By David M. Greenwald
Executive Editor
Davis, CA – A few weeks ago I sat down with former Mayor and former State Senator Lois Wolk to discuss the conservation easement on the Wildhorse Golf Course. Sadly, she and retiring judge David Rosenberg are the only two surviving members of that council that voted 3-2 to approve Wildhorse.
She opposed Wildhorse at the time because she believed Davis had moved too far, too fast on housing over the previous decade.
In a way, history repeats itself—there have been periods of slow growth in Davis, then the dam bursts, and you get a lot of new housing projects, and then growth stops again.
Wolk and I shared concerns about the lack of housing and, for her, it was particularly housing for 30- to 50-year-olds, the demographics with school children, and we both remain concerned about the impact of the lack of housing on our schools.
The conservation easement, the first of its kind in Davis, was an attempt to permanently set aside the land as open space. That was absolutely the intention of the easement agreement, it was the intention of the land owner and clearly the intention of the city 
council.
And for the record, Lois Wolk told me that she believes it should stay that way.
As I have noted in previous columns on this—the fact that this was the intent, didn’t mean it was actually achieved. Normally a third party, like Yolo Land Trust, would hold the easement, thereby making it pretty difficult (but not impossible) to change the agreement. In this case, because that’s not what happened, there is probably more opportunity to change the agreement than normal.
That was not by design. I think both sides had every intention to hold the land as open space in perpetuity.
As City Manager Mike Webb pointed out to me, just because they can change the agreement doesn’t mean that they should. And as I suggested previously, my guess is that the council will not change it. Too difficult. Too much pushback. Too much in the way of collateral consequences.
But he also pointed out to me that when this was completed in 1998, we had no idea about a coming statewide housing crisis that included a local component. And this was even pre-Measure J, making it difficult to build housing.
It is worth noting that Wildhorse is the last major peripheral housing project approved and built in the city of Davis. Since then, Covell Village was voted down, and the city has built only 700 single-family homes in the past 16 years.
On Sunday, Eileen Samitz put forth an op-ed that argued basically, “City promises made, need to be kept.”
She argues, “We made it clear that this commitment needed to be permanent. Subsequently, the developers and the City agreed to this and included the Conservation Easement commitment to be solid and impenetrable into perpetuity.”
While I don’t completely agree with her reasoning at times, she puts forth a very compelling argument that we ought to adhere to the agreement.
Yet somehow… there is no acknowledgement or recognition that we are in a housing crisis. That’s a big problem. As well as a big reason why we are where we are.
Every single time one of these projects come forward, we are given a whole list of reasons why we shouldn’t build this particular project, in this particular place, at this particular time.
Some of the reasons are valid and others are less so.
Unfortunately, we can’t even have this discussion—and that troubles me.
For example, Samitz writes, “One wonders why the City even accepted this current application, knowing that this attempt to violate a Conservation Easement and Development Agreement which Davis citizens fought long and hard for is astonishing.”
The city manager told me that while the council may well not wish to go forward with the application, the city felt like the developer had the legal right to ask the question as to whether they could.
I think we need to have a larger discussion—where are we going to put the housing that the city will be required to build in the next 20 years? It’s fine to say, we met our last RHNA cycle and got an approved Housing Element, but the reality is that the council and city manager are questioning how we are going to meet the next cycle, which is only a few years away.
Where is that housing going to go? Who is going to build it? What happens if the community continues to block housing? When will the state come in and take away local autonomy?
None of this is even contemplated in the piece by Samitz. It’s as though this proposal materialized out of thin air and there is no context or changed circumstances.
That’s part of the problem here. We made a decision in 1998 using the facts on the ground at that time to prioritize open space in this location—but does that mean we can never go back and reevaluate? It’s kind of like making permanent decisions that are logical during a time of an Ice Age but holding us to those decisions during global warming.
Clearly we need community agreement to move forward and probably a vote, but shouldn’t we at least be able to ask the question?
At the end of the day, the answer may still be no. But at least at that point we will have had a discussion and maybe developed a plan as to where housing is going to go.
At the heart of this article are a whole lot of questions, some of which are as follows:
(1) Why was this specific conservation easement not done like all the other conservation easements, and held in partnership with a third party “qualifying non-profit” as defined by the section of California Civil Code referenced in the Deed itself?
(2) If the answer to (1) is, “It was just an oversight” should a third party like Yolo Land Trust be brought in and added to the Conservation Easement at this time to make it compliant with State Law?
