By David M. Greenwald
Executive Editor
Davis, CA – In a sense, we the voters have become so used to hyperbole and misstatement that a lot of people probably shrug at the notion that one side is suing the other side over “false and misleading” statements in the ballot arguments.
But as courts have noted, a ballot argument is actually an “official election document” and certainly advocates “are free to speak out in any of the varied available traditional public forums.” Moreover, the court distinguished between “typical hyperbole and opinionated comments common to political debate.”
What they cannot do is make “undisputed, objective untruths calculated to mislead and misinform a reasonable voter.”
As the plaintiffs note in their brief, “Elections Code section 9295(b) allows any elector to seek a writ of mandate or an injunction requiring any or all materials on certain ballot materials to be amended or deleted. The writ shall issue only upon a showing of clear and convincing proof that the material in question is false or misleading.”
Therefore, “An outright falsehood or a statement that is objectively untrue may be stricken.”
In addition, “Additionally, context may show that a statement that, in one sense, can be said to be literally true can 
still be materially misleading.”
I think it’s important to understand that this is and should be an incredibly high standard. The other good thing for the voters is, unlike the CEQA suits or the FEHA suit that get filed during the election but don’t get adjudicated until afterwards, this one has to be resolved before March 30—so this is not going to be hanging out there.
Furthermore, the lawsuit is just an accusation by one side. It doesn’t matter what Councilmember Dan Carson thinks, it doesn’t matter what attorneys for the developer thinks, it doesn’t matter what the Vanguard thinks—this will go in front of a judge and that judge will make the decision.
Some of the readers have argued that the yes side made verifiably false statements as well. One that has been cited a number of times: “And DiSC will be a carbon-free model for California, requiring 100% renewable power onsite.”
But the difference is that this statement is actually backed up by both the Baseline Project Features and the Development agreement. The Baseline Features requires simply, “DiSC 2022 will achieve carbon neutrality by 2040.”
The DA adds, “To achieve this goal each individual development must, prior to the issuance of building permits, demonstrate consistency with the City’s Climate Action and Adaptation Plan by demonstrating a fair-share reduction of GHG emissions.”
There are a host of requirements to achieve all of this—everything from renewable power requirements to other mitigations and if they don’t meet it, it is written into the agreement “developments may not progress unless project applicants can show they are reducing greenhouse gas emissions in an amount equal to production.”
You want to argue that this is overly ambitious? You want to argue that they won’t meet that goal or requirement? You could be right. But as several commenters pointed out this week, that’s not a factual argument—it’s an opinion. But, more importantly, the voters and residents have recourse if they do not meet those goals because it is written into both the DA and Baseline Project Features.
You are entitled to your opinion, but that statement does not meet the legal standard for a false and misleading claim.
On the other hand, the plaintiffs in this lawsuit identify five claims by the No on H side that they believe do. Again—I want to reiterate just because Dan Carson, myself and the developers may agree doesn’t mean that a judge will, and the judge’s opinion is the only one that matters. (Given the timeline, the Superior Court judge assigned this probably gets the final say).
For instance, the claim that the project is “still non-compliant with the City of Davis General Plan,” the plaintiffs believe, is demonstrably false.
The plaintiffs note, “Both Ordinance Nos. 2616 and 2617, adopted by the City Council as part of its approval of the project, made specific findings that the planned development is in conformity with the City General Plan.”
The resolution, passed by council, states the intent to amend the city’s General Plan Land Use Element providing a “whereas” clause, “Whereas, the General Plan Amendment is appropriate in that it is compatible and consistent with existing General Plan policies.”
As noted to the Vanguard, the project cannot even proceed to the ballot without this finding by the council.
A further example, “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.”
No binding commitments is again objectively false.
As the complaint notes, between the DA and the Baseline Project Features, “collectively include dozens of legally and contractually enforceable promises and commitments by the project applicants to mitigate and improve traffic impacts from the project.”
