory language that the local-connection requirements and verification procedures 
for the Project, if any, must comply with “all [] Federal and State fair housing requirements.””
He argues, even assuming that a number of these contingent events occur in the future, “and further assuming that the Defendants actually enter into the precise written development agreement in the form attached as Exhibit 1 to Plaintiff’s Complaint, that agreement already explicitly mandates strict compliance with all applicable fair housing laws.”
Mr. Boutin further asserts that the complaint should be dismissed on the grounds that Mr. Ignacio lacks standing to assert these claims.
He argues that, the plaintiff has not and cannot in good faith “allege that Defendants have created, approved, or implemented any local-connection buyers program or any sort of buyers program for the sale of units in the Project.”
Mr. Boutin continues that the claims “are not ripe for adjudication” because the parties have not “entered into the proposed Development Agreement” nor “crafted and implemented local connection requirements and verification procedures pursuant to it.”
He argues, “Here, Plaintiff’s claims are not constitutionally ripe. The City, Taormino, and Binning Ranch have not yet even entered into the Proposed Development Agreement.”
He further notes, “Even if, the City, Taormino, and Binning Ranch had already entered into the Proposed Development Agreement… the challenged “Davis-Based Buyers Program” contemplated in Section 201(8) has not yet even been crafted or submitted to the City for approval.”
Here he notes the language in the development agreement which indicates, “Prior to issuance of any building permit, Developer and its successors and assigns shall (a) develop and implement appropriate local-connection requirements and verification procedures for such a program that are consistent with all applicable Federal and State fair housing requirements, including but not limited to the Federal Fair Housing Act…”
He notes, “The Court will be in a better position to evaluate the legality of the Davis-Based Buyers Program, to the extent such a program is ever created, after the Defendants enter into a development agreement and, thereafter, Taormino submits written local-connection requirements and verification procedures for the program to the City for its review and approval.
“Right now, there is no local-connection buyers’ program in existence for the Court to consider. Plaintiff will not suffer any legal hardship if the Court refuses to exercise jurisdiction at this time. There are currently no units in the Project either constructed or for sale. Plaintiff could not now purchase a unit in the Project for these concrete, practical reasons which are completely unrelated to the existence of any buyers’ preference program.”
The defense adds that the plaintiff lacks standing “because he has not suffered an injury in fact.” According to tests developed by the Supreme Court under Chandler (Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122-23 (9th Cir. 2010)) the plaintiff must have “suffered an injury in fact.”
An “injury in fact” is an invasion of a legally protected interest that is “concrete and particularized” and “actual or imminent”, “not conjectural or hypothetical”.
In this case, Mr. Ignacio’s alleged injury is “purely hypothetical” the defense argues.
—David M. Greenwald reporting
The injury is hypothetical.
What is not hypothetical is that the Davis Based Buyers Program is stupid.
Well, potentially stupid, since it hasn’t been specified.
“What is not hypothetical is that the Davis Based Buyers Program is stupid.”
Not hypothetical, just subjective.
When you are a narcissist, there is no subjective.
Basically the opponents of WDAAC attempted to use the lawsuit as a wedge to get voters to vote no. That ploy failed. Now they should just drop the suit and let the will of the majority rule.
As noted in my 10:03 a.m. comment, below, the lawsuit would not be contrary to the will of the majority; the project could be built. We don’t know the “will of the majority” on the Davis-Based Buyers’ Program because, as the developer and City keep reiterating, we haven’t been given details on what the program will be. (Although, it was misleadingly referenced in WDAAC marketing materials and the Measure L campaign, and is delineated in the proposed Development Agreement.)
The irony is that the people who will get hurt here aren’t going to be privileged white poeple, it’s going to be low income seniors. But they want to make this into a race and class issue even though the very people they’re hurting are the ones they are claiming to help.
How so? Even if successful, the lawsuit wouldn’t prevent the development from being built. It would only prevent implementation of the Davis-Based Buyers’ Program to the extent it is found to violate fair housing laws.
And the result? Viola: A low-density housing development, something the brain-dead voters of Davis would never have voted for without children, seniors or puppies in the mix. (CSP)
150 units for low income seniors. Housing that could free up housing in town for families or even students. As I said during the campaign, you don’t solve our housing problems by saying no to housing.
You don’t solve your thirst problems by drinking your own urine either, except as a last resort. We’re not that desperate that we should be drinking yellow housing.
If successful, the lawsuit would undermine the very reason to do the housing in the first place which is to ensure that the new homes go to existing residents who then free up homes for families and others. The people hurt by this are those who are in need of homes. And the other people potentially hurt are those residents who would move into the affordable units if Eric’s optimistic vis doesn’t pan out.
If successful, it would mean the Davis-Based Buyers Program, as proposed, is racially discriminatory and violates federal fair housing law. You OK with that? If successful, local seniors could still live there, but they couldn’t exclude “outsiders”—just like every other local housing development. Moreover, the buyers program isn’t limited to local residents, if that’s the intent.
If successful, it means a large percentage of the new homes will likely sell to people from the Bay Area, as is happening in The Cannery, who will be able to basically pay cash for them. How they’ll choose people for the affordable units is anyone’s guess. The history in Davis in that regard is not great.
Craig, what is your response to Eric’s point?
Interesting: there is decades of case law regarding fair housing complaints and the only case cited by the attorney in this article is one having to do with an insurer’s refusal to reimburse the plaintiff for rental car expenses.
The Fair Housing Act itself provides for a court to award relief when “a discriminatory housing practice has occurred or is about to occur.” [See 42 U.S.C. § 3613(c)(1)] and allows courts to look prospectively at potential impacts of developments, ordinances, and rules.
Just as one example of a precedent more closely related to fair housing and development approval, in Park View Heights Corp. v. City of Black Jack (1972), the 8th Circuit reversed a lower court dismissal of the case on standing and ripeness grounds where the City has passed an ordinance with zoning restrictions against multifamily housing. This was also the first case that affirmed the notion of disparate impact applied to fair housing law. http://news.stlpublicradio.org/post/supreme-court-housing-discrimination-decision-had-its-roots-black-jack
“Interesting: there is decades of case law regarding fair housing complaints and the only case cited by the attorney in this article is one having to do with an insurer’s refusal to reimburse the plaintiff for rental car expenses.”
Means very little other than I didn’t cite much of their caselaw in the article.
What you cited from them is enough to show that they don’t have a coherent argument.
Other than that, it’s just a classic attempted bait-and-switch from the developer. They went from saying they would have a “contract with the citizens” with every major project feature contained in the Developmrnt Agreement, to trying to claim that the Davis-Based Buyers Program described in the D.A. doesnt really exist.