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Saturday, August 02, 2008

Coroner's Report on Taser Victim Answers Few Questions

The official report by Deputy Coroner James Andrade characterized the death of Ricardo Abrahams as accidental. He found no evidence of homicidal intent by the police.

Of course, that was not really a point in question. No one believed that the police deliberately killed a man by taser.

To make matters less clear, the man did not die directly from the taser, but rather suffocated while being restrained by the police. One witness said that Woodland police officers, "dog-piled" the man.

The cause of Abrahams' death was "positional asphyxia." According to a report in the Sacramento Bee this is a condition often that is associated with deaths that occur during restraint by law-enforcement officers.
"There are certain positions that cause you to expire." [Woodland Police Lt. Charlie] Wilts said. "The coroner's report doesn't say that police compressed Mr. Abrahams to death." Wilts said it is easy for those who weren't there to second-guess the officers, but it would be wrong to do so.

"Who am I to say Mr. Abrahams was not acting aggressively toward the officers?" he asked.
A key finding is that he had no drugs or alcohol found in his system that would lead him to be non-responsive. It was simply a matter that he was mentally disturbed.

Abrahams suffered from bouts of mental disturbance and acting on advice from his psychologist he checked himself into the Safe Harbor Crisis House in Woodland after suffering anxiety. He then walked away the next morning. The staff first called his psychologist. His psychologist described him as not dangerous and then the police were called but he became combative.

Police then hit him with batons and fired Taser guns three times in an attempt to subdue him.

Reaction to this report has been mixed. The Bee quotes, Johnny Griffin, a civil rights attorney.
Johnny Griffin III, a well-known civil rights lawyer, is representing Abrahams' parents, Rosemary and Cecil Abrahams of Davis.

He said that while police may have had no homicidal intent, their actions were deliberate.

"They intentionally Taser- ed him multiple times," Griffin said. "They intentionally dog-piled him. It was this intentional conduct that resulted in his death.

"All those facts support our position that the officers' use of force was unwarranted," he said.

Griffin has filed a claim with the city as a precursor to a lawsuit.

"I'm hopeful that city of Woodland will take full responsibility for the officers' conduct and resolve this case without causing the Abrahams family to go through the pain of protracted litigation," he said.
Yolo County Supervisor Matt Rexroad had a very different response on his blog.
"Life is messy. From my point of view it is unlikely that the Abraham family lost anything that can truly be replaced. Will $1 million of taxpayer money bring back their son? No Is it reasonable to assume that their son would have been a huge economic success considering that facts we have from the newspapers? No. The Abrahams have lost something that can't possibly be replaced. The life of their son.

People like the Abraham's attorney will fuel the public debate by pointing to the fact that the officers used their tasers and than officers used force. That seems like a pretty good way to take down a 300 pound man to me.

The Woodland Police Department did act purposefully. They acted in a manner that law enforcement officers do under those circumstances. It is difficult to come to any firm conclusions about their actions if you weren't there to judge the situation. I for one don't think that the taxpayers of Woodland owe the family any large amount of money at all. They may have some costs associated with this incident but it is not a major amount of money and it is not going to un-ring the bell."
While I agree that the Abrahams family lost something far more precious and something that they cannot replace, I respectful disagree with Mr. Rexroad here in terms of the manner in which law enforcement acted here.

First of all, no has suggested that the police intentionally tried to kill Mr. Abrahams. The question is whether they responded to this situation appropriately. That does not change if he had died directly from the taser shots or indirectly after being immobilized from the taser shots and then "dog-piled."

In fact, one might argue that the secondary cause of death being asphyxiation is even more on them because they bear responsibility for his health and well being after immobilizing him with a taser shot.

But even before we get to that point, we still need to ask whether they operated appropriately by firing the taser in the first place. He was not on drugs or alcohol. He was mentally disturbed. They received the call from the treatment center and should have known this. Hence is non-responsiveness should have been apparent. Should they have gone for the taser? Should they have attempted to talk him down for longer. He had a pencil. He was described by his psychologist as not dangerous. He had no criminal record. Why shoot the taser at that point? Why not call in his psychologist or at least place a call there?

I have talked to various law enforcement people on this issue. All of them stressed that they were not there, but they are increasingly concerned with how quickly officers go to solutions like the taser rather than use other tools and resources at their disposal.

Clearly the issue of the use of the taser is one that must be resolved first by the legal process.

