It has been very interesting to read the thoughtful comments posted by Richard McCann, Keith Echols and David Greenwald in response to Monday’s article Guest Commentary: You Only Get To Sue If You Have “Standing” I will address several of those comments here. Keith also made some very good comments about the accountability and risk relationship between developers and a municipal jurisdiction. In addition, Alan Miller made a very insightful comment about the tunnel under Union Pacific’s right-of-way at Nishi. I will address those topics in a future article.
Richard said … “The County has its own impediments to independent land development. Developers […] 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.”
Keith said … ”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.”
David said … “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.”
What is consistent about those three comments is that they rely on the sanctity of the Yolo County General Plan. David even cuts and pastes relevant passages from that General Plan to support his point. I actually agree 100% … that is what the Yolo County General Plan sets out as its desired/standard approach, and ideally that standard should be upheld.
The problem with their argument is that it is a throwback to the days in American society where fathers (and to a lesser extent mothers) taught their sons and daughters “the Double Standard” when it came to having sexual relations outside of wedlock. For those of you who are too young to remember the teachings of the Double Standard, it said that young men were allowed to (even encouraged to) sow their wild oats, get sexual experience, and generally follow the principle of “men being men.” The Double Standard taught young women that they were to avoid such carnal pleasures at all costs and preserve their chastity and virginity until after they were properly and legally married. A young girl who did not follow the dictates of the Double Standard was labeled a “fallen woman” and ostracized from society.
Richard, Keith, and David’s argument basically assumes the young woman approach to preserving the chastity and virginity of the Yolo County General Plan. The idea of abandoning the well-thought-out and clearly articulated standards it promulgates is inconceivable in their argument.
For the sake of discussion, let’s agree with them that it really is not a good idea to disregard your General Plan, no matter whether your jurisdiction is a town, or a city, or a county or any other municipal entity. And to the best of my knowledge Yolo County does a pretty good job of upholding the provisions and principles and policies of its General Plan.
Now we get to Davis. Back when I was growing up there was a Cape Cod rock and roll band that had a minor hit called “Are you a boy, or are you a girl?” Using the metaphor of the Double Standard, which is Davis? Does Davis, like Yolo County, preserve its chastity and uphold the provisions and principles and policies of its General Plan, or is Davis more like the young men living under the Double Standard … sewing its wild oats and allowing/pursuing General Plan Amendments with frequency, and even urgency?
I’ve tortured this metaphor enough, but the bottom-line for Davis is that it is extremely easy to find a development project that has at its planning foundation a General Plan Amendment. In fact, it is almost impossible to find a significant development over the past 10 to 20 years that doesn’t have at its core a General Plan Amendment. Davis clearly and consistently made little or no effort to follow the provisions and principles and policies of its General Plan
The Davis General Plan very clearly defines, amongst other things, the City Limits. Given that, my question to Richard and Keith and David and anyone else who cares to weigh in is, “Why is violating the Davis City Limits and the Davis General Plan more acceptable than violating the growth control policies and provisions of the County’s General Plan?” It seems a bit like a Double Standard.
Bottom-line, it may be convenient for the County to play Pontius Pilate, wash its hands of, and turn its back on a developer application for a parcel that is in the unincorporated portion of Yolo County, but that doesn’t change the legal fact that the parcel is both located in the unincorporated County and governed by the County’s administration. And further, that parcel is neither located in the City of Davis nor governed by the City’s administration. A Court is going to see that legally available course of action, and more than likely make a ruling that Measure J does not leave the developer/parcel owner with no options.
“’Why is violating the Davis City Limits and the Davis General Plan more acceptable than violating the growth control policies and provisions of the County’s General Plan?’ It seems a bit like a Double Standard.”
You seem to forget the politics involved. Post Mace Ranch no County Supervisor from Davis would want to take on no growth populists even if they believed developing land outside the city limit was the right thing to do. Add to this anti-development sentiments by farming and ranching interests in other districts, and, even though you raise an important question, its doubtful that development on un-annexed land outside the City of Davis is going to happen any time soon. UC Davis land being the lone exception.
