David Taormino and Bretton Woods Are Attempting a "Bait-and-Switch" with the Davis-Based Buyers Program
July 05, 2020
by Alan Pryor
Summary
David Taormino, the developer of the Bretton Woods senior housing development just west of Sutter Hospital, is trying to pull another fast one on the City of Davis' senior population. Taormino just proposed, and City Staff supports, that the Davis-Based Buyers Program be rescinded from the signed Development Agreement for the Project that already exists between him and the City. This local senior-preferential buying program reserved 90% of the 560 new homes in the project for seniors that have a pre-existing connection to the City of Davis. It promised that the project would be for local or Davis-connected seniors and not just a high-end enclave for rich retirees fleeing from the Bay Area.
This requirement to preferentially sell to existing Davis seniors was widely promoted and promised to voters in actual ballot language when the project was approved in the November, 2018 general election (then known as the West Davis Active Adult Community). Well, after Taormino and all his lawyers and the Davis City Council all loudly and adamantly proclaimed the project was definitely and undeniably legal in all respects, now David Taormino claims he has new "concerns" about the legality of the program and he wants to rescind it and its promises to Davis seniors. There has been no new legal opinion or justification provided by Mr. Taormino to substantiate this newfound concern.
Of course the real reason that Taormino has this newfound concern for the law is that he realizes that by selling his new homes to wealthier Bay Area expatriates instead of the local senior voters he so ardently-courted (but who have far less home equity in their existing homes), Mr. Taormino can probably get an extra 10 - 15% or more for each home he sells to out-of-towners. And he can market the homes to a whole lot more people than he would if otherwise restricted to Davis.
But Taormino heavily sold this project directly to Davis senior voters by promising them that this project would be just for them and not cater to Bay Area transplants. He even collected hundreds and hundreds of names and email addresses of senior voters by claiming he was putting them on a buyers "waiting list" for the new homes and then proceeded to bombard them with campaign literature in the guise of project "updates" throughout the election campaign.
This whole bait and switch process is fundamentally dishonest and reprehensible. And for City Staff to recommend that Taormino be allowed to remove this obligation from the Development Agreement while getting really noting of substance in return, it shows City Staff is once again willing to play ball accommodating developers without regard to what is best for the City and, in this case, its senior residents.
Background
On this Wednesday's Planning Commission agenda is a proposal by Staff to allow the 560-unit Bretton Woods senior housing development on West Covell to drop the Davis-Based Buyers Program from the project's Development Agreement previously signed by Taormino and the City.
Bretton Woods (formerly known as the West Davis Active Adult Community) was approved as Measure L in the November, 2018 election. The senior project guarantees that 80% of the units would be reserved for seniors age 55 or older. Further, one of the key selling features of the project touted to voters was the very heavily promoted Davis-Based Buyers Program. This provision in the Development Agreement between the developer and the City provides that 90% of the units at the project would be reserved for seniors with a pre-existing connection to the City of Davis. The pre-existing connection with the City of Davis was defined as a current resident or family member of a current resident or a current of past City or UCD employee, among others.
The Complicated Legal History of the Davis-Based Buyers Program
Right from the start the Davis-Based Buyers Program was controversial. Many ardent senior supporters of the project touted this feature as demonstrating the commitment of Taormino to seniors to bring a project to the community that met the needs of its own seniors. The oft-stated rationale by Taormino for this program was that too often these types of housing developments in Davis (referring to the Cannery, in particular) were primarily marketed and sold to Bay-Area buyers that brought checkbooks flush with selling high-priced homes in the Bay Area.
