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But Numerous Questions Remain Unanswered

by Alan E Pryor

Executive Summary

 In the June 7, 2022 election, Davis voters were asked to approve the annexation of 102 acres of land off Mace Blvd into the City of Davis for the construction of a large industrial project known as the Davis Innovation and Sustainability Campus. The matter was on the ballot as Measure H and was resoundingly defeated by voters by almost a 2:1 margin.

Prior to the election but immediately following the submission of ballot statements to the City Clerk by the proponents and opponents of Measure H, Davis City Council member Dan Carson, as a private resident, sued the six Davis citizens who authored and signed the Argument Against Measure H alleging that their ballot statement contained numerous references that were false and misleading.

After ruling on the matter generally in favor of the defendants and making only very minor changes in the ballot statement language, Yolo County Superior Court Judge Dan Maguire also later ruled that Dan Carson must repay $42,209.25 in legal fees to the Counsel for the six defendants in the case. In his ruling he stated the defense by the six defendants "served a public benefit purpose...as the public in a democracy has a strong interest in political debate that is 'uninhibited, robust and wide open'." After the election, this fee award was finally paid on behalf of Council member Carson by the Yes on Measure H campaign committee.

Assuming no monetary or other consideration was given by Council member Carson to the Yes on Measure H committee, the payment of the fee award for Council member Carson, an elected public official, by the Yes on Measure H campaign is probably considered a "Gift" under California law. Any such "Gift" to an elected official in excess of $520 per calendar year is prohibited under California law and, if so determined to have occurred, is subject to administrative penalties of up to $5,000 per violation or three times the amount of the gift received.

Further, any such gift may also also subject to an Internal Revenue Service levy of income tax on the donor of the "Gift" rather than the recipient. In this case, the responsible party incurring that liability would be the Yes on Measure H committee, which potential liability has not been reported on their Form 460 financial filings with the City.

Background

On March 21, 2022, Davis City Council member Dan Carson, as a private citizen, filed a lawsuit against 6 Davis residents (including this author) who wrote and signed the Argument Against ballot statement supporting a No vote on Measure H on the recent June ballot in Davis. The lawsuit against the six individual ballot statement authors/signers (the "Real Parties of Interest") sought to suppress almost 1/3 of the language - over 80 words -  in the ballot statement, alleging the statements were "false and misleading". 

Dan Carson was a long-time supporter of the Davis Innovation and Sustainability Campus (DISC) project, which the Measure H ballot sought to approve and be annexed into the City. Of further interest, Council member Carson was part of the 2-person City Council subcommittee that negotiated the terms of the DISC industrial project with the developer on behalf of the City.

After he voted to put the project before the citizens on the ballot, Council member Carson also then became the "Honorary Chair" of the Yes on Measure H committee, further clouding the nature of his relationship with the Yes on Measure H committee and the managing partner of the development project, Dan Ramos of Ramco Enterprises..

On March 30, 2022 Judge Maguire ruled that only 2 minor changes needed to be made in the ballot statement - deleting the word "only" from one clause and changing the unit of measurement of the greenhouse gas emissions produced by the project in another clause. The ballot statement was otherwise left unchanged and the functional intent of the language remained in place.

Shortly thereafter, Counsel for the six defendants, Strumwasser and Woocher, filed a Petition for Award of Attorney's Fees requesting reimbursement of their legal fees and expenses incurred by the firm defending the six Davis residents from the Carson lawsuit. Counsel for Mr. Carson subsequently submitted their own petition for award of attorney's fees from the six Davis defendants alleging that he, Dan Carson was, in fact, the "successful party" in the litigation and was thus entitled to reimbursement of legal fees from the six individual Davis defendants.

This was a highly unusual request because both Council member Carson and Dan Ramos had both previously publicly admitted that the Yes on Measure H committee had funded the lawsuit on behalf of Dan Carson. Payment of these legal fees to Mr. Carson's attorney's prosecuting the case, Nossaman LLP, was confirmed by the Yes on Measure H committee Form 460 financial disclosure filings with the City of Davis.

Thus, although Mr. Carson had not actually paid any legal fees himself, he still petitioned the court to order the six individual Davis defendants who successfully fended off his lawsuit, to reimburse the legal fees that were otherwise actually paid for by the developer through the Yes on Measure H committee.

After a hearing on the matter, on June 1, 2022 Judge Daniel Maguire ordered Dan Carson, as the plaintiff in the lawsuit, to pay $42,209.75 in legal fees to Counsel for the six Davis defendants. In his ruling Judge Maguire stated,

"As explained below, while both sides gained some of their objectives in this litigation, the Real Parties in Interest have achieved the greater share of success, and are awarded a net fees recovery of $42,209.75."