Law enforcement officers in my view are responsible for his welfare the second they have him under their control. To what extent did the tasering contribute to this man dying of asphyxiation? To what extent did the act of "dog-piling" contribute? The cause of death may be accidental, that does not mean that officers do not bear responsibility. If subjects in their custody die from asphyxiation at times, why are police officers not trained to avoid those type of positions?

This is a tragic situation made all the worse because it seems it could have been avoided at multiple points in time. The courts will have to determine whether the use of a taser was appropriate. And the courts will have to also determine whether it was reasonable for the police to have foreseen that the position that they put the individual could have caused death.

I think a lot of people remain concerned about the use of the taser in a situation where you have a non-compliant individual who is mentally incapacitated. We will see what the legal system holds in this tragic death.

---Doug Paul Davis reporting

Friday, August 01, 2008

Analysis: Examination of the Council Feud from Tuesday Night over Water and Process

Everyone is talking about the city council meeting on Tuesday night and the dispute that erupted during the questioning period by Councilmember Sue Greenwald.

From my standpoint, Councilmember Greenwald was right on the substance of the issue. The former Mayor found the independent report lacking and she was pressing her case with the panel of consultants.

Councilmember Greenwald's position continues to be that the burden on the ratepayer is tremendous if the city decides to go ahead with somewhere around a $250 million water supply project at the same time it upgrades its wastewater treatment plant (something which the city really does not have a choice but to do). The councilmember is looking for ways to hold off on the surface water project for 25 to 30 years in order to give the city time to pay off the wastewater treatment upgrade.

Councilmember Greenwald was going about the business of questioning--firmly--but from watching the recording of the proceedings, respectfully, the consultants. It was at this point that tensions escalated. Mayor Ruth Asmundson interjected that Councilmember Greenwald was debating the consultants rather than questioning them.

At this point Councilmember Greenwald practically exploded at the dais and demanded that she be allowed to continue.
Councilmember Greenwald: "This is a half a billion dollar project, you have to allow us to question the experts. You have to."

Mayor Asmundson responded: "You have to ask about the report. No debating."

Councilmember Greenwald: "I am going to ask tough questions."

Mayor Asmundson: "You are out of order."

Councilmember Greenwald: "Ruth you can't do this. You have to allow councilmembers ask good questions and hard questions."

When Councilmember Greenwald tried to continue, Mayor Asmundson cut her off. At this point, Mayor Asmundson and Councilmember Don Saylor got up.

Frankly I think this was mishandled by both the Mayor and Councilmember Greenwald.

First, watching the questioning, I do not think it was that bad that Mayor Asmundson needed to step into the questioning. Councilmember Greenwald was pressing the consultant, but for the most part it was polite and respectful. She does have a right to try to question them in a thorough and tough manner.

Councilmember Greenwald probably could have done this more effectively with a set of pre-written questions based on information that she had gathered, and pressed the consultant much as an attorney. She probably did interject her own opinion with statements rather than questions a bit more than she could have. Nevertheless, from watching the exchange, it did not seem that the questioning was out-of-line to the point where the Mayor needed to interject.

The point at which tensions arose could and should have been avoided. This should not have taken place in the public to begin with, the Mayor should have called an immediate recess and had a discussion with the Councilmember. Councilmember Greenwald immediately escalated the situation when Mayor Asmundson interjected. Had she remained calm, she would have looked better in the exchange. Mayor Asmundson remained calm throughout, but also unnecessarily it seems escalated the situation.

Walking off the dais was rather unprofessional on the part of both the Mayor and Councilmember Don Saylor.

In short, Mayor Asmundson, in my view, strongly escalated a situation that really did not need to be escalated. Councilmember Greenwald is an elected representative to the people of Davis and was representing their views on council during questioning. Frankly, I have seen Sue Greenwald far more combative in her line of questioning than she was on this occasion. There seemed little need for interjection.

The power of the presiding officer is to allow each side to ask their questions of staff and consultants. Because the council is not afforded their own staff, this is the only far and equitable way this can work.

The only time a presiding officer should cut off discussion is under extreme circumstances when things really get out of control. This did not appear to rise to such a level and the Mayor should have allowed the line of questioning to continue.

If she was concerned about the line of questioning, she should have simply said, 'remember Councilmember, we are asking questions now, please keep all statements in the form of a question.'

But Councilmember Greenwald also bears responsibility. She lost her temper first, no matter that she was provoked, no matter that the Mayor was out of line. Losing your temper in this situation leads to an escalation and it also leads to the public's perception as to who was right and who was wrong.

The incident caught Davis Enterprise Columnist Bob Dunning's attention as well.

