By David M. Greenwald
Executive Editor
Davis, CA – There was a great discussion on my column from Thursday on Measure J. The conversation shifted from whether we could build housing to how and what kind of housing.
It was a great discussion, but my concern remains—can we (actually) build it? And so far the 25-year-old record of Measure J is a resounding—no we can’t. And that’s why I think—as I argued on Thursday—that we either need to amend Measure J or we are likely to see the state or another entity step in.
The articles are not getting a lot of attention in terms of comments, but we have been tracking developments fairly closely with respect to HCD and the AG’s office and their efforts to enforce State Housing Law and Housing Element Law in other communities. Yesterday we reported that the state reached a settlement with the city of Fullerton with respect to violations of Housing 
Element Law.
My argument all along has been—it’s only a matter of time and opportunity and the city of Davis and likely Measure J will become a target for the state or an outside entity.
At the same time, some interesting points were raised in the comments/discussion over the past two days that are worth commenting on further here.
Don Shor raised the point: “Yes, I do think that a purely residential project could pass. The demographics of Davis voters have changed.”
I don’t want to completely discount the possibility of his being correct here. I have had access to various internal polls and I know that at least as recently as 2018 (which is not *that* long ago) somewhere between 35 and 40 percent of the voters were going to vote no pretty much on any project.
That means that most projects are going to start with nearly 40 percent of the voters set to vote no and the no side only needs to persuade 10 percent of the voters to oppose it in order to kill the project.
Thus in 2018, with a project that was going have zero impact on any voter pretty much, Nishi passed with a nearly 60-40 margin. WDAAC that fall passed 55-45 despite having limited impact as well.
Those are the only two projects that have passed and also the only two projects likely to have limited traffic impact. I’m skeptical that a project that has traffic impacts—even if well mitigated on paper—can pass. But we’re going to find out pretty soon.
There was an interesting exchange between Don Shor and Tim Keller on the type of houses.
Tim Keller made an interesting point: “I’m basing my opinion 100% on market analysis. It’s just for some reason you think that we should be building what is ‘popular’ versus what is ‘good for Davis.’ Those are not the same things. We have a choice in what we permit to be built, and we can / should exercise discretion when making that choice.”
It got me thinking… Given the housing crisis, it’s largely a seller’s market. That plays into the hands of developers, but it also plays into the hands of planners. In other words, if a community builds the housing, it’s going to get sold. Therefore, that gives a community a bit more leeway—IF they can build it.
But the other end of this—if they can build it. That means the housing has to pencil out for the developer. It also means it has to pass a vote of the people and part of what is being pushed here—greater density and thus higher unit numbers—is going to go against the inclinations of the voters who tend to want less … less density, less quantity, and of course less traffic.
Nevertheless, I think Tim Keller does have a strong point on the “significant un-met demand for housing across the spectrum” —particularly the so-called “missing middle.” Building that is going to be another story.
Richard McCann made the point: “Bad/no planning is worse than no housing. Otherwise we end up looking like Houston or a bunch of strip malls. Tim is absolutely correct that we have only one leverage point now and it may slow down housing. But that’s not the fault of those who want to ensure that what we build is consistent the City’s environmental and social goals, not just willy nilly as though we’re in some unanticipated emergency.”
It’s an interesting point, but there is another side to it. Houston can be criticized for its lack of zoning and haphazard development. On the other hand, it builds housing. The cost of housing is significantly less and they have done a much better job of addressing homelessness.
Finally, a point I think we should look into comes from David Thompson.
He wrote: “Land set aside by the developer is the least costly form of housing to them as once the land is given, non-profits will build the housing with funds from the feds and state and not require another dollar from the developer.
Surely, there could be five acres of land swapped from the project total to substantially help the RHNA numbers.”
It’s a good point and maybe the city ought to relax some of its open space requirements on peripheral land in exchange for land dedication sites. That’s a discussion that has not happened at the city level that perhaps should.
At the end of the day, a lot of great discussion and great idea about how to build the housing, but all of that is premised on whether we can build the housing—and that system is broken right now.
