Save Livermore Downtown v. City of Livermore ( 2023 )

Filed 12/28/22; Certified for Publication 1/26/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SAVE LIVERMORE DOWNTOWN,
Plaintiff and Appellant,
A164987
v.
CITY OF LIVERMORE et al., (Alameda County
Super. Ct. No. RG21102761)
Defendants and Respondents;
EDEN HOUSING, INC.,
Respondent and Real Party
in Interest.
The City of Livermore (City) approved a 130-unit affordable housing
project in the downtown area. A local organization calling itself Save
Livermore Downtown (SLD) unsuccessfully challenged the project approval
on the grounds the project is inconsistent with the planning and zoning law
and that further review of the project’s environmental impacts is necessary.
Like the trial court, we reject these contentions. We further find no abuse of
discretion in the trial court’s order requiring SLD to post a bond. We affirm
the judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
The City adopted a General Plan and a Downtown Specific Plan in
2004, for which it completed and certified an environmental impact report
(EIR). A subsequent EIR (SEIR) was certified in 2009, after the City made
amendments to the Downtown Specific Plan that, inter alia, increased the
amount of development allowed.
In January 2018, the City approved a plan for redeveloping City-owned
sites in the “Downtown Core” area. The plan included public park space,
commercial retail buildings, cultural facilities, multifamily workforce
housing, a public parking garage, and a hotel. In May 2018, the City selected
Eden Housing, Inc. (Eden) as the developer for the multifamily housing
component of the plan. An addendum to the 2009 SEIR was prepared in
2019. Two further addenda were prepared in 2020 when the project was
modified.
The housing project Eden proposed (the project) would redevelop the
northwestern quadrant of the Downtown Core with two four-story buildings
(a north and a south building) containing a total of 130 affordable housing
units. These are reserved for people with incomes of 20 to 60 percent of
Alameda County’s median income (i.e., low-, very low-, and extremely low-
income households). Land between the two buildings would become a public
park, and private open space reserved for residents would be adjacent to each
building. Parking would be underground, with additional parking in a
nearby parking garage. The project site is bounded by Railroad Avenue on
the north, L Street on the west, and Veterans Way on the south. It was
previously the site of a Lucky’s grocery store, and before that a railroad
depot. To the east is a further portion of the Downtown Core area, including
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a theater, retail space, and a park, with Livermore Avenue to the east of
those facilities.
The project site has a land use designation in the General Plan of
“Downtown Area.” Its designation in the Downtown Specific Plan is
“Subarea 4—Special Condition Sub-District D.” Uses allowed for the site’s
zoning include affordable multifamily housing.
In 2021, the City’s Planning Commission voted to approve Eden’s
application to develop the affordable housing component of the Downtown
Specific Plan. On May 25, 2021, the City approved the project’s application
for design review and a vesting tentative parcel map for the project, finding
the project conformed with the General Plan and the Downtown Specific
Plan’s standards and guidelines, and that no substantial changes were
proposed that would require major revisions to the previous EIR, SEIR, or
addenda. The City found the project exempt from the California
Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) on
multiple grounds, including that it was consistent with a specific plan for
which an EIR had been certified (Gov. Code, § 65457; 14 Cal. Code Regs.,
§ 15182, subd. (c))1 and that it was an infill development project (Guidelines,
§ 15332).
SLD brought a petition for writ of mandate challenging approval of the
project on June 24, 2021. SLD alleged that the project violated state and
local planning and zoning laws in that it was inconsistent with the
Downtown Specific Plan’s development and design standards, that the project
1 The CEQA Guidelines are found at sections 15000 to 15387 of title 14
of the California Code of Regulations. We afford them great weight, unless
clearly unauthorized or erroneous under CEQA. (California Building
Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th
369, 381.) We shall refer to them as the Guidelines.
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was not exempt from CEQA, and that the City violated CEQA by failing to
conduct further environmental review.
Eden moved for a bond under Code of Civil Procedure section 529.2,
which under certain conditions authorizes a bond of not more than $500,000
in an action brought to challenge qualified low- or moderate-income housing
projects. The trial court granted the motion and required SLD to file an
undertaking of $500,000 as security for costs and damages Eden would incur
as a result of litigation-related project delays, finding as it did so that the
action was brought for the purpose of delaying the provision of affordable
housing and that the undertaking would not cause SLD undue economic
harm. SLD filed a petition for writ of mandate in this court seeking relief
from the undertaking requirement, and a different panel of this division
denied the petition. (Save Livermore Downtown v. Superior Court (Oct. 7,
2021, A63603) [pet. den.].)
On the merits, the trial court denied SLD’s petition, stating as it did so
that “[t]his is not a close case,” that “[t]he CEQA arguments are almost
utterly without merit,” and that substantial evidence supported the City’s
conclusion that the project was consistent with the specific plan. This timely
appeal ensued. The City and Eden then brought a motion in this court to
expedite the appeal or dismiss it as frivolous. We granted a slightly
accelerated schedule, declining to dismiss the appeal.