He further explained his ruling stating,

"Under the ‘American Rule,’ litigants in this country generally pay their own lawyers, win or lose. In contrast, under the "English Rule," the loser pays both lawyers...

There are exceptions to the American Rule, and one is the private attorney general doctrine. Its purpose is to encourage "meritorious public interest litigation vindicating important rights."...

The private attorney general doctrine accomplishes this purpose by awarding attorneys' fees to litigants who advance the public interest by successfully bringing or defending a lawsuit. (Ibid,) The aim is to incentivize legitimate public interest litigation, not to punish the losing side. (Ibid.) Without the prospect of a fee award, litigants may be unable or unwilling to undertake or defend litigation that transcends their own private interest, even when doing so would benefit "a broad swath of citizens."

…

"The Real Parties in Interest also satisfy this requirement, as the public in a democracy has a strong interest in political debate that is  'uninhibited, robust and wide open.'...Our society has a deep commitment to free speech, especially in political matters, and by defending their right to make their argument in their words, the Real Parties in Interest have also enforced an important right affecting the public interest."

In summary, Judge Maguire based his Award of Attorney's Fees on the finding that the six defendants, the Real Parties of Interest, were more "successful" than Mr. Carson in the outcome of the litigation and that the award "advanced the public interest" by "defending their right to make their argument in their words".

According to the most recent Form 460 financial filing by the Yes on Measure H committee, these required legal fee reimbursements were paid to their Counsel, Nossaman LLP, on June 21 for forwarding to Strumwasser and Woocher, the Counsel for the six defendants. However, Nossaman LLP did not forward any payments to Strumwasser and Woocher until July 26, telling Strumwasser and Woocher that the Yes on Measure H committee had not paid them until them.

Unanswered Questions Concerning the Payment of Mr. Carson's Legal Award Fees by the Yes on Measure H Campaign

1^st Question - Is the Payment by the Yes on Measure H Campaign of the Legal Fees Owed by Mr. Carson Considered a "Gift" to an "Elected Official" Not Allowed Under State Law?

The California Political Reform Act restricts gifts, honoraria, payment of travel expenses, and loans in excess of $520 per calendar year to 1) elected officials and candidates for local elected offices, 2) most local officials, 3) judicial candidates, and 4) designated employees of local government agencies.

In determining whether the payment of the awarded legal fees by the Yes on Measure H committee on Mr. Carson's behalf is a non-allowable "Gift" to Mr. Carson, the following information is provided in the Fair Political Practices Commission publication FPPC Ed - Pro 046 10-2021, October 2021 (https://www.fppc.ca.gov/content/dam/fppc/NS-Documents/TAD/gift-fact-sheet/LocalGiftFactSheet_Final_2021%20Version_2_Gendered%20Terms_Clean_Copy.pdf).

"What is a "Gift"?

A “gift” is any payment or other benefit that confers a personal benefit for which a public official does not provide payment or services of equal or greater value….(Section 82028.) (See Regulation 18946 for valuation guidelines.)"

The award of attorney's fees by Judge Maguire explicitly orders a payment by Petitioner, Dan Carson, to Counsel for the Real Parties (the six defendants). However according to the Form 460 reporting Yes on Measure H committee finances filed on July 28, 2022 with the City of Davis City Clerk, full payment for the obligation by Dan Carson was actually instead made by the Yes on Measure H committee. The payment was purportedly made by the committee on June 21 to Counsel for the six defendants, Strumwasser and Woocher, to the committee's Counsel, Nossaman LLP, acting as the payment agent for the Yes on Measure H committee.

Conclusion - In the absence of any recompense otherwise made by Mr. Carson to the Yes on Measure H committee, it would otherwise appear that this payment of Mr. Carson's obligation by the Yes on Measure H committee would be considered a "Gift" to him from the Yes on Measure H committee.

"Enforcement”

Failure to comply with the laws related to gifts, honoraria, loans, and travel payments may,

depending on the violation, result in criminal prosecution and substantial fines, or in

administrative or civil monetary penalties for as much as $5,000 per violation or three times the amount illegally obtained. (See Sections 83116, 89520, 89521, 91000, 91004 and 91005.5)".

Conclusion - If the payment of Mr. Carson's legal fees by the Yes on Measure H committee is construed to be a "Gift", it could result in criminal penalties in addition to imposition of administrative penalties up to $128,127.75 ($42,709.25 x 3).