In contrast, claimed Taormino, the "Davis-Based Buyers Program" would serve the real needs of Davis residents because sales would be primarily made to local seniors who wanted to remain in the area but wished to downsize their homes as they aged in place. This in turn, claimed Taormino, would free up their larger older homes for resale to young families. Taormino claimed it was a "win-win" for Davis and its seniors. And Taormino further claimed this feature was "locked" into the Development Agreement between Bretton Woods and the City of Davis so Davis residents could rely on the "promises" made by the developer
Indeed, some of this information was actually also included in the ballot language presented to voters which stated that the purpose of the law requiring the vote to allow the project to be built on the periphery of the City was to provide “an adequate housing supply to meet internal city needs”. It also stated, “90 percent of the home sales will be limited to Davis-connected buyers.” Further, every yard sign and every piece of campaign promotional literature also had the campaign motto,“Taking Care Of Our Own” prominently displayed as the central selling point of the project. Voters and the politicians loved it and, based in part on these promises, the vote to allow the development based overwhelmingly by a 59% to 41% margin.
Understanding that the program might be controversial and the legality challenged, the developer provided to voters two widely circulated letters from his different lawyers adamantly affirming the legality of the program. In one, Matt Kiesling, the current lawyer and front-man for the Davis Innovation and Sustainability Campus said of the legality of the 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…Therefore, the program complies with state and federal fair housing laws.”.
Nevertheless, prior to the election a lawsuit was filed in U.S. District Court by opponents of the program who contended it violated federal fair housing law and was discriminatory in nature. Ultimately the lawsuit was subsequently withdrawn but not before the City Council weighed in voting to defend the lawsuit and fervently support this feature in the project.
Along with much of the political elite in the City, Mayor Brett Lee weighed-in stating, “The city has a long history of opposing discrimination in housing and the city believes the case is without merit...any program developed by West Davis Active Adult Community would be required to comply with fair housing laws.”
Some opponents of the project claimed the Davis Based Buyers Program was otherwise only window dressing and a ruse designed to favorably lure Davis senior voters to the polls. The claimed that Taormino never really intended to comply with this provision in the Development Agreement. Rather, the program simply served to entice unwitting Davis senior voters to support the projects. One long-time observer of local politics, Ron Oertel opined, “I suspect that the Davis Buyers program will actually “disappear”, if the proposal is approved. Which provides the developer with the best of both worlds: the ability to tout the program (which doesn’t yet actually exist) prior to the vote, and abandon it afterward (if the development is approved by voters). Thereby allowing seniors from outside of the area to purchase houses directly, at WDAAC.”. Mr. Oertel's words were prescient because here we are two years later and that is exactly what David Taormino is proposing.
Others pointed out that if Taormino really intended to be bound by his promises he would have put the Davis-Based Buyers Program into the Baseline Features in the ballot rather than making empty promises in a Development Agreement. They stated that the reason Taormino insisted that the language be put into the Development Agreement was that it could then be easily modified in the future by a simple majority vote of the City Council. However, to change Baseline Features at a later date would actually require a new vote of the people.
So after previously saying that "I am satisfied that our Buyers’ Program is appropriate and supported by significant legal precedence" and after all the public drum-beating about the legality of the program and after vigorously defending the program in court, Taormino is now claiming it is the "fear" of future litigation that is making him withdraw the Davis Based Buyers Program from the Development Agreement. As is stated in the Staff Report, "the applicant feels this leaves a continued threat of litigation and it is the applicant’s desire to not significantly delay the delivery of the needed housing in Davis” and "the legality of the provision would be difficult to enforce.”
The Real Reason Taormino Trying to Kill the Davis-Based Buyers Program
I believe the real reason that Taormino is trying to kill the Davis-buyers preference program is pure greed. Taking his cue from the Cannery's successful Bay-Area-focused marketing strategy, Taormino probably wants to aggressively market this project to seniors from the Bay Area or other coastal cities where potential buyers will be both far more numerous and will be selling their existing homes at astronomical prices. If he can entice these flush-with-cash buyers from the Bay Area, he can probably easily sell his high-end homes anywhere from $100,000 to $200,000 or more per unit than if he were forced to sell only to Davis seniors.
But it is the Davis seniors that are left with nothing more than their voting stubs in the hand to show for their support of the project sold under false pretenses and broken promises. Taormino has sold out the Davis seniors, pure and simple.