DISCUSSION
I. Consistency with Downtown Specific Plan
SLD contends the project was unlawfully approved because the project
design is inconsistent with the Downtown Specific Plan in multiple respects:
the lobby does not face a primary street and there is parking between the
buildings and the street; the four-story portions of the buildings take up too
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much of the site’s frontage; the external appearance of the units lacks
“individuality”; some of the windows are not “ ‘vertically proportioned’ ”; and
open space requirements are not satisfied.
A development project must be consistent with the applicable general
plan. (San Francisco Tomorrow v. City and County of San Francisco (2014)
229 Cal.App.4th 498, 508; Sierra Club v. County of Napa (2004) 121
Cal.App.4th 1490, 1510 (Sierra Club).) This principle requires the project to
be consistent with the Downtown Specific Plan, prepared to implement the
General Plan. (See Sierra Club, at p. 1509; Gov. Code, §§ 65450, 66473.5.)
The goal of consistency is accomplished, “ ‘ “if, considering all its aspects, [the
project] will further the objectives and policies of the general plan and not
obstruct their attainment.” ’ [Citation.] A given project need not be in perfect
conformity with each and every general plan policy.” (Families Unafraid to
Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th
1332, 1336 (Families Unafraid); accord, Sierra Club, at p. 1511.) It is enough
that the project is compatible with the plan’s objectives, policies, general land
uses, and programs. (Bankers Hill 150 v. City of San Diego (2022) 74
Cal.App.5th 755, 776 (Bankers Hill 150).)
“[I]t is the province of elected city officials to examine the specifics of a
proposed project to determine whether it would be ‘in harmony’ with the
policies stated in the plan. [Citation.] It is, emphatically, not the role of the
courts to micromanage these development decisions.” (Sequoyah Hills
Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 719
(Sequoyah Hills).) We decide merely whether city officials “considered the
applicable policies and the extent to which the proposed project conforms
with those policies, whether the city officials made appropriate findings on
this issue, and whether those findings are supported by substantial
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evidence.” (Id. at pp. 719–720.) We “defer to a procedurally proper
consistency finding unless no reasonable person could have reached the same
conclusion.” (Orange Citizens for Parks & Recreation v. Superior Court (2016)
2 Cal.5th 141, 155.)
A second factor is relevant because this project will provide affordable
housing. Under the Housing Accountability Act (Gov. Code, § 65589.5)
(HAA), a local agency may not disapprove a housing development project for
very low-, low-, or moderate-income households, nor condition approval in a
manner that renders the project infeasible, unless it makes one of several
specific findings, among them that the project would have a specific, adverse
impact on public health and safety or that the project is inconsistent with
both the zoning ordinance and land use designation at the time the
application was deemed complete. (Gov. Code, § 65589.5, subd. (d)(2) & (5).)
And for any housing development, without regard to income-level, a local
agency may not disapprove a project that complies with “applicable, objective
. . . standards and criteria, including design review standards,” in effect when
the application was deemed complete, unless the project would have a
specific, adverse impact on public health or safety that cannot feasibly be
mitigated or avoided. (Gov. Code, § 65589.5, subd. (j)(1), italics added.) An
objective standard is one that can be applied without “personal interpretation
or subjective judgment.” (California Renters Legal Advocacy & Education
Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 840 (California
Renters).)
In reviewing challenges to approval of a project, we review the City’s
actions rather than the trial court’s decision. (California Renters, at p. 837.)
As a general matter, we determine “whether the City prejudicially abused its
discretion in approving the [p]roject by not proceeding in a manner required
6
by law, by reaching a decision not supported by its findings, or by making
findings not supported by the evidence.” (Bankers Hill 150, supra, 74
Cal.App.5th at p. 768.)
When a project is subject to the HAA, however, a different standard
may apply: California Renters, in reviewing a decision denying an
application to build new housing, explained that instead of asking, “as is
common in administrative mandamus actions, ‘whether the City’s findings
are supported by substantial evidence’ [citation], we inquire whether there is
‘substantial evidence that would allow a reasonable person to conclude that
the housing development project’ complies with pertinent standards.”
(California Renters, supra, 68 Cal.App.5th at p. 837; Gov. Code, § 65589.5,
subd. (f)(4).) But the court in Bankers Hill recognized that this “stringent,
independent review” may be unnecessary where, as here, the agency approves
a project. (Bankers Hill 150, supra, 74 Cal.App.5th at p. 777.) In fact, there
seems to be no practical difference in the two standards when an agency finds
a project consistent with its general plan, as even under the ordinary
standard that finding “ ‘can be reversed only if it is based on evidence from
which no reasonable person could have reached the same conclusion.’ ” (The
Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, 896
[applying deferential standard to consistency determination not involving the
HAA].) Using either lens to review the project’s consistency with the specific
plan—asking whether there is substantial evidence from which a reasonable
person could find the project consistent, or whether there is substantial
evidence supporting the City’s finding of consistency—leads to the same
conclusion.
