Group opposing downtown affordable housing project dealt legal blow by courts
LIVERMORE >> A group of influential Livermore residents and business people suing to block an affordable housing project planned for downtown have been dealt a blow by an Alameda County court judge and a state appeals court.
The group, Save Livermore Downtown, sued Livermore in June over the City Council’s decision in May to approve a 130-unit affordable apartment complex at the corner of Railroad Avenue and South L Street, alleging the project is “inconsistent” with elements of Livermore’s downtown plan and that the city needs to do further environmental analysis regarding contamination on the site.
While a ruling in the lawsuit is likely not expected until February, the nonprofit developer behind the project, Eden Housing, of Hayward, asked the court to order Save Livermore Downtown to post a $500,000 bond to help offset the “costs and damages” it is facing while the lawsuit proceeds.
Eden said its project was in line for $68 million worth of financing through state and federal tax credit programs, but that funding can’t be accepted and used if the project is delayed because of a lawsuit. The project also is set to receive about $14.4 million in Alameda County Measure A1 affordable housing money, but those funds require the project to start construction by the end of 2022.
In late September, Alameda County Superior Court Judge Frank Roesch ruled in Eden’s favor, ordering that the $500,000 bond be posted.
Under state law, the developer of an affordable housing project can ask the courts to impose a bond up to a maximum of $500,000 on people or organizations that file lawsuits against the development in bad faith, or “for the purpose of delay, or to thwart the low- or moderate-income nature of the housing development project,” as long as the person or organization “will not suffer undue economic hardship.”
Save Livermore Downtown’s members include Joan Seppala, founder and publisher of The Independent, a weekly newspaper focusing on Livermore and the surrounding Dublin-Pleasanton-San Ramon area. Seppala also is an executive of the Livermore Valley Performing Arts Center, which oversees the Bankhead Theater, roughly a few hundred feet from the project site.
Groups that she and her husband, Lynn Seppala, have contributed to have raised hundreds of thousands of dollars to support or oppose City Council candidates in previous races, and to push back against various elements of the city’s downtown plan in the last several years. The plan, a guide for how part of the city’s downtown would be revamped, with plans for a new hotel, parking garage, additional theater and retail spaces, was approved in 2019, after several years of debate and planning. Seppala was one of the members of an original steering committee for the plan.
Roesch ruled that the lawsuit “has the effect of delaying the provision of affordable housing and that the preponderance of evidence supports the conclusion that the action has been brought for the purpose of delaying the provision of affordable housing.”
The judge wrote that the group waited until “the very last moment” possible to file their lawsuit, “allowed at least two months to lapse”
before filing needed administrative record documents with the court, and then sought a postponement to complete filing those documents, with “no reasonable explanation” for why an extension was needed.
He said because the group has “at least 50 people contributing money to it,” it wouldn’t face economic hardship by having to post the bond.
The downtown group pushed back, filing a motion with the First District Court of Appeal, asking for Roesch’s decision to be put on hold.
But the three-judge court of appeals panel upheld Roesch’s ruling and noted further evidence for why the group wouldn’t face economic hardship, writing that the group had spent “approximately $37,000” on designing a proposed alternative housing project at another site.
“We were disappointed that the Alameda County Superior Court judge granted Eden Housing’s motion for a bond. We thought the judge granted the motion without factual and legal support,” Jean King, a spokesperson for Save Livermore Downtown said in an email.
King also is on the board of directors for the performing arts center.
“However, our resolve has not been dampened,” King said.
Mayor Bob Woerner said when the lawsuit was first filed, he thought it was “meritless” and said the recent court ruling on the bond motion only affirms his view.
“I believe this is a delaying tactic and that the people behind (Save Livermore Downtown) will do and say whatever they have to in order to delay and prevent the project,” he said.
The group denied it filed the lawsuit to delay the affordable housing project, instead claiming it was brought because of “the very real and legitimate concern that the city has failed” to properly environmentally evaluate the project, including not fully considering “recent concerns raised by the San Francisco Bay Regional Water Quality Control Board regarding the historical contamination” at the site.
The Independent also ran ads about contamination at the site that city council members characterized as propaganda against the project.
The city has pushed back against the claims, saying the issues noted by the water board will be addressed in the normal city planning process.
“Our conversations with the water board have indicated that the cleanup of the site will be routine in nature,” city engineer Bob Vinn said at a June 14 council meeting.
At that meeting, Vice Mayor Trish Munro called the ad, which she said featured a nuclear waste symbol, an “absurd attack” over the “nonissue” of contamination that had been addressed multiple times by city staff.
Munro said the ad by Save Livermore Downtown was “really ridiculous” but said the false claims must continue to be debunked by city officials because “it’s a poison that’s damaging the fabric of our community.”