Taormino and City Staff are Promising All-Electric Home Construction in Return for Rescinding the Davis-Based Buyers Program. But this Actually Makes Even More Money for the Developer..
Staff is claiming that in return for dropping the "Davis-Based Buyers Program" from the Development Agreement that Taormino is willing to guarantee that all new homes constructed will be all-electric and that will reduce greenhouse gases from the project. But this offer is of almost no additional benefit to the City because new City of Davis Building Codes actually incentivize new all-electric home construction. It now actually costs less to construct all-electric homes and it is less complicated than also bringing in and installing natural lines for gas appliances in the homes.
So Taormino is actually not "giving up" anything in exchange for agreeing to drop the buyers program that he would not already be doing to save money. So his claims of sacrificing for the City and the environmental by going to all-electric construction is really all hype and he is really just padding his profit margins on the home sales.
City Staff is also very cognizant of the fact that it is cheaper to put in all-electric homes than when also using natural gas. So for them to even propose this as a fair exchange in return for dropping the buyers preference program is insulting to the citizens and voters of Davis.
I agree with Mr. Pryor’s analysis and suggest that the project be resubmitted to the voters on the proposed amended grounds. This is indeed bait-and-switch.
Posted by: Janet Goldsmith | July 05, 2020 at 10:26 AM
So typical, so sickening. Who really ever believed the sales to Davis based provision would stand, or should stand? For one thing it's akin to redlining.
Would the all electric feature be run by solar panel generation adequate to cover all usage? Even if so, that does not make me for the project, but if not, just another "joke".
Posted by: Donna Lemongello | July 05, 2020 at 11:04 AM
[This article was also posted on another blog. So, I am taking the liberty of posting my prior comment here.]
I was outspoken in my opposition to the Davis-Based Buyer’s Program prior to the election and believe the decision to forego the program now is commendable. Given the relatively white demographics of Davis seniors, and non-resident seniors with “connections” to Davis (e.g., relatives of residents, former City or UCD employees), the program prioritizes buyers reflecting a whiter demographic than the current population of the city or the local region and, thus, has a disparate impact on non-white potential buyers. The prior lawsuit challenging the program was dismissed without prejudice because it was premature, not because it was without merit.
The program also makes little sense, generally. Why should a Bay Area or East Coast relative of a Davis resident who may never have set foot in Davis have a preference over a resident of, say, Woodland who worked in the private sector in Davis for their entire career?
Limiting marketing efforts in the Bay Area would be one means to help address the anticipated “problem” of Bay Area buyers. I’m sure there are other strategies as well that wouldn’t, like the local buyer’s program, adversely impact purchases by non-white buyers, exacerbating (or at least failing to address) Davis’ relative lack of diversity compared to the County and the local region.
I’m no fan of age-restricted housing, which discriminates against families with children—a protected class. But I do believe abandoning the discriminatory Davis-Based Buyer’s Program is a positive development.
Posted by: Eric Gelber | July 05, 2020 at 11:17 AM
Whether you agree that this proposed change is positive or negative, it is indeed a "bait and switch"; NOT what we voted for or against. As such, this change should be disapproved by the City Council. If the developer still wishes to make this change after City Council disapproval, they must be required to submit this new proposal to the voters for approval/disapproval.
Posted by: Barbara Linderholm | July 05, 2020 at 12:05 PM
The housing restriction for Davis residents isn' t legal because it is discriminatory. It was just to get people in Davis to vote for it. Because Davis is so lily white, selling to mainly Davis residents would restrict buying to mainly white people. It has to fall.
My main beef with the project is that it doesn't have more high density housing and condos that are reasonably priced.
I knew from the start that the restriction wouldn't hold up as did most of us I think when we voted for or against it. it really doesn't change anything.
Posted by: Linda Lindert | July 05, 2020 at 12:54 PM
The Taorminos indulged in their offensive “Taking Care of Our Own” campaign in a cynical exercise to win the election.
