On November 5, the City Council heard an appeal of an application to develop four detached residences on the parcel at 233 B Street. The Planning Commission back in July denied the applications by a 5-2 vote based on inconsistencies with the Design Guidelines. All but one neighbor strongly opposed the design modification. Simply put it was a very innovative design and project that did not belong in the middle of an existing neighborhood.
The city council by a strange 2-2-1 vote where Councilmembers Greenwald and Heystek opposed the appeal and Councilmember Stephen Souza abstained. That vote gave the applicant, Maria Ogrydziak one year to work with her neighbors to come up with a more suitable project for that location. Following abstention, Mayor Pro Tem Don Saylor was not happy and provoked an angry exchange with his colleague and frequent ally on the council. He informed Councilmember Souza that due to his vote the project would be killed. The councilmember was well aware of the implications of his actions.
The councilmember said:
“I have a major conflict here trying to pit history against the environment.”
Mr. Saylor responded:
“So you deny the project by not doing either.”
That was clearly the intention of Mr. Souza’s vote. What has now happened is that instead of working with her neighbors, Ms. Ogrydziak is working with Mayor Pro Tem Saylor to find a backdoor around the original vote.
Staff report attaches a January 4 letter from Ms. Ogrydziak to City Manager Bill Emlen.
In it she claims that they check and found that Councilmember Greenwald’s property was 470 feet from the project and therefore she should be conflicted out.
“If Sue Greenwald had been recused, we would not have lost various votes (with Stephen’s abstentions), and the project would still be alive. Therefore, I am requesting a re-consideration for the 233 B Street Project, without added City of Davis or Planning Department fees.”
During that meeting, there was considerable question as to whether Councilmember Greenwald could vote on the project. As the staff report reads:
“ownership of property within 500 feet of a proposed development creates a rebuttal presumption of a conflict of interest for a public official.”
In other words, anyone within 500 feet of a property is conflicted out from participating.
“Prior to the meeting, Councilmember Greenwald was advised that she did not own property within 500 feet of 233 B Street, and therefore did not have a conflict.”
In fact, Councilmember Greenwald did not stop there, twice during the meeting prior to participation she specifically asked City Attorney Harriet Steiner if she had a conflict and was twice told that she did not. Based on that advice, she participated in the vote and discussion of this matter.
Now, nearly three months later, the city attorney is claiming there was an error and she is conflicted.
“This advice was incorrect, however, due to a drafting error in preparing the maps.”
I am as concerned about process and conflicts of interest as anyone, perhaps more so. However, I have been told that she is 495 feet from the property. So somehow if she is 495 from the property she is conflicted out, but can vote if she is 500 feet or 501 feet. From a practical standpoint that does not make a lot of sense.
But just because she lives within 500 feet, does not necessarily mean she is conflicted out. She can show that she would not stand to benefit from the proposed development or lack thereof.
Here again we get into utter illogical advice from the City Attorney.
“It is possible that Councilmember Greenwald will seek a determination from a real estate professional, such as an appraiser or broker, that, notwithstanding the fact that her property is within 500 feet of the proposed development, the proposed development will have no impact on her property. If she obtains such an opinion, then she would not have a conflict on this matter. At this time, we do not know if Councilmember Greenwald will seek this further opinion.”
This makes even less sense than ruling her conflicted out based on five feet. Councilmember Greenwald was basically told to hire a real estate agent to assess the impact of her property which is on Rice Lane, a side street nowhere in the vicinity of 233 B Street. The likelihood of an impact is extraordinarily remote. And yet, by asking her to obtain the opinion, you risk having an interested party making a ruling rather than the city hiring an expert who is impartial do the assessment. Talk about conflict of interest. Who would find such an expert’s view compelling under those circumstances.
Apparently the mere fact of her participation does not negate the action taken by the Council in November.
“Councilmember Greenwald’s participation does not negate the action that was taken by the Council in November. The denial stands. The applicant has asked that the matter be reconsidered to allow a different vote on the applications.
Staff and the City Attorney agree that it is fair to provide the applicant with a new hearing.”
Really fair to whom? To the neighbors? To the taxpayers of Davis? To the voters of Davis? To the process of democracy?
Fortunately, there is no guarantee that there will be three votes to have a new hearing. Mr. Souza specifically voted, albeit by abstention, to delay the project because he felt it ill-suited for the neighborhood. It seems unlikely he would change his mind, especially with this procedural nightmare.
To make matters worse, this item was place on CONSENT AGENDA, where it could have easily be hidden from the public and perhaps the council.