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David, you like to repeat this possible threat frequently. The question I have voiced enough times that I would think you would do some research on it and report on that research is the question of jurisdiction. Specifically, Measure J (with the exception of the Wildhorse Ranch parcel) does not apply to land within the existing jurisdiction of the City of Davis. As a result it is unlikely that the State of California has the legal jurisdiction to attack Measure J using its existing housing law and/or the regulations of HCD. The existing jurisdiction of all the Measure J impacted lands (again with the exception of Wildhorse Ranch)is Yolo County.
All the lawsuits/settlements that you have reported on between cities and HCD have been for violations of housing law inside the jurisdictional boundaries of the offending city … within that city’s City Limits … within its jurisdiction, and therefore with in the jurisdiction of HCD.
Until you find out the legal realities of the jurisdiction question, your cymbals and trumpets are noise rather than music.
You’ve raised this point a number of times, and yet, all we have to do is look at the Housing Element itself – the city addresses this point in Version 2.
The standard that the state looks at is: “Evaluate whether the requirement is a constraint on housing development”
The requirement is internally generated.
“The City’s 2021-2029 Housing Element Update evaluates whether these policies (including Measure J) serve a constraint to
meeting the City’s housing goals and includes related policies as appropriate.”
The city concludes in Version 2: “While Measure J adds costs, extends processing times, and has been used to halt development projects that would convert agricultural land to urban development, it is only a constraint to meeting housing needs if the city lacks sufficient infill housing sites.”
But there’s a problem – the council acknowledged in December that do indeed lack sufficient infill housing sites, therefore Measure J is a constraint to meeting housing needs and will have to be addressed.
I don’t see how this could be more clear.
It isn’t clear in the slightest bit. The housing legal language you quote applies to what is within a jurisdiction. To draw a parallel, there is legal language that applies to you and your wife. Does that language apply to your neighbor … or to your neighbor’s lot/parcel?
I cited language from the housing element in response to the state. If you are going to argue your point, you need to reciprocate in some way.
The language you cited is very purposely not explicit about the jurisdiction of the land in question. Are you unable to see that?
The jurisdiction doesn’t seem to be the question – the city’s policies are. In other words, there is a legal process that the city could follow to develop land for housing that is being blocked by a city policy. HCD’s letter indicates Measure J as a constraint on housing, the city’s response is it isn’t so long as there is sufficient infill, but the city acknowledged in December that going forward there isn’t sufficient infill.
This is from HCD, the letter dated December 8, 2021:
“As recognized in the housing element, Measure J poses a constraint to the development of housing by requiring voter approval of any land use designation change from agricultural, open space, or urban reserve land use to an urban use designation. Since the ordinance was enacted in March of 2000, four of the six proposed rezones have failed. As the element has identified the need for rezoning to accommodate a shortfall of sites to accommodate the housing need, the element should clarify if any of the candidate sites to rezone would be subject to this measure and provide analysis on the constraints that this measure might impose on the
development of these sites.”
Notice the issue you have raised is not mentioned.
Instead, HCD writes, “As mentioned in HCD’s July 1, 2021 review, the element must identify and analyze all relevant land use controls and their impacts as potential constraints. The analysis must evaluate the cumulative impacts of land use controls
on the cost and supply of housing, including the ability to achieve maximum densities.”
The issue is whether a policy is a constraint on housing, not where the housing would be located.
Just as there is a property line between your lot and your neighbor’s lot, there is a property line between the City and the unincorporated County. It is called the City Limits. Note the second word in that phrase … limits.
One of the first things done in a legal case is the determination of standing. In simple term, the City does not have standing with respect to unincorporated County land. As a result if the State/HCD wants to go after any of the peripheral parcels, they will have to go after the County.
In the case of Fullerton, the policies the State/HCD went after were policies that applied within the City Limits of the City of Fullerton.
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For the record, I have stated the above three points over and over and over again. It is clear that you do not want to hear that point, but your hearing does not change the reality of the point.
Also for the record, I am not a lawyer, which is why I strongly suggest you get a legal opinion on your oft repeated asserion, which appears to lack standing.
