In September, Samuel Ignacio, whether operating on his own or in concert with opponents of the West Davis Active Adult Community, filed a federal civil rights lawsuit alleging that the proposed senior housing project with its Davis-Based Buyers Program would perpetuate racial imbalance and discriminate against minorities by restricting sales to residents of Davis.
Last Friday, January 18, 2019, U.S. District Court Judge Morrison England signed the order dismissing the suit in its entirety by mutual agreement of the parties, Ignacio v. City of Davis et al. The suit had been filed in federal court against the City of Davis, Binning Ranch Holding Company LLC and J. David Taormino.
The lawsuit alleged that the recently approved West Davis Active Adult Community violated fair housing laws, based on the “Davis Based Buyers Program” proposed by the developer. In response, the defendants filed a motion to dismiss, arguing that the case was not yet ripe for review.
Rather than opposing the defendants’ motion, a city release explained that “the Plaintiff agreed to dismiss the case without prejudice, which means that the plaintiff or another party could file a similar lawsuit in the future if they believe that specific facts support a fair housing claim.”
The dismissal of the case allows for the thoroughly vetted project to move forward without further delay. The West Davis Active Adult Community is comprised of 325 for-sale units with 80 percent of the those being age-restricted (55 and over), 150 affordable senior apartments, an activity and wellness center, and other neighborhood amenities as approved by the numerous City Advisory Commissions, City Council and the majority of Davis voters.
Mayor Brett Lee said, “This project went through a very thorough public process inclusive of a Measure R vote, I am pleased to see the will of City Council and the majority of Davis voters is being upheld without unnecessary delay.”
Councilmember Dan Carson said, “Our City has acted on numerous proposals that enhance the local economy, and help increase housing opportunities for our community. Unfortunately, several of these projects have had lawsuits filed against them delaying their benefit to the greater community. I am pleased to see that this lawsuit was dismissed by the court. I am confident that the city will prevail in the other legal challenges still in play and validate the decisions of this council and the voters to approve them.”
John McIntyre, from the San Jose based law group Shea & McIntyre, took over for Sacramento civil rights attorney Mark Merin. Mr. McIntyre did not immediately respond to an email from the Vanguard for comment. David Taormino, the developer, deferred comment until a meeting early next week.
Alan Pryor, one of the opponents of the project, did not immediately respond to a request for information, while Rik Keller did not offer any insights into the dismissal of the suit.
In separate comments to the Vanguard, both Councilmembers Lucas Frerichs and Will Arnold offered choice words about the suit.
“The fact that this lawsuit was dismissed should surprise no one. It never had merit. It was simply the latest in a pattern of politically-motivated lawsuits, timed specifically to try and swing an election,” Councilmember Arnold stated.
He added, “On the surface, these lawsuits may look like crude-but-harmless political stunts. In reality, they are an attempt to subvert our democratic elections and to avoid campaign finance scrutiny. Fortunately, the voters see right through this tactic, and the dark money behind it is spent in vain.”
Similarly, Councilmember Frerichs stated, “This meritless lawsuit is yet another instance of ‘when you can’t win on the facts, go after the process.’
“It was an attempt call the project and program into question, and intended to harm the chances of WDAAC’s passage at the ballot box,” he continued. “Thankfully, the lawsuit failed on both counts – the voters saw right through the nonsense and passed the project, and the program is found to be legally sound, as well.”
The Vanguard hopes to get more insight into the dismissal following a conversation with at least one of the parties early next week.
Assistant City Manager Ashley Feeney indicated that at this point the suit wasn’t ripe.
“The lawsuit anticipated a program, the Davis Buyers Program,” he said. “It was clear that the program would be something in the future (and) it would be vetted to ensure it was in compliance fair housing law. The suit came in based upon this program… my sense is that it was premature to go and have the suit.”
He indicated that at this point the project would go forward. The Davis-Based Buyers Program would be developed and finalized about the time the first building permits are issued. Therefore, the next point for a potential lawsuit would be around the time that program was developed or possibly at the point at which an actual buyer attempted to purchase a home and was denied.
