By David Taormino
I am satisfied that our Buyers’ Program is appropriate and supported by significant legal precedence. You recently read our attorney’s opinion which included case citations that were somehow omitted from the Vanguard’s article. If our program is challenged, we will defend it. However, the legal and policy foundation for the Davis Based Buyers’ Program is the mandate in Measure R which states in part:
Purpose Clause
(1) “The Purpose of this article… and an adequate housing supply to meet internal City needs…”
Measure R, Purpose Clause (1), (emphasis mine)
If our program is “unconstitutional” as opined by several Vanguard “legal experts”, then reasonably so too is its underlying foundation, Measure R. The courts, in reviewing preferences across the country, look to the underlying legal foundation or public policy in evaluating the basis for preferences and their constitutionality. Internal City needs is stating a mandated preference.
Local preferences are legal as long as the underlying policy is not intended to discriminate against a protected group. We were careful in describing our program’s categories and testing each 
against Measure R’s “internal City needs” mandate. Further, we included a 10% unrestricted category to avoid inadvertently harming some group.
If Vanguard readers think my program is not appropriate and following the mandate in Measure R, then they should postulate what they think the writers of Measure R meant when they put the words “adequate housing supply to meet internal City needs into the Measure”? That directive and those words means something!
Here’s an opportunity for Vanguard readers who obviously can freely criticize someone else’s effort to instead create. Measure J/R have been around 18 years. I didn’t read one (1) word in the Vanguard about Nishi and students not meeting internal City needs. Neither the words student nor UC Davis appear anywhere in Measure R.
Now’s your chance to show other Vanguard readers how you would comply with Measure R’s mandate: “housing to meet internal needs”. And don’t forget, make it enforceable on the developer and the public and not discriminating against a protected group. Go ahead and start with my categories and see if you can do better. I look forward to Vanguard readers creative and positive approaches to Measure R’s mandate.
Dave Taormino, a Davis housing provider
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Two questions for David Taoromino:
1. “You recently read our attorney’s opinion which included case citations that were somehow omitted from the Vanguard’s article”.
Are there also cases in which such provisions have not been upheld?
2. How did you derive the internal “need” targets that informed your initial development numbers?
Executive summary (less than 350 words for those who don’t want the citations and supporting evidence to be found in my other comments):
1) Project developers admit base program concept is not legal. Jason Taormino has admitted in writing more than once that an initial version of the Davis-Based Buyer’s program (AKA “Taking Care Of Our Own”) that only targeted Davis residents and their families would not be legal in his and his legal team’s opinion even with the attempted policy connection to the Measure R goal of “meeting the internal housing need” because, in his words (9/14/2018) “the demographics of Davis are not reflective of the regional averages”.
2) Adding to eligibility criteria within Davis does not make it legal. With Jason conceding this point, the only remaining point of contention is whether adding people with a DJUSD or UC Davis connection to the pool of eligibility would make the project legal (never mind how most of them would have already been counted as current or former Davis residents, except maybe for students who had only ever resided on-campus and not in the city). Given the age restrictions of the project, it is clear that the vast majority of people eligible to live in the project who would have those connections would have made them decades ago when demographics of those institutions also did not reflect the regional averages at that time and certainly not the regional averages at the present.
3) “Internal housing need” means low and moderate income workforce housing, not an upper income senior enclave. In this current article, David Taormino reiterates the project justification relying on the broad policy Measure R goal of a “housing supply to meet internal city needs” while dishonestly ignoring the legislative history behind the phrase “internal housing need” that was directly related to workforce housing for low to middle income workers that I elaborate on elsewhere in this comment section. In contrast, the project is almost entirely providing upper income senior housing an an exclusive enclave. As a side note, David Taormino was also one of the developers supported by the Davis Chamber of Commerce who killed the City of Davis workforce/ Middle Income housing program in 2009.
4) There is no contract with the voters for this program or other significant aspects of the project. Jason Taormino stated earlier in the year (in the Project FAQs) that “We expect all the significant deal points that are normally in a development agreement to be in the Baseline Features & Requirements so that they are evident to the voters. The citizens then have a direct contract with the developer that is only changeable with a new vote.”’
Even though the “Taking Care Of Our Own” program is a central part of the project–so much so that this is the 2nd article written by the project proponents in the Vanguard in the past 5 days solely on the program–it is not even included in the Baseline Features. As David Greenwald stated (9/9/2018): “But the other problem is there is no way to know that this is going to pass legal muster. As noted at the council meeting, these restrictions are not tied into the Project Baseline Features or even the Developer’s Agreement. So, the developers are in no way bound to adhere to it.”
Is this the “honesty” and “integrity” that Jason Taormino called for in his 9/13/2018 article in the Vanguard?
David Taormino makes the claim that the Davis-Based Buyer’s Program (AKA “Taking Care Of Our Own”) is “supported by significant legal precedence” yet he provides no supporting evidence and does not cite any case law.
His own son and project partner Jason Taormino has previously written: [from the Project FAQs on the City of Davis website]: “we all recognize that the legality of discriminating based upon zip code is questionable.”
And Jason also admitted in his 9/14/2018 in the Davis Vanguard that the proposed “Taking Care of Our Own” program would be illegal with a preference for Davis residents (current or former, and familie of them: “…I did not see any methodology to provide preferences based upon being a current Davis resident or being related to a current Davis resident because the demographics of Davis are not reflective of the regional averages. Our legal counsel agreed with this opinion.”
David Taormino, however, states that [my emphasis]: “Local preferences are legal as long as the underlying policy is not intended to discriminate against a protected group” which ignores mountains of fair housing case law about “disparate impacts” that the intent of a locational preference in a particular project does not matter if the preferences have the effect of impact on protected classes.