“Staff recommends the following approach:
– The applicant to re-submit applications for the project presented to the Council in
November;
– The City to waive processing fees;
– The applications to be scheduled before the Council expeditiously, with no further
Planning Commission review;
– Minimal additional staff work or analysis, but reliance on the previous staff report.”
This entire situation is appalling. Ms. Ogrydziak’s project was strongly and vociferously opposed by every neighbor except for one. The planning commission denied it. The city council by a strange vote denied it. And instead of coming back and working with her neighbors, she has tried an end-run around the process seizing on an error and a technicality to try to invalidate the vote of one of the councilmembers.
To make matters worse, the city attorney, city manager, and city staff have bought into this.
All of this based on 5 feet (or even 30 feet as the applicant claims)? There have been some baffling things I have seen this city do, this one may take the cake. She presumes Councilmember Souza will still abstain–I think that is rather presumptuous of her given his expressed desire at that meeting and his likely reaction to this kind of maneuver. The Vanguard certainly hopes Mr. Souza does the right thing here and we have faith that he will.
—David M. Greenwald reporting
…… I have been told that she is 495 feet from the property. So somehow if she is 495 from the property she is conflicted out, but can vote if she is 500 feet or 501 feet. ……Hey Blog Boy a rule is there for a reason .Even if its your mom, no you can’t bend the rules !
…Hey Blog Boy a rule is there for a reason ….Really? What is the functional difference between 501 and 495 feet? So what is the reason and why 500 feet? It’s completely arbitrary and you know it.The staff report says as much which is why the secondary consideration is put into place–actual impact on property the problem is that the city attorney is asking the councilmember to hire the assessor, the problem with that, you guessed it, that actually is a real conflict of interest rather a contrived one.
The rule is there so take the high road and vote again. Even if there is no conflict of interest there seems to be the appearance of one.Then go back and try to modify the rule and fire the inept city attorney.
The rule is there as a CYA for the city on any ruling. The problem is that if you play with the map and the coordinates you get different numbers. It’s clearly right on the border. The functional difference is non-existence. The spirit of the law is to avoid making a decision that will impact one’s property value. That’s the point I’m making now for a third time that you seem to be ignoring.
Sue, I know from my two projects on Second Street that the old city maps have lots of problems with boundaries.Stand your ground.What is the statute of limitations for the hearing and vote to be undone?If the applicant sues the city based on the five feet, the burden is on them to prove the maps and undo the vote.
I would leave the vote to stand as is. I would agree that letting Harriette Steiner go is wonderful solution to many problems with the city.BTW, the …Blog Boy… comments get old. Perhaps you could require capturing the IP address to leave comments, a lot of the anonymous comments are just filler…
Folks,isn’t this a moot point? If the issue comes up for a vote again, won’t Souza simply reffirm the tie vote by voting this time to make the tie 2-2 instead of 2-2-1? That’s what I expect him to do.
Matt: In terms of what is likely to happen–I agree, Souza is likely to vote with Lamar to block this. In terms of the process, it’s yet another example of the dysfunction and pandering of this city staff, manager, attorney, and at least two council members…
the 500 foot limit is in state code.i agree that its arbitrary.if you want it changed david, ask Asm. Yamada or another legislator to introduce a bill to have it changed.also, while i don’t agree with Maria O’s design for the project, she has a major interest in this, so i’m not surprised that she is still pushing…she does have a point- the law is the law, and city staff screwed up.
…if you want it changed david, ask Asm. Yamada or another legislator to introduce a bill to have it changed….The point is that it doesn’t need to be changed, the city needs to have an assessor show what everyone here already knows–Sue’s property is not impacted by this development.
This basically is a three level argument and anonymous is arguing at level one defending the 500 foot line. That’s fine, but even if that argument were to fall, you still have additional levels to penetrate.
Is it 500 feet or 300 feet?This comes from the staff report: …As Councilmembers know, ownership of property within 500 feet of a proposed development creates a rebuttable presumption of a conflict of interest for a public official. … Councilmember Greenwald was advised that she did not own property within 500 feet of 233 B Street, and therefore did not have a conflict. This advice was incorrect, however, due to a drafting error in preparing the maps….I looked over the council procedures manual — you can see it by clicking here — and found that it says the operative distance for a conflict of interest is 300 feet:…The City Attorney has developed the following summary of Real Property Conflict of InterestRules: 1. Real property within 300 feet of the property which is the subject of the decision.Disqualification is required automatically unless the decision will have no financial effecton the official
…it’s yet another example of the dysfunction and pandering of this city staff, manager, attorney, and at least two council members……What was staff recommendation when it went to planning commission and the Council?
They recommended denial of the project and then denial of the appeal.