The bait-and-switch was already happening before the election. It was part of their plan. The program was always illegal. Below are my verbatim comments on the Vanguard on October 4, 2018:
Classic attempted bait-and-switch on the part of the developers. Yet to David Greenwald, according to his twisted logic, this means that a lawsuit filed against the project is “political” and “frivolous” and “playing the race card”. All this despite the fact that he himself has said the program is of “questionable” legality” and the project developers have said it is “illegal” (before they tried to add language slightly increasing the geographic area).
Let’s examine the classic attempted bait-and-switch of the “Taking Care Of Our Own”/Davis-Based Buyers Program: When is a contract/agreement/program not a contract/agreement/program?
* Jason Taormino [10/9/2017; Project FAQs]: “Development agreements are mostly boilerplate language mitigating risks, defining payment options and a few specific deal points. We expect all the significant deal points that are normally in a development agreement to be in the Baselines 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.”
* Every yard sign and piece of campaign promo literature has the “Taking Care Of Our Own” text and graphic prominently displayed as the central selling point of the Yes on Measure L/WDAAC project.]
* The Taorminos published two articles within the span of 5 days [9/14/2018, 9/19/2018] on the Davis Vanguard an attempt to defend the “Taking Care Of Our Own” program as legal, yet they never mentioned that they did not think it is actually a program, and repeateadly referred to it as a program in the present tense.
* Jason Taormiono [9/14/2018; Davis Vanguard; originally dated 1/17/2018; “legal opinion” provided by Matthew Keasling; note: present tense rather than future conditional tense used throughout]: “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…Therefore, the program complies with state and federal fair housing laws.”]
* David Taormiono [9/19/2018; Davis Vanguard; note present tense]: “I am satisfied that our Buyers’ Program is appropriate and supported by significant legal precedence.”
Then notice the shift to to trying to weasel further out of the program commitment:
[After the lawsuit announced] Jason Taormino [9/24/2018; Davis Vanguard]: “If you read the section of the development agreement which covers the Davis-Based Buyers program it should become clear that there is a requirement to “develop and implement” a program. Therefore, the program has not been approved an [sic] in this case we look forward to working with the community to create the final program.”
* Jason Taormino [9/25/2018; Davis Vanguard] “I am surprised that a civil rights attorney would file a lawsuit against a housing preference concept that is not formalized and that is not on the ballot in November.”
Notice Taormino then try to say that the “restrictions” are not restictions but actually just “preferences:
* David Taormino [9/25/2018, Sacramento Bee]: “Taorino [sic] said buyer restrictions for the proposed project are merely “preferences,”…”
* Actual language in the Development Agreement [passed and adopted by Davis City Council on 6/19/2018): ‘Davis-Based Buyers Program. Developer has elected to restrict ninety percent (90%) of the residential units within the Project, excluding the affordable housing and the specialized senior care, to initial purchasers with a preexisting connection to the City of Davis, and desires to sell or hold said percentage of market-rate residential units available for sale to households that include a local resident, defined as a person residing within the City or the Davis Joint Unified School District boundary, family of a local resident, a Davis employee, a Davis grade-school student, or an individual that attended Davis schools. Prior to issuance of any building permit, Developer and its successors and assigns shall (a) develop and implement appropriate local-connection requirements and verification procedures for such a program….”
* Actual language in the Baseline Features on the “Taking Care Of Our Own”/Davis-Based Buyers Program: “ [blank] “
* David Greenwald [9/25/2018; Davis Vanguard]: “Unlike Baseline Project Features, the Development Agreement is an agreement between the developer and the city that can be changed with a simple majority vote of the council. On the other hand, anything in the Baseline Project Features would have to be resubmitted to the voters for approval.”
Posted by: Rik Keller | July 05, 2020 at 01:35 PM
There are a number of outstanding issues that need to be resolved with this project. Following is a letter I sent to the City Manager in January requesting additional information about this project, this letter outlines some of the issues.