It is difficult to discern what Mr. Dunning's angle is, although he does seem somewhat inclined to side with the Councilmember on this one.
"Greenwald had the audacity to question a couple of projects that might just break the civic piggy bank before all is said and done - wrote Claire St. John in Wednesday's front-pager: 'Greenwald, who found the independent report lacking, asked if the panel of consultants focused at all on how the city was supposed to pay for a project that will cost about $250 million at the same time as it must upgrade its wastewater treatment plant at a cost of about $200 million.'"
Bob Dunning then continues:
"When I first read those numbers I was certain it was a misprint - surely it must be $2.5 million and $2 million - Greenwald removed all doubt about the proper placement of decimal points when she said 'I have yet to see what shape we'll be in after we pay off a half-billion dollars in debt.'

Hey, that's one of the advantages of having 65,000 people in town - as daunting as the figure sounds, it's only about $7,000 per resident, or $35,000 for a family of five - and if we'd all agree to stop watering the lawn, not to mention showering just once a week whether we need it or not, we may be able to bring that cost down by a dollar or two..."
Mr. Dunning gets the math right in terms of $7000 per resident, which as he points out, means a lot more per family and per residence. You are actually not talking $35,000 for a family of five, what you are talking about is roughly $14,000 per unit, probably more when you take into account residences versus apartments which are likely to pay considerably less.

And those are cost estimates. We all know that most projects run over their initial cost estimates, sometimes by a good amount for something as large and massive as this.

At minimum we are talking about paying an additional $100 if not more per month for one's water bill.

Think about this for a moment. With all of the complaining about the parcel tax, that is an additional $120 PER YEAR. This is 10 times that amount per year at minimum. Should not the rest of the council be asking the consultants just as tough a questions as Councilmember Sue Greenwald?

And yet this process has been almost bumped along without really the tough discussions or the tough decisions made. Why? Because they are using the process as a buffer. It is a piecemail process. There has been a logic behind this process that if we lose our place in line, then we get passed up.

Now some people have stated that they are willing to pay this amount of money for better quality of water. First, it is unclear they will get a better quality of water. Second, that does not help those on fixed or limited incomes.

But quickly, one of the problems with taking river water is that the water is only available if the river contains over a certain amount of water. So on a dry year like this, we may have plenty of water during the winter but during the summer we might get almost nothing from the water supply project and have to rely exclusively on well water. That's the fine print. Plus it seems to be first come first serve.

But if water supplies are less in the future, we may be paying a bunch of money upfront and get very little additional water and the quality of the water may be no different.

There is also a considerable degree of question of deep well water. Is that viable? Could we use that, as Councilmember Greenwald suggests, to hold off on the water supply project for another 20 to 25 years, at which point three things will have occurred: (1) we will have paid off the waste water treatment upgrade. (2) we will have a much clearer picture of the state water system. (3) there will be new and better technology that will probably either allow us to have different water options or make these options cheaper. There seems to be very little reason to rush through this project now other than the arbitrary time tables of the state water bureaucracy. But the risks of going ahead now appear to be just as high and very costly.

These are questions the Mayor and Councilmember Saylor ought to be asking just as strongly as Councilmember Greenwald. And yet they are not and that is really to the detriment of the people of Davis.

I am very concerned about the procedural implications of what happened on Tuesday night. If the Mayor can use the power of the gavel to silence a councilmember, it does not bode well for the rest of us who want a voice in government.

---Doug Paul Davis reporting

Vanguard Radio Postcast: Former Superintendent of Public Instruction Talks About the Parcel Tax

On Wednesday evening the Vanguard Radio Show interviewed Former Superintendent of Public Instruction, Delaine Eastin. She talked about the parcel tax, budget crisis in DJUSD, the state of education in California, and more.

To listen to the show, please click here

Thursday, July 31, 2008

Topete Case Gets More Bizarre Rather Than Less

Just as you want to believe things will return to a more routine level in case of Marco Topete who is accused of killing Deputy Sheriff Jose Diaz on June 15, 2008, things get even more bizarre.

Suddenly Yolo County Public Defender announced that his office has a conflict of interest and can no longer represent Mr. Topete. Mr. Melton gave no reason as to what the conflict of interest was.

In a statement filed before court, Mr. Melton wrote:
"The Public Defender's Office cannot professionally and ethically represent the defendant herein without breaching professional and ethical duties and responsibilities."
The decision by the Yolo County Public Defender leaves many unanswered questions. One question will be apparently answered on August 8, 2008, when a Sacramento Judge will hear whether or not to remove presiding Yolo County Judge Dave Rosenberg from the case.

