A City Councilman is warning against what he says is a potential avalanche of litigation that threatens to bury long-planned efforts to revitalize 8 acres of city-owned land in the heart of downtown Livermore.

Councilman Bob Woerner said he fears that a defeat of Measure P by Livermore voters on March 3, and approval of a local ballot initiative to reconfigure the city’s downtown redevelopment plan in November, could trigger lawsuits from the state and affordable housing advocates and drag on for years, eventually forcing towering low-income apartments to be built next to the Bankhead Theater where a hotel is now planned.

“It’s a lot of ‘ifs’ but the trend is moving in the wrong direction for us,” Woerner said, referring to a host of recently enacted housing laws from Sacramento that aim to remedy California’s affordable housing crisis.

It’s all those “ifs” that supporters of the west side downtown plan say are being used as a scare tactic to frighten away voters who support their vision for the area. They say Woerner’s concerns omit important context about the new laws.

Woerner’s concerns are scheduled to be discussed at the Jan. 27 City Council meeting.

The city and residents’ group are locked in a long, contentious battle over different hotel and park proposals for the downtown core.

The city has signed an agreement with a developer to put a hotel on the east side of Livermore Avenue; the residents group wants the hotel built on the west side. They differ in what kind of hotel each wants, where parking and housing should go, and how much park each plan includes.

Livermore voters on March 3 will decide whether to uphold or reject the city’s hotel development agreement with Presidio Companies. Then, on Nov. 3, voters will choose which downtown plan they want.

The residents’ group argues that Livermore will be bound to the city’s plan if the development agreement is not set aside by voters on March 3. The residents’ group says people should have the chance to evaluate both plans before they vote in November. If voters approve the city’s development agreement in March, the November initiative will be meaningless, they say.

The residents’ alternative proposal, called the Central Park Plan, envisions a larger, higher-end hotel west of Livermore Avenue looking out on a landscaped park. Tamera Reus, president of Support the Central Park, said that what Presidio is able to build in the city’s plan, “will not serve Livermore and its wine country well.” The quality hotel Presidio originally proposed in the city’s plan has been downgraded; it is no longer full service, no longer includes a restaurant and there’s no nearby parking, she said.

AB 1486 Now in Effect

Woerner raised his housing legislation concerns on Jan. 13, in a letter to the nonprofit LVPAC, which runs the city-owned Bankhead Theater, and again at that night’s City Council meeting. He said he worries the state law will affect the Bankhead if residents vote against the city’s agreement with Presidio for its downtown project. Woerner serves as a liaison between the Council and the LVPAC board.

The bill, AB 1486, was signed into law by Gov. Gavin Newsom on Oct. 9, 2019. It strengthens the Surplus Land Act, the law that governs how cities and other public agencies must sell or lease public land.

“Non-compliance with the new legislation would subject the city to lawsuits to force compliance that would likely result in years of delay,” wrote Woerner in his letter to LVPAC. In community meetings, he said the city will face lawsuits from Bay Area affordable housing advocates who have threatened to sue the city in the past. About $14.5 million in funding restricted to affordable housing was used to acquire the bulk of the project site.

“The financial penalties would be significant for not complying with the new provisions, rendering a hotel economically infeasible without a significant taxpayer funded subsidy,” he said.

Not so, Reus said. Under AB 1486, parcels that are a half-acre or less are deemed not appropriate for housing, and most Central Park Plan sites fall within that exemption, she wrote in a statement to The Independent. In addition, an exception exists for former Redevelopment Agency land if there is “an exclusive negotiating rights agreement by Dec. 31, 2020, provided the disposition is completed by Dec. 31, 2022.” If voters approve the Central Park Plan in November, agreements can be signed by the deadline, she wrote.

And penalties levied for non-compliance under AB 1486 are paid by the city into its own affordable housing fund, she said. The penalty is 30% of the purchase price for the first violation and 50% for the second. Livermore has offered to sell parcels to developers at prices that are below market rate, she wrote. So even if the city is fined, “moving a modest amount to the city’s affordable housing fund may be a viable option in order to preserve the elements of the Central Park Plan once approved by the voters,” she concluded.

How SB 50 and SB 330 Figure In

Woerner said the city’s plan is the only allowable option under the new laws. He said the only viable option for housing is west of Stockmen’s Park and north of Veterans Way. The residents’ plan could put the city at legal risk, he said. That could lead to the state seizing control and, conceivably, putting an 8-story housing project on a lot next to the Bankhead.

Reus said Woerner is taking liberties with pending legislation, SB 50, which is highly controversial. It is still being shaped in Sacramento and no longer forces 8-story housing projects on public land close to busy transit hubs. It also provides flexibility for cities to find other areas in which to build affordable housing.

November’s ballot initiative poses additional legal risks, Woerner said. The state’s Housing Crisis Act of 2019 — SB 330 — would, he said, invalidate a portion of the residents plan that would decrease housing on the downtown site. The city’s plan calls for 130 housing units. The residents’ plan calls for 84 housing units.

Reus countered that SB 330 does not allow reductions in the intensity of redevelopment, which refers to the amount of development on a given space. Under the residents’ downtown plan, the dwelling unit density “actually increases … beyond the city’s current requirements for the area.” State law allows the city to add housing elsewhere in the city, if voters approve the residents’ plan, Reus wrote.