…They recommended denial of the project and then denial of the appeal….So how exactly is that pandering?
That’s not exactly the action being questioned right now, it is their handling of this matter now that is in question. And we have a pretty good idea of what happened and where the pressure came from.
I think we need more discussion, transparency, and accountability on this issue. We definitely need more discussion. Yes, more community discussion. You can never have enough community discussion to discuss how much discussion we need to discuss issues. In fact, I think we need a community forum to discuss this application and the relative merits of the 300 vs 500 foot rule. Maybe we can bring in a local expert to study the ordinance vs state legislation. Then the Council can put it on the June ballot for the community to vote on it. But only after we have three blog-approved community forums to discuss it. Then after the community vote we can discuss it some more.
…I think we need more discussion, transparency, and accountability on this issue. We definitely need more discussion. Yes, more community discussion. You can never have enough community discussion to discuss how much discussion we need to discuss issues. In fact, I think we need a community forum to discuss this application and the relative merits of the 300 vs 500 foot rule. Maybe we can bring in a local expert to study the ordinance vs state legislation. Then the Council can put it on the June ballot for the community to vote on it. But only after we have three blog-approved community forums to discuss it. Then after the community vote we can discuss it some more….Or, maybe everybody can agree to play by the current rules, the developer can make a project that doesn’t violate the design guidelines, and everybody can be happy.But this is Davis…..
…Or, maybe everybody can agree to play by the current rules, the developer can make a project that doesn’t violate the design guidelines, and everybody can be happy….I think that sounds reasonable. But again, everyone is focusing on the first half of the current rule, namely the 500 foot line, but not the second half, which is that even within if the project does not directly impact property values, the councilmember is still not conflicted.I remain very concerned about how this has come about.There are rules for reconsideration, two key ones are the only a member who voted on the winning side of the previous vote can ask for it and it must be done in the next meeting.Granted this is somewhat unusual. But it seems to me that a lot of time could have been saved here if the city staff had simply approached Souza and Heystek and asked them if they wanted to re-hear this based on the notion that Sue may be conflicted out.And btw, it is still not clear she is within 500 feet, I’ve seen different figures depending on who is measuring it.
Rich, The 300 foot limit was changed to 500 feet some time ago. As Rich said, the law states that …Disqualification is required automatically UNLESS THE DECISION WILL HAVE NOT FINANCIAL EFFECT ON THE OFFICIAL’S REAL PROPERTY INTEREST…. This is merely design review. No change in size, setbacks, use or anything else is under consideration. The building can’t be seen from my house or the house of anyone near my property. I think it s pretty clear that the design doesn’t affect my property value one way or the other. The city manager and attorney suggested that I get a real estate agent to verify this. I pointed out to them that they should be the ones to get a real estate agent to verify this, because if I do, it might have the appearance of interference on my part. I was surprised and disappointed that the city just didn’t go ahead and do this. It would be a very small undertaking, and well within staffs’ discretion to do so. 500 feet encompasses a very large area, and there will be many other design issues that come within the far reaches of the 500 foot limits. It is in the interest of the citizens to have all council members vote when there is no conflict of interest. I was expecting staff to just go ahead and get a determination, or at the very least, recommend that council direct them to do so.
The real issue here is who has the burden of proof to show Sue may have a conflict of interest. Someone needs to put Harriet Steiner on the spot, to give a specific legal opinion that the burden of proof is on Sue, rather than on the developer. Harriet Steiner is placing the burden of proof on Sue, who was not the one who made the mistake here. And Sue is not the one petitioning for a change in the vote. Normally, the burden of proof is on the plaintiff – which in this case would be the developer, who is petitioning for the vote to be retaken.
Once again, One Guy With A Computer saves us from ourselves! Look, if the rule is 500 feet, then it applies regardless of how far inside the 500 feet you happen to be. Those are the rules, so stick to them.
Mifkin: again that is part one of the rule, not the end of the rule.
