When Wildhorse Ranch was placed on the ballot, one of the critical early points made by the project opponents was the need to make sure that whatever was promised by the developer was put into the baseline features of the project and therefore on the ballot. By doing that, those promises would be codified by the voters and it would avoid the ability of the developers and city to negate features later.
In my multitude of discussions with people since the CFD (Community Facilities District) vote last week, the question invariably turned to the issue of the Innovation Parks and whether promises made by the developers to the public would be enforced after the vote by the city council.
The concern expressed is this – the developer at Cannery agreed to sign the developer agreement (DA). Within that agreement was a provision that the council may consider a CFD at a later point. However, as Mayor Pro Tem Robb Davis pointed out last week, the developer agreement was to provide infrastructure and amenities within the framework of the DA without any guarantee as to whether the city council would later support a CFD to help finance those amenities.
Moreover, as former Mayor Joe Krovoza pointed out, there were guarantees “for two good, grade separated bike and pedestrian crossings” but those guarantees “seemed very weak.” He noted, “It’s very disappointing to me that the SE grade separated crossing has been abandoned by TNHC and the city. I believe that’s bad faith.”
As we move forward toward a broader-based discussion on the Innovation Parks, we are playing in a different ball game. In order for any of the innovation park properties to have their land use designation changed to allow for urban uses and be annexed into the city, the voters of Davis have to approve it through a Measure R process.
Here is the critical portion of Measure R: “Establishment of baseline project features and requirements such as recreation facilities, public facilities, significant project design features, sequencing or phasing, or similar features and requirements as shown on project exhibits and plans submitted for voter approval, which cannot be eliminated, significantly modified or reduced without subsequent voter approval.”
What that means is that anything that is included in the baseline project features – that includes anything that we are now calling amenities and infrastructure, public facilities and perhaps most significantly, “project design features” which includes sequencing and phasing – cannot be altered, eliminated, or significantly modified without another vote of the people.
In other words, if the Mace Ranch Innovation Park promises to have net zero energy, a solar field, a certain amount of parks and greenspace, and to expand the size of the adjacent roads, etc. – for those promises to be valid, they must end up in the baseline project features.
If they do not end up in the baseline project features – they are unenforceable by the voters. Anything that simply ends up in the developer agreement, but not in the baseline project features, is enforceable by council but not by the voters.
This is a crucial distinction.
Cannery, as the last major non-Measure R project in the city, was able to ‒ in the view of many people ‒ get away with a project that the voters would not have ended up supporting. There was no guarantee of a second grade-separated crossing. That meant that bike and pedestrian connectivity was not guaranteed for all residents.
While there were some guarantees, like a requirement for zero net electricity for 25 percent of the first 100 homes, there was no guarantee of net zero energy for the project.
Cannery could get away with this as long as they satisfied the desires of three councilmembers and did enough to discourage a citizen group from petitioning to put the measure before the voters.
By the time the Cannery project petitioned for a CFD, the time had passed for citizen groups to activate and attempt to block the project.
The innovation parks will not have these luxuries. But there is no iron-clad guarantee either.
However, the council majority has to be mindful that they need to put forth a project that can win at the polls. As we well know, that is no slam dunk.
The two previously-Measure J votes (Measure R’s original ordinance passed in 2000 by the voters) were housing projects and both were handily defeated. In 2005, Covell Village lost 60-40. In 2009, Wildhorse Ranch lost 75-25.
Yes, there were project specifics that contributed to the downfall of Covell Village, and Wildhorse Ranch was ill-timed in the middle of the housing market collapse, but Davis voters are notoriously slow growth and approved the Measure J renewal 75-25.
In order to win a majority of voters, there must be both promises and assurances. The project must be Davis-oriented. It must provide clear benefits to the community in the form of tax revenue while at the same time adhering to sustainability and design features that the public will see as being an asset to the community.
The developers and advocates, in order to win, will make large numbers of promises to both the community and groups of people in the community.
However, once again, in order for those promises to be enforceable they must be in the baseline project features.
The lesson, therefore, is quite simple. There is no reason that the vote on the CFD should undermine the community’s faith or willingness to support the innovation parks. The specifics of Measure R offer ironclad protections and enforceability of promises made by the developers.
The only lesson that we have is that the council must stick these promises and commitments directly into the baseline project features. That will create the protection that we need to ensure that commitments made will be honored, and broken commitments are enforceable by law.
Anything that is not included in the baseline feature should be viewed like a politician’s campaign promise. There is no guarantee those will be followed through. However, the solution to that is to stick every promise into the baseline features and then we have no need to worry.
—David M. Greenwald reporting
“Establishment of baseline project features and requirements such as recreation facilities, public facilities, significant project design features, sequencing or phasing, or similar features and requirements as shown on project exhibits and plans submitted for voter approval, which cannot be eliminated, significantly modified or reduced without subsequent voter approval.”
while this is important, if you don’t have a council majority wiling to put the tough elements into the baseline project features, it’s toothless. i suspect that one of the developers will do this on their own, but given what has had to happen to get mace to not try to mess with measure j, i’m not sure they understand how perilous this is for them.
I’d restate that as “less need to worry.” Attorneys are very good at turning iron-clad into piles of rust.
Agree with that.
The saying that agreements are worth the paper that they are written on only if you have a good law firm representing you… is really quite accurate.
Interestingly, I agree with both of you… yet there are a couple of developers still in town (older now, ‘semi-retired’) that years ago, when they ‘gave you their hand’ you knew it was more concrete than the best crafted legal document. Semi-rare, but they exist.
These two statements seem like they are in conflict to me. We have to trust the council to negotiate features that have the best interests of the community in mind (rather than the developer’s best interests) AND trust them to get those features spelled out clearly and carefully as baseline project features. But the vote on the CFD calls into doubt whether three of the five councilmembers are committed to doing these things.
The onus is placed on ordinary citizens to pore over every detail of the baseline project features and hope that the words mean what they seem to (e.g., that “may” doesn’t really mean “will”).
but i think the point is if the features are in the baseline project features, then we know they are somewhat iron clad (as jim frame rightly points out). if they aren’t, then we have to assume they won’t be. i don’t think that puts an onus on the citizens to do much because they only have to ask – okay is it in the baseline or not.
I think you are overlooking my point. In good circumstances, we trust the City Council to negotiate good features and to get those on the ballot. Sure, we would look things over, but we need not pore over everything with a fine-toothed comb. However, we now have reason NOT to trust the majority of the City Council to do right by the community, so in effect each of us has to do the work we’d normally expect the councilmembers to be doing.
There are “dangers” to the ‘baseline’ approach. Ex: if the SE bike ped grade crossing was part of the ‘baseline’ (popular, attractive) for the Cannery. Infeasible, technically and economically. When folk finally woke up to that, what then? Mace Ranch had several amendments to the DA. One was demanded by DJUSD (to the detriment of the City). Most of the others were either neutral, due to changed realities, or “balanced”. No way those could have been accommodated if each revision required a vote of the people, who would have to have a long, steep, learning curve to understand the proposed changes.