Sacramento Superior Court Judge David De Alba can only rule on the public defender's request to remove Dave Rosenberg. He cannot consider the defense challenger to the other Yolo County Judges because they have already disqualified themselves (in the case of three judges) or had not been assigned to hear the case at all.

A Brief Look At The Issue of Change of Venue

The question has been repeatedly been raised here and elsewhere, why they have not simply moved for a change of revenue. The answer seems to be there are several reasons. First, Judge Rosenberg would be the person who made the decision on whether there will be a change of venue and the Public Defender's office clear believes they cannot get a fair trial under Judge Rosenberg. Moreover the criteria for a change of venue may be difficult to establish.

According to California Case law there are "five relevant factors" that have been established for deciding venue motion based on pretrial publicity. There are: "1. nature and gravity of the offense; 2. nature and extent of the media coverage; 3. size of the community; 4. community status of the defendant; and 5. prominence of the victim."

Furthermore, California Penal Code § 1033 sets forth grounds by which and at what point a change of venue can occur.

Subsection (a) lays forward cause:
"On motion of the defendant, to another county when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county."
But also states that only the trial itself can be moved to another county, the pretrial proceedings shall all occur in the original venue.
"When a change of venue is ordered by the superior court, it shall be for the trial itself. All proceedings before trial shall occur in the county of original venue, except when it is evident that a particular proceeding must be heard by the judge who is to preside over the trial."
From this it appears then, that pretrial proceedings which are currently going forth, necessarily have to occur in the original venue.

Furthermore, from case law:
"A motion for change of the place of trial must be based upon facts and circumstances from which the conclusion may be deducted by the court that a fair and impartial trial cannot otherwise be obtained."
One of the standards is pretrial publicity makes it impossible to get a fair and impartial jury. While this case has received a fair amount of pretrial publicity, it is unlikely that the level rises to the standard needed. This has hardly been an OJ Simpson case of such high and sustained publicity that everyone has heard of this case.

Moreover, a disqualification of a judge is not sufficient to move venue.

Based on my limited reading of statutes and case law, it appears most likely that the strategy of the public defender's office was to disqualify as the Yolo County Judges which would give them a pretty strong case for change of venue.

However, it frankly seems unlikely that even Judge Rosenberg will be disqualified. So despite the strange turns of this case, it seems probable that it will be heard in Yolo County and by Judge Rosenberg.

Then again it is probably safer to hedge a bit given the strange turn of events this week that now sees the Public Defender bow out of this case. That will require someone else to be appointed to represent Mr. Topete. Again, this will not be grounds for change of venue either it would appear.

---Doug Paul Davis reporting

Wednesday, July 30, 2008

Former California Superintendent of Public Instruction Delaine Eastin To Be Guest on Vanguard Radio This Week

Tune into the Davis Vanguard Radio Show on KDRT 101.5 FM on Wednesday from 6 pm to 7 pm. Guest will be Former California Superintendent of Public Instruction Delaine Eastin. She will be talking about the upcoming Measure W on the Davis Ballot--the Parcel Tax which will be on the ballot in November.

Callers are welcome: 530.792.1648

PG&E in local and statewide news

Two years ago, PG&E spent over $10 million in an effort to prevent Yolo County from approving a public power initiative. Now PG&E is back in the news at the local level as well as at the statewide level.

There has on this blog been a long debate over the viability of a proposed development on the PG&E Service Center Site located at 316 L Street. The site encompassed around 27 acres, extending from Fifth Street to Second Street.

Councilmember Sue Greenwald has long trumpeted the site as a largely relatively unused parcel that would be walking and biking distance to the downtown and even UC Davis.

Separated from adjacent neighborhoods it would be ideals for high density housing and condos.

However despite these advantages some have questioned its feasibility. One question that has arisen is whether PG&E even wants to sell the site.

Former Davis City Councilmember Mike Harrington, who also was a member of the HESC pointed out that there was a letter from PG&E to the City that indicated their interest in selling the property. (See the scan of the letter). As it turns out this was available all along on the city's website and in the HESC packet when the site came up for discussion on July 26, 2007.

The letter in part reads:
"As discussed during the June 7 meeting, the City's philosophy toward maximizing green, efficient and renewable technology and opportunities is consistent with that of PG&E. The company is sensitive toward the needs of the community and we are open to considering and exploring innovative alternative uses for the site."
That should settle at least that portion of the debate. What remains unknown is the cost to the city that they would incur from purchasing the property. Although it would seem to me that a developer could do it and recoup the costs by developing the property and selling the units.