Just as one example of cases involving the legality of locational preferences and disparate impact, the 2002 Langlois v. Abington Housing Authority decision looks very skeptically at the exact type of circular reasoning used as policy justification for exclusionary residency preferences that the WDAAC/Measure L project is using.
See this summary of Langlois [my emphasis]: “Judge Gertner there concluded that the defendants could not simply cite the goal of wanting “to make it easier for their residents to keep living in their communities,” because this basically just reflects “the very definition of residency preferences. If I accepted these as legitimate justifications, residency preferences in and of themselves would forever justify the disparate impacts that they cause.” Rather, she held: “defendants must set forth the reasons why they want the preferences. And it is the reasons that must be legitimate. [Defendants] must offer a record of local conditions and needs that suggests why the residency preferences are necessary, [such as] a fire in the community has left an abnormally high number of residents homeless [or] economic factors have hit the community especially hard—a plant closing, for example.” [http://furmancenter.org/research/iri/essay/the-community-preference-policy-an-unnecessary-barrier-to-minorities-housin]
See also this admonishing statement of the judge in that case: “nowhere do the defendants demonstrate that they even considered the impact of their residency preferences on minorities and on their compliance with other civil rights obligations.”
If Davis Taormino is really interested in getting to the legislative intent of the “internal housing needs” phrase in Measure R, he could request his legal team to do so. To make it easier, I will point them to the City of Davis General Plan itself [http://documents.cityofdavis.org/Media/Default/Documents/PDF/CDD/Planning/Plans-Documents/GP/004-01-Land-Use-and-growth-Managment.pdf] [my italics]: As stated on p. 47: “Studies of Internal Housing Needs. In October 2002, appointed a subcommittee to study internally-generated housing needs. The Council wanted to consider providing housing opportunities for the local workforce as the primary reason for city residential growth to provide housing opportunities for the local workforce.”
Since (as Mr. Taormino posts) measure R says:
“(1) “The Purpose of this article… and an adequate housing supply to meet internal City needs…””
It would be interesting if the anti-development people trying to stop the Davis Based Buyers Program end up killing Measure R (that also stops people from outside Davis and seniors, young families and people of color from buying in Davis)…
P.S. It looks like Rik is not taking Don’s advice about keeping comments short and to the point with another “comment” that is longer than the original “article” (almost 50% longer)…
Were it not for the “slow-growth” people, Measure R would not exist in the first place.
The article itself is a straight-out attack on Measure R. Probably not a winning strategy for a developer attempting to gain approval for a proposal from the same voters who approved Measure R.
Ken A:.
My comment word-count was larger than the original article because I actually cited relevant case law about the legality of locational preference programs as well as the project proponents’ own statement about legality, rather than just make broad unsupported assertions like the article does. If you take out the citations and quotations in my comment, there were only about 250 words in my comment.
So, you don’t want to provide substantiated evidence for your commentary on the Vanguard, and now you want to police other people’s comments so that they don’t either?
You may want to submit it as an article
[deleted b/c posted in wrong place]
David Taormino seems unaware of the legislative history, so if he or anyone else wants further background on the history of “internal housing needs” language, the General Plan document I cited also states:
A few comments:
1) potential adverse impacts to protected classes from by providing locational housing preferences to local workers were considered and analyzed.
2) in another analysis, providing inclusionary housing to middle income persons was found not to require a subsidy coming from pricing marker rate units higher.
3) The Davis Chamber of Commerce, working on behalf of developers like the Taorminos, brags about killing the provisions in 2009: “Ultimately, we were successful in helping to get the Middle Income Ordinance suspended indefinitely.”[http://www.davischamber.com/uploads/2/4/6/9/24698775/board_positions_1999_to_present_updated_feb2016.pd
4) It seems strange that David Taormino doesn’t remember this history as he provided public comment at that time (March 8, 2005) [my emphasis]:
http://city-council.cityofdavis.org/Media/Default/Documents/PDF/CityCouncil/CouncilMeetings/Agendas/20050503/Packet/04K-CC-min03-08-05.pdf
It is unknown whether Taormino thinks that inclusionary programs to provide affordable housing to low-income persons also puts them into “appreciation prison”.
And to elaborate on the conclusion of the analysis done by the City in regards to possible impacts on protected classes by the Middle Income Ordinance, here are the findings as codified in Davis Municipal Code [Chapter 18 HOUSING, Article 18.06 MIDDLE INCOME HOUSING]:
“(6) The city council finds that the middle income housing requirement project would not discriminate against protected classes including minorities, disabled, elderly and families with children. The effect of the project would be to divert housing production that most likely would have been affordable to higher income households and instead require developers to restrict the sales of those housing units to households qualifying as “middle income.” Discrimination based on income is acceptable when it serves a public purpose such as facilitating the ability of households to afford decent, safe, and sanitary housing that otherwise could not. The data in a study of middle income housing needs, impacts and options shows that:
(A) Shifting some of the housing supply from the above middle income level to middle income level through a middle income inclusionary requirement would most likely not have a significant impact on non-white households, households with disabled persons, and households with children because there are more households of these categories in the middle income level than the above-middle level in Davis, Yolo County, and the Sacramento/Yolo CMSA; and
(B) There is a slightly higher concentration of elderly households in the one hundred thousand dollars and above income categories than in the sixty thousand to ninety-nine thousand dollars income range which closely resembles the “middle” income range. This could mean that if the city implements a program to require middle income units, there would be a lower proportion of elderly households who would qualify for the housing versus the proportion of elderly households in the higher income categories who would be able to afford more expensive housing. The higher income elderly households, however, would generally be able to find decent housing compared to lower income households.”