Possible Exceptions - The primary exception to the restrictions and limitations on "Gifts" to elected public officials exists as follows,

"Existing Personal Relationship. Benefits received from an individual where it is clear that the gift was made because of an existing personal or business relationship unrelated to the official’s position and there is no evidence whatsoever at the time the gift is made that the official makes or participates in the type of governmental decisions that may have a reasonably foreseeable material financial effect on the individual who would otherwise be the source of the gift. (Regulation 18942(a)(19).)"

However, this exception would seemingly not apply in this instance because Council member Carson has publicly declared on numerous occasions that he has no business or economic relationships of any kind with the Yes on Measure H committee, the developer Ramco Enterprises, or the DISC project itself.

Further, it is clear by by being part of the City Council subcommittee that negotiated the development agreement between the City of Davis and the project, that Council member Carson "makes or participates in the type of governmental decisions that may have a reasonably foreseeable material financial effect" on the principal developers of the project who, not coincidentally, are the principal funders of the Yes on Measure H committee. Additionally, because one of the developers of the DISC project, Ramco Enterprises, also has numerous other properties within the City in which Mr. Carson "makes or participates in the type of governmental decisions that may have a reasonably foreseeable material financial effect" on those properties, this exception to the restriction of a gift is not applicable.

Conclusion -  The payment of the award of legal fees by the Yes on Measure H campaign committee is seemingly not excepted by FPPC regulations regarding restrictions on "Gifts" and otherwise could be considered a gift to Council member Carson because it "confers a personal benefit (to Council member Carson) for which a public official does not provide payment or services of equal or greater value."

We assume in this discussion that Council member Carson has not provided or agreed to provide any past or future favorable treatment of any matters before the City by the developer by virtue of the developer's many other property holdings within the City. But if any such promises or inferences were otherwise made in exchange for the payment of the Mr. Carson's legal fees, it otherwise could be construed as a "Bribe" rather than a "Gift" for which much more substantial criminal and civil penalties could result.

2^nd Question - Will any such "Gift" to Dan Carson of the Payment of His Legal Fees by the Yes on Measure H Committee Impose any Additional Income Tax Liability?

According to the Internal Revenue Service,

"The gift tax is a tax on the transfer of property by one individual to another while receiving nothing, or less than full value, in return. The tax applies whether or not the donor intends the transfer to be a gift. The gift tax applies to the transfer by gift of any type of property. You make a gift if you give property (including money), or the use of or income from property, without expecting to receive something of at least equal value in return."  (https://www.irs.gov/businesses/small-businesses-self-employed/gift-tax)

"The donor is generally responsible for paying the gift tax. Under special arrangements the donee may agree to pay the tax instead." (https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes)

In the present circumstances, the "Gift" to Dan Carson by the Yes on Measure H committee (by virtue of their payment of legal fees owed by Mr. Carson) would presumably generate an income tax liability on the part of the Yes on Measure H committee, as the gift donor rather than by Mr. Carson as the recipient of the gift.

In their most recent financial 460 report (through June 30) filed with the City in which the payment of $42,209.25 by the Yes on Measure H committee was noted, there was NOT any corresponding accrued expense noted to reflect the additional income tax liability potentially incurred by the committee by virtue of their "Gift" to Carson.

3^rd Question - Why Does a Discrepancy Exist in the Reported and Actual Date of Payment of Awarded Legal Fees to Counsel for the Six Defendants?

The $42, 209.75 fees ordered to be paid by Mr. Carson to the Counsel for the 6 defendants was supposedly paid by the Yes on Measure H committee through Carson's Counsel, Nossaman LLP, on June 21 according to the most recent 460 campaign financial statements submitted by the Yes on Measure H committee to the City on July 28 for the period ending June 30, 2022.

However, the award amount was not forwarded by Carson's Counsel to the six defendants' Counsel, Strumwasser and Woocher, until July 26, 2022 and the delays were continually attributed by Carson's Counsel to ongoing delays in receipt of the payment from the Yes on Measure H committee. Perhaps there is an honest accounting error here but these discrepancies in timing have not been explained.

________________________________________________

Alan Pryor is the Principal Officer and Treasurer of the No on Davis Innovation and Sustainable Campus Campaign Committee and one of the defending Real Parties of Interest in the lawsuit brought by Mr. Carson.

(From press release) The Yolo County Board of Supervisors voted unanimously this week to upgrade to Valley Clean Energy’s 100% renewable, 100% carbon-free UltraGreen service. This action will include all County VCE business accounts that are not already covered by existing solar/renewable projects.

Taken as a whole, this decision is an important step toward ensuring that 100% of Yolo County’s electricity for its operations will be sourced from renewables, further decreasing the County’s dependence on fossil fuels and decreasing carbon emissions.