Still this would seem to be one of the more interesting sites that if available, it appears most Davis residents could get behind.

PG&E Gives $250,000 to defeat Proposition 8

The Los Angeles Times reported yesterday that PG&E announced it would give $250,000 to the No on Proposition 8 campaign.

According to the Times:
"Analysts said businesses may be more willing to get involved this time because they have more gay and lesbian employees who are out and in positions of power and because they believe the amendment could hurt business if passed, by giving the impression that California is not friendly to gay and lesbians."
Spokesperson Eilen Chiu said:
“We fought for immigration rights as well as for affirmative action. Gay marriage is the next initiative we felt is worthy to fight for. Every single employee and customer deserves the right to marry.”
The company is also calling for other California businesses to publicly endorse allowing gay couples to marry.

Not surprisingly the announcement was met by less enthusiasm by supports of the proposition, one of whom quipped that he couldn't call them up and tell them to turn off his power.

But then again, maybe such a move might generate good publicity.

---Doug Paul Davis reporting

Tuesday, July 29, 2008

Wood Fireplaces and Stoves: A Burning Issue At Tonight's Council Meeting

Wood burning fireplaces and wood stoves is probably about the last thing you expected to read about in the middle of a hot July day. However, experts are increasingly concerned about the impact of wood smoke on the level of particulate matter in the area during the winter. According to a chart provided by the city of Davis staff report, the city of Davis appears to be right on the board between needing a mandatory solid fuel burning curtailment and the requirement of building new cleaner burning devices.

In 2004, the Yolo Solano Air Quality Management District passed a rule to prohibit the installation of new non-certified fireplaces or wood stoves. But as we will see shortly, that rule helps, but does not alleviate the problem. According to the staff report, the rules set forth meet federal standards but not state guidelines.

The Davis City Council in January of this year asked the Natural Resources Commission to review this issue of wood burning restriction and to make recommendations to council. They made two recommendations. First, eventual complete wood burning prohibition. Second, "until the date certain for complete prohibition, initiate a permitting system for open hearth and EPA appliances that enables burning on days with certain meteorological conditions, based on wind speed."

The city staff however is not recommending the council follow the advise of the NRC.
"For the City to establish a new program by October 2008 is ambitious at best. The infrastructure for forecasting wind conditions, permitting, advertising and enforcement would all have to be constructed between now and October. Granted, some of the framework for education is there, but not the material and specifics for this program."
"Staff is recommending that the City fully participate in the YSAQMD voluntary no burn programs. This could involve posting information on the City web page, including the information in City publications and any other action that would get the word out to educate the public on the adverse effects of wood smoke. The goal is to inform the citizenry of the hazards of wood burning.

Spend the next season working with the air district on developing/reviewing additional programs that would address the wood smoke air pollution. It seems that since the YSAQMD is at times, out of compliance on State PM levels, this may be starting place for a more stringent level for future restrictions. In addition to the public education efforts noted above, any large scale restrictions or bans on wood burning would require substantial public outreach and engagement."
A group called Yolo Clean Air is not happy with staff's recommendation. In a letter to the Davis City Council dated July 28, 2008, Alan Pryor writes:
"Staff’s comments seem to be completely and diametrically opposed to the NRC recommendations in that the NRC unanimously voted to recommend "'wood-burning appliances should be eliminated as completely as possible as soon as possible” while staff is recommending that "the City fully participate in the YSAQMD voluntary no burn programs. “…and…”Spend the next season working with the air district on developing/reviewing additional programs”. Quite honestly, this is exactly where the process bogged down three years at the NRC. Nothing was accomplished then as a result and nothing will be accomplished by the current round of studies if staff'’s comments are accepted and implemented."
He continues:
"It would seem by staff’'s comments that the biggest objections of staff to the NRC recommendations as proposed have to do with the amount of time staff feels they would have to spend implementing the ordinance."
Mr. Pryor looks for a compromise solution to bridge the gap between the action he deems necessary and the city staff's recommendation.
"As such, we have proposed what we believe is a very fair compromise that virtually removes all work required by the city staff including the provision for licensing or permitting. In our compromise, we have also suggested a much more gradual phase-out of EPA Phase II wood stoves as long as restrictions on when they can be safely used are included. This is in recognition of the fact that some folks have just purchased EPA Phase II wood stoves in good faith that they were doing the right thing (even though doing the right thing would have meant installing a natural gas-fueled stove or insert instead). However, we are sympathetic to their concerns and we believe our new compromise before the Council is reflective of that."
When I first heard about the possibility of banning wood burning stoves, I was rather outraged at the notion. After all, walking through a town during a cold winter day, it is rather a cozy to walk around and see the fireplaces going and smell the burning wood. That's of course if you do not have allergies. But then you look at the levels of particulate matter produced by wood burning stoves and the possible health impacts and it paints a very different picture.

