by Matt Williams
On Sunday David Greenwald presented his thoughts on why Measure J may be vulnerable to a legal challenge. I respectfully disagree with that belief, and the following article addresses David’s points one-by-one starting at the beginning of the article. The overarching premise of my response is that in order to sue you cannot just be a person who was standing nearby when the event happened, and then sue the entity/person causing the event, if you did not suffer any damages.
I think those votes generally convinced skeptics that Measure J wasn’t an absolute roadblock to housing. But here we are now, three years later and there has still not been a single unit built outside of the current city limits in more than two decades. That is increasingly becoming a problem.
Is the issue/problem Measure J or is it the geographic and legal constraints imposed by Davis’ current City Limits? Landowners of parcels that are outside the current City Limits have free rein, legally and pratically, to develop their land under their current County jurisdiction, thereby bypassing the provisions of Measure J.
Davis voters voted down the better Nishi project that would have provided for a range of housing and a fix for Richards Blvd. as well as 300,000 square feet of R&D space—in favor of a project that lacked Richards Blvd. access and therefore would not, as it was feared, worsen traffic conditions.
Was Nishi 2016 actually a better project than Nishi 2018? Beauty is in the eye of the beholder. David and I may BELIEVE that it was, but belief is not fact, and others have different beliefs on the comparative quality of those two project proposals.
Thus the tradeoff between what are best practices in terms of project design and what can pass a Measure J vote.
The “best” project design for Nishi 2018 was to apply the 2016 housing density to the 2018 housing footprint. That would have resulted in housing for between 5,000 and 7,000 UCD students; however, that would have required an EIR Addendum (taking approximately 6 months and costing the developer approximately $100,000). Does that mean that the EIR/CEQA process/rules are an impediment to housing?
Does locking in project features through the Baseline Project Features make it difficult to actually build the project, given changes in the market and construction costs from the time of passage to the time when something is actually built?
One of the most important reasons that Measure J was proposed, passed, and renewed is that developers constantly want to “move the goalposts” when they encounter situations that they did not adequately plan for. Unfortunately, city staff and past CityCouncils have failed (miserably) to hold developers accountable for the consequences of their inadequate planning. The three addendums to the Cannery development agreement and saddling all the Cannery residents with the annual CFD payments are good examples. The rapid and extensive buildout of Mace Ranch not in compliance with the metered pace in the development agreement is another example … as is the annual Mace Ranch CFD. Baseline Project Features are not an impediment, but rather an accountability tool that became necessary because of the historical failure of, or lack of, appropriate accountability in past projects.
Developers have a simple solution for addressing unplanned for events … plan better. Their failure to plan should not constitute an emergency on the community’s part.
DiSC recently attempted to address uncertainty by putting more of their commitments into the Development Agreement rather than the Project Baseline Features, only to see pushback on that—with them ending up relenting and putting most of their commitments into the Baseline Features where the voters gained trust but the developers lost flexibility, particularly for a project that is never going to be nearly as black and white as a housing project.
Most people would prefer an opportunity to go back to an environment with little accountability if they were in the shoes of a developer. That is basic human nature. In this case all the developer had to do was ask for that change. Wisely, the community said “no” to that request. Well thought out plans are the desired end.
We actually don’t know if Measure J is ultimately workable because we have never seen it work from beginning to end. We have seen projects that have passed Measure J votes, but we have still not seen any built.
It is worth drilling down into that statement to see what the true cause of the delay of actual building is. Is that delay due to anything associated with Measure J? In the case of Nishi the answer is “no.” Union Pacific Railroad, specifically the negotiations between Union Pacific and the Nishi developers and UCD regarding construction of the underpay is the sole reason for the delay. Measure J has played no role in the delay.
Similarly, the delay for WDAAC/Breton Woods has been for non-Measure J reasons. Additional planning for flood control and stormwater retention has caused delays, as has the inability of the developer to come to an agreement with a contractor.
We have never actually seen a court challenge to Measure J. One avenue I was looking at was the Federal Courts. Back in 2002, the court ruled in a 6-3 decision in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency that a 32-month moratorium on development did not “constitute a taking of their property without just compensation.”