SLD fails to show the project is inconsistent with the “objectives,
policies, general land uses and programs” of the Downtown Specific Plan
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under these standards. (Families Unafraid, supra, 62 Cal.App.4th at
p. 1336.) In finding the project consistent with the plan, the City explained
that the plan’s policies include allowing housing of a range of types and
densities and focusing on redevelopment of “catalyst” sites like the former
Lucky’s parcel, and that the purpose of the plan was to revitalize the City’s
historic core as the pedestrian-oriented center of the City. The project would
further this policy by developing affordable residential units and pedestrian
connections to First Street. The City also found the project conformed with
applicable development standards for setbacks, height, and open space: it
would dedicate approximately 0.7 acres for a public park; and it included
façades with horizontal plane changes at regular intervals, vertical modules,
articulated and detailed building corners, minimal streetside setbacks to
reinforce continuous public streets and pathway space, and distinctive
architectural details that complemented other traditional building styles
nearby.
SLD makes no effort to show the project would not promote the
overarching policies of providing housing, including affordable housing, and
revitalizing the Downtown area. Rather, its challenges are limited to
asserted inconsistencies between details of the project and standards in the
Downtown Specific Plan. We reject each of SLD’s specific complaints in turn.
Main Entrance/Siting and Orientation. The Downtown Specific
Plan addresses “Main Entrance[s],” including an objective that “[e]ntrances
shall convey a clear residential character, one that is welcoming to the
building’s tenants.” The standards meant to further this objective recite that
“[p]rimary entrances to multi-unit buildings shall front onto the primary
street.” A related “Siting and Orientation” objective states that “[b]uildings
shall be sited to reinforce the public street network of Downtown, aligning
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with primary street frontages and public pathway spaces.” Under this topic,
the standards provide that “[t]he backs of buildings shall not face public
streets,” and that “[p]arking is not permitted between the public street and
adjacent residential buildings.”
SLD argues the project violates these standards because a lobby will be
located on the park side of the north building and will not face a primary
street and thus, the back of the building will face Railroad Avenue. The
standards refer not to the location of lobbies, but to the location of entrances
and the backs of buildings. The record shows a pedestrian entrance on the
Railroad Avenue side of the building, as well as an accessible walkway
leading to the same entrance, and a drawing of the exterior depicts that
entrance as prominent. The area immediately by the entrance, described on
site drawings as a lobby, appears to be connected to a larger lobby area on the
park side of the building. This evidence is more than adequate to support the
City’s conclusion—indeed, any reasonable person’s conclusion—that the
project complies with the objective for main entrances. (See California
Renters, supra, 68 Cal.App.5th at p. 837; Bankers Hill 150, supra, 74
Cal.App.5th at p. 777.)
We are no more persuaded by SLD’s argument that the project violates
the prohibition on parking between the public street and residential
buildings. SLD points out that the project drawings show street parking on
Veterans Way, just south of the south building. But the City asserts, and
SLD does not dispute, that the parking is existing parking on the public
street. Parking for residents of the project will be under the buildings, not
visible from outside. We see nothing to compel a finding that existing street
parking renders the project inconsistent either with the objective that
buildings “be sited to reinforce the public street network of Downtown,” or
9
with the supporting design standard prohibiting parking “between the public
street and adjacent residential buildings.” (Italics added.)
Site Frontage. The Downtown Specific Plan provides that residential
development on the “Catalyst Project Site” located south of Railroad Avenue
between L Street and South Livermore Avenue (the former Lucky’s site) may
be four stories tall, “provided the fourth floor does not extend for more than
60% of the site frontage along L Street, Railroad Avenue, and South
Livermore Avenue.”
SLD contends the project violates this rule because the fourth floor of
the residential buildings extends along more than 60 percent of the frontage
of the portions of the Catalyst Project Site the project occupies along Railroad
Avenue and L Street, and the project does not run along South Livermore
Avenue. SLD simply ignores the applicable language in the plan: the 60
percent limitation applies not to the residential portion of the Catalyst
Project Site, but to the entire perimeter along L Street, Railroad Avenue, and
South Livermore Avenue. SLD makes no effort to show—and the site
drawings refute—that the four-story residential buildings front on more than
60 percent of this perimeter. SLD thus shows no inconsistency with the
specific plan.
Massing. The Downtown Specific Plan provides, “[t]he massing of
larger residential buildings shall be broken down to convey a sense of ‘home’,
and give individuality to each unit that lies within it.” To accomplish this
objective, “[m]ultifamily buildings shall avoid a monotonous or overscaled
massing, i.e., a ‘project’ appearance,” and “[b]uilding massing shall be
subdivided into portions or segments compatible with the adjacent residential
scale.” The plan also provides that “[h]orizontal mass shall be broken down
to create architectural interest and provide visual separation between units
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or modules of units.” Here, supporting standards require that “[f]acades of
long buildings shall be architecturally subdivided into shorter segments
every twenty-five (25) to fifty (50) feet maximum,” and that vertical modules
of units incorporate features to distinguish them, “such as wall breaks,
projections, distinct color schemes, and individual roof treatments.”
SLD contends the project violates these standards because the units or
groups of units have no “individuality,” for example with separate roof forms,
balconies, or porches making them distinguishable from each other. Instead,
SLD describes the project as “two massive walls of uniform development.”
We note that in the main, these standards are subjective: questions of
whether the building’s façades are sufficiently “broken down to convey a
sense of ‘home’ ” and individuality, or “create architectural interest and . . .
visual separation” inherently require personal interpretation and subjective
judgment. As a result, we doubt that under the HAA these standards may be
used to deny approval of the project. (California Renters, supra, 68
Cal.App.5th at pp. 839–840; Bankers Hill 150, supra, 74 Cal.App.5th at
pp. 777-778.)