Source: Yolo Clean Air

The issue came up during the campaign at the Sierra Club candidate's forum. That gives us insight into three of the council members views.

Sue Greenwald simply said:
"I am in favor of looking into an ordinance for banning wood burning."
Don Saylor gave a long-winded answer that read remarkably like the staff report. The synopsis of his answer was this:
"While I want to withhold judgment until hearing from the NRC, I think we will probably see a combination of further restrictions on burning using specific appliances, incentives and rebates for purchases of cleaner EPA appliances, and more awareness of the issues pertaining to wood burning and the environmental effects."
It will be interesting to see how he reacts to the NRC recommendation that differs from staff's recommendation.

Finally Stephen Souza probably gives a somewhat less committed answer than even Councilmember Saylor.
"There are already restrictions in place on new construction and new installation of fireplaces or wood burning appliances. The Yolo-Solano Air Quality Management District's Rule 2.40 requires the use of pellet fueled heater or EPA certified heaters. We should also require that at the time of sale, remodel or a certain date that all fireplaces that do not meet Rule 2.40 be replaced or rendered inoperable.

We can also promote a self-imposed program of “Don’t Light Tonight” whereby residents do not use their fireplaces or woodstoves when air pollution is approaching unhealthy conditions."
It will be interesting to see what happens, though it seems likely given the stated positions of the three candidates that won election, that the staff recommendation will win out.

I will be very interested to see if this issue has resonance for the readers of the Vanguard. As I said, it seemed a bit nebulous for me until I saw the data.

---Doug Paul Davis reporting

Monday, July 28, 2008

Housing Element's Plan Looks Bleak But There is Some Hope for Consensus Building

A fascinating story this morning the Sacramento Bee by Hudson Sangree.

In it, there is a discussion of the Housing Element Steering Committee's (HESC) housing plan. From the onset there were 15 members, 3 appointed by each of the councilmembers. The assumption was that with a 3-2 split on council between those aligned with local developers and those favoring less growth, that there would be a 9-6 pro-growth majority.

However, according to Vice Chair Mark Siegler, a Sue Greenwald appointee, that's not what happened.

According to the article:
"It came as a surprise when a committee of 15 residents, appointed by council members to help shape the future of Davis, worked together for a year and reached agreement on an innovative housing plan.

It proposes modest growth within the city's current borders. Infill projects deemed beneficial to the city would get priority."
Mark Siegler is quoted saying:
"It was sort of an amazing outcome... I was ready to go in there and just do battle to the death."
Instead now the fear is that the plan that was meticulously worked on over the course many months would be undermined by the city council with very different agendas and ideas than the committee members.
"Over the course of several months, we came to much more of a middle ground... I wouldn't be surprised if members of the City Council are not happy with the outcome based on who they appointed... I hope they don't just dismiss this thing out of hand."
HESC Chairman Kevin Wolf said:
"We have the political consensus to force the City Council in a new direction."
However, if the meeting last week is any indication, this consensus is about to break down into the usual fighting.

For example, Councilmember Stephen Souza and Don Saylor want to push for developing the Nishi property which was ranked No.17 by the steering committee. Mayor Ruth Asmundson complained that some of the properties like the PG&E site and the school district headquarters are not feasible since no one determined if the current occupants would be willing to move or develop their properties.

On the other side of fence, Councilmember Lamar Heystek worried that the list would lead to an artificial means by which to induce growth. Councilmember Sue Greenwald argued vehemently last week the city does not need to grow given the weak market.

However, in my discussion with Lamar Heystek on KDRT Radio last week, he agreed that the city council had considerable room for consensus building. There are clear philosophical differences between the two sides over the rate of growth and the willingness to develop on Measure J sites, however, there is also significant agreement on other areas.

The reason the HESC was able to come to consensus is that they avoided the more contentious "how much issue" and went toward the "where" issue. And in the immediate future, almost everyone agreed that we ought to grow in infill sites near the city's core and move out.

The council majority of Souza, Saylor, and Asmundson have a choice. They certainly have the votes and the recent election results to push forward with any agenda they see fit to seek. On the other hand, strategically speaking, they may be better off tackling development projects where they have basic agreement on location first.

