In Save Livermore Downtown v. City of Livermore (Dec. 28, 2022, Case No. A164987) __ Cal.App.1st __, the First District Court of Appeal held that the City of Livermore (City) did not violate planning and zoning laws when it approved a 130-unit affordable housing project (Project) in the downtown area. The Project was found to be exempt under CEQA as it was consistent with a specific plan for which an EIR has been prepared (Gov. Code, § 65457). Further, the Court held that the trial court did not abuse its discretion when it required Save Livermore Downtown (Petitioner) to post a $500,000 bond after the developer moved for one under Code of Civil Procedure section 529.2, as security for costs that may be incurred as a result of delay in carrying out the affordable housing development project.

On appeal, Petitioners alleged that the Project design was inconsistent with the City’s Downtown Specific Plan due to the Project’s size, orientation, window layout, and lack of individuality and open space. Because the Project involved affordable housing, the Court applied the objective design and reasonable person standards found in the Housing Accountability Act (Gov. Code, § 65589.5) (HAA). Under the HAA, the inquiry is limited to whether there is substantial evidence that would allow a reasonable person to conclude that the housing development project complies with the pertinent standards. If so, a city’s determination is upheld. Conversely, under California planning and zoning law, a city’s general plan consistency determination is reversed only if it is based on evidence from which “no reasonable person could have reached the same conclusion,” a less stringent standard according to Petitioners here. However, the Court rejected the argument that such distinction made any difference, finding that there is little practical difference between the two tests. And under either test, Petitioners failed to show the Project was inconsistent with the City’s Downtown Specific Plan. Moreover, the Court expressed doubts that some of the specific plan’s design standards could be used to deny approval under the HAA simply because they were subjective standards.

Petitioner also alleged that the Project should not have been exempt from CEQA because it relied on a supplemental EIR (SEIR) that only analyzed impacts at a “programmatic level,” and new soil studies and samples onsite constituted new information triggering the need to conduct further CEQA review. The Court rejected this argument and held that the SEIR adequately analyzed the Project’s impacts and the City correctly applied the exemption.

Finally, the Court found the trial court appropriately required Petitioners to post bond, and referenced the trial court’s findings: (1) that Petitioner’s challenges lacked merit, (2) bearing the cost of posting the bond would not cause Petitioner undue hardship, and (3) the action was brought to delay the Project. When making this final conclusion, the trial court had noted that the petition was filed at the last moment, and Petitioner allowed two months to pass before starting to prepare the administrative record. Even then, Petitioner only started preparing the record when prompted by the City and thereafter sought a 60-day extension. All of these tactics ultimately caused the hearing on the merits to be delayed. Now that the City has prevailed and injunction dissolved, the trial court should now be in a position to force payment on the bond, which could be substantial given the passage of time and the turning market. This ruling could deter petitioners in future cases from either seeking injunctive relief or delaying the proceedings.

While the opinion was initially signed to be unpublished, the Court on January 26, 2023, granted the requests to have the opinion published, filed by Eden Housing (Real Party in Interest), the California Building Industry Association, Andrew R. Contreiras (Deputy Attorney General for Amicus Curiae), Eric S. Phillips (for Respondent), and Robin R. Baral (for YIMBY).

Key Points

• The Court gave multiple examples of what looks like delay as it relates to posting bond under Code of Civil Procedure section 529.2, including filing on the last day possible, delay in preparing the administrative record, and delays in reaching a hearing.
• Where a City has approved the project at issue, there is little practical difference between the HAA’s standard of review and the standard of review concerning a city’s general plan consistency.

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