Delay is another concern, Woerner said. Even before the new state housing laws passed, supporters of the City Council plan said adoption of an alternative plan would delay downtown’s revitalization. “If we don’t do Measure P, we will be in court for years,” Woerner said.

But the citizen-led Central Park Plan initiative qualified for the ballot before the requirements of recent housing legislation went into effect.

According to Reus, “The initiative power is an important right reserved to the people under the California Constitution and is broadly construed in the law. Laws that restrict this power may be challenged by local residents and citizens’ rights groups.”

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Bob Woerner’s Letter to LVPAC

January 13, 2020

To: LVPAC Board Members

Re: AB 1486

In my role as designated liaison between the City Council and the LVPAC Board, I would like to call your attention to the recently enacted California State Assembly Bill 1486, especially Section 13, which revises the rules for the disposition of property acquired through a redevelopment agency. Given the acquisition history of the downtown catalyst site parcels, this new legislation has very significant ramifications for the revitalization of Livermore's core.

I believe it is incumbent upon you to understand the consequent potential implications for the Bankhead Theater and to deliberate on the best course of action to further the interests of the theater. I would like to help the LVPAC Board, in its role as the operating lessor of the City owned Bankhead Theater, to become accurately and fully informed as to the facts.

My understanding of the key consequences of AB 1486 for the downtown core are as follows:

1. On the portion of the site west of Stockmen's Park and north of Veterans Way, housing is the only realistically viable option. The financial penalties would be significant for not complying with the new provisions, rendering a hotel economically infeasible without a significant taxpayer funded subsidy.

2. Non-compliance with the new legislation would subject the city to lawsuits to force compliance that would likely result in years of delay. Further, breaching the existing contract with our current affordable housing partner would likely trigger the lawsuit already threatened by housing advocates to force housing on the entire site.

3. As to the lot next to the Bankhead, AB 1486 in conjunction with the trend in Transit Oriented Development housing legislation, increases the risk of letting the lot next to the theater remain fallow. The possibility that an up to 8 story housing complex could eventually be forced upon the city in that location should not be dismissed lightly. Failure to act can have consequences.

I would welcome the opportunity to discuss AB 1486 at an LVPAC Board meeting to address questions or concerns. Time is of the essence. I hope that we can all agree that it is best for the Bankhead Theater, and the residents and businesses of Livermore, that a destination hotel is built in the downtown without further delay.

Sincerely, Bob Woerner


Tammy Reus’ Statement to The Independent

Legal Implications of AB1486, SB330, and SB50 on the Central Park Plan

Tamara Reus, President

Statement of Protect the Central Park Vote, No on P

We are in the process of evaluating the implications of the Surplus Land Act, as amended by AB 1486, on the Central Park Plan and downtown development, as well as SB50. We need to learn whether they are even relevant to Livermore’s downtown development area, and if so, in what way.

Reading the AB 1486 documents, our organization has learned that by its terms, parcels that are a half-acre or less are not deemed appropriate for housing. Most of the sites in the Central Park Plan fall within this exemption.

In addition, the Act provides a penalty of 30% of the purchase price of the land to be paid to the city's own affordable fund for the first non-compliance, 50% for the second.

So far, the City has not required its Exclusive Negotiating Rights Agreement partners to pay high prices for land. Moving a modest amount to the city’s affordable housing fund may be a viable option in order to preserve the elements of the Central Park Plan once approved by the voters.

Also, the amendments provide an exception for former Redevelopment Agency land that is subject to an exclusive negotiating rights agreement by December 31, 2020, provided the disposition is completed by December 31, 2022. After approval of the Central Park Plan initiative on November 3 this year, such agreements can be executed for the various components of the Central Park Plan within the allotted timeframes.

The provisions of SB330 do not allow downzoning. However, the Central Park Plan actually increases the density of housing beyond the city’s current requirements for the area. The Central Park Plan does lower the number of units from 130 to 84, but units could be added elsewhere in the City. The measure allows the City to take action so that there is no net loss in residential capacity.

Above and beyond these considerations, it is not clear that the Surplus Land Act or the provisions of SB 330 apply in this case, because the citizen-led Central Park Plan initiative qualified for the ballot before the requirements of AB1486 and SB330 went into effect. The initiative power is an important right reserved to the people under the California Constitution and is broadly construed in the law. Laws that restrict this power may be challenged by local residents and citizens’ rights groups.

The claim that the city will face expensive lawsuits by housing proponents for non-compliance is highly speculative given these uncertainties. Furthermore, we don’t think delay caused by litigation is an issue based on what we currently know about the new legislation.

In addition, concerns that 8-story housing will be placed near the Bankhead because it is within half a mile of a transit station are not well-founded. This appears to be a reference to SB50, which is currently pending legislative approval. This legislation has failed to pass during several legislative sessions. It is highly controversial, opposed by many local jurisdictions, and is still subject to further amendment before it goes to a floor vote. Housing is limited to 4 to 5 stories. Importantly, the current version provides exemptions for cities who move the required housing out of a transit zone to another area in the city.

Given the complexities in these laws, and the extent of uncertainty involved, it is premature to speculate on their ramifications. The incomplete information is having the unfortunate effect of scaring the public before all the facts are known.