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An Alameda County Superior Court judge denied community group Move Eden Housing's temporary restraining order request to prevent the city of Livermore from completing the sale of the city-owned project site intended for a 130-unit affordable housing development.
The group's stay of transfer request also sought to bar the city from taking any other action to implement its approved amended disposition, development and loan agreement (DDLA) with Eden Housing, Inc.
In an order issued Wednesday, Judge Michael M. Markman said, "Petitioners have not made a sufficient showing that they are likely to prevail on the merits of their Petition and have not made a sufficient showing that the balance of hardships tips in Petitioners’ favor."
According to City Attorney Jason Alcala, the court's decision means that Move Eden Housing had not established the petition was eligible for processing as a referendum.
"It is important to note that the Court's decision relied upon the law the City provided to the petitioner, who now goes by the name 'Move Eden Housing.' That law was provided to the petitioner before the petition was even circulated for signature gathering, and later when the City declined to process the petition as a referendum. Despite that law, the petitioner proceeded to mislead the voters for its own motives and filed its lawsuit," Alcala said.
He continued, "As a result of the Court's conclusive decision, the City and Eden Housing are continuing their work to implement the agreement for the sale and development of the workforce housing project. If Move Eden Housing continues to pursue meritless litigation, it will face not only the prospect of posting another $500,000 bond for delaying the affordable housing project, but also the possibility of being found to be a vexatious litigant abusing the legal system."
Move Eden Housing disagrees with the court's decision.
"We think the judge got it wrong," Move Eden Housing said in a statement to Livermore Vine. "The law is clear that a city clerk does not have the discretion to refuse to further process a referendum petition when the clerk conducts an initial review of the petition and determines that it likely contains a sufficient number of signatures. But that is exactly what the Livermore City Clerk did, relying on advice of the City Attorney."
The statement continued, "Instead of relying on the voluminous past court decisions affirming this rule that we noted extensively in our requests, the judge took up the City’s and Eden’s assertions that the referendum petition challenged administrative action rather than legislative action, and was thus not valid. The judge did so without allowing Move Eden Housing to present its arguments as to why this position is wrong."
As a result of the court's decision, Move Eden Housing said it has "no choice" but to file an appeal challenging the judge's denial of the temporary restraining order request.
"We filed our appeal today, September 6. As time is of the essence, we intend to ask the Court of Appeal for an immediate stay of the City’s actions. That request will be filed in the next few days. At a case management conference before the Superior Court this morning, our lawyers told the judge that he should put the litigation on hold until the Court of Appeal rules. While the judge did not put the case on hold, he did agree to delay the litigation to see what the Court of Appeal does. We think we have a strong chance of succeeding at the Court of Appeal, and look forward to filing our request in short order," the group's statement said.
Move Eden Housing initially filed its lawsuit last month, challenging the city's decision to not process its referendum petition. The referendum seeks to overturn the City Council's May approval of the DDLA for the housing development and public park planned for downtown at the southeast corner of Railroad Avenue and L Street.
Upon the advice of Alcala and special counsel, city clerk Marie Weber deemed the council's action approving the DDLA as administrative, not legislative, and therefore not eligible for a challenge by referendum.
The updated DDLA contained modifications and additions to further facilitate the development process, including allowing for an earlier transfer of the property from the city to Eden Housing. At the time, city staff said it was aiming to complete the sale of the property by the end of August.
On Aug. 25, Move Eden Housing filed an ex parte application for immediate stay or temporary restraining order to prevent the sale from moving forward amid the ongoing litigation.
The group argued in its request that the transfer of property "would squash the constitutional rights of thousands of voters, and could potentially moot the referendum and leave these voters irreparably harmed."
Although Move Eden Housing's application was denied, the sale of the property has not yet been completed. However, the city and Eden Housing celebrate the court's decision as a victory in their favor.
"We are pleased to see the court once again rule in favor of the City of Livermore and Eden in our collective effort to move forward with building urgently needed affordable housing," said Linda Mandolini, president of Eden Housing. "The continued efforts to throw legal roadblocks in our way create unnecessary hurdles for a development that has already had decades of preparation behind it, and most importantly, make it very difficult for low-income families to live and work in Livermore."
In an email to Livermore Vine, Mayor Bob Woerner shared similar sentiments.
"As anticipated, the courts have once again decisively ruled in favor of Eden Housing and the City. I sincerely wish that the one small group, that has assumed many names, would now cease its meritless lawsuits as part of its fruitless quest to prevent the much-needed workforce housing. It is well past time for the extremely divisive rhetoric and wasteful tactics to stop. I invite them to join the majority of residents in building a welcoming community for all," Woerner said.