The Davis-Based Buyers’ Program, by design, is discriminatory on its face in that it gives a preference to those who meet its buyer preference criteria. Not all forms of discrimination are unlawful, however, and the Buyers’ Program may or may not be found to have an unlawful discriminatory impact–e.g., because it would perpetuate historical racial imbalances. A 10% limit (quota) on non-connected purchasers would not necessarily save the policy
But a lawful policy is not necessarily good policy. Is it good policy to give a buyer’s preference to the out-of-state resident who happened to attend elementary school in Davis 50 years ago over the retired Davis employee or business owner who now lives in Woodland? I don’t believe the Buyers’ Program would even effectively do what it’s intended to do. How would giving a preference to a UCD grad who lived in California for only four years address local housing needs? Much is said about Bay Area homeowners who sell their expensive homes and gobble up housing in Davis. But under the Buyers’ Program, if you are a Bay Area homeowner who has a family member who happens to live in Davis (perhaps only for a year or two to attend UCD), gobble away. And, [INSERT YOUR OWN SIMILAR SCENARIO HERE].
Mr. Taormino asks what is meant by “housing to meet internal needs” if not a policy that restricts purchases by those deemed outsiders? Well, increasing the supply of housing, generally, meets internal housing needs. Increasing the supply of “big A” and “small a” affordable housing meets internal housing needs. Increasing the supply of smaller, accessible housing meets internal housing needs. Meeting internal housing needs does not mean restricting purchases to those who currently live here or otherwise have Davis connections.
And, as an additional consideration, I’d argue that one of Davis’ internal needs is to address its longstanding reputation–deserved or not–as an elitist, upper middle class, overwhelmingly white community. The Davis-Based Buyers’ Program will only serve to reinforce that reputation by restricting purchases by those without a preexisting connection to Davis–i.e., to those considered outsiders.
The Buyers’ Program is an ill-conceived, and possibly unlawful policy that should not be approved by voters.
Not with all your arguments, but with the gist, fully agree.
I believe it is a bad concept, and believe it was a “sales tool” to get public support for the vote. An attempt to ‘make a deal with the Devil’… and yes, as written, Measure R is “devilish”, in my opinion…
Tia – Dave Taormino submitted this in response to your questions…
1) Yes, those negative cases are critical because they tell us what not to do. In most of those cases the “intent” was to discriminate against a protected group or the program had accidentally a “disparate impact”, i.e., unintended impact that was effectively discriminating against a protected group. We took those cases into consideration. Our program was reviewed and approved independently by two law firms. Separately they concurred on its legality. The common sense of it is, why would we propose something unconstitutional or discriminatory?
2) The need for active adults and seniors for rightsized Davis housing is much greater than we can provide. Thus far, we have 578 people on our interest list. In the design stage, we concentrated on the capacity of the parcel (75 acres) for an appropriate density (13 dwellings/acre) based on the housing and social needs of the buyers. We left 2 acres as “undetermined” in order to have flexibility later to add different dwelling types based on demand as the neighborhood builds out. That 2-acre parcel can provide up to 61 dwellings (part of the 380).
We decided initially on 150 affordable apartments even though only about 60 were required by City ordinance because the need is so great. It’s the absolute best location in Davis for these future renters. These folks have no affordable available housing choices in Davis. They live on social security or less. Medical and social services nearby are critical to their well-being. While I hoped, naively, that Vanguard readers would embrace our perspective on providing the maximum number of apartments because of the location, I would still do it again. Although, I would be hesitant to advise other housing providers of doing any more than the City’s minimum since the extra financial commitment appears not to be respected nor appreciated by the more vocal Vanguard commentators. I have no doubt the future senior occupants will need and appreciate the extra apartments which after all is the point of doing more.
David Taormino writes:
One of the two legal opinions that have been published [from the Building Industry Association attorney] makes no reference at all to locational preferences in housing programs. It cited case law that upholds the legality of favoring of the elderly in certain cases (movie tickets, higher interest rates for senior citizen bank accounts, etc.) to try to argue that discrimination against elderly people who live outside of Davis and do not have a pre-existing professional, organizational, or familial connection to Davis is legal.
The other legal opinion that has been published twice in the Vanguard now (one in January and once a few days ago) discusses the locational preferences topic but has contained no citations of relevant case law in either version.
I would also note that recent legal opinions show [my emphasis] “an increasing judicial willingness to view disparate impact not only as a harm itself but also as evidence of intent or unconstitutionality…” along with “increasing skepticism of circular justifications and a reluctance to treat residency preferences as presumptively valid. Decisions… suggest that when significant demographic disparities exist, the prioritization of local residents’ access to affordable housing may not be legitimate simply for reasons of parochialism.” (Columbia Law Review, 2018)
See below for legal opinion with citations
JOHN M. TAYLOR JAMES B. WILEY
JESSE J. YANG
KATE A. WHEATLEY MATTHEW S. KEASLING
TAYLOR & WILEY
A PROFESSIONAL CORPORATION
ATTORNEYS
500 CAPITOL MALL, SUITE 1150 SACRAMENTO, CALIFORNIA 95814
TELEPHONE: (916) 929-5545 TELEFAX: (916) 929-0283
MEMORANDUM
TO: Katherine Hess, Community Development AdministratorCC: Harriet Steiner, City Attorney
FROM: Matthew Keasling
DATE: January 17, 2018
RE:
Analyzing the Legality of the Proposed Davis Based Buyers Program
The West Davis Active Adult Community (WDAAC or Project) applicant is proposing to implement a local buyers program for the sale of approximately 350 single-family residential units located within the Project. The objective of the program is to ensure that the Project meets the intent of Measure R, which requires the electorate to balance the preservation of agricultural land and/or open space with a civic obligation to provide “an adequate housing supply to meet internal city needs”. (Davis Municipal Code section 41.01.010(a), emphasis added.) The WDAAC proponents are ensuring that the housing constructed in the WDAAC Project meets the “internal city need” by implementing the Davis Based Buyers Program. This program promotes the sale of homes to current Davis residents, their families, UCD alumni, those with children in Davis schools, and those working in Davis. Implementation of this program will allow the Project to meet the purpose of Measure R and achieve numerous City policy goals and objectives. Though carefully designed to fulfill the explicit intent of Measure R, the question has arisen as to whether the proposed local buyers program is consistent with fair housing laws. As this memorandum discusses, if done correctly, the answer is “yes.”