I illustrate these two claims here because they are pretty black and white. The opposition says it’s non-compliant with the General Plan, and that’s clearly false. They say there are almost no binding commitments, that’s also clearly false.
They may believe that the binding commitments are insufficient to mitigate and improve traffic impacts from the project—that’s an opinion of course, and perhaps a reasonable one, but that’s different from asserting that there are no binding commitments.
That’s how I see it. That doesn’t mean that a judge will see it the same way.
The remedy here is obviously to strike the inaccurate statements or to rephrase them. Frankly I think they could make similar points without running afoul of the law.
Some have suggested this tactic will backfire, but that remains to be seen. One thing we know it will be resolved quickly.
If a judge finds them to be correct—as they very well may—it will feed a bit into the yes side’s argument that opponents are using misleading tactics and rhetoric to attempt to kill the project.
If he or she rules against the plaintiffs, on the other hand, it could have some blowback and give the opposition fodder to argue that the plaintiffs are using their resource advantage to stifle their ability to exercise their First Amendment rights.
But that’s to be determined.
It’s my belief that no matter how the judge rules that’s how much of the electorate will view this.
The first amendment only applies to government interfering with free speech. The plaintiffs can’t violate the first amendment rights of anybody because they are not acting in any capacity as the government. Carson was careful to say that he was doing this not in his capacity as a City Council member but instead as part of the campaign and the CC has nothing to do with the lawsuit.
No on H can whine about free speech if they want but only to those who are unfamiliar with the mechanics of the first amendment. For the rest of the electorate that dog won’t hunt.
Ron, there is the law, and then there is public opinion. I believe that legally you are correct … and that a judge will see it that way. However, voters do not make their decisions in the same way as judges do.
Matt, you may be underestimating the sophistication of Davis voters about how the freedom of speech clause works.
I always crack up when I hear about the “sophistication” or intelligence…etc.. of Davis voters. It’s a matter of wisdom in that Davis voters think they know more about topics they really have no idea about. That goes for most voters in general but even more so because of Davis’ overly trumped up sense of itself.
‘booksmart’ one might say
Ha! They can’t be that sophisticated, after all they voted @80% for Biden/Harris. 😉
Totally agree, Keith, 20% voted for DT and what’s his name. That’s even more shocking!
.
I have excerpted the above two sentences from the article because I believe (my opinion) that they illuminate the core issue of the lawsuit … and the No On DiSC argument(s).
The first of the two sentences sets the standard that has to be complied with. I see no problems in that first sentence. However, I believe history tells us that the second sentence (and therefore Dan Carson’s argument) has a fatal flaw. What history is that? The history of Development Agreements in Davis.
Look at the history of the Development Agreement signed by The New Home Company and City Council for Cannery. It has been changed so much after the fact that to apply the words “contractually enforceable” to it when it was signed would be a joke. The terms of that DA that have not been contractually enforced have cost City of Davis taxpayers a minimum of $21 million, resulted in a bicycle/pedestrian crossing that is of significantly lower quality than was agreed to, and the failure of the developer to install fiber connectivity throughout the development … just to name a few of the contractual enforcement failures.
Look at the history of the Mace Ranch Development Agreement. Community amenities that were contractually agreed to by the Ramos development team and the City were only actually created after a Mello-Roos Tax was levied on the residents after the fact.
Look at the history of Willowbank Park on Mace Boulevard. After lots and lots of community input, the Development Agreement was signed for a mix of detached and attached single family residences. Over a period of months after signing the DA, the City acceded to the developer’s requests to eliminate the attached residences, making the development 100% detached, and reducing the number of affordable units. All that was done by amending the DA without any public input.
So, arguably, the only “legally and contractually enforceable promises and commitments” are the ones in the Baseline Features.
