City of Livermore

The city council this week voted 5-0 to approve the Eden Housing project.

The decision was made Tuesday afternoon, following a packed virtual meeting on Monday with about 200 participants and just over 100 public speakers.

Slated for the city’s Downtown Core at the southeastern corner of Railroad Avenue and South L Street, the project is set to provide 130 affordable housing units. 

The project has been a point of controversy for Livermore. Those who support the current plans have stressed the importance of immediately providing affordable homes to a community that’s seen a large portion of residents priced out. Those who oppose the current plans — including groups such as Preserve Downtown Livermore and Save Livermore Downtown (SLD) — want the housing moved across the street to enable a park on the vacated land and to create additional affordable units on the new location, as many as 230 in total. 

During the deliberation on Tuesday, Livermore Mayor Bob Woerner said that the planning for the area started in 2003; the city has repeatedly reached out to get input from the community for the site. He said the residents listed parking, open space and amenities as priorities.

“I believe the plan that we have adopted that includes all those priorities is a good one,” he said. 

Vice Mayor Trish Munro said it was a matter of integrity to vote to approve the project, as the land was purchased with affordable housing funds and designed for housing. Councilmember Gina Bonanno found it to be consistent with the Downtown Specific Plan. 

“It’s very clear to me that this is a high-quality project, which addresses an urgent need for affordable housing,” Bonanno said. “It offers the opportunity for 130 families and individuals who work here to live here.” 

As someone who was raised by a single mother, Councilmember Brittni Kiick said she’s always been an advocate of affordable housing. Councilmember Robert Carling stated that he supported the project because the property was purchased with money from the affordable housing fund and multifamily residential is a permitted use of the funds, among various other reasons, before motioning to approve the project.

While those in favor of the current plan made up about 60% of the public comments and emails submitted to city staff ahead of the meeting this week, some public speakers suggested a merger of the opposing views. Livermore resident and wine grower Karl Wente said the current Eden plan was shovel-ready, making it the right plan to address affordable housing needs, but he said the proposal to build housing north of Railroad Avenue — as suggested by SLD — should be explored as well.

“There’s no other plan — that’s already been stated. But that other drawing (of SLD’s plan) actually shows we should be thinking bigger, too, in terms of what should be north of Railroad Avenue,” he said. “We need more housing; we need more teachers living here; we need more firefighters living here; we need more waitresses and waiters living here. We need more of our community — my generation — to be able to come back home and live here.”

Deborah McQueen with Preserve Downtown Livermore later expressed concerns about how the meeting was conducted. She said Eden had hired PR firms to secure public comments. Anyone could call in from anywhere, she added. She worried that those associated with Eden might feel obligated to express support for the project, when otherwise, they would not be interested.

“Zoom allows for people to call in from anywhere in the U.S. — not just California — so Eden's ‘multiplier’ is potentially quite high,” she said.

Eden had engaged PR firms EveryAction and coUrbanize. When asked about the processes for recruiting public support, Courtney Porcella, coUrbanize spokesperson, said her company’s goal is to “get neighbors and Livermore community members to participate in conversations.”

“Those are the only community members we target, because their voices are those that matter most,” she said. “We do not solicit any feedback from out-of-state contacts, or those outside the immediate project area. People are never paid or incentivized to participate on the platform.” 

Representing SLD, Jean King reported that her group’s land-use attorney, Winston Stromberg of Latham & Watkins, sent a letter to the council. The letter states that the project’s design continues to be inconsistent with the Specific Plan, denial of the project would not violate the Housing Accountability Act (HAA), and the project is not exempt from California Environmental Quality Act (CEQA).

“If the council approves the project tonight, that would be unlawful,” King said. “Despite all the community opposition to this project, our voices have been ignored. If the city continues to ignore us, we may have no choice but to ask a judge to resolve the dispute. Rather than do that, we urge the city and Eden to press pause, and come to the table with us to discuss an alternative, through mediation, community meetings or some other approach.”

She added, “We would prefer a resolution that ends with a win-win solution. Livermore deserves better, and we are here to help that happen.”

Attorney’s Statements on Downtown Specific Plan Inconsistencies

In his letter to the city, Stromberg asserted that the project is inconsistent with the Downtown Specific Plan in at least seven ways: main entrance/siting and orientation, windows, overall building massing, horizontal mass, site frontage, private open space, and public open space.

In regard to the “main entrance/siting and orientation,” Stromberg said entrances for the project face inward, with the back of the building facing Railroad Avenue, a major public street. He asserted that this violates the Specific Plan.

He then addressed “windows,” which the Specific Plan states “shall include vertically proportioned facade openings, with windows that have a greater height than width.” He wrote, “The elevations and renderings for the project clearly demonstrate a large number of windows that are wider horizontally than vertically.”

Stromberg wrote in the letter that “overall building massing” was another inconsistency, as the project disregards city objectives for the multifamily residential buildings to give individuality to each unit.  

On “horizontal mass,” Stromberg wrote that the Downtown Specific Plan requires that the horizontal mass be broken down to create architectural interest and provide visual separation between units” and that the project design does not comply with this standard.

Stromberg noted “site frontage” to be an issue, as the project misapplies the standard. “The fourth floor extends more than 60% of the total site frontage on those portions of the site along Railroad Avenue and L Street,” he wrote. 

Regarding “private open space,” he pointed to city documents that state there should be 60 feet of private open space per residential unit on-site, stating “based on the remainder of the plan set included with the Planning Commission Staff Report, including the renderings of the buildings, there is no indication that these areas are provided only to the project’s residential dwellings.”

