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The city of Livermore lost another legal battle over Eden Housing last month when an Alameda County Superior Court judge determined the City Council prematurely ratified a resolution aimed at moving the planned 130-unit downtown affordable housing project forward.
The resolution approved by the council earlier this year sought to reaffirm and readopt the terms and conditions related to the housing portion of the project in an amended and restated disposition, development and loan agreement with developer Eden Housing, Inc.
The move to approve the resolution immediately followed the council’s decision to rescind a 2022 resolution that was largely the same but included language to allow the construction of and improvements to Veterans Park, which faced referendum as a result of community group Move Eden Housing’s efforts to get the DDLA overturned.
The court’s Nov. 15 ruling marks a win for MEH, which as its name suggests, wants to relocate the development away from downtown Livermore to an undetermined location.
Appeals have been filed by the developer and the city as of Nov. 21, according to city officials. However, the resolution and project will remain halted until a decision is reached by the appellate court. In effect, the timeline for the Eden Housing development is uncertain until that ruling.
The current litigation marks another chapter in the legal saga surrounding the affordable housing project and park, planned for the southeast corner of Railroad Avenue and L Street.
Initially, the City Council approved the development in May 2021. Community group Save Livermore Downtown — which identifies itself as separate from Move Eden Housing but shares members — sued the city over environmental concerns, but the court denied their claim. An appeals court later affirmed the decision.
Then in 2022, council approved an updated resolution for an amended and restated DDLA with developer Eden Housing, Inc. It approved construction and improvements to Veterans Park and other project features.
MEH then proposed a referendum that challenged the DDLA, collecting signatures from registered voters to qualify it for the November 2022 ballot. They submitted the referendum petition with more than enough signatures to the city, but officials at the time deemed the 2022 resolution not subject to a referendum because the council’s approval of it was an administrative act, not a legislative act.
In August 2022, MEH filed a petition for a writ of mandate in attempts to “compel the City and the City Clerk to process the referendum petition in accordance with the Elections Code,” according to the court document. The trial court denied the petition, siding with the city and ruling that the resolution was an administrative act.
However, after MEH filed an appeal, the appellate court reversed the trial court’s previous decision. The appellate court found that adoption of the resolution was subject to referendum power because “the development agreement at issue approved the construction of and improvements to a new public park,” according to the court document. The court did not find that the other provisions in the DDLA related to the housing component were referendable.
The city was then ordered to process the referendum petition, as required by the elections code. In June of this year, the council rescinded the resolution altogether in an effort to avoid bringing the issue before voters.
The city ended up back in court after replacing the rescinded 2022 resolution with another resolution to ratify the amended and restated DDLA with Eden Housing. The new resolution reinstated housing components of the rescinded resolution without the park provisions.
MEH contended that the city’s 2024 resolution was essentially the same as the one from 2022, since they both approve the same housing project. They argued this was problematic because the previous court order required the city to either place the 2022 resolution on the ballot or entirely repeal it. Additionally, the elections code “prohibits the City from adopting a resolution ‘essentially the same’ as Resolution 2022-085 for a period of one year,” according to court documents.
The city of Livermore maintained that it followed the writ of mandate by repealing the 2022 resolution. The city argued that it continued to comply with the writ and the elections code by forwarding a different resolution — removing the park provisions.
In the court’s opinion, “The City effectively repealed only part of the original resolution.”
It added, “(The City) immediately substituted almost all of the original language in the replacement resolution.”
Under the elections code, the new resolution cannot be enacted until a year after the appeal.
Despite it’s ruling in MEH’s favor, the court does not have evidence that the city adopted the 2024 resolution “with intent to evade the effect of the referendum petition,” according to the court document.