The cited Tahoe example differs significantly from the legal situation we have with Measure J. In the Tahoe situation the land affected by the moratorium resides within the legal jurisdiction that was imposing the constraint … and the potential that the moratorium constituted “a taking” was real. In the Measure J situation with one exception, Wildhorse Ranch, the land resides outside the legal jurisdiction that approved and enforces Measure J. The owners of parcels in the unincorporated portions of Yolo County are free to propose development of their land free and clear of any of the provisions of Measure J. They can simply direct such proposals to their legal municipal jurisdiction of record … Yolo County.
The fact that that alternative legal avenue is available is why there more than likely will ever be a legal challenge to Measure J. The most likely legal outcome will be that the issue isn’t Measure J, but rather the location of the boundary between Yolo County and the City of Davis. Should the City annex agriculturally zoned land from Yolo County into the City, then Measure J would directly apply to those agriculturally zoned parcels, and a legal challenge to Measure J would “have standing.”
But what is interesting is that the dissenters were the three most conservative justices at the time—Rehnquist, Thomas and Scalia. With the shift in the court composition since then and a move to the right, there could be the voters to overturn it.
Of course, someone would need to be willing to finance a court challenge and the patience to spend about 10 years getting the case through the courts.
It is hard to know how a court would view a voter requirement that could be viewed as a de facto permanent barrier to development.
As noted above, Measure J arguably is only a de facto permanent barrier to development within the City Limits. Measure J is not the law of the land for parcels in the unincorporated portions of Yolo County.Measure J only comes into play if the developer makes the decision to apply for annexation of their parcel to the City.
Basically, Measure J has resulted in two thirds of the projects put forward being rejected by the voters. It also has put forward requirements that one might be able to argue has made it difficult to build the project, because of all the promises and expenses and requirements that are baked into the project due to the voter process.
And those requirements are the direct result of the bad actions during past developments. Again, the failure of developers to adequately plan should not constitute an emergency on the community’s part.
But going the state route could be interesting as well. We have been following a number of recent court rulings where the local courts and the appellate courts have tended to favor projects over those attempting to stop projects. One question that might be entertained is whether Measure J makes it more difficult for the city to adhere to Housing Element guidelines.
Here too the issue of jurisdiction weighs heavily. I believe HCD’s rules regarding Housing Elements are pretty clear … jmunicipal jurisdiction boundaries are respected. As a result, the parcels of land surrounding the City Limits of Davis are part of the Housing Element of the unincorporated portion of Yolo County, and Measure J poses no impediment to Yolo County’s adherence to Housing Element guidelines. If HCD has a beef, that beef is probably with the LAFCO processes regarding jurisdictional boundaries.
For example, in their rejection of the city’s Housing Element, HCD expresses concern about the impact of Measure J and other growth control measures on the city’s ability to deliver on its housing needs. “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,” HCD writes. “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.”
There is one, and only one, parcel currently within the City Limits where a Measure J “rezoning” has been attempted … Wildhorse Ranch … all the other Measure J votes were annexations of non-City land. There was no rezoning, because no City zoning actually existed for those parcels.
HCD also warns, “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.”
Here too I believe HCD is off the mark, because achieving maximum densities and increased supply of housing can currently be achieved if the land owners/developers direct their attention to Yolo County, where the land use controls of Measure J do not exist.
Could that leave open the possibility of a challenge to Measure J by someone?
Only someone who wants to throw their money away on a lawsuit tha more than likely will be thrown out due to a lack of “standing.”
But 22 years has seen four of six projects rejected, no housing built outside of the current city fo a pretty drastic shift in the regulatory environment and potentially the court system.
That shift in regulatory environment, if it ever came about, would need to apply to Union Pacific and UCD as well if getting something actually built is the goal.
I think a legal challenge is more likely now than ever and certainly more likely to succeed than it might have even five years ago.
I respectfully disagree.
Can SACOG sue the City of Davis?
So, ‘people have different opinions about stuff’ ? Yup.
MW, do you believe that most developers don’t even bother with Davis, cuz it ain’t worth the trouble? Thus de-facto not getting housing built here, en masse — yet we never see what is never proposed.
The underlying premise in this article is incorrect. While developers may be able to build in certain areas in unincorporated Yolo County, such as in Dunnigan, Clarksburg or Esparto, they are required under the County’s growth control ordinance to be brought into a City’s jurisdiction when that land is within the city’s sphere of influence. In addition, the developer needs to connect into city utilities when the parcels are adjacent to a city. The County has its own impediments to independent land development. El Macero and Willowbank could not happen today. This gives the owners of neighboring parcels standing to sue.