In any event, substantial evidence in the record supports the finding
that the project conforms to the applicable standards because it includes
varied massing, façades with horizontal plane changes at regular intervals,
vertical modules, articulated and detailed building corners, and other
architectural features. SLD draws our attention to drawings of the proposed
buildings that, in our view, support rather than undermine these conclusions.
Certainly nothing in them compels a finding that the buildings have a
“monotonous,” “overscaled,” or “ ‘project’ ” appearance in violation of the
massing standards or that there is no differentiation among clusters of units.
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Windows. The Downtown Specific Plan provides that windows within
a building and across a façade be related in design, operating type,
proportions, or trim, and “shall be used as architectural elements that add
relief to the façade and wall surface.” Among the relevant standards,
“[b]uildings shall include vertically proportioned façade openings, with
windows that have a greater height than width (an appropriate
vertical/horizontal ratio ranges from 1.5:1 to 2:1). Where glazed horizontal
openings are used, they shall be divided with multiple groups of vertical
windows.” (Italics added).
To argue that the project conflicts with these standards, SLD contends
that some of the windows are wider horizontally than vertically. That may
be true, but it is irrelevant. Our review of the drawings of the project
confirms that most of the windows are oriented vertically—and, as a result,
that the buildings “include” vertically proportioned windows—amply
supporting a finding that the project is in conformity with this standard.
Open Space. The Downtown Specific Plan provides that residential
uses must provide “publicly accessible common outdoor space for the
development, as well as private open space (e.g. balconies or patios accessible
only to the dwelling/dwellings served).” Specifically, for residential and
mixed-use developments, the specific plan requires 150 square feet of publicly
accessible open space and 60 square feet of private open space per residential
unit.
To meet the private open space requirement, the project includes—
inset into the south building—recreational and play facilities with a low
perimeter fence, a communal seating area with trellis overhang and benches,
and an area designated private open space and “south park frontage.” For
the north building, an open courtyard is inset and an open area is designated
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“north park frontage.” According to a staff report, these areas would be for
the exclusive use of residents.
SLD contends the project does not live up to the private open space
requirement because these areas do not appear to have physical barriers to
prevent the general public from using them. But SLD does not show that the
Downtown Specific Plan requires physical barriers or that a layout in which
private open space is inset into residential buildings cannot satisfy the
private open space requirement. We bear in mind that it is not our province
to “micromanage” development decisions (Sequoyah Hills, supra, 23
Cal.App.4th at p. 719); it is enough that a project is compatible with the
plan’s objectives, policies, general land uses, and programs (Bankers Hill 150,
supra, 74 Cal.App.5th at p. 776). In our view, the record supports a
conclusion that these open space areas are sufficiently separate from the
public park to qualify as private open space as required by the Downtown
Specific Plan.
As to the public open space requirement, a sizable area between the
north and south buildings and east of the south building will be dedicated as
the future Veteran’s Park. SLD surmises that the City, rather than Eden,
will be paying for the public park, as the City has put out a request for
proposals for landscape design services to develop the park. As a result, SLD
contends, Eden has not fulfilled its obligation to provide 150 square feet of
public open space per unit. This contention is meritless. SLD points to
nothing in the Downtown Specific Plan specifying who must fund the public
open space. Evidence that land between and adjacent to the residential
buildings—already City-owned, as is the rest of the site—will be dedicated for
a public park fully supports a finding that the public open-space requirement
is satisfied.
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Conclusory Findings. In addition to challenging the evidentiary
basis for the City’s consistency findings, SLD also contends the findings are
so conclusory that they fail to “bridge the analytic gap between the raw
evidence and ultimate decision or order.” (Topanga Assn. for a Scenic
Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.) While
findings must be sufficient to meet this standard, they “do not need to be
extensive or detailed. ‘ “[W]here reference to the administrative record
informs the parties and reviewing courts of the theory upon which an agency
has arrived at its ultimate finding and decision it has long been recognized
that the decision should be upheld if the agency ‘in truth found those facts
which as a matter of law are essential to sustain its . . . [decision].’ ” ’
[Citation.] On the other hand, mere conclusory findings without reference to
the record are inadequate.” (Environmental Protection Information Center v.
California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 517–
518.)
Although the findings are relatively brief, we have had no difficulty
discerning the basis of the City’s conclusions. The City found that the project
will promote the goals of providing housing and revitalizing the City’s core
area, and it went on to find that the project conforms to applicable
development standards related to setbacks, height, and open space, and to
the design standards in the Downtown Specific Plan, with reference to
architectural details supporting its finding. Although the findings did not
specifically discuss each of the project details SLD contends were inconsistent
with the specific plan, SLD has not shown they were inadequate.
Moreover, the HAA has changed the legal landscape for considering
SLD’s challenges to the consistency findings. The HAA deems a housing
project consistent with a plan’s policy, standard, or requirement “if there is
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substantial evidence that would allow a reasonable person to conclude” it is
consistent. (Gov. Code, § 65589.5, subd. (f)(4).) The City recited, when
making its findings, that it was acting based on its own independent review,
in accordance with the HAA. We have considered SLD’s challenges and are
satisfied as to each of them that a reasonable person could conclude the
requirements in question are satisfied. We thus reject SLD’s contention that
the consistency findings were inadequate.
