Alameda County is asking the court to toss out the City of Livermore’s lawsuit against proponents of a Nov. 3 ballot initiative, which also names the Board of Supervisors as defendants.
In court documents filed Feb. 10, County Counsel Donna Ziegler wrote that the lawsuit “fails to state facts sufficient to constitute a cause of action” against the county supervisors.
Meanwhile, Alameda County Superior Court Judge Frank Roesch signed an order Monday setting a June 26 trial date.
The lawsuit stems from the battle between the City Council and a residents’ group over competing plans to revitalize the city’s downtown. The Nov. 3 initiative asks voters to approve the residents’ plan, which would replace the city’s plan.
Livermore City Clerk Sarah Bunting — who at the time was the city’s elections official — on Sept. 30, 2019, sued five Livermore residents supporting the initiative, who wrote a rebuttal to the city’s opposition statement for the voters guide. Bunting claimed portions of the statement were “false and misleading,” objecting to the use of the word “Fact” before several points the group was making.
The city’s lawsuit was filed two months after the initiative was certified for the ballot. It does not challenge the language of the initiative itself. Bunting resigned in early December, with the acting city clerk taking over as the official petitioner in the lawsuit.
Local elections officials in California are already required by law to prominently display disclaimers in voter pamphlets, warning voters that arguments in support or opposition to proposed ballot measures are the opinions of the authors. Alameda County’s Registrar of Voters does so in bold, capitalized letters.
Even so, the lawsuit contends portions of the arguments in support of the initiative would mislead voters, and asks a judge to intervene and order changes before official voter information materials are printed for the Nov. 3 election.
The Alameda County Board of Supervisors was named in the lawsuit as an opposing party, which is required by the state elections code in order to keep a check on local governments.
The county’s request does not speak to the merits of the city’s complaints against the residents, Ziegler said. “Our role is to run the elections and not take sides between the parties,” she said.
The targets of the city’s lawsuit are Livermore residents Jeff Kaskey, William Dunlop, Calvin Wood, Jeanette King and Jose Barrientos.
In court documents, the residents argue that the city aims to silence constitutionally-protected speech, and that the lawsuit should be dismissed. They also seek from the city reimbursement for legal costs, including attorneys’ fees. The residents are being defended by Michael A. Sweet and Jack Praetzellis, of the San Francisco law firm Fox Rothschild LLP.
At Monday’s City Council meeting, Kaskey challenged Livermore Mayor John Marchand to correct inaccuracies included in the City Council’s own arguments opposing the initiative.
Kaskey said the city used flawed assumptions to calculate open space included in the residents’ Central Park plan.
City officials then used the results to grossly under-report the minimum amount of open space required under the initiative, and included the incorrect, deflated open space figure in the city’s ballot arguments and in a report that is supposed to provide an objective, factual analysis of the initiative’s impacts, Kaskey said. The City Council and staff also repeated their false claims in multiple public meetings, he added.
For instance, both the City Council’s ballot arguments in opposition to the initiative, and the city’s analysis, claim the Central Park plan includes around 2.4 acres of park space, instead of the 3.01 acres its authors say would be provided.
The deficiency of more than a half-acre is due to the city misrepresenting the footprints of the initiative’s theater and science center buildings, according to proponents. The initiative allows each building to be up to 30,000 square feet in size; they cannot encroach into the park and are required to be at least two stories tall. The city has been presenting the residents’ plan with one-story buildings sprawling into what the residents propose as protected park space, proponents say. The city also claims that the initiative is including Shea Homes Stage in Bankhead Park Plaza as part of the 3.01 park acres. This is not true, and the plan has never included existing park, Kaskey said.
The residents are considering legal remedies, which could include seeking to file a cross-complaint against the Livermore City Council, Kaskey said.
On Tuesday, Citizens for a Livermore Central Park, the main group opposing Measure P on the March 3 ballot, issued a press release criticizing the council’s adoption of the hotel development agreement with Davis-based Presidio Companies. They stated that Measure P seeks to undo the city’s agreement to build a hotel under its downtown plan, arguing that the binding agreement sabotages the ability of voters to decide which plan they want in November.
“Throughout this campaign the City has relied on false and misleading claims to support its attacks on the Central Park Plan and to persuade voters to support Measure P,” said Tamara Reus, a spokeswoman for the group. “This misinformation must stop. The voters deserve to have accurate information to inform their vote.”
The City Council and the Central Park initiative backers are battling over different hotel and park proposals for an 8-acre site in the downtown core on both sides of Livermore Avenue south of Railroad Avenue.
The Central Park ballot initiative — officially called the Citizen’s Initiative Changing Development Regulations in Downtown Livermore — asks Livermore voters to amend the city’s land use regulations and to change the mix of land uses and development standards for both downtown Livermore and the Pacific Avenue areas.
Its supporters say the initiative gives voters a better alternative to the city’s plans for the prime downtown real estate the city assembled for redevelopment.
While both proposals include public parking, housing, park space, a science museum, retail space, a small theater and a hotel, they differ in what kind of hotel each wants, where parking and housing should go, and how much park each plan includes.
The City Council unanimously opposes the initiative, and each of its five members signed ballot arguments urging voters to defeat the measure.