Nishi II is forced to negotiate with UP precisely because of Measure J. If Nishi I had been approved because it provided a model sustainability plan without having to go before voters who cannot be adequately informed about the minutiae of every project, it would have had access on Olive Drive.
Not following. The point of access to Olive was to route traffic via Nishi I to campus under the railroad. So both proposals involved the railroad. You could maybe say they could build it first, but not occupy it, as the access to campus would be students cutting across the tracks and through any fences. So I don’t buy that Measure J is why Nishi is forced to negotiate with UPRR. They negotiate because it is UPRR’s ROW.
I’m not sure what you mean. Pretty much all or most land in the county’s jurisdiction is not zoned for development/subdivision. And as such does not have access to municipal services. So land owners do not have free rein to develop their own land.
They’re both. You can hold the developer accountable…sure. But if the developer encounters develops any unforeseen issues with the project (and there always are) then the developer is going to come back and try to work something out with the city. Politically this can simplistically be viewed as giving in to the big bad developer….and yes you are giving in to some degree. But this is the common ongoing song and dance the developers and the cities engage in. The city can stick to baseline requirements and and the developer can either go through with it or walk away. Often the scenario of the developer walking away is not one the city wants because it leaves an unfinished project and lots of wasted sunken costs by not only the developer but the city as well. The other part is that if projects keep failing because of the city’s inflexibility, Davis will continue to be viewed as difficult city to work with which will limit the number of development opportunities in the future.
That seems like a nice simple solution. But it’s unrealistic based on the development process and the degree of risk/variables involved in. There’s a reason why land development is considered the seed stage of real estate investments. Because it’s so risky. The unwashed masses need to understand that development needs to be an ongoing partnership between the city and developer. That partnership evolves. It’s not something that gets stuck in a static document. I mean sure you (city and developer) try your best to come to an agreement (development agreement) and stick to the established rules (General Plan). But things happen, things change…etc… and all you can do is adapt and try to make things work for both parties as best as possible.
We come to this again. Generally the functions of counties are not to regulate clusters of commercial and residential land. That’s what cities are for and I believe it’s somewhere in some county document that it’s the cities where most development is intended to happen and be regulated. In fact that’s what LaFCo is for.
Again, this has to do with the understanding of the roles of local government. If HCD has a beef with Yolo County then by extension it has a beef with the cities in Yolo County; specifically the ones that are the least compliant. As far as I know the county can’t force cities to extend their spheres of influence or force them to annex that property. So it goes back to it being an issue for the cities to come into compliance with the HCD.
I do wonder if there’s a possible end game where the state will push counties to incorporate more communities into cities. I don’t know how much they can force additional infrastructure build out. But what if Yolo County was forced to turn Esparto or even El Macero into incorporated cities that were then pushed to plan for more residential development? I wonder how that would work because those new communities would then be forced to balance out residential growth with the cost of that growth (like established cities should be doing already).
I recall that about 10-15 years ago, the proposed sale of Royal Gorge cross-country ski resort fell-apart due to (both) the housing crash, and access requirements. Thereby preserving the best cross-country ski resort in the nation – maybe 2 hours from Davis.
https://www.sierrawatch.org/release-sierra-watch-scores-another-court-victory-over-tahoe-development/
(This was is in the Chronicle today, as well.)
To clarify (regarding my subsequent comment), the abandonment of the Royal Gorge development also set the stage for environmental groups to purchase the vast site from the development group.
https://www.sierrasun.com/news/sierra-nevada-land-trust-partners-complete-11-25m-royal-gorge-purchase/
Think of all the suffering homeless living in tents because of those pesky environmentalists who didn’t allow a massive luxury ski resort 😐
I love lake Tahoe. Draws all the idiots like a magnet, leaving the rest of the Sierra Range for me!
Yeap.
Interestingly-enough, “affordable housing” is a big issue in Tahoe and Truckee, as well. Maybe even more so than most places. And yet, many of those homes are empty, much of the time.
Personally, I don’t mind paying $20 for a burrito, while I’m there. However, I wouldn’t even be able to tell you how much a ski lift ticket costs these days. As it is, Royal Gorge isn’t all that cheap even though you have to provide your own “lift”.