(3) Lois Wolk “shared concerns about the lack of housing and, for her, it was particularly housing for 30- to 50-year-olds, the demographics with school children.” Have we as a community sat down and developed a profile/template (financial and otherwise) of what housing for 30- to 50-year-olds with school children looks like?
(4) Has Davis done anything to try and ensure that there are jobs in Davis for those 30- to 50-year-olds with school children that will provide their household with sufficient annual income to be able to afford to purchase a home? Or are we simply expecting those 30- to 50-year-olds to commute across the Yolo Causeway each day to their place of work?
If we had development proposals that were focused on addressing the needs (financial and otherwise) of those young families, rather than proposals focused on the desires of over 50 year old empty nesters, then I believe the community would very quickly give a positive Measure J vote.
“(2) If the answer to (1) is, “It was just an oversight” should a third party like Yolo Land Trust be brought in and added to the Conservation Easement at this time to make it compliant with State Law?”
I think the answer is that no one had tried to do this before. But I think if the intention of the city is to keep this as open space, then redoing the easement is probably advisable. Of course, that goes against my overall point that perhaps we should not be making permanent decisions based on temporary circumstances, but no one seems to want to discuss the overall implications of this…
David, you appear to be arguing that the Measure O Open Space Tax passed by the City voters in 2000 may be wrong-headed and should be eliminated. Am I understanding you correctly?
Would that mean you would also argue for doing away with the Open Space and Habitat Commission?
You seem to be heading down a slippery slope.
“David, you appear to be arguing that the Measure O Open Space Tax passed by the City voters in 2000 may be wrong-headed and should be eliminated. Am I understanding you correctly?”
I wouldn’t go that far… yet. At the very least, I think we need to think about the implications of permanence in a changing world.
Your statement brings the back full circle to my prior “needs” versus “wants” (and/or even “nice to haves”) questions, as well as the questions I asked after the IHJD forum about housing affordability.
For the 50 year old+ empty nest households looking to cash out on their high priced home elsewhere and purchase a $million+ home here in Davis, how much is their world changing? And how onerous are the changes for them as they lead their day-in, day-out lives?
On the other hand, for the 30- to 50-year-olds with school children households, how onerous are the changes for them as they lead their day-in, day-out lives?
And finally for the developers/landowners, are you unable to make a decent profit building smaller square footprint on smaller lots “missing middle” homes? And if you are able to make a decent profit on those types of considerably more affordable homes, why aren’t the proposals you are submitting addressing housing affordability. After all … the world is changing, shouldn’t you change with it?
I’m not sure how helpful the needs v. wants distinction really is in the real world. There are very few actual needs in the world. Most things are wants disguised at needs. And yet, both the economy and political system are driven by those wants. There is a section of Sapiens by Harari where he describes the relative ease of the life of humans in a hunter/ gatherer society and the complexity and labor intensity of the introduction of the agricultural revolution.
In any case, not the point I was getting to in my previous comment. The point there is that if we are making permanent decisions now for the future, we are doing so with blinders on and that’s not conducive to good decisions. We are effectively trading off some land for other land, whether it is here or elsewhere in terms of landuses. Perhaps that is not the best way to proceed (and looking at the state of housing in California – I’m understating my point).
I’m not sure how helpful the needs v. wants distinction really is in the real world. There are very few actual needs in the world.
I’m not sure if you are simply being obtuse or not, so let’s look at the situation of a couple in the 30 to 50 year old demographic that has its household employment here in Davis. Do you agree that purchasing a house in the same community where their place(s) of employment is located is much closer to a need than a want?
In a situation where there are a limited number of community resources available, shouldn’t we be looking to focus those resources wher they maximize the efficiency and effectiveness of the community as a whole?
Life is full of tradeoffs. The 50+ year-old empty nest couple living in their house in the Bay Area isn’t in need of Davis housing in the same way that the 30 to 50 year old couple described above is in need of Davis housing. That reality is clearly reflected in the community surveys that have put “housing affordability” at the top of the list of concerns about Davis.
You choose to paint the “housing crisis” with a broad brush … effectively as a sound bite. Why are you so resistant to looking at jobs and housing in tandem?
“In a situation where there are a limited number of community resources available, shouldn’t we be looking to focus those resources wher they maximize the efficiency and effectiveness of the community as a whole?”
I would argue we don’t really have the ability to do that except perhaps at the margins.
