For much of the lead up to Nishi, it looked like the vote on Nishi would come down to people’s acceptance or rejection of the way that the city and developers handled issues like connectivity to UC Davis, and traffic circulation on Richards Boulevard and through the underpass. It may yet come down to that, but there is at least right now a new discussion over the applicability of the Affordable Housing Ordinance and the overall affordability of the rental units on Nishi.
First of all, I think an expression of appreciation is in order for the work that Alan Pryor put into yesterday’s commentary and analysis on the applicability of the city’s Affordable Housing Ordinance. However, while Mr. Pryor spent a huge amount of time and put a great deal of thought into his analysis, there are, as others have suggested, two critical issues that are left unanswered.
The first of these is whether the project is explicitly exempt under the ordinance. The city’s explanation of the Affordable Housing Contribution comes out of a November 2015 staff report which states, “The current affordable housing ordinance exempts vertical-mixed use rental housing and stacked-flat condominiums from inclusionary requirements. This was reflected in preliminary draft deal points presented with the predevelopment agreement in 2012.”
I’ve read the arguments for and against the accuracy of this view and I think it is a close call as to whether the project explicitly is exempt.
But there is a second point here. While all of us are capable of reading an ordinance and attempting to analyze whether the project description qualifies for an exemption, no one that I have seen seems to know what the law says about whether the council can, on a site by site basis, implicitly alter the ordinance requirements.
The basic issue is this. The city council with three votes can change an ordinance at any time. In fact, as we demonstrated in Tuesday’s column, they did exactly that with regard to Accessory Dwelling Unit (ADU) requirements. They allowed ADUs for Cannery and then changed the ordinance once Cannery was approved. (That is not necessarily why they changed the ordinance back – the council composition changed, and it went from 3-2 to count ADUs to 3-2 not to count ADUs).
The question that is unanswered here is whether the council has to explicitly change the ordinance or whether by writing a provision into development agreement, they have implicitly changed the ordinance for this specific project.
The other problem that critics of the project and litigators have is that nothing would prevent the council from changing the ordinance after the fact to put their Development Agreement in compliance should a court rule that they failed to adhere to the law.
That action might solve the legal requirements, but what would remain is a political problem and, indeed, this issue is all about politics.
As one commenter noted, and I agree, the opponents of Nishi, at least some of them (there are clearly exceptions to this), are not concerned about affordable housing. The reason that this issue resonates, however, is that it plays into a perception that the city staff gave away public assets in forging a development agreement with the developers here, and the city council allowed this to happen.
The issue is not affordable housing but rather the integrity of the process. The perception that the developers were not compelled to play by the rules and the perception that the community lost critical assets is a powerful one.
To this person who is someone who has chosen to remain neutral on the project – this is very troubling. To me there is no sugar-coating this issue.
However, as a commenter pointed out, there is no sending this project back to the drawing board. If Nishi is defeated at the polls – and as I write today, that is a strong possibility – most likely Nishi will look like Covell Village and Wild Horse Ranch before it. Ten years after Covell Village was defeated, the land remains farmland on the corner of Covell and Pole Line.
So in the end, I would argue that we have to look past this issue. We have to judge the Nishi project on the merits of what benefits it provides the city.
The Nishi project has always been a double-edged sword – on the one hand, the location was enticing across from the UC Davis campus and within walking distance from the downtown. On the other hand, it was challenging with limited access and egress.
I look at projects on other campuses, including the Poly Canyon Village and the USC Village, and I see plenty of lost opportunities compared to what other campuses have done with actually far less in the way of acreage.
Further, the city of Davis faces a rental housing crisis and, it appears, an increasing student population to house. Nishi could house 1500 students. That won’t solve the problem, but it does help to alleviate it.
There are legitimate issues about the small “a” affordability of these units, but by building them, the market may help to bring down cost not just at Nishi, but across the board.
In the end, that is what we should be focused on – does the project do enough to justify the voters pulling the trigger on the project? The other stuff is disappointing, but effectively a sunken cost.
There are ways to address the large “A” affordable housing issue into the future. We can strengthen it as its own initiative which would require the voters to approve any and all changes, or we can add it to Measure R when that ordinance comes up for renewal in four years.
However, the question on Nishi is which is better – an imperfect project or no project? That is the call the public is going to have to make in just over two months.
—David M. Greenwald reporting
Alan Pryor and Michael Harrington have gone quiet, neither wants to address the question as to what the law requires for ordinance changes on the fly.
“The issue is not affordable housing but rather the integrity of the process. The perception that the developers were not compelled to play by the rules and the perception that the community lost critical assets is a powerful one.”
This is precisely what I find troubling about Nishi: why should the city subsidize deep-pocket developers. We did the same sort of thing with the Cannery and the CFD. Why don’t the council and staff act in the city’s interest?
This is really quite simple. Measure R requires compliance with all city ordinances before the city council can put a related ballot measure before the public. Nishi is not in compliance, the City failed to bring it into compliance or revise the ordinances accordingly, and Measure R does not allow for exceptions from compliance. Hence, the council action to put Nishi on the ballot is void.
Even lawyers, without reference to case law or statutes, can understand this elementary concept. Does City staff not understand, or care?
Amending the zoning ordinance requires public hearings and public comments, as well as the opportunity for a public referendum. Following the potential referendum window, the City could then vote to place the matter before the voters. Maybe the Nishi developers should sue the City?
Text of Measure J here: http://qcode.us/codes/davis/view.php?topic=41-41_01-41_01_020&frames=off
I see nothing there that confirms your assertion.
Skeptical is spot on. The R language is clear.
i cannot fathom how, with all that money and legal talent, the developer allowed these obvious legal violations to be made by his team and the City.
For me it’s a matter of complying with R
If we don’t challenge their R violations then 17 years of political and legal work goes down the toilet
I will fight for that ordinance even if Robb and Lee don’t
The R language does not answer the key questions here which is whether the city council has to explicitly amendment the affordable housing ordinance or it can do it de facto through the development agreement. You are also assuming it does not adhere to the provisions of the ordinance, when that is far from clear either.