The Independent received a letter from land-use attorney Winston Stromberg, with Latham & Watkins, who represents the community group, Save Livermore Downtown.
In his communication, Stromberg addresses legal issues affecting the Eden Housing project that will be considered Monday, 7 p.m., at the virtual Livermore City Council meeting.
The following is Stromberg's submission in its entirety.
Re: May 24, 2021, City Council Meeting, Agenda Item 5.2:
Eden Housing Project (DDR 20-019; VTPM 11186 – SUB 21-003)
Dear Mayor Woerner and Honorable Councilmembers:
On behalf of Save Livermore Downtown, this follows up on comments sent to the City Council on May 18, 2021.1We have reviewed the staff report and associated agenda materials for Eden Housing’s request for Downtown Design Review and a Vesting Tentative Parcel Map (“VTPM”) to develop the western portion of the Downtown Core site in the Downtown Specific Plan area with 130 affordable residential apartment units (the “Project”). Despite the voluminous materials included with the staff report and the clarification that Eden now seeks a density bonus incentive to exceed the maximum setback requirement in the Downtown Specific Plan, Save Livermore Downtown still has numerous concerns with the Project that have not been addressed or rectified by the City or Eden.
For the reasons set forth below, and explained in further detail in Attachment A to this letter, the City Council cannot approve the Project in its current form.
• The staff report makes clear that the design of the Project has not changed since the Planning Commission considered it last month. The Project’s design continues to be inconsistent with the Downtown Specific Plan in several ways, and Eden has not requested density bonus incentives to address these inconsistencies. The City cannot approve Downtown Design Review for the Project as it is currently designed.
• Denial of the Project would not violate the Housing Accountability Act (“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.
[1The comments made in the May 18, 2021, letter are incorporated herein by reference.]
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.
• The Project is not exempt from CEQA review, as (1) it does not satisfy the requirements of the statutory exemption pursuant to Government Code 65457 due to its inconsistencies with the Downtown Specific Plan; and (2) the categorical exemptions claimed by staff are inapplicable and defeated by the presence of unusual circumstances.
For these reasons, and as discussed in Attachment A, should the City Council approve the Project at its May 24 meeting, it would be doing so unlawfully. Save Livermore Downtown does not want to be forced to seek judicial relief from the City’s unlawful actions, but at this point it feels as though its many voices are being and have been completely ignored, and thus reserves all of its rights to do so. Save Livermore Downtown urges the City and Eden to recognize the overwhelming community opposition to this Project, and to put a pause on the Project and come to the table to discuss a feasible and preferred alternative to the Project, whether through mediation, community meetings, or some other approach. As discussed in our May 18 letter, one or more alternatives exist that would enable the 130 units to be relocated off the old Lucky site to a different location that could support even more affordable units.
Save Downtown Livermore respectfully requests that the City Council deny the Project or, at the very least, continue the hearing to a future date in order to consider the alternative proposed by Save Livermore Downtown, or another similar project alternative. The overwhelming majority of Livermore’s residents feel that the Project would be more appropriately sited, and could provide additional affordable housing options, at a different location, which would preserve the Downtown Core for a large public park for residents and visitors to enjoy.
Very truly yours,
of LATHAM & WATKINS LLP
I. THE PROJECT REMAINS INCONSISTENT WITH THE DOWNTOWN SPECIFIC PLAN
Our May 18, 2021, letter explained the many ways the Project is inconsistent with the Downtown Specific Plan’s required development and design standards and objectives.2Those inconsistencies were based on the design plans for the Project included with the staff report for the Planning Commission’s hearing in April 2021. The City Council Staff Report (“Staff Report”) states that “[n]o physical changes have been made to the project since review by the Planning Commission.” While the Staff Report acknowledges that Eden has requested a density bonus incentive to allow the Project to exceed the maximum setback permitted in the Downtown Specific Plan, it claims that Project otherwise complies with the Specific Plan. That is incorrect. As a result, the City cannot make the finding required for Downtown Design Review approval that “[t]he project is in conformance with the Specific Plan’s standards and guidelines.”