Certainly post-2007
Ron, the original point that David made on Sunday was limited to the legal standing of Measure J. When you argue a case in a court, politics and practicalities take a back seat to legalities. So I am not forgetting politics at all. I am simply setting those political inconveniences aside, because a judge weighing the merits of a case against Measure J will also set politics aside.
I also agree with you when you say, “Add to this anti-development sentiments by farming and ranching interests in other districts, and, even though you raise an important question, its doubtful that development on un-annexed land outside the City of Davis is going to happen any time soon.” In fact, I believe HCD is currently wrestling with that very question in numerous jurisdictions up and down the state … and if HCD is truly committed to increasing the rate of housing creation in California, they will be changing the way they deal with Counties, just as they have recently been changing the way they are dealing with Cities.
I stand by the points I have made … for legal reasons Measure J is not vulnerable to a lawsuit from an entity/landowner outside the City Limits. If there is any vulnerability for Measure J to being sued, it will have to come from a land owner or interested party inside the City Limits. To the best of my knowledge the only parcel inside the City Limits that is still affected by Measure J is Wildhorse Ranch/Palomino Place … and my personal opinion is that that parcel is too small to economically bankroll a law suit.
JMO
Matt – I challenge you to find an attorney who agrees with you on the legal standing issue.
David, I do not believe your challenge is meaningful. I believe the meaningful challenge is to find a lawyer who is willing to invest the time and money necessary to take and argue the case. You are much closer to the legal community than I am. When you find such a lawyer, let me know.
Matt
A judge won’t consider a “double standard” argument in a case. The current law is clear–the County prohibits development next to a City boundary without being annexed into the City. A property owner next to the City has standing to sue based on the failure of Measure J approved projects to move forward. They can argue that the requirements on Nishi II compared to Nishi I (road access) impeded development by forcing the developer into negotiations with at least one intransigent third party, the railroad. This makes Measure J legally vulnerable.
Perhaps HCD will take on Yolo County’s growth concentration policy, but that appears to be less of a focus than on various cities’ growth control laws.
The option to not include access via Olive/Richards was the developer’s decision, not a requirement of Measure J.
But if a city council required this (or negotiated it), your argument implies that the council itself would be “legally vulnerable” to dissolution if a developer subsequently claimed that it won’t “pencil out”.
Or, if a council outright rejected a proposal – same outcome (dissolution of the council, according to your argument).
And the same situation would apply to every urban growth boundary throughout the state. Any party (whether it’s voters, or a council) would be subject to dissolution if they maintained that boundary.
Same with the county, for that matter.
No entity would have authority to approve or deny any proposal, anywhere.
By the way, there’s nothing preventing a developer from putting forth another Measure J proposal at a given site, if they determine that they “bit off more than they can chew”.
The key to the road access issue is that Measure J requires you put forth a project that can pass a vote, not necessarily put forth a project that you can actually build. That’s a reason I framed my point on Sunday that while two projects have gained approval, neither has been built. That’s certainly worth watching given that we don’t know if Project Baseline Features – again which are enacted in part to win an election – are too restrictive to allow a project to actually be built.
Again, they can put forth another Measure J proposal (for the same site), if they subsequently determine that they significantly miscalculated the challenges related to their proposal.
And if they did so purposefully (in order to challenge Measure J), how would a judge view that?
David, Measure J does not require the applicant to put forth a project that can pass a vote. No such legal requirement exists. Applicants are free to propose any project they choose to.
Further, as we saw with the long history of The Cannery, projects not subject to Measure J also are … in practical terms … subject to putting forth a project that can pass a vote.
De facto v. de jure
Matt, this wasn’t the question being asked. You made a statement that appeared to be anchored in a factual understanding of County zoning policies that developing next to the City would be allowed. And I think you now acknowledge that such a course of action would require significantly irregular action by the County to approve such a development. I absolutely agree with Ron G. that it would be politically difficult for a Davis-based Supervisor to agree to this attempt to circumvent the City’s control of its sphere of influence.