In the order signed by Judge England, it stipulated that “the entire action and all causes of action be dismissed, without prejudice…”
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 of all other minorities outside of Davis, and argued 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 to dismiss, the city and real parties in interest argued 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 to dismiss, the defense argued that at the time of the filing, September 24, 2018, none of five necessary conditions had occurred or been satisfied.
—David M. Greenwald reporting
While Davis seniors will be living in houses with a roof over their heads, poor Samuel Ignacio, a Filipino/Hispanic senior, will be living in a lawsuit, probably one without a roof. I hope you are all happy.
Actually if it ever gets built, Mr. Ignacio probably qualifies for the senior affordable housing.
Ain’t nothing like a serious response to a ridiculous statement.
This lawsuit was totally a campaign ploy. You knew as soon as the election was over it was going to go away. Wow, shocking.
You don’t know that nor do I. And with all due respect to Councilmembers Frerichs and Arnold, the dismissal of the case was not a determination on the merits. Depending on the final version of the Davis-Based Buyers’ Program, an otherwise qualified prospective buyer who is precluded from purchasing a home in WDAAC may bring a lawsuit at some point.
I haven’t read the Order or any court filings, other than the initial complaint; but the case was reportedly dismissed without prejudice because the Buyers’ program had not been finalized and, thus, the controversy was determined to be not yet “ripe”—i.e., premature.
It’s easy to see how the plaintiff may have concluded otherwise, given that the proposed development agreement approved by the Council includes specific details on the intended parameters of the program. Moreover, throughout the campaign, in the developer’s materials and public statements describing WDAAC, specific details of the Buyer’s Program were repeatedly spelled out (albeit inconsistently throughout the campaign). So, the assertion that the program had not yet been defined is somewhat questionable, notwithstanding the dismissal Order, and is certainly disingenuous.
If the developers and the City proceed with a local Buyers’ Program, let’s hope the final version is not as ill-conceived as the “draft” versions and that it does, in fact, comply with state and federal fair housing laws.
Craig Ross said . . . “This lawsuit was totally a campaign ploy.”
Etic Gelber said . . . “You don’t know that nor do I.”
In my opinion Eric is 100% right. Craig is stating his opinion (dare I say his political spin?) rather than knowledge. The situation vis-a-vis this lawsuit is like the old Kung-Fu saying . . . “Patience Grasshopper.”
I’ll grant that we don’t “know it” in a proof beyond a reasonable doubt sense, but the circumstantial evidence here is off the chart.
1. Prior to the filing of lawsuit, there was no mention of the Davis-Based Buyers’ Program outside of the Davis Enterprise (once) and the Davis Vanguard (many times)
2. Ignacio was not a resident of Davis and had no known ties to Davis
3. Mark Merin has stated that he was paid for his services
4. Our investigation of Mr. Ignacio shows it is highly unlikely that he was able to afford to pay for his services
5. The suit was filed on September 24 before the project was approved
6. It is not like Ignacio attempted to buy a home and was turned away
7. The suit was filed in the middle of a campaign
Putting the pieces together, the suit was filed in the middle of a campaign, by a person with no clear way of learning about the project and the restrictions, by a person with no clear way to afford to purchase the services of a man who happened to be one of the preeminent civil rights attorneys in this region, and once the campaign was over, Mr. Merin left, another firm picked it up and they agreed to dismiss at their first opportunity.
Again we don’t know that this was a campaign ploy, but it certainly looks like Mr. Ignacio was put up by opponents of this project who then decided to drop the action once it became clear they would not get the leverage that they wanted.
Davis should erect a statue of Mr. Ignacio in Central Park.
As another symbol of polarization?
. . . right next to the Rob Roy statue.
They won’t. The lawsuit wasn’t the only ‘ploy’ regarding this development.
I’d be willing to bet money that they will.
Won’t bite DS, I’ve learned my expensive lesson.
. . . I should reword: I think they will have a program to save face, but it will be a watered-down version – appearing to, but not the program as it was presented during the campaign.
Greenwald: you are not being truthful. You contacted me to provide commentary but declined to print what I wrote.
Furthermore, like you did when you were being paid to campaign for the project, you have continued to ignore the statements from the project proponents that the program as they intitally structured it was illegal. As Eric Gelber writes, dismissal of the case due to ripeness grounds has nothing to do with the merits of the case.