Protections Will Weaken for Prospective Davis Senior Buyers
by Alan Pryor
The Bretton Wood developer, David Taormino, is attempting to pull another bait and switch on Davis seniors by completely gutting the campaign promises he made to Davis voters committing to sell 90% of homes in the new project to Davis-based buyers. The long-promised Davis-Based Buyers Program was intended to ensure that 90% of all new homes sold at the new development were to Davis seniors thereby freeing up their existing large homes for new families to come to Davis.
But make no mistake about it, this newly proposed watered-down plan has so many loopholes in it that it will open the floodgates to advertising and sales to well-heeled Bay Area expatriates flush with cash from sales of their own inflated homes. Indeed, this will probably drive up prices for new homes at the project so high that it will functionally exclude Davis seniors from participating - much like we saw in the Cannery project where the majority of new sales were to buyers from outside Davis.
The Davis-Based Buyers Program is a foundational cornerstone of the Bretton Woods development . This project was formerly known as the West Davis Active Adult Community during the Measure J/R campaign in 2018. A tremendous amount of campaign promotionsl hype surrounded this promise that 90% of all of the homes sold in the project would be reserved for sale to people with a Davis-based connection.
According to the Development Agreement presented to voters as part of the pro-WDAAC 2018 campaign,
"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." (emphasis added)
Although a lawsuit was filed challenging the legality of the program, Taormino provided two letters from local/regional law firms attesting to the legality of the program. The Davis City Council also heralded it's support for the program indicating its own internal review also confirmed the legal viability of the program. The lawsuit was eventually dismissed without prejudice after the Measure J/R vote passed comfortably with overwhelming senior citizen support in Davis.
THE LAST ATTEMPT AT A BAIT AND SWITCH
However, in December of 2019 Taormino was prepared to present a proposal to the Planning Commission, with Staff support, to completely rescind the Davis Based Buyers Program in exchange for the promise to build all-electric homes in the development. Previously, the developer vigorously opposed a requirement that all homes be all-electric construction (with no natural gas service available) claiming it would impede his ability to sell the homes because he could not offer "choice" to prospective buyers.
This new proposal to rescind the Buyers Program in exchange for committing to all-electric construction was an empty, self-serving gesture, however. This is because by then the City had already implemented new City-wide residential building codes that strongly favored all-electric construction. It did so by imposing increased energy efficiency standards and additional solar photovoltaic with battery back-up requirements on all new home construction in Davis in which natural gas service was otherwise provided.
In fact, given the cost of bringing in natural gas delivery infrastructure to the Bretton Woods project combined with the above identified energy improvements required for each new home constructed with natural gas service, it would have ended up being far more economical for the developer to just install all-electric homes to begin with rather than offer any homes at all with a natural gas option. So Taormino proposed to give-up the Davis-Based Buyers Program protecting the opportunity of Davis seniors to buy into the development in exchange for the commitment by Taormino that he will make save thousands of dollars in construction costs for each all-electric home built at the project...how magnanimous!
However, this new proposal to eliminate the Davis Based Buyer Program resulted in significant community push-back. One article by this author on July 5, 2020 (see David Taormino and Bretton Woods Are Attempting a ‘Bait-and-Switch’ with the Davis-Based Buyers Program) stated,
"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…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 nothing of substance in return, 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."
A commentary by Vanguard publisher David Greenwald the next day (see To Change Buyers Program, City Needs to Put Project Back on the Ballot) also stated, "Bottom line for now, however: removing the Davis Based Buyers Program is a major change that should necessitate a new vote to maintain voter trust."
Shortly thereafter this proposal was rescinded by Taormino even before it went to the Planning Commission along with plenty of excuses in the local press - including the Vanguard (see Keeping My Commitment to the Community). He closed that Vanguard article by stating,
"We are no longer seeking to remove the DA language pertaining to Davis connected buyers. Shortly, I will be outlining the Davis Connected Buyers marketing and outreach program as called for in the DA. It will contain appropriate guidance for the builder and will include verification so that the City and the public can understand the plan. My continuing job is to demonstrate to the builder that the Davis Connected Program will provide more than enough qualified buyers to meet their business needs, financial goals and will not be discriminatory."
