Commentary: Neighbors Be Wary of Development Agreements

In 2008, the City Council approved the development agreement for the Verona Subdivision.  The vote was not unusual, but was 3-2 with Councilmembers Sue Greenwald and Lamar Heystek dissenting.  The reason for the dissent was that these councilmembers believed that the density was too high for that location.

The neighbors were in opposition to the project as well, particularly on the density issue.  And now just two years later, the council is considering the possibility of increasing that density even more.  13 units does not sound like a lot, but it represents more than a 15% increase in the density of the project.

This is a crucial point because we just had a lengthy debate and discussion over Willowbank.  On March 30, 2010, Councilmember Stephen Souza gave the neighbors the following assurance, “Within the Development Agreement is assurances of a minimum 50 foot habitat buffer as measured from the top of the southern bank of the Putah Creek drainage canal to the rear fences of all units along the northern project perimeter.  That is ironclad.  It is in the Development Agreement and cannot be breached unless the developer and the Council agree to change it.  I’m sitting up here, I’m going to be here for another two years.  I’m not going to breach that.  I have no intention whatsoever…I feel assured that these parameters within this Development Agreement will not be breached.  That they will hold.”

And yet a few months later, there was the city staff and council tinkering with the arrangement.  The frustrating aspect of it all for the neighbors who believe that aspects of the development agreement have been violated already by the developers of the project is that they worked hard to get an agreement with the developers only to have the city staff and city council short circuit the process.

Then we agonizingly watched a few weeks ago as the council negotiated a development agreement on the last unfinished lot on the dais.  The process took several excruciating hours that could have been better spent.  In the meantime, most of the neighbors hard work was thrown out.

As frustrating as this process might have been for the neighbors, Simmons was probably worse.  East Davis residents who make up the Sunrise Neighborhood Association thought they had a legally binding agreement with the developers, New Urban Development, owners of the 12-acre Chiles Ranch property.  The property was zoned for low density housing.  Over the course of two years of discussion with the neighbors, they reached an agreement that included the total number of units, size of the buffer, the amount of green space, the protection of trees, among other aspects.

Then they watched as one-by-one during a May 2009 presentation to the Planning Commission, the city led by then-Community Development Director Katherine Hess and Cathy Camacho violated that agreement.  The city encroached on the already negotiated buffer, they increased the number of units, imposed 21 granny flats, and the list goes on.

It was remarkable irony that in November of 2009, Stephen Souza during the discussion of Willowbank expressed frustration that these issues with the neighbors cannot be worked out.  He said that he has been on the council for five and a half years and there has been exactly one project that has had full support of developer and neighbors and that was Grande where the developers were the school district and that only happened after years of contention and a complete redesign.

But perhaps he has himself to blame.  Why should the neighbors agree to anything with this council and this city staff that do not honor the agreements that they do reach with neighbors and proceed without neighborhood approval regardless of the circumstances.

I am not here to argue that neighborhood views are sacrosanct.  There is in fact a natural tension between the city’s push to densify and the existing neighborhood’s desire to see new development have minimal impacts on their lives in terms of increased traffic and changes to the character of their community.  Nevertheless, at the very least we should respect the neighbors enough not to mislead them and not to ask them to work with developers only to rescind on agreements.

The fact of the matter is that the paper that a developer agreement is written on is only worth three votes on council.  Council can, Mr. Souza’s assurances notwithstanding, change the agreement for any reason.  And they have done just that multiple times.

I have said this before and I will say it again, if I were a neighborhood operating under the current council, it would be a huge quandary as to how to proceed.  On the one hand, neighbors probably benefit even under this council for participation.  The eventual development at least has to pay lip service to neighborhood concerns. 

On the other hand there is a lot of time consumed by these processes and if the city and developers are not going to honor their agreements, they have disrespected the neighbors and wasted their valuable time and energy.

This is not an outcome based objection here.  I do not think that the neighborhood is always right.  I do not think that the developer and the city is always wrong.  I do think that we need to move for greater density.

However, I am concerned with the process.  If there are negotiations, agreements, and compromises, then they need to be done in good faith.  We need to honor those agreements.

I am very concerned about Verona now.  We had a project that 40% of the council thought was too dense, that probably did not pan out fiscally, and yet we went ahead with it.  Now we are coming back two years later and sweetening the pot.  Gone is the middle income affordable requirement, gone is the park requirement, reduced was some of the supplemental fees except for a few of us hollering holy heck until city reversed some of it. 

The developer is going to make a huge amount off the fact that they can sell those units at market rate, they are going to make a huge amount off the fact that they can put in 13 additional units.  The city is gifting them $250,000 in additional breaks by nonsensically offering a reduction on the formerly middle income affordable and a break on the 13 additional units.

So the city is getting the short-end of the stick fiscally and in the meantime the neighbors are getting run over.

Willowbank neighbors have been alarmed at the process by which their development has been handled, well this might be a notice of what is to come.

We have said this so many different times, in so many different ways, but the city needs to change the way it does business.  The situation is not without hope.  The hope is that the new council will accomplish that change.  Again that does not mean that we have to change the eventual outcome, but we need to change the process.  The city needs to work with neighbors and stick to the agreement unless there is a mutual agreement that the agreement needs to change.

Otherwise future neighborhoods should be very reluctant to spend their precious time and energy on forging agreements with the city and developers, if all the city will do is change it when the neighbors have moved on with their lives.

—David M. Greenwald reporting