II. Exemptions from CEQA
A. Residential Project Consistent with Specific Plan
The City determined the project is exempt from CEQA under
Government Code section 65457, which exempts from CEQA review
residential development projects that are consistent with a specific plan for
which an EIR has been certified. SLD contends this exemption does not
apply and further environmental review is necessary because new
information about soil and groundwater contamination arose after the 2009
SEIR was certified.
1. Additional Factual Background
The 2009 SEIR for the amendments to the Downtown Specific Plan
examined the environmental impacts of a proposed theater on three
alternative sites, one of which encompassed the location of the proposed
housing project now before us. Among the issues the SEIR considered was
the possible presence of hazardous materials at the potential sites for the
theater. The SEIR explained that soil and groundwater there had been
affected by historic land uses such as railroad operations, service stations,
dry cleaners, fuel storage, and machine shops. At the current project site,
former railroad operations might have caused the presence of heavy metals,
petroleum hydrocarbons, and pesticides in the soil and groundwater; dry
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cleaning operations adjacent to the site might have led to the presence of
chlorinated solvents in the groundwater; and hazardous materials might
have been released by a petroleum company and an automobile company.
The 2009 SEIR included among potential environmental impacts that
development of the theater at any of the alternative sites might expose
construction workers and future site patrons, residents, or workers to
hazardous concentrations of contaminants from soil and groundwater. It
concluded that, before mitigation, this impact would be significant. As
mitigation, the SEIR provided that before grading permits were issued, a soil
management plan would be prepared; this plan would include any available
environmental data from sampling at the specific site, a worker health and
safety plan, requirements for soil management and off-site disposal, and a
contingency plan for sampling and analysis of previously unknown hazardous
materials. Further remediation might be required if evidence of
contaminated groundwater was identified.
As to the current project site in particular, the 2009 SEIR explained
that release of hazardous materials during demolition and earthwork
activities could pose a hazard to construction workers, others nearby, and the
environment; that future residents and patrons could be affected by
hazardous materials if they came into contact with contaminated soil or
groundwater; and that vapors from soil or groundwater could migrate into
buildings constructed over sources of contamination. As mitigation, due to
prior railroad and dry cleaner presence at or adjacent to the site, a licensed
professional would prepare a soil and/or groundwater investigation work plan
to evaluate potential hazardous materials, including sampling and analysis
for heavy metals, petroleum hydrocarbons, pesticides, and chlorinated
solvents and, if the results could affect public health or the environment,
16
regulatory agency oversight would be requested. The SEIR concluded these
mitigation measures would reduce the impacts of the potential release of
hazardous materials to a level of less than significant.
Three addenda updating the 2009 SEIR confirmed this analysis. The
March 2019 addendum concluded the SEIR adequately evaluated impacts
from hazardous materials and that, with implementation of the mitigation
measures, “there would be no new impacts related to hazards and hazardous
materials associated with the proposed project.” Two further addenda
prepared in August 2020 concluded there would be no new impacts, and no
SEIR or further CEQA review was necessary.
In February 2021, the San Francisco Bay Regional Water Quality
Control Board (Water Board) informed the City that soil, groundwater, and
soil vapor sampling had been conducted at the project site. It reported that
investigation conducted since 2009 had identified selected metals in soil,
petroleum hydrocarbons in soil and groundwater, and volatile organic
compounds, including tetrachloroethene (PCE, a dry-cleaning chemical) and
its breakdown products, in groundwater and soil vapor; that soil containing
metals would require management during site grading and use; and that
additional action, focused on soil vapor and groundwater, was warranted to
assess, remediate, and mitigate PCE and its breakdown products at the site.
The Water Board asked the City to submit a data gap assessment workplan
proposing soil, groundwater, and/or vapor sampling to collect necessary data,
as well as an interim remedial action plan presenting the results of the
investigation conducted under the workplan and describing the remedial
alternatives evaluated and selected.
PANGEA Environmental Services, Inc., prepared the requested data
gap assessment workplan in May 2021. It reported that PCE had been
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detected in soil gas and groundwater, and that this impact merited further
characterization and possible mitigation or remediation. It also reported that
other metals, such as arsenic, lead and nickel, had been detected. It
explained that PCE in soil gas could intrude into future structures, that this
problem could be remediated by soil vapor extraction if necessary, and that
engineering controls (such as ventilation in a parking structure) could
safeguard occupants from residual vapor intrusion.
PANGEA also prepared a site assessment and summary report in 2020,
which explained that engineering controls such as ventilated parking
structures and chemical vapor barriers could safeguard future occupants
from potential vapor intrusion, and that additional groundwater sampling
and well monitoring was merited to monitor the stability of the PCE plume.
PANGEA recommended a soil management plan to facilitate proper handling
and disposal of metal-bearing soil during construction.