On October 15, 2019, I requested information about the West Davis Active Adult Community (WDAAC). I only received a partial response from Sherri Metzker. Because I have not received a response to my request for information, I am now submitting a request under the requirements of the California Public Records Act (Chapter 3.5 of Division 7 of Title 1 of the California Government Code). As I am sure you are aware you have 10 days to provide the following information.
On June 12, 2018, the Davis City Council adopted an Environmental Impact Report (EIR) for the WDAAC. Included in the Final EIR was a Mitigation Monitoring and Reporting Plan (MMRP) as required by the California Environmental Quality Act.
On and about June 1 of this year we observed trees being cut down on the site of the WDAAC. I notified the City of Davis staff, and was told that about 145 trees were removed from the property. Some of the trees that were removed were identified in the Environmental Impact Report (EIR) as known nesting habitat for raptors (likely Swainson’s Hawk). The Mitigation Monitoring and Reporting Plan includes the following:
Mitigation Measure 3.4-5: The project proponent shall implement the following measures to avoid or minimize impacts on Swainson’s hawk: No more than 30 days before the commencement of construction, a qualified biologist shall perform preconstruction surveys for nesting Swainson’s hawk and other raptors during the nesting season (February 1 through August 31).
Mitigation Measure 3.4-6: The project proponent shall implement the following measure to avoid or minimize impacts on other protected bird species that may occur on the site: Preconstruction surveys for active nests of special-status birds shall be conducted by a qualified biologist in all areas of suitable habitat within 500 feet of project disturbance. Surveys shall be conducted within 14 days before commencement of any construction activities that occur during the nesting season (February 15 to August 31) in a given area.
Mitigation Measure 3.4-11: The project proponent shall implement the following measure to avoid or minimize impacts on trees protected by the City of Davis: 1) Before the commencement of construction, the project proponent shall retain a qualified arborist to perform a survey of any trees within the footprint of the proposed off-site detention basin (located north of Sutter Hospital, and east of the City water tank). The tree survey and arborist report shall detail the number, species, size, and relative health and structure of all trees in the aforementioned area. The report will also describe which trees on-site are subject to regulation under the City of Davis Tree Ordinance: 2) A tree protection plan shall be prepared that includes measures to avoid or minimize impacts on trees that are to be preserved on-site and well as proposed mitigation for regulated trees subject to impact or removal. Compliance with the tree protection plan shall be required before and during any site disturbance and construction activity and before issuance of building permits. A tree modification permit shall be submitted to the City for any proposed removal of a tree. Fees shall be assessed by the City, and paid by the project proponent, in accordance with Davis Municipal Code Chapter 37, “Tree Planting, Preservation, and Protection.”
Removal of the nesting trees was a violation of both State and Federal Endangered Species Acts, as well and the Migratory Bird Treaty Act. In addition, removal of trees in a manner inconsistent with the MMRP is a violation of the City of Davis Tree Ordinance. On November 5, 2019, Sherri Metzker sent me a copy of a pre-construction survey conducted for the project. The survey was conducted in January 2019. This survey was not conducted in compliance with the requirements of Mitigation Measure 3.4-5. It was completed before the nesting season and well outside the 30 day window. Please tell me what enforcement action the City will take for the violation of the MMRP. The survey conducted in January identified the presence of Burrowing Owl burrow on the property. Burrowing Owls are a sensitive species and are included in the Yolo County Habitat Conservation Plan. Please let me know what steps will be taken to ensure compliance with the terms of the MMRP for this species.