As to whether this is a double standard, I disagree. The overarching County policy is to contain urban development within cities’ jurisdictions whenever possible–no if, and or buts. Cities then take steps to accommodate this policy, which may require making exceptions to its obsolete General Plan. (And you and I agree that the GP desperately needs to be updated.) When the County and cities’ GPs conflict, the cities must yield.
Richard, I agree with you that the current County law directs Development to the cities. The current City law also clearly defines the City Limits. You are choosing to see the County law status as inviolate and the City law status as violatable. Please explain why you take that position? Aren’t both laws going be given the same standing by the Courts? If you say “no” please explain.
I will let Alan Miller answer your Nishi point. Based on his response to you Tuesday, and my own personal knowledge, I believe your road access position is incorrect.
Regarding what you have said about the County’s policy, history does not support your position. As recently as in 2012-2013, Yolo County processed an application for placing at least eleven separate residences on individual lots on County land immediately adjacent to the Davis City Limits. A series of multiple public hearings were conducted to give due consideration to the landowner’s application. The County was clear in its actions that it wanted the project to go forward; however, the public testimony in the hearings caused the landowner to withdraw his application.
Further, I think you are being hyperbolic when you say, “When the County and cities’ GPs conflict, the cities must yield.” If that were true then the theater that took place in the County Chambers when the Supervisors discussed the idea of the three Study Areas around the City of Davis would never have happened. Prominent public speakers that day were multiple sitting City Councilmembers, who spoke officially for the City. I believe your statement should read, “When the County and cities’ GPs conflict, they negotiate.”
For a project subject to the JeRkeD measure, you are correct that anyone can propose anything… just like filing suit (another thread) in court… and, anyone can file a suit against anything approved by CC and electorate. [note: CC actions are presumably reflective of that electorate]
You are incorrect (forgetting the word, ‘require’, in a legal sense) in that an applicant would be wise not to put forward an application, subject to a JeRkeD vote, unless they had at least a 50-50 chance of getting the vote… should be part of their ‘calculus’… and that is on top of all of the Commissions’, and staff recommendations, and CC approval… all of which provides opportunities for public input…
If I was former CC member Puntillo (and frankly, I’m not), I’d opine that “this is one more gauntlet/hurdle of the ‘spanking machine'”. But that is more than fine for certain folk… the Nancy Reaganites who want to “just say NO” to any proposal for development, those who want to preserve their views that might be ‘blocked’, those who say want to preserve any sort of Ag (when they really mean they want to ‘experience’ “open space”), the “I don’t trust government, so…” folk, etc. [and there are overlaps in those]…
To the extent possible, legally and politically, the County and Cities GP should harmonize and not be discordant… on that, I fully agree… that would be the right thing to do. That would be ‘planning’…
What we have now, in the JeRkeD measures is capricious and arbitrary… not based on merits, fact, but rather on philosophy/whims when ballots are cast… the old saw, “my mind is made up, don’t confuse me with facts”… but, it is what it is, and we’ll have to see whether we reap the whirlwind, or sow good seed…
I anticipate a reaction to my general comment, and have folk bring DiSC or other proposals into the mix… I probably won’t respond, but reserve the right to do so…
Solid post Bill. You argue solid points and support them well.
However, you have chosen to respond from a practical perspective, as evidenced by your decision to “forget the word, ‘require’, in a legal sense.” I sincerely hope our Courts, when deciding cases before them do not forget the word, ‘require’, in a legal sense. The Courts are supposed to be all about what is legal.
This is why I continue to use the term “unwashed masses” but maybe people would feel better about the “hoi poloi”. At any rate it’s the argument for representative democracy.
This is why I continue to use the term “unwashed masses” but maybe people would feel better about the “hoi poloi”. At any rate it’s the argument for representative democracy.
The challenge we face is a choice between flawed alternatives. The flaws in the current method are assailed here in the Vanguard on a regular basis … and again here in this thread. What about the flaws in the non-Measure J alternative? To me those flaws are just as clear. First, and most importantly there is a conspicuous absence of “greater good” motivations and incentives. Look at the Cannery project. Three after-the-fact Addendums … all substantial. One cost the taxpayers $21 million plus. Look at the Wildhorse Ranch project. It went down to defeat because it was a very poorly conceived project, with a poorly created plan. Developers are incented by their personal bottom-line, not the “greater good” of the community. Lenders require a 25% margin in order to protect themselves from risk. Just look at the massive surge in rent-by-the-bed, which increases developer/landlord revenues by at least 25% … making already high rents even higher.