Further, it is an undisputed, objective truth that control of the ability of the project to mitigate and improve traffic impacts rests in the hands of CalTrans because arguably a meaningful and substantial portion of the DiSC traffic is going to pass through the Mace Blvd exit/entrance of Interstate 80, and CalTrans retains sole control of how the ramp meter lights are set at that exit during times of congestion. Making changes/mitigations to Mace Blvd without addressing that I-80 on-ramp elephant in the room, is pretty much shuffling deckchairs on the Titanic.
Matt,
What is the actual legal structure (binding document?) and mechanism of the “base line” features? I thought it was just terms that were put into the development agreement and that it was the DA that was enforced?
As for the changing features in the development agreement? Is there an argument that the city made their decisions in the best interest of the city? (ie…if they didn’t the builder either has to significantly delay build out or pulls out all together…which would have left an incomplete project in the middle of Davis?). If that’s the case, it seems like the “base line features” are a hardline STARTING POINT for future negotiation with the developer. It’s not an air tight trap to ensnare a developer. But does seem to be a trap on 3 of 4 sides in which case a complete backout by the developer would have substantial financial consequences….because at that point “in for a penny, in for a pound”
If anyone skipped MW’s text above cuz it’s a bit longish, go back and read it. Everyone in Davis should know the differences between the promises made and the failures to implement and enforce. This will be our future, perpetually, until the people of Davis wake up to the lies.
Arguably. As I pointed out below, big difference between ‘ye shall not build until X is completed’ and ‘you will meet a goal that can only be shown by modeling using equations and assumptions and you’ll meet it in two decades through your work today.’ Hard to enforce something on people who may be retired or dead by the time the goal needs to be met, and the models could conflict, or professional understandings change. Not solid for baseline inclusion — more wishful thinking.
Those are two different things. DiSC itself is not a “carbon-free model”, regardless of whether it achieves “carbon neutrality (as defined by the law, using controversial offsite mitigation credits).
The “requiring 100% renewable power onsite” statement is not a mitigation for the greenhouse gasses emitted by the occupants of the 2,000 plus parking spaces. And yet, that’s what the sentence implies.
Nor is this statement actually defined. What does it mean? For example, does it mean no natural gas, and any connection to the grid will require a permanent contract with a utility that provides nothing but “green” power (another disputable claim), at a higher cost for all of DiSC’s commercial and residential occupants? If that’s how it’s being defined, is this in the baseline features?
Though development agreements have no meaning in regard to either ballot statements or baseline features, I do have a question regarding the following claim:
From the article referenced below:
If there’s a “glut” of banked credits, how would the city determine whether or not DiSC “demonstrates consistency with the City’s Climate Action and Adaptation Plan”, let alone “carbon neutrality” based upon mitigation credits? Is the city proposing some kind of follow-up with the applicable agency to ensure that DiSC’s credits are actually used somewhere?
(Again, “carbon neutrality” isn’t even in the developer’s ballot statement in the first place. “Carbon-free model” is.)
https://calmatters.org/environment/2022/02/california-climate-cap-trade/
Truer words . . . were never spoken
It’s not verifiably false so much as hot air. Considering ballot arguments in general, totally in play.
The issue isn’t that it’s backed up by the Baseline features, it’s that nothing like this should be in a Baseline agreement. Solid things like, “a bicycle tunnel will be built before X square feet is built out” is solid. Carbon neutrality is all based on equations and assumptions in models. One ‘expert’ modeler could fight another in court from the other side. Square feet of buildings built — a child could verify.
One way it backfired already is having Carson promoted to honorary chief of litigation. This isn’t the appearance of being tangled up in the project, it is being tangled up in the project. I am disgusted that once again a city council member is directly involved with the promotion of a project that they and/or the electorate have a vote on. I don’t care if the City attorney says it passes the smell test — out here in Davis itself this stinks, badly. The electorate should be outraged by this, we’ll see if that outrage extends beyond a single wise soul named Alan Miller.