THE CURRENTLY PROPOSED DAVIS-CONNECTED BUYER PROGRAM IS FUNCTIONALLY THE SAME AS ELIMINATING IT
Unfortunately, the most recent proposal by Taormino is just as bad for Davis seniors as eliminating it altogether. This is because it has so many loopholes that it is functionally rendered useless in its intent. The "new" Davis-Connected Buyers Program proposed by Taormino was explained in an article by the developer in yesterday's Vanguard (see Developer Modifies Davis-Connected Buyers Program, Submits It to Planning Commission). In it Taormino states,
"The DCBP is a comprehensive, multi-phased advertising plan along with a verification and reporting system focused primarily on Davis-connected seniors. The program’s goal is to achieve a sale of ninety percent (90%) of the residential units within Bretton Woods to purchasers with a preexisting connection to the City of Davis".
A link to the actual proposal to be provided to the Planning Commission was included in the article (see here).
Close examination of the new proposal, however, reveals that there are numerous loopholes sufficiently large that there are absolutely no guarantees at all than any buyers will have a "Davis-connection"; much less 90% of the buyers as Taormino wants us to believe is his goal. For instance, the new proposal says that the program will now require that all prospective buyers of homes in the development will need to complete a buyer qualification form identifying their purported connection to Davis and these will be "verified" by the developer.
But just after explaining how this supposed requirement to complete this qualification form demonstrating a "Davis-connection" will protect Davis seniors, Taormino then states the following,
"To be clear, anyone identifying with a race, color, national origin, religion, gender, disability, familial status, marital status, sexual orientation, or gender identity that is protected by State or Federal Fair Housing laws will not need to complete the form identifying their connection to Davis."(emphasis added).
So prospective buyers can simply claim on the Buyer Qualification Form that they are an "Exempt Class" without needing to provide any documentation at all, or simply check "Decline to State" on the form (allowed so as to not intrude on the prospective buyers privacy) and their buyer application would presumably be accepted. This offers absolutely no buyer protection at to Davis seniors who flocked to support this project at the ballot box thinking it would certainly benefit them. It is patently ludicrous that the developer would be granted such broad exemption from what was promised voters by bot the developer and the City Council who unanimously supported it.
The absurdity of Taormino's proposal was noted in a comment by Davis-based attorney Eric Gelber in response to yesterday's Vanguard article by Taormino and puts the developer's nonsensical language into perspective.
"This takes the language on protected classes out of context. Fair housing laws prohibit discrimination on the basis of race, religion, gender, etc. Everyone falls within these categories as long as they identify with a gender, race, color, religion, marital status, etc. They just can’t be discriminated against based on their race, religion, gender, etc. All races, genders, religions, etc. are protected against discrimination. Under the above language of the program, because everyone identifies with a gender, race, color, etc., no one would have to complete the form." (emphasis added)
This sleight-of-hand language is nothing more than a legal equivalent of a parlor card trick designed to hide the real intentions of the developer which are to neuter the Davis Based Buyers Program to the extent it would be functionally non-existent
THE PROPOSED DEVELOPMENT ADVERTISING RESTRICTIONS ARE MEAGER AND UNENFORCEABLE
The new program also states that Bretton Woods will not be initially advertised by the developer outside the region until a brief period of time has passed after the first model home is constructed for each phase of the development. If the intention is truly to target Davis buyers, it would seem more appropriate to delay such shotgun outside advertising until later in the development of each portion of each development phase. This would extend the time frame after which the developer is free to enlist a broader advertising campaign.
The developer also claims that their contract builders will similarly be constrained by such time limits on advertising. However, there are absolutely no such time restrictions imposed on any real estate agents nor any "independent" 3rd-party promotional and advertising campaigns from promoting the development anywhere in the Country. So the advertising restrictions proposed by the developer are, in reality, worthless.
And there are absolutely no penalties imposed on the developer or the project if the advertising net is thrown wide-open the day after sales and marketing commence. Particularly if any prospective buyer simply has to only claim they are an "Exempt Class" or "Decline to State" on the qualification form, it could lead to a land-rush of out-of-area buyers not connected in any way to Davis. This would invariably lead to inflated pricing (just as at Cannery) that could result in Davis seniors being left on the sidelines and looking in.
These types of late-inning request for changes in the Development Agreement with the City to benefit the developer is not by accident. Indeed, it is not uncommon at all for developers in Davis to come back again and again to the City's entitlement-feeding trough as projects develop in town and developers seek additional advantages and profits on their project.