Bottom-line, two flawed choices.
That’s essentially the democratic process. There’s an entire “South Park” episode dedicated it subject. “Douche vs. Turd Sandwich”.
They’re talking about flawed candidates but I think it also holds true for flawed solutions.
The key to all of this in terms of development, growth etc… is for the city leaders to work in agreement with developers and SELL/CONVINCE the unwashed masses that it’s the right decision. Yes, there’s going to be the perception that those leaders are “shills”. But that just means those leaders need to convince most of the people that just backing a project is in the best interests of the people So far with DISC, all I hear coming from backers (developers and city) is: It’s not as bad as you think it is. I haven’t heard, this is why we (the city) should back this project (to kick off growth for tax revenue for better services…etc…better roads, transportation, recreation…etc…).
The analogy I would use is that if you’re going after someone for money; you’re going to go for their liquid assets first, then hard assets and then if possible retirement accounts. Why? Because that’s not what retirement accounts are for. Forcing counties to grow in unincorporated areas would be the equivalent of going after retirement accounts.
Pretty much all CA counties designate their cities for areas of growth. That’s because cities have the infrastructure, services and admiration at the local level to accommodate clusters of people and growth. That’s why if the state wants to force residential growth (planned housing), it’s going to happen at the city level….at least initially.
I don’t know if you (Matt) read any of my later posts but I speculated on the possibility of the state eventually focusing on counties to solve it’s housing issues. David didn’t think much of it because of how the Supervisors voted in the past but he did note that they are changing soon. I was more focused on if the state shifted focus to the creation of new cities and how or if it could pressure and/or incentivize counties to create new incorporated cities. I was thinking for Davis…. if the state pushed Yolo County to grow in census designated places like around UCD, El Macero and maybe Planefield….”census designated areas”. That wouldn’t be easy because it would require either the establishment or expansion of infrastructure and services. That’s expensive.
But the state is going after the logical targets that are meant/designed for growth…cites….before they consider the possibility forcing counties to create more cities and spend a bunch of money on the creation and expansion of infrastructure, services and administration.
Keith, I did read all of your comments, which is why I said the following in the text of the beginning of the article.
.
I agree with your point about HCD’s approach to counties possibly changing.
I agree it is the democratic process, and in the case of Davis, we gave the combination of the developers and City staff numerous opportunities to do exactly what you have described, and they failed completely enough that “the democratic process” came to the conclusion that “there has to be a better way.” The result was the drafting of Measure J and a democratic citizens vote passing it into law.
If the developers and staff hadn’t had their time at bat … and hadn’t shown a near-complete distain for your “The key to all of this in terms of development, growth etc… is for the city leaders to work in agreement with developers and SELL/CONVINCE the unwashed masses that it’s the right decision” then I would be much closer to your position. But their actions ove r and over reeked of distain. For example, how many community education meetings did the DISC 2020 team participate in? Similarly, how successful was the DISC 2020 team in selling/convincing UCD Chancellor Gary May on the merits of the project? Most recently, how effective was the DISC 2022 team in selling/convincing UCD to participate in the February 1st Council meeting where the decision to put DISC 2020 on the June ballot was considered?
The reason Covell Village lost at the polls was because it failed to sell/convince the voters on the merits of and reasons for such a massive project. Wildhorse Ranch was a horrendous Planning effort followed by no effort to sell/convince. Nishi 2016 was poorly planned, but to the developer’s credit their serious effort to sell/convince caused them to hear the voice of the people and improve the plan. West Davis Active Adult Community worked very hard on selling/convincing, and as a result it passed. They probably promised more than they can deliver in the process.
So the majority of recent efforts have not done anything to remedy the stench of the past … and very little effort has been made to sell/convince the voters on the merits of and reasons for potential Measure J projects.