Another non-lawyer here, but I think the standing issue is pertinent. If a developer were to annex his land to the city, then he and/or the state and/or YIMBY Law could press the claim that Measure J impairs housing development. Until the land is annexed, it’s outside the city’s purview. The city can plan what it would do upon annexation, and can enter into agreements with landowners to that effect, but until annexation occurs it’s outside the city’s control.
Right but what HCD is saying is that the Measure J process is a “constraint” that limits the city/ developers to even access the annexation process and thus is a “constraint” on housing.
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But it isn’t a constraint on developers.
Further, since the City is not (in almost all cases) the landowner, the City has nothing in its possession that is constrained. The City is a bystander … captive to the actions of the actual landowners. We saw that play out in spades in the two Mace Blvd. parcels owned by the two churches.
Measure J does not in any legal or practical way prevent a developer from applying to LAFCO for annexation of their parcel into the City.
If you think there is a constraint on the ability of developers to apply for annexation or in the City’s ability to be a bystander, please explain what that constraint is.
Those points were not raised by HCD, the only standard was constraint on housing and the ability of the city to approve and achievement their mandates.
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You are saying that David, but has HCD actually said that? If so, please quote them and provide a link to your source.
I posted the quote above.
“As recognized in the housing element, Measure J poses a constraint to the development of housing by requiring voter approval….”
That’s directly from HCD
I withdraw the above comment. You provided the language in an earlier comment that didn’t appear ing the recent Comments list.
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The HCD letter is interesting. It chooses its words carefully. Notice that the opinion/position of HCD is not mentioned.
The issue of whether an enforced city boundary subject to voter approval is a disallowed form of growth control is an issue that has already been litigated (Davis is far from the only place with this) and the 2005 law making such growth control measures illegal further reinforces this. It’s the periodic renewal of Measure J that makes it particularly vulnerable.
Richard, case names and links would be helpful.
I agree that the debate from thursday was great – particularly because it caused new clarifications to be made and deeper discussions to be had on specific values.
There is one particular thing that I realized after that debate that is not sufficiently clear in amongst the discussion and that is worth pointing out: The Measure J amendment concept, and the Development proposals are related issues, but they are not distinct alternatives that we need to choose from a-la-carte.
Instead they are a SERIES of decisions we will need to make, spread out in time over half a year, and the outcome of one will no doubt affect the choices we make in the others.
Ideally, the choice to modify J or not comes first. If it passes, then we have a clear path to creating a string of transit-served neighborhoods comprised mostly of missing-middle housing that will satisfy HRNA requirements AND give us the best kind of housing possible in terms of traffic / economics/ VMT’s etc.
At that point, I suspect that at least the Village farms proposal will still go to the ballot box because the developer seems pretty committed to doing so, and the voters will have a chance to choose between the final version of THAT proposal, and the new default proposal passed via Measure J.
(Or maybe the developer will pull their application and revise it to incorporate what has already passed, and try to add more single family housing on-top of the carved-out transit corriror.. that will be THEIR choice)
Alternately, lets say that the Measure J amendment fails, or the council fails to summon the courage to put it on the ballot, AND signature collection by community groups fails.
In THAT case, the measure J proposals are much more “take it or leave it propositions” and we will have to decide if we are willing to accept those projects from the developers, or reject them saying “come back with a better idea”. (Im not a fan of that sentiment because most of the people who say it fully intend to never vote for any proposal… but I digress)
Personally, in that situation if the Village farms proposal isn’t significantly improved, I would still likely vote for it personally, but you wouldn’t see me rallying to the developer’s side trying to get it passed, and organizing for it in the community, writing articles supporting it in these pages etc… And I think the same would be true of the other members of the new pro-housing groups.
If the developer DOES choose to incorporate feedback re density and housing types, and leave a path for transit service etc…. then that story might change significantly.
So this is a network of values and choices for us to navigate, its not a simple take it or leave it / pick-a-side kind of situation, at least not yet.
I used Houston specifically understanding fully what has occurred there. (I go there annually these days.) And my rebuttal to Keith E was the the Houston solution is unacceptable–simply building bad housing willy nilly results in the mess and environmental disaster of Houston. Yes, we could leave gasoline untaxed and let automobile traffic rise unfettered, but we would end up with much worse climate change impacts. We need to look at this holistically, not focused on a single metric like house price or homelessness.