LIVERMORE – An Alameda County Superior Court judge on Jan. 19 rejected a community group’s arguments that the Livermore city clerk should be required to continue processing a referendum petition submitted in July 2022 containing more than 8,000 signatures. The referendum would have enabled citizens to vote on whether the sale of the city-owned downtown property to Eden Housing should go forward as specified in the city council’s May 24, 2022 resolution.
In a nine-page order following months of litigation, Judge Michael Markman ruled that City Clerk Marie Weber acted within the law when she declined to process Move Eden Housing’s (MEH) signatures seeking the citywide vote. Weber at the time said the city council’s approval to sell land for the project to Eden was an administrative act — not a legislative act — and therefore not eligible for a public vote.
MEH’s principal officer, Maryann Brent, said her organization believes the court’s ruling was incorrect. MEH is considering its options, including filing an appeal.
“The court’s ruling quashes thousands of Livermore voters’ constitutional rights to petition the government,” Brent said. “More than enough signatures were obtained to qualify the referendum for the ballot, but the clerk refused to validate the signatures or take any further action. In doing so, she did not comply with her duties under the Elections Code.”
Brent added, “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.”
“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,” Brent said. “The court’s ruling failed to acknowledge the clerk’s unlawful acts.”
On the other side, Linda Mandolini, Eden Housing’s president and chief executive officer, said in a statement that Eden was pleased with the ruling “after nearly two years of meritless lawsuits to stall and delay our project in downtown Livermore.”
“This is another big win for affordable housing and for the 130 low-income families that are now one step closer to having a place to call home,” Mandolini said. “Had it not been for Move Eden Housing and Save Livermore Downtown’s actions, we would already be welcoming them to their new homes this year.”
In his ruling, Markman said he based his decision on California case law that “holds 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,” Markman said.
Livermore City Attorney Jason Alcala said the judge confirmed that Weber acted appropriately.
“The decision is a candid rebuke of Move Eden Housing’s petition and actions,” Alcala said.
Markman’s ruling follows an appellate court decision against Save Livermore Downtown’s (SLD) lawsuit that would have compelled the city to require further environmental review for Eden Housing’s project and to follow certain city design standards that in SLD’s view were mandatory. The Eden Housing project is planned for the former Lucky site between L Street, Railroad Avenue, the extension of K Street and Veterans Way. MEH — along with SLD, a community group with a few of the same members — says it is in favor of affordable housing but prefers that the Eden project move across Railroad Avenue on the north or to another location. It believes that a visionary park rather than any housing should be located in the very heart of the downtown.
In December, a three justice panel at the California 1st District Court of Appeal voted unanimously to uphold Alameda County Superior Court Judge Frank Roesch’s March ruling against SLD’s lawsuit. On Jan. 12, SLD filed a request to have the justices rehear their arguments and is awaiting a decision.
In the referendum litigation, MEH attorney Winston Stromberg — who also represented SLD — argued in November that a city’s failure to process a citizen petition drive for a vote violated its residents’ Constitutional right to free speech, and that the city clerk had a ministerial and mandatory duty to validate petition signatures and place the issue on the ballot. Stromberg said it was the citizens’ right to collect signatures and have them processed for a vote.
“It’s entirely appropriate for the city council to set this for a special election,” Stromberg told the court. “The burden should not be on a proponent of a referendum to compel the city to take action and comply with the Elections Code.” MEH argued that if the city believed the subject of the referendum was not proper, it had the burden to go to court to resolve this issue prior to any election, not the referendum proponent.
MEH’s attorneys also argued that the city’s decision to contribute millions of dollars to Eden for the housing construction “bears all the hallmarks of legislative action,” not an administrative act.
Livermore’s attorney, Steven Nguy, however, argued that Weber’s decision was consistent with a 1st District Court of Appeal ruling in a similar 2017 case in San Bruno. In that case, a panel of justices ruled against proponents of a petition drive to stop a hotel development, saying San Bruno’s city attorney was correct when he denied a ballot referendum because the city’s resolution to sell land for the project was not a legislative act and, therefore, not subject to a public vote.
Markman said he followed that case law in making his Eden ruling.
“This case is substantially similar to San Bruno,” Markman said. “It concerns the same sort of jurisdictional question — whether a referendum is permitted at all under California law to address an administrative act.”
Markman, deciding the answer was ‘no,’ said San Bruno’s decision to sell the land was administrative because the legislative vote to build the hotel had occurred seven years earlier. He said, in Livermore, the city’s intention to sell land to Eden dated back to a legislative decision to build affordable housing in 2009.
“Given the similarity to the San Bruno case, the court cannot grant petitioners writ of mandate,” Markman said. “The proposed referendum seeks to overturn an administrative act, making it something a referendum cannot constitutionally address.”
Markman also rejected MEH’s contention that the Weber’s decision disregarded the will of the voters by not placing the Eden Housing project on a ballot.
Livermore residents, Markman said, had the opportunity to vote for mayor and two city council members on the November ballot and “can continue to hold the council accountable for the project in future elections.”
Mandolini said Eden Housing was grateful to the City of Livermore for its “steadfast support and commitment to this project.”
“We hope the multiple recent legal wins will cause others to think twice before intentionally trying to delay much-needed affordable housing projects throughout the greater Bay Area and California,” Mandolini said.
In contrast, Brent stated that MEH disagreed with Markman’s conclusion that the city’s resolution was an administrative act and not subject to a referendum. The court, she said, was in error when it relied on the Court of Appeal’s decision in the San Bruno case.
“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,” Brent said. “And unlike in the San Bruno decision, here the City of Livermore did not engage in a typical property sale at market rate negotiated between a buyer and seller. Instead, the city is subsidizing Eden Housing’s $7.8 million acquisition of Lucky site property with a 55-year low-interest loan, spending $5.5 million to finance the project’s public park, which Eden itself was supposed to provide, and agreeing to spend up to $4.3 million to address pre-existing contamination on the property.”
Brent said MEH believes it was inappropriate for the court to find that the clerk did not thwart the will of the voters because Livermore residents had an opportunity to vote for new city council members and a mayor in the November 2022 election.
She justified her conclusion by saying, “The election of individual council members and a mayor is unrelated to the referendum, which is based on an entirely separate fundamental right reserved to the voters under the California Constitution.”
She also noted that construction of Eden Housing will not go forward until the L Street Garage is built across Veterans Way on the south side of the proposed residential development. It is needed to replace parking now located on the current Eden site. In addition to the 4-level garage, 16 wells have to be built on the garage land by the city’s garage contractors to address contamination on the L Street Garage and Eden sites.
According to Brent, “The opening of the L Street Garage is well over a year away. Citizens would have time to express their support for a better plan.”
She concluded, “In light of the court’s decision, which we believe was wrongly decided, MEH will continue to assess our options for best ensuring that the voices of thousands of Livermore voters who petitioned for a citywide vote are not ignored.”