A note on development agreements: they are binding contracts between the city and a developer. Unlike baseline features (for Measure D projects), they can be altered by an action of the City Council (simple majority vote) at the request of either the developer or the city. Any changes to baseline features triggers a Measure D vote on the changes. To my knowledge, this has never happened.
My experience of amendments to development agreements was varied when I was on the CC. Let’s take Cannery as one case:
Example 1: The original development agreement allowed the developer to return to the City Council to request a community financing district (I may have the language wrong, I did not look it up). The Council was under no obligation to provide it but the DA allowed for it. In the event, the developer returned and requested it. After vigorous debate and public input, the CC granted it. I opposed that decision.
Example 2: The original development agreement stipulated certain parcels were to be set aside for development by small builders. At a certain point during the build-out, a representative of the developers approached me asking if I would support a DA amendment to remove this requirement. I said I would not. To my knowledge, this issue was raised several times to staff but I don’t think it ever came to the CC. In the end, the parcels were developed according to the original DA.
Example 3: The original development agreement stipulated that the southern part of the project would be reserved for commercial uses (again, I do not have the details). The original developer sold those parcels to another developer who submitted a proposal to the CC to amend the DA to allow for multi-family housing to be built on the southwest portion of the property. The item was agendized and noticed and after public input and CC discussion, the CC approved the amendment. That housing is now being built. I voted for the change.
The point is, DAs can and do change. In my four years on the CC there were several examples of requests for such changes. When formally requested, all were agendized and brought before the CC for public input, discussion, and decision making. I would need evidence for DA changes to be done secretly or out of the public process. It never happened when I was on the CC.
With large, multi-phase projects like DISC, people should expect that there will be requests to amend the DA. Some will be minor, others, like changing commercial to housing at Cannery, could be significant. The community should stay engaged and keep its eyes on CC agendas. If you care about a project (for or against), you should stay engaged. DA amendments to not indicate (in my view) malfeasance. They are a feature of a contract that can be altered.
Robb,
Perhaps you’re the person I should ask this: What is the legal structure and mechanism of “baseline features”? Is there some binding document that spells it all out that comes from a Measure D vote? And how are legal interpretations of what are in the baseline features adjudicated? How is it determined what changes to the DA could trigger or run up against the baseline features.
And yes, it seems that many believe that development agreements are like the 10 commandments chiseled on to stone tablets. I’m imagining the city council coming out with 3 stone tablets and saying: “here is the development agreement for 150..” (then drops a tablet that shatters)..”100 affordable housing units”.
I will try and might fail. The baseline features could, I suppose, be considered a separate binding contract. Except that this one is between the developer and the voters. The CC approves the baseline features, but only for the purpose of sending them, and the proposal with zoning changes, DA, etc., to the voters.
Baseline features are included in the ballot question (I forget exactly how, but I am sure someone here will tell us), and people vote on them as part of the project.
Whereas the CC has the ability to propose/accept alterations to the DA, if there is a change to the baseline features, it would have to go back to the voters. Perhaps an example will help. I believe the current Nishi project, approved by the voters in 2018, has a car/bus/bike/ped undercrossing of the railroad tracks from campus as part of the baseline features. If the developer was unable to obtain an agreement with UP for the undercrossing, and wanted to create a new entrance off Olive Drive, it would have to go back to a vote.
How that would work, I do not know because it has not happened. But the project could not simply move forward with a new Olive Drive entrance–even if the CC were in favor of that.
At the same time, if a citizen or citizens’ group observed that some baseline feature of a project had not been met, I suppose their recourse would be to sue the City/Developer. That has not happened either.
The messy part of Measure D is the confusion between baseline, DA, and any willy-nilly “promise” that a developer might make to the community during a campaign. The latter are not legally binding, the DA can be altered by a vote of the CC, but the baseline features cannot be changed without a vote.
