On January 26, 2023, in Save Livermore Downtown v. City of Livermore, __Cal.App.5th __ (2021) (Case No. A164987), the First District Court of Appeal affirmed a trial court decision rejecting a local NIMBY group’s challenge to an affordable housing project in downtown Livermore on the grounds that the project is inconsistent with state and local planning and zoning laws and that the project was not exempt from review under the California Environmental Quality Act.  The Court also affirmed the trial court’s decision to require the NIMBY group to post a bond as security for costs and damages the developer would incur as a result of litigation-related project delays.

Factual and Procedural Background

The project is a 130-unit fully affordable housing project in downtown Livermore, which is reserved for low-, very low-, and extremely low-income households.  The project includes a public park, private open space, and underground parking.  The project site was previously developed as a grocery store and before that a railroad depot.  The project site has a land use designation and zoning that allow affordable multi-family housing by right.

The City approved the vesting tentative map and design review for the project in 2021, finding that the project conformed with the General Plan and Downtown Specific Plan.  A NIMBY group known as “Save Livermore Downtown” filed a writ petition challenging approval of the project, alleging that it violated California’s planning and zoning laws and also that it was inconsistent with the specific plan and design standards.

Eden Housing, the developer, moved for a bond under Code of Civil Procedure section 529.2.  Under certain conditions that statute authorizes a bond of not more than $500,000 in an action brought to challenge qualified low- or moderate-income housing projects

Trial Court and Court of Appeal Decisions

The trial court granted the motion and required Save Downtown Livermore to file a $500,000 bond as security for costs and damages Eden would incur as a result of litigation-related project delays, finding that the lawsuit was brought for the purpose of delaying the provision of affordable housing and that the bond would not cause Save Downtown Livermore undue economic harm.  And on the merits, the trial court the trial court denied Save Downtown Livermore’s petition, stating that “[t]his is not a close case” and that substantial evidence supported the City’s conclusion that the project was consistent with the specific plan.

On appeal, Save Downtown Livermore contended that the project was unlawfully approved because the project design is inconsistent with the Downtown Specific Plan in multiple respects: the lobby does not face a primary street and there is parking between the buildings and the street; the four-story portions of the buildings take up too much of the site’s frontage; the external appearance of the units lacks “individuality”; some of the windows are not “vertically proportioned”; and open space requirements are not satisfied.

The Court of Appeal first cited to traditional California land use consistency principles, noting that it is for city officials to examine the specifics of a proposed project to determine whether the project would be consistent with the policies stated in the plan and that it is “emphatically not the role of the courts to micromanage these development decisions.”  And the Court also cited to the Housing Accountability Act, which severely limits the authority of local agencies to disapprove or condition housing projects that comply with “applicable, objective . . . standards and criteria, including design review standards,” in effect when the application was deemed complete.

Under general California land use law, the court determines whether the City prejudicially abused its discretion in approving the project by not proceeding in a manner required by law, by reaching a decision not supported by its findings, or by making findings not supported by the evidence.  But under the Housing Accountability Act, instead of asking whether the City’s findings are supported by substantial evidence, the statute simply requires courts to inquire whether there is “substantial evidence that would allow a reasonable person to conclude that the housing development project complies with applicable standards.”

The Court held that “using either lens to review the project’s consistency with the specific plan—asking whether there is substantial evidence from which a reasonable person could find the project consistent, or whether there is substantial evidence supporting the City’s finding of consistency—leads to the same conclusion.”  Under both standards Save Downtown Livermore failed to show that the project is inconsistent with the applicable provisions of the Downtown Specific Plan.  The Court also held that although the City’s approval findings are relatively brief and did not specifically discuss each of the project details Save Downtown Livermore contends were inconsistent with the Downtown Specific Plan, Save Downtown Livermore did not show that the findings were inadequate.  Moreover, the Court acknowledged that the Housing Accountability Act “has changed the legal landscape” for considering a project’s opponent’s challenges to project consistency findings and held that a reasonable person could conclude that all of the challenged requirements are satisfied.

Finally, the Court upheld the City’s finding that the project is exempt from CEQA and upheld the trial court’s ruling that Save Downtown Livermore’s lawsuit was brought for the purpose of delay and was “not a close case.”  According to the Court, Save Downtown Livermore’s “contentions regarding the project’s consistency with the Downtown Specific Plan and its CEQA arguments lack merit, so much so that the inherent weakness of these claims further supports the trial court’s finding that [Save Downtown Livermore] brought this action to delay the project.”

Conclusion and Implications

Save Downtown Livermore is yet another in a growing line of cases applying the requirements of the Housing Accountability Act to a project challenged by NIMBYs.  The decision highlights numerous examples of the types of subjective development standards that cannot lawfully serve as the basis to disapprove new housing.  Equally importantly, the decision also faithfully applies the Housing Accountability Act’s “reasonable person” standard and demonstrates how that standard protects new housing development from the tactics used by NIMBY’s.  Finally, the decision highlights the availability of California’s security bond requirement for abusive litigants who seek to delay the production of new affordable housing.

Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.