The Project is inconsistent with the Specific Plan in many ways, including, but not limited to:
• Main Entrance/Siting and Orientation. Regarding the entrance for the Project, the Specific Plan sets forth two objectives: (1) entrances must “convey a clear residential character, one that is welcoming to the building’s tenants;” and (2) buildings must “be sited to reinforce the public street network of Downtown, aligning with primary street frontages and public pathways.” (Specific Plan, Ch. 6c, pp. 6-32, 6-35.) It also sets forth the related and required standards that “[p]rimary entrances to multi-unit buildings [must] front onto the primary street” and that “the backs of buildings shall not face public streets.” (Ibid.) According to the Project’s Site Plan, the lobby of the Project will be located on the park side of the North Building and will not face any primary street. (Site Plan, pp. A.2, A.4.) Thus, the main lobby entrance faces inward, and the back of the building will face Railroad Avenue, a major public street. (Ibid.)
• Windows. The Specific Plan states that “[b]uildings shall include vertically proportioned façade openings, with windows that have a greater height than width (an appropriate vertical/horizontal ratio ranges from 1.5:1 to 2:1.” (Specific Plan, Ch. 6c, p. 6-43.) The Project does not comply with this standard. The elevations and renderings for the Project clearly demonstrate a large number of windows that are wider horizontally than vertically. (See Project Plans, pp. A.15-A.18, A.23-A.30.)
• Overall Building Massing. The Downtown Specific Plan also sets forth the objective that for multi-family residential buildings, “[t]he massing of larger residential buildings shall be broken down to convey a sense of ‘home’, and give individuality to
[ 2 “All projects are required to comply with identified objectives and standards [in Chapter 6] and are strongly encouraged to follow the established guidelines.” (Downtown Specific Plan, Ch. 6c, p. 6-31 [emphasis added].)]
each unit that lies within it.” (Specific Plan, Ch. 6c, p. 6-32.) The Specific Plan also sets forth certain standards to meet this objective, including that: (1) “[m]ultifamily buildings shall avoid a monotonous or overscaled massing, i.e. a ‘project’ appearance,” and (2) “[b]uilding massing shall be subdivided into portions or segments compatible with the adjacent residential scale.” (Ibid.) And the Specific Plan contains additional Guidelines requiring “[b]uilding segments . . . to be legible as individualresidents or small groups of units,” using one or more design techniques. (Ibid. [emphasis added].) The Project disregards these objectives, standards and guidelines. No effort has been made to give individuality to the units or groups of units. The lack of residential features makes it difficult to identify the building as residential, let alone full of individual units.
• Horizontal Mass. The Downtown Specific Plan requires that “[h]orizontal mass shall be broken down to create architectural interest and provide visual separation between units or modules of units.” (Specific Plan, Ch. 6c, p. 6-33.) Moreover, the Specific Plan requires that facades of long buildings be “architecturally subdivided into shorter segments every twenty-five (25) to fifty (50) feet maximum, using the methods noted” in Guidelines provided therein. (Ibid.) The Project does not comply with these requirements either. The design does not provide visual separation between units, and instead resembles a large, uniform wall with no distinctions for individual units, and without individualized roof forms.
• Site Frontage. The Downtown Specific Plan allows a residential building on the Project site to be four stories tall so long as the “fourth floor does not extend for more than 60% of the site frontage along L Street, Railroad Avenue and South Livermore Avenue.” (Specific Plan, Ch. 5a, § 4.1.D.5.e.) The Staff Report states that the fourth floors of both Project buildings occupy 33 percent of the project site frontage along L Street, Railroad Avenue, and South Livermore Avenue, and 45 percent of the site frontage excluding frontage along South Livermore Avenue and the existing Blacksmith Square parcel on Railroad Avenue. But this conclusion misapplies the standard. Because the Project does not front on Livermore Avenue, only the Project site’s frontage on Railroad Avenue and L Street is relevant. And the fourth floor extends more than 60% of the total site frontage on those portions of the site along Railroad Avenue and L Street. Therefore, the Project is inconsistent with this standard in the Specific Plan.
• Private Open Space. The Specific Plan requires the Project to provide sixty (60) square feet of private open space per residential unit on-site. (Specific Plan, Ch. 5a, § 6.3.B.) Private open space includes “balconies or patios accessible only to the dwelling/dwellings served.” (Id., § 6.3 [emphasis added].) In other words, private open space within a development project cannot be accessed by the general public. The Project does not comply with this requirements. Although the cover sheet to the Project plans states that the Project includes open terraces for the north and south buildings, 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. Indeed, the renderings show frontages along the south side of the north building and the north side of the south building that are not separated from the public park in the middle, and are simply integrated into the park seamlessly. This does not qualify as private open space.