Hope that helps a little. Even though J/R/D has been around for a while, only two projects have, so far, been approved by it. Neither has been built. Neither has broken ground. We do not know what will happen vis-a-vis the baseline features when they do. I would expect changes to both projects’ DAs over time.
Thank you at your detailed answers
That’s my whole question. If I had to legally refer to the baseline features outside of the development agreement; what exactly is this binding contract? How do I reference it? How would a developer know what the nearly immutable parts of the DA (based on the baseline features) are? What is referenced to define the parameters of the baseline features? How are these judged? How are they challenged and who adjudicates? Is it the voted measure itself that contains the legally binding baseline features? I’m assuming/guessing that there’s a document generated that goes along with the ballot measure and is referenced when writing the development agreement?
I guess what I’m saying is that the baseline features get put into the development agreement and the development agreement is an ongoing malleable thing between the city and the developer; there has to be something outside of the DA that needs to referenced as to what is and what is not negotiable. There also needs to be a means of legally interpreting and challenging those interpretations.
No, they are two completely separate things in the context of Measure D. The baseline features are NOT in the DA. They are in the ballot and immutable in the absence of a vote to allow them to be changed. They are, if you will, the part of an overall “agreement” that the CC cannot alter.
Oh, I forgot to add that CEQA mitigation requirements also go to the voters. I honestly do not know what happens if there is a failure to achieve a specified mitigation but there is a mitigation monitoring plan and the City is required to monitor it for compliance the project could not go forward if there was a failure to perform. Again, not sure how that works in practice. I did not see anything like that in my four years.
Regarding Nishi, a lawsuit introduced delays, but that’s been settled. I recently asked a principal what the status was, and was told that details of the undercrossing were still being worked out, it’s in engineering design, and things are on schedule post-lawsuit.
I would think that even while waiting for the results of a lawsuit, developers aren’t necessarily sitting on their hands. Especially when there’s a need to burrow underneath railroad tracks (whose owners may not be too keen on the idea).
Actually, UP is very open to the new UC [technically, a new OH] (but their bureaucracy puts State, local and Federal to shame)… the applicant takes all risks, costs, and UP can scratch off a at grade crossing (@ end of Arboretum Drive) from their list of liabilities… but UP moves glacially slow, even when corporate supports it… been there with the bike/ped crossing just east of Arboretum…
It’s in the record… if one wants to spend the effort to research it… I don’t need to… I was there in ‘real time’… but it’s pretty much in the public record… same is true for current effort… might be easier to research… but not sure, as I was last involved in the current discussions ~ 11 years ago… as I said, glacially slow…
I had a conversation with a ‘principal’ shortly after the vote and was told that the challenge was to figure out how to get the project built. The world has changed a great deal since then, mostly for the worse with regards to the project, so I truly doubt I will ever see them break ground.
Mark… I have doubts, too, but believe it is doable if folk are committed to pursue it… UPRR is a glacial force to deal with… and, due to concessions made by Congress to get the Transcontinental Railroad built in the mid 1800’s, they have all the Aces and both Jokers… they will get more than their ‘pound of flesh’ (yeah, maybe “that” pound)… same is true for the alts for CR 105 crossing changes…
The term “robber Barons” is still in play… now, not individuals, but corporation, well protected by law and judicial precedent… it just “is”…
Bill:
My reservations have little to nothing to do with the UP. The project was described to me as only being viable with the three-story walkup design due to the relative costs of building. That analysis was based on a completely different world with regards to both labor and material costs. Since then, both the lumber market and the labor market have skyrocketed, making the initial analysis likely moot. I suspect that UP could offer to provide the undercrossing at no cost and even then that would have little impact on the date that the project actually breaks ground.
My simple prediction is that the only people who will live on the former Nishi property during my lifetime will be those who are camping out due to not otherwise having a permanent address…
So, as Robb Davis explained, we voters need to (1) actually read the voter’s pamphlet and (2) remember that politics and who we elect matters.