“We know that the power sector is one of the largest sources of carbon emissions,” said Yolo County Board of Supervisors Chair, Angel Barajas. “Moving toward 100% renewable, 100% carbon-free electricity for County facilities is a powerful step we can take to fight climate change. It’s directly aligned with our 2011 Climate Action Plan. And at only 1.5 cents more per kilowatt-hour, we find it provides a great cost/benefit ratio for our local communities.”

Yolo County’s goal is to transition all remaining accounts to 100% renewable electricity in the upcoming billing cycle. Funding will be included in the 2023-24 County budget for that purpose.

“As the local not-for-profit public energy provider, VCE strives to provide simple, cost-effective ways for our customers and communities to take action on climate change,” said VCE Executive Officer Mitch Sears.  “With this move the County becomes our largest UltraGreen customer and helps drive the clean energy economy forward.” 

Valley Clean Energy is a not-for-profit public agency formed in June 2018 to provide electrical generation service to customers in Woodland, Davis, Winters, and the unincorporated areas of Yolo County. VCE’s mission is to source cost-competitive clean electricity while providing product choice, price stability, energy efficiency, greenhouse gas emission reductions and reinvestment in the communities we serve.

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Photo of Prime Farmland Set to be Destroyed by Proposed Open Pit Mine

The Sierra Club Yolano Group, together with its local partner, Yolo Land and Water Defense, is desperately trying to stop a massive new sand and gravel open-pit mining operation. This proposed project will forever destroy 300 acres of productive prime farmland just off of Cache Creek a few miles west of Woodland. Almost in the city's backyard, this huge new surface mine will leave behind a wasteland of methyl mercury contaminated impoundment ponds, no guarantees of successful farmland reclamation, potentially serious decreases in local groundwater levels, and greenhouse gas and priority pollutant emissions far greater than estimated (see below for more detailed information about the project's environmental shortcomings).

Our lawsuit challenges improper mining project approvals. Over vigorous objections about the lack of appropriate environmental protections as required under California law, this project was recently approved by the Yolo County Supervisors when they certified a defective Environmental Impact Report (EIR) and awarded lucrative 30-year sweetheart mining rights to Teichert Mining. The company is a subsidiary of a billion-dollar mining and construction behemoth. To stop this ill-advised and destructive project unless necessary protections are put in place, the Sierra Club with our partners recently sued Yolo County and Teichert Mining to rescind certification of the EIR and project approvals.

The Sierra Club and a number of members of both organizations have already made very substantial contributions, but we urgently need to raise $12,000 more to continue this lawsuit all the way through trial. Please help us force Teichert Mining to act responsibly so that our children and future Yolo County generations can enjoy unpolluted habitat, productive agricultural land, safe and reliable access to good quality water, and clean, breathable air.

Please consider making a tax-deductible donation of any amount.

1) By Credit Card or Paypal - Click on the online donation link here (https://www.mightycause.com/story/Yolanogroupsc)

2) By Check - Send your check payable to Sierra Club Foundation, c/o Yolano Group, 2736 Brentwood Pl in Davis CA 95618.

Tuesday’s Council Meeting will give us our first indication

By Roberta Millstein

This City Council does not have a good track record on democracy.  It has the opportunity to do better this time.  Will it?

Newly appointed Mayor Lucas Frerichs, having served on the Council since 2012, is anticipated to step down on January 2, 2023 to become Yolo County District 2 Supervisor.  That will leave a vacancy on the Council in District 3 (note that county and city district numbering is different) until the November 2024 election.  The Council has a choice of two ways of filling the vacancy: 1) call a special election to fill the vacancy (see staff report for possible dates) or 2) appoint someone to fill the vacancy.

The first way is the democratic way.  It’s the way that allows the voters of District 3 to select a representative who they feel listens to them and understands their concerns about their district.  It’s the way that allows new voices to put themselves forward for leadership of the city, fulfilling one of the promises that district elections were supposed to bring – i.e., more localized campaigns being easier and less expensive to run.

The second way is the power-abusing way.  All the other districts will have elected their representatives, but District 3 would be appointed by councilmembers who are not even in their district.  There is nothing about this process that would ensure that the appointed representative would know about and care about issues particular to District 3.  What this process does allow for, however, is for councilmembers to appoint someone who sees things their way or who is part of the current power structure in Davis.

Note that the Council also has the option of calling for a special election (the second way), but then appointing someone to fill the vacancy until the election.  I think this option is problematic too.  The person appointed for the interim period before a special election would have the advantage of incumbency in that election. The council should refrain from any appointment at all and simply call an election to fill the seat.[1]

Al's Corner is a place to comment on local issues and articles and/or comments from other local forums that you may or may not have been banned from.  For the few Rule-ez at Al's Corner, see "Pages" --> "Al's Corner - What It Is".  Burn Baby Burn!