The city has to add housing.
The city lacks the resources to build that housing themselves.
The state lacks the resources to build that housing itself either. The idea that the state is going to fund affordable housing is folly. Even at the height of RDA, the city was only getting $2 million a year which at current construction levels is not going to do much.
So at the end of the day, Don Shor is correct, the reason I don’t want to waste the time to look at jobs and housing in tandem, is that it doesn’t matter – the private sector is going to have to be the vehicle that drives the vast majority of housing and they are going to base it on demand and profit.
The private sector has to go through the governmental processes in order to get the entitlements that they need in order to make their profits. You are taking an “ostrich with its head in the sand” approach
Tim Keller has put forward an approach in which, conditional on approval by a Maeasure J vote, land is pre-designated for certain purposes. That same approach could be used to pre-designate land with a designation of small lots with no more than 1,200 square feet dwellings for detached, or effectively no lot at all for attched dwellings, plus affordable rental units in an attached setting targeted for the members of the Davis workforce. If private sector developers don’t like the profits that produces for them, then thay can choose the route of no profits while sitting on the land. I suspect they will choose to make the profits.
It is highly reminiscent of the Cannery CFD situation, where the New Home Company asked for millions of dollars from the City that they had already negotiated and signed an agreement that they said was profitable enough for them. However, when they asked for more a year later (in the form of the CFD), City Council didn’t simply say “no,” they caved and gave them more money. That is weakness from Council. We need strength.
Matt’s suggestion probably needs a General Plan update to be implemented. It’s certainly possible to have zoning parameters that arrive those kinds of outcomes. And based on the building happening in the East Bay those types of developments appear to be profitable.
Matt,
The California State Civil Code 815 clearly states that a City can be the grantee of a Conservation Easement, not only non-profits. Here is the specific section on that:
815.3. Only the following entities or organizations may acquire and hold Conservation Easements:
(b) The state or any city, county, city and county, district, or other state or local
governmental entity, if otherwise authorized to acquire and hold title to real property
and if the conservation easement is voluntarily conveyed.
This was also affirmed in the Wildhorse Conservation Easement.
Furthermore, the Civil Code also clearly states that Conservation Easements duration shall be into perpetuity.
815.2.
(b) A conservation easement shall be perpetual in duration.
Eileen, you have cherry-picked the language. If you read 815.3(b) in its entirety, you can clearly see that the City did not qualify under the final sentence of that section. In 1998 the City of Davis was clearly in violation of that final (bolded below for emphasis), because the only way that they would approve the entitlements of the Wildhorse project was with the condition of the creation of the conservation easement.
Matt,
You are misinterpreting this section. That section is just saying that a City or other government entity cannot force an easement on a property for entitlements. That was not the case here. The developers were very cooperative in giving the Conservation Easement.
Eileen, you have changed the word “condition” into “force.” That is a subjective reinterpretation of the language on your part. Read the language again, and ask yourself, was having the conservation easement a “condition” for getting the 1998 Wildhorse project approved?
Matt,
Now who is cherry picking? Any Conservation Easement has to be documented, even with a non-profit.
Matt
I don’t think your interpretation can be correct. Many jurisdictions condition permits on participation in habitat conservation plans, many of which rely on conservation easements. (I’ve worked on a few of these.) Yolo County has an HCP for this purpose.
HCP?
Richard, Google helped me find out what HCP is. And the Yolo County HCP website provides the following answer to the question you raised.
Bottom-line, conservation easements created under the HCP are not governed by California Civil Code 815, but rather by the Natural Community Conservation Plan Act.
Creation of an HCP is governed by the NCCPA. Participation in an HCP by developers to offset elimination of habitat is governed by the civil code and local ordinances.
Matt
According to the Census On the Map data plus the UCD Travel Survey there are over 17,000 workers commuting into Davis each day, most likely composed of the 30-50 year olds that are of concern. There’s no real lack of jobs here but we’re lacking housing for those who work here.
This seems like a misreading of the campus transportation survey. first off, it does not look at how many people travel to Davis, it looks at people traveling to UCD davis. Further people “traveling to UCD” includes travel from one part of the campus to another, and people traveling to UCD from Davis..
Colin
I worked with the 2 data sets and netted out those “traveling” (if crossing the street can be called that) to UCD from Davis. The overall number is coming from outside of the Davis “metro” area is about 17,000. Almost no one (a few hundred) commutes “inside” UCD–there are about 4,000 employees who cross the street to UCD.
