In Move Eden Housing v. City of Livermore (2024) 100 Cal.App.5th 263, the First District Court of Appeal held the Livermore City Council’s adoption of a resolution approving a development agreement was a legislative act subject to the referendum power.  This case is the latest iteration of a multi-year litigation battle targeting an affordable housing development proposed for downtown Livermore (See Save Livermore Downtown v. City of Livermore (2022) 87 Cal.App.5th 1116 [concerning CEQA challenges to the same project].)

Following the more-recent decision, Livermore voters will ultimately decide the fate of the project, and not the courts.

Project and Legal Background

In 2008, the City’s former redevelopment agency purchased property in Livermore.  When the State dissolved redevelopment agencies a few years later, the property was included in a long-range property management plan, which was approved by the State.  The property was then transferred to the City.  In 2018, the City and affordable housing developer Eden Housing entered into a Disposition and Development and Loan Agreement concerning the development of the property.  The 2018 Agreement stated the site would “include a public park” along with housing and other amenities.  In May 2021, the City approved land use entitlements for the project and an amendment to the 2018 development agreement (“2021 Agreement’).  In May 2022, the City adopted the resolution at issue in this case which authorized the execution of the 2021 Agreement (“2022 Agreement”). 

The 2022 Agreement stated that it superseded the 2018 Agreement, as amended in 2021.  It further stated that the City would loan to Eden Housing the $7.8 million necessary to purchase the property.  It also stated, most relevant here, that the City would pay for the construction of a public park included as part of the project and that Eden Housing would supervise construction.  Soon thereafter, Appellants began to circulate a referendum petition for the purpose of challenging the 2022 Agreement.  In July 2022, Appellants submitted to the City Clerk the referendum petition that exceeded the required number of signatures.  The City Clerk subsequently informed Appellants that, based on advice from the City Attorney, the City determined the resolution approving the 2022 Agreement “was an administrative act, not a legislative act, and not subject to referendum,” and thus, on that basis, the petition was ineligible to be proceeded as a referendum.

Appellants then commenced this action by filing a petition for writ of mandate seeking to compel the City to process the referendum petition. The trial court denied the petition on the merits, concluding the referendum was an administrative act not subject to referendum, or, in the alternative, the City acted as an administrative agent of the State in adopting it.  The First District Court of Appeal reversed as to both of the trial court’s rationales.

The 2022 Agreement was a Legislative Act Subject to Referendum

The power of referendum extends only to legislative acts, not adjudicatory or administrative acts. The First District distinguished between legislative and administrative acts in particular.  A legislative act prescribes a new plan or policy, whereas an administrative act merely pursues a plan already adopted by the legislature body.  Legislative acts are not always easy to spot. 

Here, the trial court relied on San Bruno Committee for Economic Justice v. City of San Bruno (2017) 15 Cal.App.5th 524.  There, the Court of Appeal held a resolution approving the sale of a city property to a hotel developer was an administrative act.  In that case, prior to the challenged resolution, the city had already enacted legislative policies related to the development of the hotel site.  The city council adopted a specific plan related to the project and had selected a developer to develop the site.  The planning commission had also adopted a resolution finding the sale of the property to the developer was consistent with the general plan.  In concluding the resolution that ultimately finalized the sale was not a legislative act, the Court of Appeal reasoned that the primary substantive decisions related to the development and sale had already been made, and that the resolution finalizing the sale did not contain any new legislative policies.

Here, the First District distinguished San Bruno Committee.  The Court reasoned that while the primary substantive decisions related to the housing aspects of the downtown Livermore development had been made prior to the 2022 Agreement, that was not the case for the park.  The 2021 Agreement had only stated that the City had the option to negotiate an agreement to fund the park, but it did not itself include substantive decisions regarding the park and the City’s funding of it.  Rather, it was in the 2022 Agreement that the City agreed to pay for the construction of the park, and thus, it was the 2022 Agreement that constituted the initial relevant policy determination regarding the park’s construction and funding, which was unlike the land sale resolution in San Bruno Committee that did not include new policy determinations. 

On appeal, the City framed the 2022 Agreement as a continuation of a policy decision made initially in the 2018 Agreement, where it was stated that the site would “include a public park.”  That agreement was later incorporated into the 2021 Agreement, which was subsequently approved pursuant to the 2022 Agreement.  In that regard, the City attempted to argue the 2022 Agreement was merely an administrative act that appropriated specific amounts of public funds for a project that had already been adopted.  The Court was unpersuaded, holding the resolution adopting the 2022 Agreement was a legislative act subject to referendum.

Meanwhile, the First District also concluded the trial court erred in concluding that the resolution adopting the 2022 Agreement was not subject to referendum because the City was acting as an administrative agent of the state.  The Court concluded that the Legislature in enacting the law that dissolved redevelopment agencies did not intend to preempt local discretionary policy decisions regarding municipal developments. 

The City Must Process the Referendum Petition

The Court reversed the judgment and remanded it to the trial court to issue a peremptory writ of mandate ordering the City to process the referendum petition.

William Abbott is Of Counsel and Garrett Bergthold is a Law Clerk at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.