By Roberta Millstein

When I was growing up on the east coast, 4th of July was always a wonderful day.  My father, a WWII vet, loved fireworks and imparted that combination of awe, excitement, and patriotism to my sister and me.  We'd head to the next town over and stake out a position on the grass and wait for the amazing display from a barge on the river.  It was always over way too fast, the "big finale" being the part you looked forward to the most while knowing that it signaled the end.

Of course, I want everyone to have a good day.  I want children to have wonderful experiences like the one I was able to have as a child.  No one wants to be a killjoy.

But.

I also want our celebration of the 4th of July to be a genuine one – that is, a celebration of freedom.

It's hard to feel free when 6 people are dead and more than 2 dozen hospitalized for the sin of attending a 4th of July parade, when mass shootings have become a daily event and our elected lawmakers fail to take action that would make a difference.

It's hard to feel free when 50% of the population has just been told that their bodies are not theirs to control, that the state can make one of the most fundamental and life-changing decisions for them.

It's hard to feel free when in the same decision, one of our Supreme Court justices threatens to eliminate the right for heterosexual couples to use contraception, the right for homosexual couples to have sex, and the right for gay people to get married.

It's hard to feel free when racially-motivated voter restriction laws have been passed across the country, preventing full participation in our democracy.

It's hard to feel free when Black Americans are incarcerated at nearly five times the rate of white Americans.

As civil rights leader Fannie Lou Hamer said, nobody’s free until everybody’s free.

Meanwhile, Davis's "celebration" continues as planned even with known harms of fireworks both for those who are attending and not attending, spewing toxic chemicals into the air,  triggering PTSD in humans, and scaring animals into bolting.

When is Davis going to have a more appropriate celebration, one that is healthy and recognizes the liberties we have as well as the liberties we still have to fight for?

When are we going to start fighting for our liberties?

An open letter to the new Davis mayor and the city council:

I attended the city council meeting in person this week for the first time in over two years. I wore a N95 mask for the entire meeting. A few of the audience also wore masks. Unfortunately, none of the councilmembers or city staff did likewise (although the city attorney had one on for at least part of the time).

Also this week I had to call city hall on business and was informed on the phone that masks are required in city facilities for both vaccinated and unvaccinated individuals.

The Yolo County COVID website states: "Yolo County strongly recommends you wear a well-fitting, high quality mask in indoor public settings when COVID case rates are moderate to high (above 7 cases per 100,000)." The current weekly average case rate is 45.8 cases per 100K individuals, six times higher than the recommended minimum level for masks, and higher than the average state rate of 36.8.

By holding public meetings and not requiring masks the Council and staff put themselves and members of the public (and by extension their families) at increased risk for COVID infections.

Given how well the city and community have responded to the COVID pandemic in the past two years, I am disappointed the council has not seen fit to require masks for themselves, staff, and attendees at meetings. Please follow the county health officer's recommendations.

The pandemic is not over.

Robert Canning

By Roberta Millstein

Two days ago, the City released a statement signed by all five members of the Davis City Council in response to the recent Supreme Court decision overturning Roe v. Wade.  Sadly, the statement is wishy-washy and lacking in any sort of call to action.  One wonders why they even bothered.

Those who moved to Davis recently may not be aware that the City Council voted to make Davis a pro-choice City in 1989.  The LA Times quoted then-Mayor Michael Corbett: “The resolution is a political act to support women’s choice to choose their own morality. . . . I know that will alienate people, but that’s the way I see it.”  That was bold leadership, leadership that is sorely lacking in today’s City Council.  Are we still a pro-choice city today?

There are, it should be acknowledged, some positive elements to Tuesday’s statement, namely where it says:

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Last night, less than an hour after the Rec & Park Commission meeting considered Sky Track #large echo & trumpets#, a bizarre posting appeared on a Facebook Page with the City Logo that reads like an oil company trying to claim environmental brownie points after running an oil tanker into a reef full of penguins:

https://www.facebook.com/100064544416178/posts/pfbid02aGvm4r3B34TCAQHLKCEHc8eVoCn3bWFw7PUHHXNAvPjb9ppZhF2AxcXw3RDnre2El/?d=n

The capstone of the posting: "The City of Davis and its staff work diligently to ensure a vibrant community that enhances the quality of life for residents, families, children and students."

Oh please.  Gag me with a spoon.  Make me vomit.  I'm heading to the vomitorium to hurl chunks.