2. Analysis
With narrow exceptions, CEQA requires preparation of an EIR before a
public agency approves or carries out a project that may have a significant
effect on the environment. (Sierra Club v. County of Fresno (2018) 6 Cal.5th
502, 511–512, 523; Pub. Resources Code, § 21151.) And, relevant to our
analysis, CEQA permits “ ‘ “the environmental analysis for long-term,
multipart projects to be ‘tiered,’ so that the broad overall impacts analyzed in
an EIR at the first-tier programmatic level need not be reassessed as each of
the project’s subsequent, narrower phases is approved.” ’ ” (Citizens’
Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th
460, 468 (Citizens’ Committee).)
Government Code section 65457 provides one of the exceptions to the
requirement for CEQA review. That statute states that a residential
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development project that is “undertaken to implement and is consistent with
a specific plan for which an environmental impact report has been certified
after January 1, 1980, is exempt from the requirements of [CEQA].” (Id.,
subd. (a).) However, if “an event specified in Section 21166 of the Public
Resources Code occurs” after the specific plan is adopted, the exemption does
not apply unless an SEIR is prepared and certified. (Gov. Code, § 65457,
subd. (a).)
Public Resources Code section 21166, in turn, provides that after an
EIR has been prepared, no SEIR is required unless substantial changes to
the project or its circumstances will require major revisions to the EIR, or
“[n]ew information, which was not known and could not have been known at
the time the [EIR] was certified as complete, becomes available.” The
Guidelines explain that the new information must be of “substantial
importance,” for example when the new information shows the project would
have significant effects not discussed in the EIR or when significant effects
will be substantially more severe then shown in the previous EIR.
(Guidelines, § 15162(a)(3).) We review for substantial evidence the City’s
determinations that a statutory exemption from CEQA applies and that none
of the circumstances under section 21166 exist. (North Coast Rivers Alliance
v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 850; Citizens’
Committee, supra, 74 Cal.App.5th at p. 470.)
SLD contends the information from the Water Board and PANGEA
about the presence of PCE’s, metals, and other substances on the site
constituted new information that takes the project outside the scope of this
exemption. We disagree. The 2009 SEIR specifically considered the
possibility that the soil and groundwater at the site might contain
contaminants from historic railroad, automotive, and dry-cleaning uses at or
19
adjacent to the project site, and that those contaminants might include
chemicals used in dry cleaning. Consistent with this possibility, the SEIR
proposed mitigation measures, potentially to include regulatory agency
oversight, and concluded that with those measures the impact would be less
than significant. The City could reasonably conclude that the evidence the
site was contaminated with dry-cleaning chemicals and other byproducts of
the site’s earlier uses—as contemplated in the 2009 SEIR—did not constitute
new information that was not or could not have been known when the SEIR
was certified.
SLD argues that the analysis in the 2009 SEIR was only cursory and
thus inadequate to analyze the effects of the contamination now that it has
been found. And, SLD points out, the 2009 SEIR analyzed impacts “at a
programmatic level” rather than a project level because specific projects
associated with amendments to the Downtown Specific Plan had not yet been
finalized. We reject SLD’s contentions. First, whether programmatic or
project-specific, the SEIR considered the uses to which the project site had
historically been put and the contaminants that might have resulted from
those uses, and it took into account the effect of those contaminants on future
occupants of buildings to be constructed there.
More fundamentally, SLD offers no support for its suggestion that
Government Code section 65457’s exemption does not apply when the
previously certified EIR for the specific plan was a program-level EIR. As our
colleagues in Division Four recently explained, while considering the
exemption in the context of a program-level EIR, Government Code section
65457 “set[s] a higher threshold for review of a residential development
consistent with a previously analyzed specific plan than for a project tiered
under a program EIR. [Citation.] ‘The [Government Code] section 65457
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exemption, like other statutory exemptions, reflects the Legislature’s
determination that the interest promoted is “important enough to justify
forgoing the benefits of environmental review.” ’ ” (Citizens’ Committee,
supra, 74 Cal.App.5th at p. 476; accord, Concerned Dublin Citizens v. City of
Dublin (2013) 214 Cal.App.4th 1301, 1312.) While in some cases it may be
necessary to prepare a project-level EIR as a later tier after a program EIR,
“in others, the analysis will be completed by determining that the project is
exempt from further CEQA analysis.” (Concerned Dublin Citizens, at
p. 1316.) The City properly made that determination here.
Because we uphold the City’s finding that the project is exempt from
CEQA review under Government Code section 65457, we need not consider
whether the City properly found the project was also exempt as an infill
project. Neither do we address whether, under California Building Industry
Assn. v. Bay Area Air Quality Management Dist., supra, 62 Cal.4th 369, the
contamination of which SLD complains constitutes an environmental impact
for purposes of CEQA.
III. Bond under Code of Civil Procedure Section 529.2
When a litigant brings an action challenging a qualified low- or
moderate-income housing development project, the party defending the
project may move under section 529.2 of the Code of Civil Procedure for an
order requiring the plaintiff/petitioner to furnish an undertaking as security
for costs and damages that may be incurred as a result of delay in carrying
out the project. (Code Civ. Proc., § 529.2, subd. (a).) The grounds for such a
motion are that “(1) the action was brought in bad faith, vexatiously, for the
purpose of delay, or to thwart the low- or moderate-income nature of the
housing development project, and (2) the plaintiff will not suffer undue
economic hardship by filing the undertaking.” (Ibid.) If the court determines
21
these grounds have been established and grants the motion, the resulting
bond may not exceed $500,000. (Id., subd. (b).)