In the response to comments I submitted on the Draft EIR City Staff acknowledged that the design of the flood retention basin and storm water management system for the WDAAC was flawed. In the response to comments the city stated the final design of the retention basin will be modeled and outlet works sized later and the size of the detention facilities would be “based on complex engineering calculations”. Sherri Metzker told me that size of the flood basin has been enlarged and staff are working a plan to move water around the project site. In my EIR comments I expressed concern about the impact of this project on the current drainage system. The floods along West Covell and around the Sutter Hospital this last winter demonstrated the current system is inadequate. To avoid additional impacts the storm water system for the WDAAC will require careful design. Please provide me with the new design for storm water and the retention basin and all of the calculations used in the development of these facilities. These calculations should include the assumed rainfall and duration (i.e. 200 year rainfall event) used in the design.
I only received a partial response to the request for information in this letter. I was told that no additional information on the storm water design was available. I know this is not true. City staff have told me there is a new design with a larger retention pond. Because the end of the Covell drainage ditch is under Cal Trans control, the city is limited in what can be done to enlarge the system. As you will recall the Sutter Hospital parking lot flooded during the 2018-2019 winter.
Posted by: Russ Kanz | July 07, 2020 at 08:50 AM
Russ, the Addendum to the Bretton Woods Environmental Impact Report has been published – it was posted to the City's website around the middle of June. You can view the Addendum at the link below. For the appendices, use the second link and scroll down to "Environmental Impact Report."
http://documents.cityofdavis.org/Media/CityCouncil/Documents/PDF/CDD/Bretton%20Woods/Addendum_West%20Davis-Bretton%20Woods_Final_06.2020.pdf
https://www.cityofdavis.org/city-hall/community-development-and-sustainability/development-projects/west-davis-active-adult-community-wdaac#Environmental_Impact_Report
Posted by: Roberta L. Millstein | July 07, 2020 at 10:47 AM
Everyone needs to be aware this project has grown by 30 acres onto county land. This is well outside the scope of the project approved by the voters. All without mitigation for Swanson Hawk or burrowing owl.
From the addendum:
The additional offsite detention basin and adjoining overflow area will consist of approximately 30 acres total, with approximately 5 acres for the basin and 25 acres for the overflow area. The 5- acre basin will have a maximum water depth of 17 feet. The 25-acre overflow area will serve as secondary drainage during a 100-year storm event. It will be excavated in depths from approximately four to eight feet depending on land slope. The overflow area then will be backfilled with native topsoil to a depth of approximately four inches up to one foot throughout, depending on topography. The originally proposed agricultural buffer will be expanded by approximately 2 acres (from just under 11 acres as originally proposed to approximately 13 acres) and connect the onsite storm drainage system to the additional offsite detention basin and adjoining overflow area. It also will continue to connect the onsite storage drainage system to the originally proposed offsite detention basin, which will be expanded by approximately 3 acres (from under 2 acres as originally proposed to almost 5 acres) and will adjoin the existing City detention basin.
Construction of this expanded offsite detention basin will require demolition of an existing service road used to access the West Davis Water Tank, located on an adjoining parcel, and an underlying domestic water main (see Figure 2-1). As a result, the Applicant/Developer will construct a new service access road that will extend north from the Risling Court—a road proposed for construction on the eastern side of development as part of the Project (see DEIR, Figures 2.0-6 to -07, p. 3.0-25, -27; see also DEIR, p. 2.0-11). The existing water main connects the West Davis Water Tank to the City’s domestic water pipeline service (see DEIR, pp. 3.9-9, 3.15-19). The water main will be relocated just south of the existing City basin, to be constructed and funded by the Applicant/Developer and inspected and approved by the City. Prior to decommission of the existing water main, the new water main will be fully operational and connected by the City to ensure negligible disruption to City water services.
Posted by: Russ Kanz | July 07, 2020 at 11:54 AM
I have no objection to the project per se but like many comments above, do have 2 concerns:
1. The concept of restricting purchase to a particular class/group of individuals seems dubious to me. It was used in the 60's to prohibit sale of property to African Americans. I thought it was dumb from the get go.
2. If the project required a vote to be approved, it seems logical that any major restructuring of the project should also go to the public.
Posted by: George Galamba | July 11, 2020 at 06:13 PM