Who wrote that, and why?  What is really going on here that the City has that written in an hour, and up on the web?   It's too perfect.  Why would a City website post something so vomitously self-serving?  That's not what cities do . . . they are government, not private.  Cities shouldn't make proclamations about how great the city and its staff are.  I've met several great City staff btw.  This isn't about how great or not great any particular staff is.  It's about the fact that it is not government's place to toot it's own horn -- and we should all be asking:  why is it doing so in this case?  Something is rotten in West Davis.

And why is the City providing a forum so City residents can get into a Facebook war?  So assholes can berate and belittle the neighbors for what, having an issue with the constant sound of metal grating on metal?  I had no idea the degree of vitriol from users and abusers of the zip-line. What part of 'metal grating against metal' don't you people understand?  This isn't rocket science, it's not even sound science.  We all fucking know that metal on metal and a constant grating noise next to where we live can destroy daily life.  That isn't a sound you just get used to.  We don't need paid sound scientists to use meters and numbers to justify my love when we all know whatever the damn meter says that 'metal grating on metal' is an awful sound.  I have not been so disgusted by some Davis people since the Trackside defenders.  

More on the Facebook forum There are those playing the 'envy card' -- 'you own a house!' - imagine the gall of someone owning a house in Davis :-|.  There are those playing the 'you hate children' card, even though they say they never minded any of the sounds or children playing or shrieking in joy -- only the grating of metal on metal.  There are those playing the 'you get special treatment' card, even though the Krovozas and others are getting shat on by asshole zip-line users/abusers and City government.  There's the 'you knew there was a park there when you bought your house' card, even though the Krovoza's pointed out repeatedly that they moved in next to a park and had no problem with that, the zip-line came much later and that is the only and specific noise issue.  Metal on Metal!

And why is the City now a propaganda machine?  Not that many years ago if I wrote to the City Council, two or three Councilmemebers would write me back with their personal response.  Now an 'information officer' sends me a pre-packaged response about how my email was sent to all the Councilmembers.  This is a new position paid for with your taxpayer money, and what we get is pre-packaged pablum.  Now the propaganda machine is expanded to bizarre City-serving Facebook posts with forums for citizens to berate citizens.  The City isn't a corporation that needs a slogan that it "enhances the quality of life for residents, families, children and students."  Why are we putting up with this shit?

That meeting last night was bizarre.  Truth is lies.  Words are reality.  Coneheads roam City parks.  All that virtual meeting proved to me is a lot of people got dropped on their heads as infants.

Anyway, have fun playing 'Spot the Flaming Davis Assholes' as you read the comments in the Facebook page  :-|

P.S.  Why do we call it Sky Track with capital letters like it's some special thing with a proper name -- instead of "that fucking zip line" ? :-|

Recreation & Parks Commission,

I am highly concerned about the proposal to change the sound standards for the City of Davis.  My understanding from articles written by former mayor Joe Krovoza is that standards are in consideration to be changed in terms of duration, levels, and measurement of peaks.

 by: Janet and Joe Krovoza

Regarding Arroyo Park’s Sky Track, here’s the latest reveal: data omitted from a March 1, 2022 noise report shows that for the three years of the Sky Track’s use, the apparatus has been in constant violation of the city’s noise standard of 55/50 dBA (day/night). This same data shows that alternative locations in Arroyo Park will violate the noise ordinance – day and night.

Last December, the city’s Acoustic Group, Inc. (AGI) consultants collected, but then buried, the relevant maximum (Lmax) noise data from the new March 1 report. With the Lmax data conveniently missing from its 40 pages, the AGI report continued the city’s bizarre use of average noise (measured in Leq) and the equally necessary policy assertion that “Maximum Noise Level (dBA)” explicitly stated in the ordinance really meant “average.” This theoretically allowed for a potential new Sky Track location in Arroyo Park to squeak by within .5 dBA of compliance.

Confronted again on its use of Leq and their it-says-maximum-but-means-average trick, staff refuses to own their mistaken decision and they are now asking the Rec and Park Commission to clean up their mess by endorsing a reinterpretation of the noise ordinance that will increase every noise maximum in the city by 20 dBA – huge increases on a logarithmic scale, with citywide implications. This 20 dBA increase would apply to residential, commercial/industrial, and high traffic corridor noise – all in the name of placing an amusement park caliber apparatus close to homes. We lay this out further below.  

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Today the D. Vanguard recycled some old content from January 2021 in a 'new' article "Commentary: Long Troubled by Some of the Comments on Pacifico" and sprinkled in some recent content from an Anti-NIMBY Council-meeting public comment.