Finally, on “public open space” Stromberg noted that the Downtown Specific Plan requires the project to provide a minimum of 150 square feet of publicly available open space per residential unit. “It is unclear from the project plans and the staff report and accompanying materials whether Eden will be funding the creation of the proposed Veteran’s Park on the project site,” Stromberg said. “Indeed, from the proposed conditions of approval, it appears that the park improvements would be part of a city project, not Eden’s project.”

To review Stromberg’s letter in its entirety, visit http://bit.ly/Indy_Stromberg.

The City’s Response on Inconsistencies

Prior to the council decision, Jake Potter, a Livermore associate planner and Eden project planner, presented a staff report on the project and addressed the legal concerns raised by Stromberg. 

“For the record, we would like to note that the project is consistent with Specific Plan requirements,” Potter began. “The project architecture provides vertical and horizontal articulation, color changes in architectural details to break down the massing of the building and establish a residential character. The buildings provide primary entries that front onto Railroad Avenue and Veterans Way, and the windows have a vertical orientation, or combined groupings of vertical windows. The project provides required private open space, which will be demarcated with signage, fencing and other appropriate delineators. And the project’s public open space will be provided by the project site as a whole by Veterans Park, as allowed by the specific plan.” 

Potter explained that the Eden applicant has submitted four separate density bonus requests. As units are affordable to residents with incomes between 20-60% of the Alameda County area median income, he said the project qualifies for a density bonus, a height increase, relief from parking standards and up to four incentives to modify development standards, irrespective of local policy. 

“State bonus density law would allow the project to have no maximum density,” Potter said.  

However, he said the project proposes 52 dwelling units per acre, which is less than the city requires in the Downtown Specific Plan. 

He further detailed that the project is allowed seven stories, but it proposes four; no parking is required, but it provides 146 stalls; and the applicant is allowed to request up to four incentives to waive local development standards, but the applicant has only submitted for one incentive to waive street side setback requirements. 

“In summary, the project is proposing less density, less building height, more parking and utilizing less incentives than allowed under state law,” he concluded. “For these reasons, the project is in conformance with state density bonus law.”

On Housing Accountability Act (HAA) and California Environmental Quality Act (CEQA)

In his letter, Stromberg also stated, “Denial of the project would not violate the HAA, as the city attorney claims. The HAA does not prevent the city from denying a project when it will have a specific, adverse impact on public health and safety. Such impacts are present here due to soil and groundwater contamination, and the presence of soil vapor gas intrusion, for which mitigation measures may prove infeasible and unaffordable.” 

Stromberg said the project is not exempt from CEQA review for two reasons. First, he explained that it does not satisfy the requirements of the statutory exemption due to its inconsistencies with the Downtown Specific Plan, outlined above. Second, the categorical exemptions claimed by staff are inapplicable and defeated by the presence of unusual circumstances. 

In regard to these unusual circumstances, he said that because the project site was previously subject to heavy industrial uses, the San Francisco Regional Water Quality Control Board now manages cleanup at the site due to historical contamination. On Feb. 9, 2021, Board staff issued a letter to the city approving an April 18, 2020, site assessment and summary report and a May 22, 2020, site history technical report, he said.  

“The Feb. 9 letter from Regional Board staff concluded that ‘[r]esults of investigations conducted since 2009 identified select metals in soil, petroleum hydrocarbons in soil and groundwater, and volatile organic compounds, including tetrachloroethene (PCE) and its breakdown products, in groundwater and soil vapor,’” he wrote. “As a result, the Regional Board is now requesting that the city submit a Data Gap Assessment Workplan and an Interim Remedial Action Plan.  As part of these plans, the city is now required to engage in further data collection, summarize the results of the investigation and data collection, and ‘describe the remedial alternatives evaluated, remedial alternative selected, and proposed implementation method and timeframe.’”

In conclusion, Stromberg wrote, “The presence of contamination on the project site, particularly the presence of soil vapor intrusion as noted by the Regional Board, will have a significant impact on the environment, and therefore constitutes an unusual circumstance.”

On Tuesday, Rick Teczon, a Livermore associate civil engineer, addressed Stromberg’s CEQA assertions. 

“With regard to this development project, we note the following related to contaminate impacts,” Teczon said. “First, subsurface contaminant impacts were a known condition that was previously studied in the 2009 subsequent EIR. Second, no new information or circumstances have surfaced related to existing contaminate impacts at the site. The city is working with the Regional Water Quality Control Board to address existing conditions, following the Water Board’s typical process for development of impacted sites. And lastly, the project does not present any unusual circumstances. Although the site is subject to ongoing cleanup activities, that cleanup is not unusual. It’s not an unusual circumstance, given the past property use, which included a former lumber yard and train depot ...  The planned response that’s being developed in coordination with the Water Board is expected to be routine for such a site, similar to what has been implemented for nearby development projects, such as the Legacy site right across the street.”

In his closing remarks on the topic before issuing a vote, Woerner said he found the application of the state density bonus law to be appropriate, “because there are no findings to the contrary.”

“Voting no (on the project) … would be an absolutely irresponsible risk of taxpayer funds, because of the likely risk of lawsuits from outside housing advocates. Associated with this, if we were to capriciously say no, $6.5 million in penalties, plus legal fees … would likely be imposed under state law, and then we would be forced to do this project anyway,” he said. “The opportunity for making a legislative decision to oppose the project has long passed. It was greater than three years ago. And if anyone wanted to referend, it’s on.”