"Petitioner's referendum is contrary to binding case law from the Court of Appeal for the First District," Judge Michael Markman wrote in the Jan. 19 order rejecting the lawsuit.
Citing the state appellate court opinion in San Bruno Committee for Economic Justice v. City of San Bruno, Markman noted that "a referendum that attacks an administrative act, rather than a legislative act, is inappropriate and subject to challenge even before it is approved for an upcoming ballot. The referendum in this case would reverse only an administrative act, and so was properly rejected for further time-consuming processing."
The judge's comments echo the reasoning that the city provided for not processing the referendum petition in the first place.
The referendum petition was initially submitted to the city in July 2022. At the time, Weber deemed the council's action approving the DDLA as administrative, not legislative, and therefore not eligible for a challenge by referendum. Her determination was based on the advice of city attorney Jason Alcala and special counsel.
However, Move Eden Housing went forward with its lawsuit, arguing that Weber did not have the legal authority to refuse to process the petition.
"It is important to note that the court's decision was based upon the law the city provided to the proponents before the petition was even circulated for signature gathering, and again when the city declined to process the petition as a referendum," Alcala told the Weekly. "Despite that law, the petitioner proceeded to mislead the voters for its own motives and filed its lawsuit. We are pleased with the firmness of the court's ruling and its support for the city clerk's role as the city's elections official," he added.
Linda Mandolini, president and CEO of Eden Housing, Inc. also expressed enthusiasm for Markman's ruling.
"This is yet another win for affordable housing, the City of Livermore and the 130 families that are eagerly waiting to have a place to call home," Mandolini said.
As suggested by the group's name, Move Eden Housing is advocating for the relocation of the housing development and for a public park to be built on the current project site located at the southeast corner of Railroad Avenue and L Street.
Former Livermore mayor Bob Woerner -- who was embroiled in the debate over the project throughout his two-year term and years before while serving on the council -- said that he is "quite pleased" that the ruling in Move Eden Housing's case upholds the city's actions.
"This ruling, along with the recent appellate court ruling on the (Save Livermore Downtown) lawsuit, makes it clear that the affordable housing will eventually be built as unanimously approved by the City Council," Woerner said. "The lengthy delays caused by these meritless lawsuits are unconscionable and the courts have justifiably required $500,000 bonds to cover potential damages to Eden to be posted in both cases."
Save Livermore Downtown's lawsuit seeking to overturn the city's approval of the Eden Housing project was denied in Alameda County Superior Court in February 2022. Their subsequent appeal was rejected by the state appellate court last month.
"Following the latest string of legal wins, it is our hope that groups like Move Eden Housing and Save Livermore Downtown will stop these frivolous lawsuits that are only meant to delay and stall projects meant to address the dire housing crisis that our region is facing and aim to house our most vulnerable populations," Mandolini said.
"Kudos to the City of Livermore for their steadfast resolve to fight for the Downtown Livermore apartments in an effort to offer much-needed housing to its local workforce that is struggling to afford soaring rent and food costs," she added.
In a statement to the Weekly, Move Eden Housing spokesperson Maryann Brent doubled down on the group's belief that Weber's decision to not process the petition was unlawful.
"From MEH's perspective, the law is clear that when a city or county clerk processes a voter sponsored referendum or initiative, the clerk's duties are limited to determining whether procedural requirements have been met," Brent said. "The Livermore City Clerk exceeded her duties by speculating as to the validity of the referendum if enacted and refusing to follow the California Elections Code. The court's ruling failed to acknowledge the Clerk's unlawful acts."
Brent also expressed opposition to Markman citing the San Bruno case in his ruling.
"We also disagree with the court's conclusion that the City's resolution was an administrative act and not subject to referendum. In making this conclusion, the court relied on a Court of Appeal decision called San Bruno Committee for Economic Justice v. City of San Bruno, where a resolution to sell a city property for development of a hotel was determined to be an administrative act. The San Bruno court decision did not address at all the clerk's ministerial duties to process a referendum, and so the Alameda Superior Court erred in reading the scope of that decision to apply to MEH's proposed referendum in Livermore," she said.
Brent said that in light of their disagreement with these points and others in Markman's ruling, the group is "considering its options, including filing an appeal."
In addition to attempting to get their referendum processed, Move Eden Housing also tried to halt the sale of the land from the city to the developer by requesting a temporary restraining order. However, Markman denied that request back in September.
Markman also ordered the group to post a $500,000 bond to Eden Housing, Inc. last October as security for costs and damages incurred by the developer from delays to the project caused by litigation.
The previously city-owned land has been sold to Eden Housing, Inc. and is essentially shovel ready, but has been stalled as a result of the back-to-back lawsuits by Move Eden Housing and Save Livermore Downtown, which identify themselves as separate groups but share members.
"It is my understanding that the Eden Housing team is also pleased with the courts' decisions in this case and the lawsuit brought by Save Livermore Downtown, and that they continue to move forward with their project to provide much needed affordable housing in Livermore," Alcala said of the project's status following last week's court victory.
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