I, too, am disgusted by some of the comments on Pacifico, but the comments I find twisted are the opposite comments Greenwald is troubled by -- those by David Greenwald, Georgina Valencia and some much-DV-recycled comments by Gloria Partida . . . and the rest of the Usual Suspects of the "Anti-NIMBY" crowd.

My position remains immortalized in the following letter:

An Open Letter to South Davis (January 2021)

Hello South Davis,

I don’t live in South Davis, but I’m looking at District 3 100’ away out my window.

I share your problems and your concerns. There is a spot 200’ from my house where drug addicts / drug dealers / thieves camp outdoors. This is not a homeless encampment, it is a revolving crime den. In Spring 2020 I had three scary men on meth (I believe) approach me late at night and one threw rocks at me. There were numerous incidents of mental health outbursts. I slept little for two months as these people were up all night.

Our neighborhood mostly solved the problem *this time* eventually by having meetings with both the Police Chief and his Lieutenant, and relentlessly pestering the City Council. That took two months.

Your problems I have heard regarding Pacifico are similar, and thankfully also seem better but not solved. I am here with you in unity. We cannot participate in these issues only when the problem is next to us. We must support other Davis residents who have similar problems, as the problem is bigger than Pacifico, and bigger than the location next to me.

God Bless the people who are helping the truly homeless population that are in need. Those who spoke today on that are I believe sincere. However, the problem is not the needy, but the criminals. We cannot conflate these.

There have been times when residents, and subtly even our leaders, have shamed “the homed” for being “privileged” and not being sensitive to those in need. These are separate issues. We must recognize the needs of the truly homeless. We must also recognize that there is no shame in having a home and a roof over our heads, nor the need to protect our families and yes, our things.

When people talk of drug dealers and thieves, they are not talking about the needy homeless; we must not conflate the two as a rhetorical trick. We must recognize and acknowledge that shaming the ‘other’ and demonizing those with homes, and those without homes, will not result in constructive resolution. We must recognize the needs of all parties as legitimate. Except for criminals, they ‘need’ to be removed.

Alan C. Miller is a resident of Old East Davis

By Roberta Millstein

What makes a juror too biased to serve on a case? 

Recently, I was called for jury duty selection for case that involved repeated sexual assault on a person who was a minor at the time.  I was not selected; the prosecuting attorney used one of his peremptory challenges to dismiss me.  I’m OK with that – the trial would have been weeks long – although I do, in an idle curiosity sort of way, wonder about the reasons.  My friends insist it is because I have a PhD (apparently many of my fellow PhDs have been dismissed from juries), but I’d also note that the prosecuting attorney seemed very concerned about having people on the jury who were not in favor of the district attorney, who was on the ballot for re-election.

But it wasn’t the prosecuting attorney’s dismissal of me that I found troubling.  Instead, it was process, largely led by the defense attorney and, if I understand correctly, allowed by the judge, for dismissing people “for cause.”

I know at least some of what I say here will be controversial and perhaps heretical.  It won’t be as well-organized as I’d like because I am still thinking through some things.  But perhaps the reader will think through things with me.

The defense attorney’s questioning of potential jury members was very haphazard.  He asked what was ostensively the same question in different ways, to the point where they seemed like different questions, although I don’t think that was his intent.  Some people were queried more intensively than others.  And it seemed to me that women were queried more intensively than men.

That was bad enough, but as the process went on, it became apparent that anyone who had experienced sexual assault or who had someone close to them who had been sexually assaulted was being dismissed for cause on the grounds of “bias.”  Since something like 1 in 4 women have been sexually assaulted, this was quite disturbing.  A lot of people were being dismissed.  (Of course, some people are going to find it too painful to serve, and those people were rightly dismissed – but the dismissals were going beyond that).

(From press release) We are pleased by the overwhelming defeat of Measure H, which we believe would have resulted in a development that was harmful to Davis.

It was a true grassroots effort of many volunteers over many months, who poured countless hours of their personal time into the campaign. It was also the result of many passionate supporters who donated to the campaign, displayed lawn signs, wrote letters to the editor, and participated on social media.  We thank everyone who was involved in the effort.

We hope the resounding defeat of Measure H  leads to more collaborative community discussions that engage Davisites in creating future projects which will be truly sustainable and environmentally progressive.

I haven't read the aftermath article that was no doubt in the Vanguard Wednesday morning.  I have grown yawn of the analysis/spin and the predictability.  I could write the article.  I will go read it for the comments, but without Alan Miller and Keith O., the comments have really become dull.  And Ron O., by his descriptions here, half his stuff is censhored.  How is censhored content either a discussion or entertaining?