As the HESC report makes clear, there are more than enough of these infill projects to meet either the low end RHNA numbers for the next five years or even the high end, 1% growth cap numbers without looking to a single peripheral project.

However, there are still a lot of pitfalls along the way.

Covell Village: The return of Covell Village is one thing to look at. The group formerly known as the Covell Partners has repackaged the project splitting the development into three segments. The first segment which would be on the lower third is looking towards senior housing. Senior housing is probably the next huge hot potato in general. There is a divide within the community about the need for senior housing and the type of senior housing. Some have suggested that senior housing internal needs are small and any big project would pull from a more regional and even statewide basis, others suggest that residents in Davis ought to be able to move their senior parents into closer proximity.

The form of senior housing is another question. Some have suggested that ideally smaller condos are better suited for seniors than senior-only segregated communities. The argument here is that many seniors want to downsize, but not live in senior-only communities. Some seniors do not even want to downsize.

Nishe: If one looks to location alone this Measure J project would be ideal. But there is a huge hurdle--that is lack of road access. The only access right now would be the narrow Olive Drive leading to the congested Richard Blvd interchange. The road access is so prohibitive that developers have suggested having only campus access for cars and otherwise only direct access to the rest of the city via bicycle or pedestrian traffic. Sounds good in theory, but recognizing the need for special traffic provisions illustrates the pitfall of the development. One alternative might be to give it to the university and have the university use it to expand it's on-campus housing base.

Lewis Property: This is the property that divides the progressive community. On the one hand, many believe that Lewis is an ideal place to develop as means to accommodate growth demands while at the same time not paving over farm land. The fact that it's already paved over and has some of the infrastructure needs plays into that desire. Still, others worry about provisions that Lewis is developed with a mind toward its more controversial eastern neighbor, Covell. While Lewis is considerably smaller than Covell, some of the same concerns that plagued Covell, apply to Lewis. Others such as Councilmember Sue Greenwald have been steadfastly pressing for high tech industry, arguing that we have few high tech zoned sites, that this is the ideal way to bring in new industry, and that the site is not conducive to residential development. The current owners however are pressing hard for a residential development. This is not a Measure J site, and it seems like that the residential side will eventually win this fight much to the chagrin of a number of others.

Wildhorse Horse Ranch: This is another peripheral site that would trigger a Measure J vote. The property came up for consideration early this spring and the meeting was largely an unmitigated disaster as neighbors complained about the project and even council would-be supporters seemed close to pulling the plug on the deal. However, the project has been re-worked. Many of the neighbors are if not supportive of the project, at the very least had their criticism muted. This is likely the next Measure J project Davis will vote on. Probably sometime in 2009. How will it go? It's only 40 acres. The project is said to be extremely environmentally innovative on the cutting edge. If the neighbors are brought along it could pass. If the neighbors remained as outspoken as they were at the last meeting before Council, it is a different story.

Those projects represent varying levels of political opposition. There are other projects within the city limits that would be slam dunks. I still believe one of the biggest mistakes of Covell Village was the timing. The council put all of their eggs into one basket on development and as a result, when Covell was voted down, there was nothing left in the queue. The result, few new housing permits the last three years of city council. The pro-growth majority, for a two-year stretch, a 4-1 pro-growth majority oversaw the period of the slowest growth in recent Davis history.

The question at this point is whether the council majority has learned a true lesson from Covell Village. The lesson is not that people do not want growth. However the lesson is also not that they did not explain the project or sell it well enough. The lesson is that the council tried to do too much, too quickly, with one project that was easy for people to understand the consequences of and easy for people to oppose. Moreover, it was polarizing. If the council can avoid polarizing future votes and issues, and instead form broader community consensus, much as the HESC was able to do, they will be successful. If they cannot, their majority will likely be lost.

---Doug Paul Davis reporting

Sunday, July 27, 2008

Trader Joe's Finally is Coming To Town

There was a time, I would have greeted this news with great enthusiasm. But two separate and frankly unrelated events have caused my enthusiasm to wane for Trader Joe's.

It all started when Trader Joe's determined that the only location in Davis where they would move would be the University Mall on the corner of Sycamore and Russell.

Now it turns out there were a few problems with that location. One was that there was another business already there--Radiological Associates of Sacramento (RAS).

The Davis City Council two years ago approved zoning to allow Centro (the owners of the mall who do not live in Davis) to negotiate with RAS to allow Trader Joe's to move in. RAS refused and Centro sued them. The judge dismissed the suit. Eventually of course Trader Joe's and Centro got its way and RAS is moving to a location on Covell Blvd.