Local priority programs are utilized in the context of housing throughout the nation. In fact, the City of Davis already utilizes a local workforce priority program in its distribution of new affordable housing. (Davis Municipal Code section 18.07.) As that municipal code section correctly states, to comply with the Fair Housing Act (FHA), may
housing opportunities Davis Municipal Code section 18.07.010(f).)
1 Protected classes are identified under federal and state law as follows: 42 U.S.C. § 3604 (prohibiting discrimination on the basis of race, color, religion, sex, familial status, or national origin, or disability);
a local preference program
not have the purpose or effect of delaying or
otherwise denying
to a protected class. (
.1 The test is two-fold: first, one must ask if the program imposes
disparate treatment or has a discriminatory intent, i.e., is its objective to discriminate against any of the identified protected classes.2 A discriminatory intent may be inferred from the totality of the circumstances.3 Assuming that the program is not intentionally discriminatory but was genuinely designed to fulfill a legitimate policy objective of the City, then the second question is whether the program nonetheless has a disparate impact or discriminatory effect.4 If no discriminatory intent or effect exists, then the
program does not violate the fair housing laws and should be allowed to proceed.5
In the recent legal discussion surrounding programs that prioritize local populations in the rental or sale of housing, the focus is predominantly on whether the program being implemented has some disparate impact on a protected class.6 No single test exists for determining disparate impact with respect to local preference programs.7 This may be, in part, due to the unique nature of each local program, the
CAL. GOV’T CODE § 12955 (prohibiting discrimination on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, disability, or genetic information).
2 LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995) (“a plaintiff can establish a prima facie case by showing that animus against the protected group “was a significant factor in the position taken” by themunicipal decision-makers”).
3 Id.
4 Though the Federal Courts of Appeal unanimously help disparate impact liability applied to the FHA, the U.S. Supreme Court only recognized disparate impact liability under the FHA as recently as 2015 inTex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507, 2513 (“
”). Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 933 (2d Cir.) (“A disparate impact analysis examines a facially-neutral policy or practice, such as a hiring test or zoning law, for its differential impact or effect on a particular group.”). A prima facie case of disparate impact “is established by showing that the challenged practice of the defendant actually or predictably results inracial discrimination; in other words that it has a discriminatory effect.” Id. at 934.
5 Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507, 2522 (“
” (emphasis added.).)See also Huntington Landmark Adult Cmty. Assn. v. Ross, 213 Cal. App. 3d 1012, 1019 (Ct. App. 1989)(finding that “age qualifications as to a housing facility reserved for older citizens can operate as a
reasonable and permissible” as an act of legitimate public policy.).
6 Langlois v. Abington Hous. Auth., 234 F. Supp. 2d 33, 41-42 (D. Mass. 2002) (stating that federal regulations permit residency preferences in affordable housing programs when they are in accordance with equal opportunity requirements.).
7 Id. at 56-57 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 108 S. Ct. 2777 (1988).) As indicated in Watson and Langlois, several cases have utilized statistical discrepancies or the “four-fifths” rule to
In contrast to a
disparate-treatment case, where a “plaintiff must establish that the defendant had a discriminatory intent or motive,” a plaintiff bringing a disparate-impact claim challenges practices that have a
“disproportionately
adverse effect on minorities” and are otherwise unjustified by a legitimate
rationale.
impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the
Disparate-
displacement of valid governmental policies. (citation omitted.) The FHA is not an instrument to force
housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects… An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private
developers leeway to state and explain the valid interest served by their policies.
unique composition of each community, the validity of the policy advanced, and/or the specific aggrievement of the individual asserting discrimination. It is, however, clear that the disparate impact must be substantial to violate the Fair Housing Act.8
In applying this two-part analysis to the proposed Davis Based Buyers Program,
we must first examine the intent of the program. As stated, the intent of the Davis Based Buyers Program is to ensure that the homes being built in WDAAC are helping the City of Davis to address its dramatically insufficient housing supply while, simultaneously, providing the aging residents of Davis an opportunity to move into“right sized” housing while staying in the community. The program is NOT intended to, nor will it, discriminate against any potential buyer based upon a protected class. In fact, the program has been carefully crafted to include a broad array of qualifying local connections to evidence a clear intent to avoid any misconception that the program is a
veiled attempt at discrimination. For example, the program offers its priority status to graduates of the Davis school system including UC Davis. California’s local schools and the University of California have long been at the forefront of imposing anti- discriminatory policies in the context of admissions. Thus, by including any UC Davis alumni or family with a child enrolled in local schools within the local buyers preference, the developer’s intent is to make the local preference program as inclusive
as possible with respect to any and all protected classes.