But what has changed is that the key issues/peoples the Vanguard champions died last night.  Here's my prediction (or a post-diction since it's already been written):  the article will include Measure H, Chesa Boudin and Reisig.  Am I close?  The Vanguard lost, and all such progressive/woke initiatives are going down, like a sinking submarine.  They didn't just go down, they were all massacres.  Sinking massacres.  Mixed metaphors.

Measure H?  64% vs. 52% last time.  So it's getting worse, horribly worse, for the prospects of development.  Probably not ever going to be developed unless every taxpayer in Davis is bribed $1000 to vote 'yes'.  More voters would have mattered?  Doesn't matter, that's how it is.  Where were all those student voters voting 'yes' that didn't last time?  Not voting, as usual, as students don't.  In one of the Valley's most liberal towns, it went down.  Must be all the racists on the 'no' SIDE.

Chesa?  An initiative on 'defund the police'.  Doesn't matter what the stats are.  The public has had it.  In one of the countries most liberal cities.

Reisig?  He stooped pretty low with the child molester attempted link.  Then the lipstick-on-a-pig flyer came out.  OK now they both stopped low, so no moral advantage there.  But again, people in a Valley county with a super-liberal town/city, even Yolo leans law & order.  And for me, Reisig's dept. put a murderer behind bars who killed a friend's partner in front of them and their young child.  And the murderer should NEVER get out of jail, unless the living victim says so.  Period.  Majority of us don't believe in term limits for murderers.

MOOB!

Back in December 2020, some members of the successful 2020 No on DISC campaign got together and articulated what they felt was a new and better vision for Davis.  With the apparent defeat of DiSC 2022 as Measure H, currently showing a 63.52% "No" vote, I thought I would pull it out again.  I think our vision and much of what we wrote here remains pertinent , including an all-too-prescient prediction that:

"the developers will try to bring back DISC with minor changes and spend another quarter of a million dollars in the hopes of gaining just enough new votes to change the outcome of the election.  What the election vote shows is that such an attempt would be a mistake.  The project proposal was fundamentally flawed and a few more bells and whistles wouldn’t change that."

We did not, however, expect that the developer would spend significantly more than half a million dollars, and still lose.  It is to Davisites' credit that we still saw that this was a bad project delivered through a bad process (including an inappropriate developer-funded lawsuit, spearheaded by a sitting Councilmember).

I hope our op-ed stimulates you to think about an alternative path for Davis.

-RLM

The Failure of Measure B Suggests a New Vision Is Needed
Originally posted December 12, 2020
https://www.davisite.org/2020/12/the-failure-of-measure-b-suggests-a-new-vision-is-needed-.html

By Roberta Millstein, Pam Gunnell, Nancy Price, Alan Pryor, and Colin Walsh

Measure B – the measure that proposed a 200-acre business park and housing development outside of the Mace Curve – failed at the polls.  The defeat comes with official Yolo County returns showing that 16,458 people, or 52% of voters, said “no” to the project.  In Mace Ranch and Wildhorse, 60% of voters opposed the project.

This is a remarkable result considering that the No on B campaign was outspent by over 14 to 1.  As of October 28, Yes on B had spent $258,919 between when B was put on the ballot in July and the election in November, while No on B had spent $18,149.  The No on B campaign, composed solely of volunteer Davis citizens, created its own literature, designed its own sign and other graphics, was active on social media, and, to the extent possible during COVID, pounded the pavement distributing flyers to let Davisites know about the negative impacts that this project would bring.  It was a true grassroots effort.  There were no paid designers, no paid consultants, no multiple glossy mailers, and no push-polls to gather information on what messages would sell.  Opponents also could not table at the Farmers Market due to COVID restrictions, normally the bread and butter of a campaign lacking deep pocket donors to finance getting its message out.

By comparison, Yes on B hired a PR Firm and other consultants more than a year in advance of the vote to help contrive and package its message and run the campaign.

The fact that Measure B was nonetheless defeated in the face of long odds and unusual circumstances shows that DISC was a bad project for Davis from the outset.  It was too big, chewing up prime farmland and habitat.   The promise of on-site housing for DISC employees could not be guaranteed, making the development car-and commuter- oriented with extensive parking areas. Poor public transportation options exacerbated this problem. The DISC development would have massively increased Davis greenhouse gas emissions and made it impossible for Davis to meet its carbon neutrality goals. We are in a climate emergency, as Yolo County and other counties have recognized; Davis needs to shoulder its share of responsibility for climate impacts, including but not limited to wildfire impacts and extreme weather events locally and globally.