Richard, you and I and Lois Wolk all agree that the 30-50 year old demographic is (in the homes for purchase segment) the segment of the population that is of concern … and may even be in crisis. The 50+ year old demographic is not.
For the most part, the 30-50 year old demographic has limited/finite resources that they can devote to a home purchase, so the affordability of their housing choices is paramount. Adding to our already substantial inventory of $1 million+ homes doesn’t provide any real benefit for the people in the 30-50 year old demographic. That is why I have been beating the drum for development proposals with 1,200 square foot footprints and smaller lots. That kind of “affordability by size” actually addresses the needs of the people with first-time home buying aspirations in Davis.
So you and I are not very far off from one another.
With that said, the point that Don Shor has made over and over is that a substantial portion of your referenced “over 17,000 current commuters into Davis” (which includes commuters into the UCD campus as noted by Colin) do not make enough of a salary to be in the home-ownership market. They are looking for rental housing.
According to On The Map over 4,000 of the 17,000 are “Non-Primary Jobs” and then of the “Primary” job holders, 29% are aged 29 or younger, and 20% are aged 55+, so only 51% are in the 30 to 54 age bracket (US Census uses 54 rather than 49 ad the age upper boundary). They also report that 14% of the “Primary Jobs” earn less than $15,000 per year. Another 36% are making between $15,000 and $40,000. Adding those two groups together gives a whole lot of credence to Don’s point about renting rather than owning.
That more than half of these commuters into UCD/Davis are in the target age group is quite significant. We would never expect it to be 100%! And remember that the On the Map data set is missing about 6,000 workers in Davis (the difference between the On the Map data set which is smaller than the more accurate EDD and full Census data sets.)
David,
The purpose of Conservation Easements and the fact that they are in perpetuity is for a very clear reason. The land which has the Conservation Easement will be conserved, and not to be built upon, forever.
That point was made very clearly in your piece. I’m just suggesting the need to rethink that approach particularly in light of the housing crisis.
David
To build trusts with voters, the institutions, whether the City or UCD, must hold to their long term commitments. This is true of the open space in Wildhorse or closing access to Russell from West Campus. Those agreements facilitated those projects progressing but voters are not going to agree to future projects based on those types of premises if they don’t believe the promises will be honored.
(BTW, California faces the same dilemma in energy savings investments by consumers. The CPUC pulled the rug out from under those who invested in energy efficiency and solar panels and we can expect that future consumer will think twice about making the same type of investments. It’s going to make reaching our climate goals more difficult.)
David,
Thank you, but we do not need to rethink the purpose and intention of Conservation Easements.
Eileen – You’re certainly entitled to that opinion. But part of the problem here is that if we do not build here, it means we have to build somewhere else. Isn’t it more wise to evaluate in real time those decisions rather than have made them 28 years ago in another time and almost another world?
David,
The point is there is to be no building on this site because it has a Conservation Easement.
I understand that point. My point is we made that decision a long time ago and again, we should perhaps ask the question (even if we reject it) whether that is the best place to not build housing? We are always making tradeoffs on time and location, it strikes me as odd that we should forever preclude those calculations because of a decision we made 28 years ago.
Abrogating this conservation easement would be a terrible precedent.
That is exactly how conservation easements are supposed to work.
They look like regular subdivisions. But we should not discriminate in our planning processes.
The headline of this article is inaccurate and irresponsible. The author is putting forward an idea that new housing developments are being voted down in Davis, the reality is quite different. The last housing project to be rejected in Davis was Wild Horse Ranch in 2009 – 15 years ago. since then the City Council has approved every project to come to them. Every housing project that went to a popular vote was passed as well
Both Nishi 1 and Disc had more jobs than housing and thus would have had a negative impact on the housing market. Further, Nishi ultimately passed when it became a housing only project.
It is however true that developers have been extremely slow to begin construction on already approved projects at Chiles Ranch, Nishi, Bretton Woods and now on Pole line road project. The UMall developer decided not to build the housing at all. One would assume if these were highly lucrative projects developers would have moved much quicker to complete them.
You hit the hammer on the nail. Yes we have plenty of approved developments. Small, yet large enough to test the level of mitigation they would bring to an already stretched city infrastructure (roads, parks, sewage, water, trash ..,etc.) Let’s build these first and THEN decide if mega build outs or chicanery like Wildhorse “golf” are really within the standards that make our fair city as great as it is.