The non-discriminatory intent of the program is further evidenced through
consideration of the legitimate City goals and objectives the program seeks to achieve. Foremost, the program is designed to fulfill a clear objective of Measure R, which was approved in 2010 by 75% of the local electorate. Measure R balances preservation of agricultural land and open space with the need to meet the internal housing needs of the
City. Based upon a plain reading of the measure,
it was not the intent of the proponents of Measure R to even consider greenfield development for the sake of attracting new residents to Davis; Measure R effectively opposes expansion of the City simply for the sake of growth. Rather, Measure R aims to preserve agricultural lands unless urbanization is necessary to serve the City’s internal housing needs. The Measure makes no mention of regional housing needs or the demand for housing generated by outside forces. Instead, it directs voters to consider only the “internal housing need,”which can be interpreted to mean demand generated by the natural growth from within the City. By implementing a program that prioritizes local buyers, WDAAC seeks to develop a project that serves the internal housing needs of Davis and thereby achieves
this clearly stated and strongly supported growth policy.
evidence a discriminatory effect. However, the Supreme Court has now discouraged imposing any disparate impact liability based solely on a showing of statistical disparity, instead placing a greater emphasis on the importance of a robust causality requirement. Tex. Dep’t of Hous. & Cmty. Affairs at 2522- 2533.
8 Langlois at 56 (citing Fudge v. City of Providence Fire Dep’t, 766 F.2d 650, 657–58 (1st Cir.1985)).
In addition to fulfilling the objectives of Measure R, the local buyers program
will also assist the City with its housing crisis, generally. First of all, as a primarilysenior housing community with smaller units, the project offers the City’s agingpopulation an opportunity to downsize while staying in the City.9 In turn, by encouraging existing Davis residents 55 years of age and over to move out of their traditional single-family homes and into the WDAAC, the program helps to free-up the existing housing stock for families living, working, or bringing children to school in Davis to purchase a family home in the City. In effect, implementing the local priority program not only builds new homes in Davis for current residents but also opens-up existing homes in Davis, thereby doubling the housing impact of the project. In short, the program is intended to provide badly needed housing opportunities for Davis residents or others with a strong local connection who are currently struggling to find the type of housing that they desire within the City. Second, it is frequently stated that
the lack of housing in Davis results in those raised and educated in Davis being denied the opportunity to remain there. The proposed program will provide opportunities to these buyers, both within the portion of the project not age restricted and in the resale of existing homes, in an effort to retain the next generation of Davis families. Third, the program helps to better serve an aging population by encouraging family caregivers and those individuals that they assist to live in close proximity. Fourth, allows families with children enrolled in Davis schools and/or people employed in Davis who currently commute in and out of the City each day, to also live within the City of Davis. Altogether, the program will increase civic involvement, improve student and employee productivity, allow the City to retain those it has educated, once again fill Davis schools and shops with local residents, reduce medical care costs, create an opportunity for alternative modes of travel, reduce commuter traffic and VMT, and
improve the quality of life for all involved.
Having established that the local buyers program is not intended to discriminate
against any protected class of individual but is, instead, crafted to achieve legitimate policy goals and objectives of the City, the second question becomes whether the program will nonetheless have an unintentional discriminatory effect. By carefully reviewing the legal decisions and academic discussions on local preference programs, the WDAAC applicant has incorporated numerous ‘best practices’ as program
components to avoid any unintended disparate impact. These components include:
1. Crafting a local preference program with a highly inclusive definition of what constitutes a qualifying local connection. The program benefits existing Davis residents with no time duration associated with length of City residency. The program also includes family members of current residents to foster and encourage family caregivers. Broader still, the preference is given to several groups not currently residing in the City of Davis and without a family
9 The WDAAC Project is 80% age-restricted to those 55 and older, and 20% unrestricted.
connection, including: local employees, families or individuals with children enrolled in Davis grade schools, or alumni of UC Davis or Davis Joint Unified.
The program does not draw from a narrow geographic area or specific neighborhood but includes the entire City and even expands its geographic preferences area beyond the municipality’s jurisdiction to include the Davis Joint Unified School District boundary and the UC Davis campus, as well as City-adjacent unincorporated County communities. As such, the demographics of the program area are reflective of and similar to the demographics of the larger Yolo-Sacramento region.
The local buyers program only applies to a portion of the for-sale units, ensuring that an adequate opportunity exists for potential buyers that do not qualify for the local preference. Furthermore, the local preference does not apply to the Project’s 150 senior affordable rental units nor to the continuing care community.
Finally, by prioritizing the housing in WDAAC for local seniors, the homes that buyers vacate within Davis then become open to the population at-large. This, in turn, affords many opportunities for any would-be buyer to purchase a home in Davis that will not be subject to the local buyers program.
The enumerated program details are specifically crafted to comply with direction provided by the Department of Housing and Urban Development and the courts to be in compliance with the Fair Housing Act. Furthermore, they meet and exceed identified best practices implemented by housing authorities nationwide.
As described herein, it is clear that the intent of the Davis Based Buyers Program is to implement Measure R and, in so doing, help to meet a broad array of the internal housing needs of the City. The intent of the program is not to discriminate against any protected class of individuals, but to achieve numerous legitimate public policy goals. Furthermore, with the numerous safeguards in place and broad qualifications for program inclusion, no protected class will be deprived reasonable opportunity to obtain housing in Davis. As such, there is no discriminatory intent and there will be no significant disparate impact as a result of implementing the Davis Based Buyers Program. Therefore, the program complies with state and federal fair housing laws.
Jason:
That letter with citations glosses over the details of the actual decision points and findings of the cited cases. And the conclusions are not supported by evidence. Whatever you paid for that opinion was an overpayment.
Rik – No. They got what they paid for. It’s not an objective legal analysis of the issue. It’s a lawyer’s letter to the City setting forth the arguments in favor of their client’s position.