…The 300 foot limit was changed to 500 feet some time ago….Sue, can you point me to that amendment?I think you — and Katherine Hess and Harriet Steiner and Bill Emlen, et al — might be mistaken.On May 18, 2004, the city council adopted this ordinance, changing the noticing requirement from 300 feet to 500 feet. This is the title:…AN ORDINANCE OF THE CITY OF DAVISAMENDING ARTICLE 40 AND ARTICLE 8 OF THE CITY OF DAVIS MUNICIPAL CODETO REQUIRE 500-FOOT NOTICE WHERE 300-FOOT WOULD OTHERWISE BEREQUIRED…It never mentions a change in the council conflict provisions, and I cannot find anything else which amends the 300 feet provision, which is currently in the council procedures manual. The 2004 ordinance has 12 sections, each laying out when and where the change goes from 300 feet to 500 feet. Here is one example:SECTION 3.Section 40.23.100(b)(2) (Certificate of Appropriateness procedures) is hereby amended to read as follows: Public Notice. Prior to taking action on an Administrative Approval, the Commission staff shall provide notice through a mailing to all owners of real property as shown on current property tax roles within a minimum of five hundred feet of the subject property.I further looked at every page of Municipal Code Chapter 8 (buildings) and Municipal Code Chapter 40 (zoning) and found no mention of a 500 foot provision for conflicts of interest.Until someone shows me where I’m wrong, my opinion stands: 500 feet applies to noticing requirements; 300 feet applies to conflict of interest.
Assuming the rebuttable presumption attaches at 500 ft (rather than at 300 ft, as Rich contends), it is the City (i.e., the voters) who should pay for an appraiser to determine if the proposed development would affect the value of Sue’s property. Sue is an elected official. She represents those of us who voted for her. It makes no sense to impose the burden of hiring an appraiser on her, because if she choses not to do so, it is the citizens who voted for her who are disenfranchised.
WHen I was on the CC, in about 2002 or 2003 there was a hearing on Dan Dowling’s proposal to move an old house on D St, and build some small condos in the back, near 3rd and D St.My 430 D St lot corner was 470 feet from the closest corner of Dan’s lot, and the City Attorney told me I was strictly conflicted. I sat out the hearing and vote, and if anyone here still remembers that hearing, it was embarrassing to watch.The City Attorney did not say anything about my having the option to vote if my property did not gain from the vote.Sue should stand her ground until there is solid proof one way or the other.As to the project applicant: shame on you for waiting to do your work as to the boundaries, and bringing it up at this late date. Further, the City Attorney and her entire law firm should recuse herself from any further involvement in this matter as it was her advice that led to the current situation. She is conflicted, and should sit it out.Steven, thanks for voting to stop a project that is just plain too big and a disaster for any preservation of that historic neighborhood.
Rich,I think that State law changed sometime between 2001 and 2004 as to the Brown Act conflict.It used to be that about 200-300 feet was the bright line cutoff, and it was arguable up to 500.I think the law changed to the 500 being the limit in all instances.This has absolutely nothing to do with the NOTICE issue. Rather, it is a creature of state law and the Brown Act, I believe.
Mike: I think that the case that you were conflicted out on involved a general plan and zoning change. The point here is that we are merely talking about a design review. The conflict of interest law allows one to vote within the 500 foot radius if it can be demonstrated that the matter voted on will not change the value of the voter’s real property value 10% or more. Everyone seems to acknowledge that a simple design review almost 500 feet from my house will not affect my property value. But only the city can obtain a truly independent professional opinion.I would have thought that the city manager would have done this.
Mike Harrington: …I think that State law changed sometime between 2001 and 2004 as to the Brown Act conflict. It used to be that about 200-300 feet was the bright line cutoff, and it was arguable up to 500….It turns out, I was wrong. Mike and others correctly pointed out to me that the FPPC regulation changed (in 2001, as it happens), increasing the radius from 300 feet to 500 feet.However, the Davis council procedure’s manual (at least the one on-line) was not updated, and so reflects the prior zone of 300 feet.This is the actual language from Regulation 18704.2:…(1) The real property in which the official has an interest, or any part of that real property, is located within 500 feet of the boundaries (or the proposed boundaries) of the property which is the subject of the governmental decision. For purposes of subdivision (a)(5), real property is located …within 500 feet of the boundaries (or proposed boundaries) of the real property which is the subject of the governmental decision… if any part of the real property is within 500 feet of the boundaries (or proposed boundaries) of the redevelopment project area….Reading that clarifies a question in my mind: the measurement is taken from the nearest boundaries of the two properties. So even if the house of an elected official is 525 feet from the perimeter of the property being developed, if the closest edge of his property is 499 feet from the closest edge of the subject property, this regulation has effect.Of course, to repeat what I wrote above, it won’t apply in this particular case, because a development at 233 B Street does not materially affect the property value of Sue’s home on Rice Lane.
It is amazing to me that Maria Odryziak hears from the community that her project is unwanted and she is trying to push it through anyway. Her project is ugly. She is unwilling or incapable of working with her neighbors and community members to come up with a design that will fit into that neighborhood. The project should be voted down just for this reason. Sue, stand your ground. Get the Real Estate agent to make his/her declaration and vote away. Steve Souza, either vote against it or, if Sue can vote, repeat your vote.