It all goes back to income discrepancy, more than housing shortages. (There’s a lot of empty homes in places like San Francisco, as well. 40,000 of them, apparently.)
https://www.kron4.com/news/bay-area/more-than-40000-vacant-homes-in-san-francisco-20-increase-since-2015-report/#:~:text=According%20to%20a%20report%20published,roughly%2040%2C500%20units%20in%202019.
Yeah, affordable housing is a huge issue in resort areas, where the service industry of low-paid workers has to commute from FAR far away towns where they can afford housing. One of the worst examples is Vail where workers have to commute from places like Leadville, and on some Davis is horrid winter storm conditions. This is a rare instance where I think affordable housing should be built. However, it should be required by the county to be subsidized by the resort, not the taxpayers, to have staff housing built on site that the staff can afford to live in.
It is an example of some pretty extreme disparity.
My joke regarding the $20 burrito is in regard to the low-wage workers in a range of service industries, including restaurants. (I actually haven’t been up there for quite some time.) In other words, that kind of pricing is probably what it takes to attract workers, and still survive as a business. I can only imagine how much more difficult it is to attract them, during the pandemic.
They probably need more than just the ski resorts pitching in, though that’s a great idea. Hopefully, no one views it (or is trapped into it) as a long-term career or housing arrangement.
In any case, I’m glad to see environmental groups using whatever means it takes to preserve the area. And more vacation homes wouldn’t have made it any cheaper. (In fact, it probably would worsen the discrepancy, as it would also increase the demand for low-wage services.)
Ah, yes, the good old days of company towns. Maybe add in a company store.
I agree with Richard, Matt’s just factually wrong on a lot of this, and he didn’t check with either the county or land use attorneys on some of the technical issues.
This is from the general plan until 2030, which directs all residential growth to cities and growth boundaries in unincorporated areas. The county in 2007 debated creating study areas near Davis, there was a huge controversy and the plan was abandoned. So anyone who wanted to develop on the edge of Davis would be directed to Davis to process their application.
I pretty much said the same thing about residential and commercial growth in the county essentially being assigned to the cities.
Where are El Macero and UCD listed on that “allowed residential growth” chart? El Macero is a census designated place in Yolo County. Doesn’t UCD’s property fall in the county’s jurisdiction as well?
UC Davis is under state land use authority, which is why UC Davis does an LRDP.
I sort of mis-spoke/typed….my intention was the property around UCD. My thoughts were if UCD expanded land use regulation and what the relationship between UCD, the State and County is…as I believe it’s not a formal one. I’m wondering about quasi-cities being built around Davis. UCD could do it if it wanted to and if they’re being forced to build out more residential units, then adding more and more commercial space would start to make sense to support it (as I believe UCD does not build out student housing or housing in general unless it pays for itself). I’m wondering if the state pressures cities but also counties into producing more housing if these unincorporated communities could start to become cities. Could state pressure the county for the expansion and further development of areas like El Macero….especially if it runs into the Measure J roadblock in Davis?
The county briefly in 2007 considered it. Went to an all day BOS meeting at the time, hundreds of people, the county backed off it quickly and seems to have precluded it in the current general plan.
Yes but now there’s explosive growth in the Sacramento region along with the state level government pushing for more housing, enforcing more planning for housing at the local level. So far that effort has been about working with and fighting with cities….which is why I said the same things you did in response to Matt’s article. BUT I’m wondering if the next logical step/battlefield is at the county level. The creation expansion of county communities and creation of new incorporated cities. It especially makes sense for these new and expanded communities and new cities to pop up near or adjacent to existing cities.
Don’t you think it would make sense for UCD to continue to expand it’s commercial development; since it’s being pushed to provide more student and faculty housing solutions? While I’m fine UCD building more student housing (in fact I highly encourage it), I do wonder if UCD expanded it’s commercial development that it would harm the city of Davis’ future financial health. Less likely but still worth wondering about is if a community like El Macero was further developed residentially and commerciallyif that would have a negative impact on the city of Davis as well.
I think the dynamics at the county would have to change for that. Right now, the two supervisors who are in Davis are opposed to such growth. Could that change when Saylor and Provenza are gone? Possibly. Saylor is not running for reelection and Provenza is likely in his last term as well.