Eric: true, it serves that purpose. Also just a CYA-type thing so that City officials can say that the project proponent provided documentation (never mind how unsubstantial) that the proposed program is legal.
One would hope the City Attorney did their own, independent legal analysis to inform the Council’s vote on the proposal.
Eric: one would hope! There’s nothing in the public record though, nor any indication that such an opinion was sought. Maybe they are relying on this language in the Development Agreement for protection?:
Rik: are you an attorney?
Is this guy an attorney with fair housing expertise? Not according to his bio. And it’s pretty obvious from the thin arguments employed.
http://www.taylor-wiley.com:8080/TaylorWiley/viewattorney.jsp
According to his bio on another page. he “specializes in securing and defending discretionary entitlements for development projects located throughout the Sacramento Region and Northern California”.
Rik: are you an attorney?
I’ll interpret the fact that you decline to answer as meaning that you are not an attorney and will assume that you have no particular credentials for analyzing the legal arguments that have been put forward here. Happy to be corrected on this assumption if you so choose.
Don: since you are asking questions
1) Why don’t you go ahead and make at least one argument about the substance of my legal arguments? Isn’t that what this forum is for?
2) Don’t you think it’s a bit strange that Jason Taormino has already admitted in writing that the program was illegal in both his opinion and his legal team’s opinion, and he just added UC Davis and DJUSD eligibility in a desperate move to try to pass muster?
3) Don’t you think it is strange that David Taormino forgot about the legislative history of the “internal housing need” phrase and completely misrepresents it in this article?
4) Don’t you think it might be possible that someone with almost two decades of professional experience in housing policy and implementation has more knowledge about fair housing law than, say, a junior “entitlements” attorney who has never worked on a fair housing case?
Because I’m not a lawyer.
It’s possible, yes.
Don: with your strict rules about who should and should not be able to engage in legal arguments on the Davis Vanguard, how did you allow both David and Jason Taormino publish articles with legal arguments on this site? And how did they escape your wrathful comments when they did so? [ Jason Taormino: no attorney status; J. David Taormino – status: inactive http://members.calbar.ca.gov/fal/Licensee/Detail/58443%5D
And how did the first sentence in this article with David Taormino’s legal arguments escape into the wild?: “I am satisfied that our Buyers’ Program is appropriate and supported by significant legal precedence.” It’s almost like he doesn’t know what “legal precedents” actually are. He certainly didn’t cite any precedents in his argument . Well, you know that old joke about “he who represents himself…”
https://legaldictionary.net/?s=precedents
https://writingexplained.org/precedence-vs-precedent-difference
I have no rules about that. I just wanted to know your credentials, as you appeared to be engaging in legal analysis.
Are you under the mistaken impression that I have anything to do with what gets published on the Vanguard? I am a volunteer moderator. I’m not on the editorial board. I don’t make any decisions about anything that gets published here.
Proofreading is done by someone else. She is also a volunteer.
I would be more interested in the legal arguments if I didn’t have the impression that they are merely means to an end, which is to block WDAAC. If the developers announced tomorrow that they were cancelling the Davis Buyers program, would you drop your opposition to Measure L? I doubt it. I suspect that the official opponents would simply move on to the several other arguments they’re making, and would probably add ‘the homes will just get bought by people from the Bay Area!’ to their repertoire.
Blocking WDAAC will not increase the diversity of Davis.
Seems to me that legal arguments by non-attorneys (in support of development proposals) are made all the time on the Vanguard. In fact, David goes so far as to predict what a judge will determine, at times. I don’t recall even one instance where you questioned those predictions.
Same goes for fiscal and air quality issues (by respective non-experts). In fact, you’ve participated in some of these discussions.
Could it be that you’re only interested in such arguments if they support development proposals?
Except I almost always consult with attorneys before reaching conclusions.
David: Fair enough. But wondering if you consulted them prior to the decision against Field and Pond. If so, were your sources accurate?
I didn’t. I think they would have been caught off guard by that decision. It’s a point I’ve made a few times – you can evaluate cases on paper all you want, but until it goes to court and a judge rules on it, you never really know what you’re going to get. That would be my caution on this issue to a number of folks, the attorney for the developers included. I am far from convinced that it will pass legal muster, but we just don’t know how a judge will decide if someone who has standing, ends up suing.
Since we’re engaging in pure speculation, I wonder what would happen if the proposal is approved, but a subsequent legal challenge is successful?
Of course, the developers wouldn’t necessarily care who they sell to. However, if the “Davis-based” buyer program is determined to be not legal, I suspect that the developers would do everything they possibly could, to prevent another Measure R vote. Whether or not that is successful is might result in yet another potential legal challenge (from either side).
But for sure, some would then (loudly) blame the Measure R process, itself. (Despite the fact that all developments are subject to some type of approval process – which is dependent upon the legality of the proposal in the first place.)
The program will in the CC&R and is not in the DA or the BPFs.
Also (in reference to my comment, above): I’m wondering about the “timing” of a potential legal challenge. For example, what if a challenge occurs during or after the period that the developer starts building/selling houses? And, since cases take a significant amount of time to work their way through the legal system, would the developer keep building/selling, while the case is being decided?
Or, would a judge have the power and opportunity to stop the development in its tracks (even if construction had already started)?
In other words, would legal challenges actually have any relevance, if the proposal is approved? (Does this work in favor of the developer?)
Oh – I just now saw David’s 11:44 a.m., comment. Does this mean that the “Davis-based” buyer program has no real (legal) teeth to it, in terms of stopping/changing the development if the program is deemed to be illegal? If so, why is the program even being touted as a reality? (Seems like there’s absolutely no risk to the developer, even if the program is determined to be illegal.)