The parties agree that the decision whether to grant the bond is
properly reviewed for abuse of discretion, although SLD points out that, to
the extent it claims an error in statutory interpretation, we interpret the
statute de novo. (See ABBA Rubber Co. v. Seaquest (1991) 235 Cal.App.3d 1,
14, 17 [Code Civ. Proc., § 529 undertaking in connection with preliminary
injunction]; Department of Fish & Game v. Anderson-Cottonwood Irrigation
Dist. (1992) 8 Cal.App.4th 1554, 1560–1561 [preliminary injunction].) We
disturb the trial court’s exercise of its discretion only if it “ ‘ “ ‘exceeded the
bounds of reason or contravened the uncontradicted evidence.’ ” ’ ” (ABBA
Rubber Co., at p. 17.)
In its motion for a bond under section 529.2 of the Code of Civil
Procedure, Eden argued that this action had the effect of delaying the project
and threatened its viability by putting at risk the tax credits that would
assist in financing the project. According to Eden, SLD “kn[ew] full well the
consequences” of bringing this action, as its members had a history of
opposing projects in the City and its counsel was a sophisticated law firm
experienced in land use litigation.
As evidence that the action was brought for the purpose of delay and to
thwart affordable housing, Eden pointed to an allegation in the petition that
the City and Eden originally promised housing for those with incomes of up
to 120 percent of area median income, but that as now proposed the project
would house those with incomes of 20 to 60 percent of area median income, a
level that would exclude teachers and firefighters; Eden suggested SLD
opposed the project for being too affordable. Eden also pointed out that SLD
alleged it had developed an alternative plan that would allow the project site
22
to become a park and would place additional affordable housing across the
street, north of Railroad Avenue. But, Eden contended, this “alternative”
was a ruse, in that the City did not own the site, neither the City nor Eden
controlled it, the site was not for sale, it had not been evaluated for affordable
housing, it had no housing entitlement, there was no evidence the necessary
financing would be available, and at best it would take “many, many years”
to develop affordable housing there. And, Eden argued, SLD’s proposal that
a public park be placed on the project site belied any genuine concern that
the soil was dangerous to human health. Eden also argued that all of SLD’s
claims were meritless, further demonstrating the action was brought for the
purpose of delay. Finally, as evidence of an intention to delay, Eden provided
evidence that SLD elected to prepare the administrative record but, almost
60 days after filing its petition for writ of mandate, it had made only minimal
progress in doing so.
As to whether SLD would suffer undue economic hardship, Eden
argued the organization was comprised of various wealthy people who could
afford to file the undertaking; two of them regularly donated significant sums
to other organizations opposing development in Livermore; SLD was
“reported to have spent” more than $2,000,000 opposing the project; and SLD
had hired and was paying “one of the largest and most expensive law firms in
the country.”
In opposition to Eden’s motion for a bond, SLD submitted evidence that
it was a nonprofit, unincorporated association formed in early 2021 and that
it had spent approximately $37,000 on architectural services related to the
alternative it suggested be built across Railroad Avenue. This amounted to
“much of its funding,” according to a supporting declaration, which also
denied SLD had spent $2,000,000 opposing the project and asserted a
23
$500,000 bond would impose financial hardship and limit its ability to carry
out its nonprofit activities and continue to prosecute this action. Another
supporting declaration stated that SLD’s finances were separate from those
of its members, that SLD had received financial contributions from more
than 50 people, that the purpose of the organization was to advocate for open
space and against sprawl, that it supported affordable housing and did not
file the action due to the project’s low-income nature or for purposes of delay,
and that a $500,000 bond would damage the organization and prejudice its
ability to act in the public interest by challenging the City’s incorrect legal
decisions. SLD’s counsel submitted a declaration averring that when a
petitioner in a CEQA action elects to prepare the administrative record,
commonly the agency compiles the relevant documents and sends them to the
petitioner for review, organizing, and indexing, and that it was common to
seek extensions of time to complete and certify the record.
SLD argued Eden failed to meet its burden to prove the undertaking
would not cause undue economic hardship. It also objected to much of the
evidence Eden presented to support its motion, including newspaper articles
discussing the opposition to the project and the amount of money SLD and its
members had allegedly spent, on-line estimates of the value of real property
allegedly owned by SLD’s members, and an estimate of the annual revenue of
a business alleged to be partially owned by one of SLD’s members.
In granting Eden’s motion for a bond, the trial court found that the
evidence did not show the action was brought in bad faith, vexatiously, or to
thwart the low- or moderate-income nature of the housing project. However,
it found, the action had the effect of delaying the provision of affordable
housing and the preponderance of the evidence showed the action was
brought for the purpose of delay. In so concluding, the court noted that the
24
petition was filed “at the very last moment[] permitted by the short statute of
limitations,” and that SLD allowed two months to elapse before starting to
prepare the administrative record, did so only when prompted by the City,
and then sought a 60-day extension of time, causing the hearing on the
merits to be delayed. The court also found the undertaking would not cause
SLD undue economic harm, in that it had at least 50 people contributing
money to it, and that SLD’s evidence that it would suffer harm was
conclusory. The court therefore ordered SLD to file an undertaking of the
statutory maximum, $500,000. Before making its ruling, the court sustained
SLD’s objections to newspaper articles discussing the opposition to the project
and evidence of the personal wealth of SLD’s members.