Long time residents are reminded of the promises made by the Cannery developer, New Home Company, when they stood in front of Council and loudly proclaimed their intentions to ensure local buyers have an opportunity to buy-in to the Cannery development thus allowing the then freed up local housing to go to new families in town.
Of course, all of the subsequent advertisements were directly targeted to Bay Area residents who constituted the bulk of subsequent buyers at the project. And even as the Council saw these out-of-town sales developing, they continued to grant more and more exceptions and amendments to the project' Development Agreement.
Is anyone else feeling a strange sense of deja vu here?
THE TIMING OF THE RELEASE OF THE CURRENT VERSION OF THE BUYERS PLAN WAS OBVIOUSLY CAREFULLY PLANNED WELL IN ADVANCE
Certainly not coincidentally, Taormino is now attempting to get the Planning Commission to recommend approval of his new watered-down Davis buyer protection plan to the City Council only after he has already received all of the major entitlements to the project from the City. Notice that the date on the proposal to be submitted to the Planning Commission is January 29, 2021. But the date of the press release by Taormino and his article in the Vanguard is almost two months later on March 27, 2021.
That means that Taormino and Davis City Staff had this proposal parked and hidden from public and Planning Commission review while they were busily otherwise seeking other project approvals before the Planning Commission on February 24 AND March 24, 2021. There is no reason why this proposal could not have similarly been presented to the Planning Commission and subjected to earlier public scrutiny during any of those other dates.
This timing is thus very suspicious and seemingly indicates that the developer and the City Planning Department held this information back from the public and the Planning Commission until other major entitlements for the project were first obtained – obviously denying a bargaining chip to the Commission in their deliberations with the developer.
It is one thing for the developer to engage in such maneuvering tactics and behavior for his own advantage. But it is disconcerting to find Staff cooperating with this subterfuge and it certainly speaks to the perhaps too close level of cooperation that developers enjoy with our own City Planning Department and senior Staff management.
WHY WOULD TAORMINO BE ALLOWED TO BREAK HIS PROMISES TO DAVIS SENIORS AND WHY WOULD THE DAVIS CITY COUNCIL EVEN CONSIDER ALLOWING HIM TO DO SO?
Now Taormino claims that he already has hundreds of deposits from local seniors who scrambled to give him thousands of dollars each to reserve a spot in the new development. But these seniors really didn't reserve anything at all because the eventual selling price for the units is not specified anywhere in the deposit agreements. That's right!
All Taormino has to do is jack up the offered selling prices on the new homes sufficiently high enough to put homes well out of reach of the average local senior buyers. Then if they do not agree to his inflated prices, they must decline to purchase one of his new homes. Taormino will, of course, give them back their deposit money (without interest) but it is easily worth it to the developer if he can then proceed to advertise and sell to any other buyers from anywhere at the highest price he can get.
There is a huge economic advantage to Taormino if he can sell far more units to rich Bay Area expatriates flush with cash from selling their multi-million dollar Bay Area bungalows. And does anyone seriously think that the developer won't turn his back on local Davis seniors if he thinks the new homes can otherwise command an extra $100,000 each if sold to a more affluent Bay Area clientele compared to buyers in Davis.
There are 410 new homes being developed at the Bretton Woods project. If the developer can extract an extra $100,000 for each of the homes or lots by selling to cash-rich Bay Area transplants, that's over $41,000,000 (that's right $41 million) in increased sales and profits for this one project alone. I suspect that is quite enough incentive to cause Taormino to turn his back on the promises he made to Davis seniors during the 2018 campaign; particularly if there are no economic penalties associated with such a course of action.
But the burning question now is whether or not the Planning Commission and Davis City Council will go along with this charade after both bodies trumpeted the buyers plan in their approvals leading to the successful Measure J/R campaign in 2018.
Will our City Council have the backbone to stand up to the developer to hold him accountable to his earlier campaign promise that 90% of sales will go to people connected with Davis? Or will the prospect that the City might receive annual property tax receipts on an increased $41,000,000 in newly constructed home property value prove just too tempting?
Based on the history of flagrant Council give-aways to the Cannery and other developer in years past, my bet is that they will cave to the developer's demands and turn their backs on Davis seniors.
Some things never change.