It means that the Davis-based buyer program cannot be challenged in a CEQA suit. WHich means it would require someone from outside the town, with no ties to the community to sue in order for it to be invalidated.
Wow – putting all of the potential legal concerns regarding the Davis-based buyer program on the new residents!
As usual, developers are almost always the “smartest guys in the room”. Where have I heard that phrase, before? 🙂
Since you noted that the program only exists within the CCR’s (that future residents must adhere to), what difference does it make to the developers, if the program is subsequently invalidated?
The “risk” lies with future residents (and voters who approve this proposal, based upon their belief/hope that the program will subsequently be found to be legal).
I am truly impressed that the developers chose this route.
“what difference does it make to the developers, if the program is subsequently invalidated?”
Depends on how you weigh that question? In terms of the success of the project, probably little. In terms of their overall vision, perhaps a bit more.
“The “risk” lies with future residents (and voters who approve this proposal, based upon their belief/hope that the program will subsequently be found to be legal).”
That I don’t agree with. I don’t know what “risk” you are talking about. The voters have no stake at all. The future residents actually don’t either. The only people impacted are potential buyers from out of town who would theoretically be excluded from purchasing a home there.
It makes no difference, regarding the developer’s goals. However, it makes a difference to Davis voters. The “vision” that you’re referring to apparently arose during the workshops that the developer conducted, to gain support from Davis residents/voters.
Again, if voters are being led to believe that this development will serve Davis’ internal needs, it is important to note that the developers have no real stake in the outcome of a potential legal challenge which would significantly impact that goal. In fact, Davis buyers might then be “excluded” from purchasing there, due to competition from buyers from other areas (such as the Bay Area). (Again, see Proposition 5, as well.)
The way that this program is designed is almost diabolical. No risk to developers if it is found to be illegal, while simultaneously being able to “tout” the program.
Ron said
I believe that to be the case. The developers kept this very important project feature out of the Baseline Features and the Development Agreement for a reason, despite promising the voters of Davis that their designated project Baseline Features would include all major features of the project as a binding contract and commitment so that voters would know exactly what they would get.
You’ll notice that neither Taormino has made any kind of stronger commitment to the “Taking Care Of Our Own” program in any of these articles they are posting about the program in the Vanguard. While their project attorneys may not be experts in fair housing law (they aren’t), they are experts in land “entitlements” and making as few binding commitments as possible.
Don: you are really missing the forest for the trees here.
1) you have not criticized other non-lawyers for engaging in legal analysis or even for posting articles that purport to contain legal analysis. Try to be a little consistent at least. And if you want to know my credentials for providing this analysis, just ask me. They include almost two decades of housing policy research, analysis, and writing. I’ll stack this up any day against a a junior “ development entitlements” attorney who has never worked on a fair housing case and had no background in civil rights litigation.
2) someone who actually engages in analysis of legal precedents would never use the term “precedence”. That right there tells us all we need to know about David Taormino’s article
3) WDAAC would be an exclusive development with or without the “Taking Care Of Our Own” program. The program was put into place as a cynical marketing tool to try to distract the community from realizing the true nature of the project: low-density sprawl/high-cost exclusive enclave. Fixed it for you: “
BlockingApproving WDAAC will not increase the diversity of Davis.”Phil Coleman:
1) you seem to not know what “trolling” is. My comments have been resolutely on-topic and supported by evidence, facts, and even quotes from the project proponents. If you want to not troll and stay on topic, please response to any one of these you’ll find here.
2) in regards to some of these quotes, better advice would for the Taorminos’ blood pressure (and that of their attorneys) to restrain from shooting themselves in the foot, such as by directly admitting that their “Taking Care Of Our Own” program as first configured (before some minor tweaks) was illegal.
3) As far as not engaging in public forums/debate, the Taorminos tried to skip out of the scheduled debates already, but that blew up in their faces, and now they have walked back that position and are apparently going to attend two debates/forums.
Some very wise advice for Mr. Taromino and his associates (folks whom I’ve never met if that is important). This advice is free and will also lower your blood pressure regarding this project:
Mr. Taromino, you’re “feeding the troll.” You’re “chasing your tail” and doing exactly what Keller needs to have an audience, limited as it is.
Nothing, absolutely nothing, in the way of a measured, analytical, reasoned reply will change the attitude that is currently opposed to this project. Stop. You’ve done you’re best analysis and presentation on all relevant issues.
More great advice from Phil…
This and that:
Phil Coleman said: “… feeding the troll.” I guess if one doesn’t have anything substantive to respond to legitimate and thoughtful comments and concerns (in this case about the legality of the Davis-Based Buyers’ Program), one resorts to ad hominem attacks. That’s apparently what passes for “very wise” or “great” advice on the Vanguard.
Don asked: “If the developers announced tomorrow that they were cancelling the Davis Buyers’ program, would you drop your opposition to Measure L?” Why must one limit oneself to one issue or concern? The subject of this article is the Buyers’ Program; so, that’s the focus of the discussion. Speaking for myself, my concerns are not nearly as broad as others who have expressed opposition, but the Buyers’ Program is not my only concern. My problem with WDAAC is with its non-inclusiveness, generally, of which the Buyers’ Program is one example. I also have concerns with excluding people based solely on age, even if state and federal fair housing laws authorize this form of intentional discrimination.
