Save Livermore Downtown is appealing an Alameda County judge's rejection of their lawsuit that aimed to prevent the Eden Housing apartment project on environmental and policy grounds -- a move lamented by city officials and the developer as triggering a likely years-long delay for sorely needed affordable housing in the community.
Jean King, a member of Save Livermore Downtown, announced the decision late Wednesday night, saying the community group continues to stand behind their lawsuit to overturn the City Council's approval of the 130-unit development at the southeast corner of the Railroad Avenue and L Street intersection.
"We look forward to the California Court of Appeal deciding the merits of our lawsuit, which we firmly believe is critical to ensuring downtown Livermore can be developed in a way that is inviting to all of its residents and visitors," King said in a statement released just before midnight.
Linda Mandolini, president of Eden Housing Inc., told Livermore Vine that news of the appeal leaves her "heartbroken."
"Vexing, this lawsuit … it's only to delay," she said. "We're being bullied into not building housing that is desperately needed."
"The legal delay is all the more disheartening when we consider that Eden had secured the financing from the State of California to start construction on the project this week," Mandolini said. "Sadly, instead of welcoming 130 families to homes they desperately need next year, we will be spending more money fighting this baseless legal action."
A notice of appeal was filed by Save Livermore Downtown's lawyer, from the Los Angeles-based law firm Latham & Watkins LLP, in Alameda County Superior Court this Wednesday, two days ahead of the deadline. Specific arguments of the appeal are pending.
"No surprise here," Livermore Mayor Bob Woerner told Livermore Vine, reacting to the appeal news on Thursday.
"Appealing at the last possible moment is consistent with SLD's past efforts to delay the much-needed workforce housing," he said. "The city is very confident that the superior court's ruling will be upheld on appeal and is continuing to work with Eden Housing as they develop the project."
Alameda County Superior Court Judge Frank Roesch rejected Save Livermore Downtown's petition that argued the city's approval of the affordable housing project violated state environmental law and the city's Downtown Specific Plan.
Roesch concluded in February that the environmental arguments were "almost utterly without merit" and sided with the city's arguments as it relates to the downtown policy as well.
King hit back at the local judge's ruling on Wednesday night.
"Save Livermore Downtown firmly believes that the city unlawfully approved the project without conducting additional necessary review under the California Environmental Quality Act and because the project design is inconsistent with the Downtown Specific Plan," King said.
"We also believe that Judge Frank Roesch of the Alameda Superior Court ruled incorrectly when he concluded that the City had complied with CEQA and when he deferred to the city's argument that Eden Housing's project conformed with the Downtown Specific Plan," King added. "We believe that this is another instance where a (Roesch) decision should be reversed."
Proposed by affordable housing developer Eden Housing, the project in downtown Livermore would consist of two four-story apartment buildings with 130 units overall, two private underground parking garages and the contribution of about 31,000 square feet of land to be allocated to Veterans Park.
The Livermore City Council unanimously approved the development proposal at the end of a public hearing that spanned two days in May 2021.
"Livermore cannot solve the ongoing housing crisis alone but we can do our part to make our community more possible for all income levels to live here," then-Vice Mayor Trish Munro said at the time. "Communities which enable people to live near where they work are stronger. Communities that are diverse are stronger."
Save Livermore Downtown members were among the most vocal opponents during the city's consideration process, arguing the council should move the project to an alternative location due to concerns about traffic congestion, parking and the overall size and scope of the project, among other issues.
The community group, which also pushed claims of dangerous toxic waste being present at the site that were largely discredited by city officials, sued the city over the "flawed Eden plan" in June 2021 in the hopes of preventing the affordable housing development as proposed.
The suit, which named the city government and the Livermore City Council as respondents and Eden Housing as a real party in interest, largely centered on arguing that the council abused its discretion with regard to following the Downtown Specific Plan and that more environmental review was required to address contamination concerns at the property.
But their petition for writ of mandate met with a resounding defeat from Roesch in a ruling issued Feb. 4.
"This is not a close case," Roesch said in rendering his decision.
Save Livermore Downtown is hoping the California Court of Appeal, First District Court of Appeal will say otherwise – and scuttle the project as proposed.
For her part, Mandolini scoffed at the notion being floated by the opponents that an alternative site in Livermore could be pursued, saying there is no other property "that we could get expeditiously."
She also reiterated that the lawsuit in 2021 prevented Eden Housing from starting construction this year and forced the organization to return a $68 million award of low-income housing tax credits from the state.
Mandolini said Eden Housing has "high confidence" they will be victorious against the appeal, but their legal advisers are saying the case could spend upward of a year or two in the appellate court and set their project that much further back.
"The demand is here, people who need a place to live, who work in the community of Livermore, in Pleasanton, the Tri-Valley area," she said, adding that the organization will continue its fight to overcome the appeal. "Why would we fold our tent now?"