JMO
Keith Y E, re your 1:41 post…
We need to agree to disagree on one point that seems to be “apparent”: ‘benefit’ vs. ‘burden’…
You seem to come from a philosophy ‘that unless there is a clear, persuasive benefit to a community, no development’ should be approved/occur… kinda’ like “ask not what we permit you to do, but rather, “ask what you will do to make us more prosperous, secure, advantaged.”
I eschew that philosophy…
I come from a different one, that runs along the lines of “no harm, no foul”… net zero, or a balanced approach (where at the end of the day, the scales do not tip… ‘benefits’ => ‘costs/impacts’)… I believe that is fair, constitutionally based, and right.
I have no problem with a proposal to come forward where the benefit greatly exceeds the cost… very cool… I just don’t think/believe that should be the ‘floor’…
There were two childhood games I hated as a kid… “Simon Says”, and “Mother may I?”
I still opine that JeRkeD measures are like having to justify your project, show it’s viable, meets the not harm/no foul criteria, and THEN playing the game “I’m thinking of a number between 1-100… if you guess correctly, you win, otherwise, you lose.” And spending 100’s of thousands of dollars, in convincing staff as to the merits of your project, and getting a positive recommendation; convincing many commissions, the same, to get their recommendations, with plenty of opportunities for public comment; convincing CC to do the same, again with opportunities for public comment; THEN playing the other game.
We’ll have to agree to disagree as to where the ‘floor’ is. Which is fine.
Because when the fit hits the shan, it all boils down to “Mother may I?”, and/or ‘I’m thinking of a number between 1-100’, where 98% of the folk go by ‘sound bites’, have chosen not to engage in the process, get truly informed, and make the decision. Feels like ‘spanking machine’, with a “stacked deck” flavor…
Perhaps, in fairness, we should have another ordinance, where voters (a required vote) can say yes to a project the CC disapproves..
See, this is where I’m going to echo Ron O’s sentiments: by default development is a harm to the community.
For residential development, it’s a drain on the city’s finances = FOUL
New development (growth) means more people =FOUL
New development means more traffic = FOUL
For most peripheral growth, I’d rather look out on an open field then houses or a business park so = FOUL
Approaching growth as simply no harm no foul is how you get sprawl like Elk Grove or Natomas.
Where I differ from Ron O, is that I recognize the inevitability of growth and acknowledge it’s benefits. So I believe growth should happen under favorable terms for the existing residents of the community. If it makes you feel better imagine the scales of urban planning justice weighing all the negatives I’ve mentioned and more and it attempting to be balanced out by city tax revenue which goes towards things to better the lives of the existing (and future) residents.
So, as I said, we’ll agree to disagree… but using your rationale, there is no conceivable ‘benefit’ to balance the four ‘fouls’ you mention, not to mention a concrete, sustainable benefit, over and beyond that.
I’ll leave it at that…
Development is a harm to the environment. It’s also harmful to anyone passing through the region.
Gotta pay for that unneeded (but already-approved) ladder truck and staffing somehow, the additional “public safety” personnel, the pre-existing unfunded liabilities, and the strange way that previously-approved developments never pay for themselves.
At least, after the temporary federal money runs out.
I’m not sure what your comment means? Can new development give me a 1 for 1 replacement for the absent open space that would be inhabited by office buildings or houses (I guess they could try transparent construction…j/k)? No. Will a new development solve the traffic issues it creates? No. You can’t get a 1 for 1 exact match to replace what is lost….all you can do is get an equivalency. Tax revenue, new recreation space/facilities…etc… to make up for what is being taken/used (services..etc..). You could try to attach a $ to it all and try to get it all to even out…but that’s probably not possible. The best you can do is line up all the positives of a project and hope it convinces the hoi polloi that it’s all for the best.
That’s a glib cop out of a response. It’s your refusal to acknowledge any benefit that new development can offer. New development can pay for itself if planned correctly with the right mix of commercial space for tax revenue and if necessary (begrudgingly) a certain amount of residential to support the commercial growth. Simply falling back on siting the practice of cities that keep growing in a ponzi scheme of development fees to fund things isn’t relevant. It’s like siting the Olympians that get busted for drugs as an indictment on the entire Olympics.