Rick edited Don’s sentence to read: “
BlockingApproving WDAAC will not increase the diversity of Davis.” I’d be willing to bet that–because of the age requirements and the Buyers’ Program–WDAAC will be even less diverse, and more white, than Davis, generally.Just want to reiterate, irrespective of my ultimate position/vote on Measure L, in toto, the “Davis Buyers’ Program”, legal or not, passed or not, is bad public policy… might hold my nose on this measure, but abhor the thought it might be precedent… kinda’ like the restrictive CC&R’s of the past, but there is a big difference… those old CC&R’s were privately enacted, not publicly sanctioned by the City (and eventually rendered invalid)… as it stands, the “Davis Buyers’ Program” will essentially be supported/condoned by the CC and voters… I like that NOT!
Excellent point.
Very good point, Howard P.
Two minor quibbles:
1) while this program would set a bad precedent, there are other precedents for this type of policy/program that have helped contribute to the racial/ethnic/income balance we see in Davis today. And there are plenty of legal precedents about these kinds of locational preference programs that show the courts very skeptical of them. for equal protection/fair housing reasons.
2) As I detailed in my article on the subject, restrictive CC&Rs were enforceable (and were enforced) by the government until 1948. After that, they were enforced as private contracts. Despite being illegal and enforceable today, their continued existence in deed documents continues to send strong messages to people about who might or might not have been welcomed in a given neighborhood in the past and what attitudes might still persist.
” I’d be willing to bet that–because of the age requirements and the Buyers’ Program–WDAAC will be even less diverse, and more white, than Davis, generally.”
That’s possible. It’s also only half the equation, the other half is the diversity of people moving into existing housing if the theory works.
More old, white, relatively wealthier people, from the Bay Area. (See Proposition 5 on the November ballot.)
That’s been my concern – if we’re opening up large SFHs in town, we’re not generally going to get diversity or even families.
Aye, there’s the rub…
Perhaps it should be enacted that ONLY people of color/minorities can move into the existing housing vacated? At prices that are fully affordable? And ensuring (by CC&R’s, or City Code) that they remain so in perpetuity?
Am seeing some weird logic, across the threads, by same people… something about ‘both sides of mouth’…
To be honest, I’m not a big fan of “developing specifically for diversity”. (Too convenient for development activists to use this as an excuse.)
But, for those who are trying to achieve diversity via developments, this one is working against their goals (and will move the city in the opposite direction).
Blocking WDAAC will not increase the diversity of Davis.
Approving it might, or might not, depending on who buys the houses that Davis-based homebuyers vacate in order to move to WDAAC.
The domino theory of addressing diversity?: Let’s build restricted housing that excludes diverse groups, by intent or effect (e.g., families with children, racial/ethnic minorities, younger workers), and hope that it will open up more housing in non-restricted parts of town that will be purchased by those excluded groups. Unlikely if the housing being vacated is presumably so people can downsize to smaller, more affordable homes. How about if, instead, we just don’t create new restricted neighborhoods in the first place?
Eric: good point. Relying on trickle-down (or, in housing policy parlance, ” filtering”) is not an effective strategy.
Ron, your 12:08 post, in part…
edited
Two reasons:
Who enforces CC&R’s? Do you even have a clue? Give you a hint: NOT the City… another hint, no court of law… only narrow minded zealots on “Boards”, easily overturned in the courts… get a clue… only provisions relating to health, safety, and some aesthetic provisions have stood the test of challenge in CA… suggest you limit your comments to your knowledge, on subjects like this… friendly comment, so you don’t appear to be a complete [edited]…
You are not reading, or believing my posts, and that’s OK…
Invalidation of the race restrictive CC&R’s were first overturned by State law… shortly later by Federal… always stupid restrictions… never a part of city ordinance or policy (said now 3 times!)
[moderator: the phrase “get a clue” was banned from the Vanguard a couple of years ago. Please stop using it. Also the “3 Ds” stuff. Just focus on the principles, please.]
Howard: Not sure why you’re not responding directly under my 12:08 comment. Perhaps you don’t want others to focus on it.
Again, the developers have no real stake in the outcome, if the Davis-based buyer program (contained in the CCRs) is invalidated. In that case, it would essentially be removed from the CCRs. (In fact, removal of the Davis-based buyer program would make the CCR committee’s “job” easier.)
Regarding “friendliness” of your comments, they rarely are (especially when you “specifically state” that, as you have above). In fact, your comments often seem purposefully misleading, as in this case. I have no idea why you do this, but it would be helpful (regarding the uncovering of the truth) if you ceased doing so.
As a side note, some CCR committees actually consist of the developers, themselves. (Or, their “appointees”.) Especially when there’s no ongoing HOA payments required.
Yep.
Actually, the developers have a vested interest in the elimination of the “Davis-based” buyer’s program (after the development is approved by voters), in the following ways:
1. It would make their CCR committee’s job “easier”.
2. It would open up competition from a much larger pool of potential buyers from outside of Davis (some of whom have “deeper pockets” than Davis-based buyers), driving up the price of the houses in this proposed development. (This might be the biggest benefit to developers. And again, Proposition 5 would facilitate this outcome.)
If they have a vested interest in eliminating the Buyers’ Program, they should. Reading the article, especially the last paragraph, it may be they are under the erroneous belief that it’s necessary to comply with the intent of Measure R.
Although the “Taking Care Of Our Own” program is contrary to Measure R goals, they still need to comply with the intent of Measure R. It’s difficult to see how their program in whatever permutation of the overall configuration at present–a wealthy, mostly-white, senior enclave at the edge of town–could do that.
The purpose of Measure R reads: “(1) “The Purpose of this article… and an adequate housing supply to meet internal City needs…” As I have already elaborated elsewhere in comments on this article, looking at the legislative history as well as the codified statements, the phrase “Internal housing need” in Measure R refers to low and moderate income workforce housing, not an upper-income senior enclave. Oh yeah, and David Taormino was one of the people responsible for killing the City’s Middle Income housing program that was designed to address part of this need directly.