SLD argues this ruling was an abuse of the trial court’s discretion.
Without the evidence the trial court excluded, SLD contends, there was no
evidence to support Eden’s argument that SLD would not suffer undue
economic hardship if required to post a bond. We disagree. The record before
the court showed not only that more than 50 people had contributed to SLD,
but also that the organization had spent some $37,000 commissioning plans
for an alternative and unrealistic location for affordable housing. And,
although the court did not mention this in making its ruling, SLD was
represented by a prominent private law firm, further suggesting it could bear
the cost of posting a bond without undue hardship.
SLD argues the burden of producing evidence of its financial status was
not SLD’s, but even if this is true 2 the fact remains that SLD did provide the
number of its contributors and the amount it had spent on the alternative
2 Although respondents point out that information regarding SLD’s
assets and ability to support a bond is uniquely within SLD’s possession, they
do not take the position that SLD had any burden to produce evidence of its
financial position, and we do not consider the issue.
25
proposal. The trial court was not required to ignore the evidence before it.
Indeed, at the hearing on the motion, counsel for SLD conceded that the trial
court could consider all of the evidence. While the evidence that SLD would
not suffer undue financial hardship is not particularly strong, neither was
the contrary evidence, and the court’s ruling was not beyond the bounds of
reason.
We are no more persuaded by SLD’s argument that the trial court
abused its discretion in concluding the action was brought for the purpose of
delay. SLD contends the court should not draw an adverse inference from
the fact that it filed its petition at the end of the 30-day limitations period.
(Gov. Code, § 65457, subd. (b).) And, according to SLD, the evidence shows
the delay in preparing the administrative record was routine writ practice.
But the trial court could reasonably see the evidence that SLD did not seek to
advance preparation of the record for almost two months after filing this
action as an indication that it was not prosecuting the action diligently. (See
Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 72
Cal.App.3d 675, 681 [“unfair delay” occurred where plaintiffs did not request
administrative record until 55th day of the 60 days allowed].) We also note
that one of the bases for Eden’s argument that the action was brought for
purpose of delay was that SLD’s substantive arguments lack objective merit.
After reviewing this appeal thoroughly, we can only agree. With the trial
court we conclude, “[t]his is not a close case.” SLD’s contentions regarding
the project’s consistency with the Downtown Specific Plan and its CEQA
arguments lack merit, so much so that the inherent weakness of these claims
further supports the trial court’s finding that SLD brought this action to
delay the project.
We see no abuse of discretion in the trial court’s ruling.
26
DISPOSITION
The judgment is affirmed.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
Save Livermore Downtown v. City of Livermore et al. (A164987)
27
Filed 1/26/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SAVE LIVERMORE DOWNTOWN,
Plaintiff and Appellant,
A164987
v.
CITY OF LIVERMORE et al., (Alameda County
Super. Ct. No. RG21102761)
Defendants and Respondents;
EDEN HOUSING, INC.,
Respondent and Real Party
in Interest.
THE COURT*:
Appellant has filed a petition for rehearing of this court’s December 28,
2022 opinion, and multiple requests for publication have also been filed.
Appellant’s January 12, 2023 petition for rehearing is DENIED.
The requests for publication are GRANTED. The written opinion
which was filed on December 28, 2022 has now been certified for publication
pursuant to rule 8.1105(b) of the California Rules of Court, and is ordered to
be published in the official reports.
Dated:__1/26/23_______ ______TUCHER, P.J._____ P.J.
* Tucher, P.J., Fujisaki, J., and Petrou, J. participated in the decision.
1
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Frank Roesch
Counsel: Latham & Watkins, Winston P. Stromberg, Michelle
Cornell-Davis, and Kevin A. Homrighausen for Plaintiff
and Appellant
Jason R. Alcala, City of Livermore Attorney, and Kimberly
Cilley, Staff Attorney; Burke, Williams & Sorensen,
Stephen E. Velyvis, Eric S. Phillips, and Nicholas J.
Muscolino for Defendants and Respondents
Rob Bonta, Attorney General of California, Daniel A.
Olivas, Senior Assistant Attorney General, Christina
Bull Arndt, Supervising Deputy Attorney General,
Andrew R. Contreiras, Deputy Attorney General for the
Attorney General of California as Amicus Curiae on
behalf of Defendants and Respondents
Goldfarb & Lipman, James T. Diamond, Jr., Barbara
Kautz, and Nazanin Salehi for the League of California
Cities as Amicus Curiae on behalf of Defendants and
Respondents
Cox, Castle & Nicholson, Andrew B. Sabey, Scott B. Birkey,
and Robbie C. Hull for Respondent and Real Party in
Interest
Save Livermore Downtown v. City of Livermore et al. (A164987)
2