So the big company gets its way, this was precisely the type of company that I had hoped Trader Joe's was not. More on that in a second.

Second problem with that location is that they need to tear down the existing building and put in a new building.

Third problem with that location is parking which is virtually non-existent.

Fourth problem with that location is traffic congestion. Already the one-block area between Sycamore and Anderson on Russell is the most congested area in town. Now you are going to add a major new business that figures to be a huge draw. Do not drive by on Russell during the first few weeks of Trader Joe's.

Fifth problem is one few have discussed--the crows. If you walk around the University Mall during fall and winter you would think you are in Alfred Hitchcock's The Birds. Look at the asphault, it is soaked in bird dropping. When it gets wet, the place is absolutely punget. You want to put a major business there?

And as if all this were not enough, it turns out that Trader Joe's is not the progressive socially responsible business everyone has been... well crowing about.

As we've been reporting for a month now, there was a tragic death of 17-year-old farm worker who was pregnant, young Maria Isabel Vasquez Jimenez. Maria Isabel died from heat exposure after working long hours during the mid-May heat wave in the central valley. As importantly she died because the supervisor failed to get her proper medical attention. By the time she was seen by a doctor she had a core body temperature of 108 and slipped into a coma and then died.

The United Farm Workers report that Charles Shaw wines is the great supplier of the famed "Two Buck Chuck."

Now Trader Joe's is claiming there is no connection.
"Maria Jimenez was employed by an independent contractor, working in an independent vineyard. The vineyard supplies many wineries, but was not supplying grapes for Charles Shaw."
However according to the United Farm Workers this is untrue.
"Trader Joe's prides itself on serving the most progressive, health conscious consumers in our society. They should not evade the issue by pointing to contractor arrangements made by the winery to insulate itself from responsibility for exploitation of the workers. Trader Joe's needs to take moral responsibility and help end that exploitation."
The UFW site continues:
"The facts in this case are clear: Maria Isabel Jimenez died a tragic death while working on a farm--West Coast Farms--co-owned by Fred Franzia. Mr. Franzia is also the owner of Bronco Winery, which produces Charles Shaw wines. It is widely reported that 5-13 million cases of Charles Shaw wine is sold at Trader Joe's stores per year.

We are not denying that Maria was paid through a farm labor contractor. As attorney Robert Perez who is representing Maria's family in a wrongful death lawsuit told the Sacramento Bee, "The reason why corporate farms hire labor contractors is not to have to deal with farmworkers themselves and to shield themselves from liability."
So not only is Trader Joe's involved with the contractor, but they are shirking responsibility. This is very disappointing.

This week the Associated Press reported that Cal-OSHA slapped the farm labor contractor with the largest fine ever.
"The employer of a pregnant teenager who died of heat stroke after pruning grapevines for nine hours in hot weather was hit Wednesday with the highest fine ever issued to a California farming operation.

The California Division of Occupational Safety and Health fined Merced Farm Labor $262,700 for violating eight workplace safety rules. The agency said some of the violations were intentional. A criminal investigation also is under way.

State authorities believe 17-year-old Maria Isabel Vasquez Jimenez died on May 14 because her supervisors denied her access to shade and water as she pruned white wine grapevines for more than nine hours in nearly triple-digit heat at a Central Valley vineyard."
Len Welsh chief of Cal-OSHA told the AP:
"There was virtually a complete absence of shade or water, two of the very few tools that employers and employees have to fight the heat... It's just too bad we can't undo the consequences of those violations."
Cal-OSHA faulted the Merced Farm Labor company for not only failed to provide water but deliberately neglected to train workers and managers on how to stay safe while working in punishing temperatures. The company also willfully skirted preparing for a medical emergency. These violations are the most serious and each carry a $70,000 penalty--the maximum under the law. There is also a criminal investigation underway as well as a wrongful death suit filed on behalf of the family.

Yet closer to home, the mood seems jubilant that Trader Joe's is coming to town.

The Davis Enterprise quotes Davis City Councilmember Stephen Souza:
"It's really a great day to finally see that come to fruition. It seems that everyone has finally been made whole, and Davis will see the doors open to Trader Joe's. It is fantastic news for all the folks that love Trader Joe's and all those that will come to love Trader Joe's."
There was a day when I would have been one of them. But the long drawn out battle over location, Trader Joe's refusal to move into the empty shopping center in West Davis or East Davis and decision to push out RAS, and now their refusal to take responsibility for the actions of their vendor, really sour my mouth. I will stick with the co-op when I want something different to eat.

---Doug Paul Davis reporting