• Public Open Space. The Specific Plan requires the Project to provide a minimum of one-hundred fifty (150) square feet of publicly available open space per residential unit. (Specific Plan, Ch. 5a, § 6.3.B.) 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. Indeed, from the proposed conditions of approval, it appears that the park improvements would be part of a City project, not Eden’s project. (See Condition of Approval 4.D. [“The proposed public park area shown on these entitlement plans are shown for reference only. The Park improvements will be entitled, designed, and constructed separately from this project as part of City Project 2021-21.”] [emphasis added]; see also First Amendment to Disposition, Development, and Loan Agreement (“First Amended DDLA”), section 2.1.ccc. [noting that Veteran’s Park “shall be entitled, designed and constructed at the sole discretion of the City, but in coordination with Developer.” [emphasis added].) The First Amended DDLA makes clear that the City has the option of negotiating a “future construction and reimbursement agreement” for the construction of Veteran’s Park improvements. (First Amended DDLA, section 3.5.) To that end, the City has already put out a Request for Proposal for landscape architectural design services for developing Veterans Park, to be paid by the City.3If the City is paying for the public open space, Eden is providing nothing, and is not meeting its requirements under the Specific Plan.
In sum, the City Council cannot approve Eden’s request for Downtown Design Review and make findings that the Project is consistent with the Specific Plan. Approval of the request would violate the law.
II. THE HOUSING ACCOUNTABILITY ACT DOES NOT PREVENT THE CITY FROM DENYING THE PROJECT
Attached to the Staff Report is a City Attorney memorandum discussing the Density Bonus Law and the HAA. The memo asserts that City Council’s ability to deny housing projects is limited due to provisions in the HAA. But evidence in the record is clear that findings can be made under the HAA to deny the Project.
[3 https://www.cityoflivermore.net/civicax/filebank/blobdload.aspx?t=71032.15&BlobID=21896, attached hereto as Exhibit A. ]
A. Section 65589.5(d) Does Not Prevent the City from Denying the Project
Generally, this section of the HAA disallows cities from denying affordable housing projects unless it makes one or more specific findings. One of those findings is that the project “[w]ould have a specific, adverse impact on the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without” making the project unaffordable to its planned residents. (Gov’t Code § 65589.5(d)(2).) A “specific, adverse impact” means “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions.” (Id. § 65589.5(d)(2).) That finding can be made here.
As noted in our previous May 18, 2021 letter, the San Francisco Regional Water Quality Control Board (“Regional Board”) has raised issues related to contamination at the site, particularly regarding soil vapor intrusion. Furthermore, on May 7, 2021, PANGEA Environmental Services, Inc. prepared a Data Gap Assessment Workplan for the Project site. It concluded that perchloroethylene (“PCE”)4, a noted chemical of concern that is very dangerous to human health and very challenging and expensive to remediate, “has been detected in soil gas and groundwater above Tier 1 screening levels, which merits further characterization and possible mitigation and or/remediation with respect to prospective development at the site.” (May 7, 2021 Data Gap Assessment Workplan – Old Train Depot (“Data Gap Workplan”), p. 8, attached hereto as Exhibit B.)5The Data Gap Workplan further concludes that the presence of “arsenic and lead impact in shallow soil merits further characterization,”6that a “PCE source could be present near the historic railroad lines based on the highest PCE impact in shallow soil gas,” and that “PCE in soil gas represents a potential vapor intrusion concern for future development.” (Ibid.) Based on these findings it is clear that there is more contamination than originally suspected in the 2009 EIR, and the mitigation measures suggested for the site, including a workplan, hazardous building materials survey, and Soil Management Plan will not
[4See https://www.epa.gov/sites/production/files/2016-09/documents/tetrachloroethylene.pdf and https://www.waterboards.ca.gov/water_issues/programs/gama/docs/coc_pce.pdf, attached hereto as Exhibit C.
5By way of this footnote, Save Livermore Downtown hereby incorporates by reference as attachments to this letter for inclusion in the City’s record all of the materials on the Regional Board’s Geotracker website for the Old Train Depot site (T100000016758) posted as of this date, which can be found at:
6The CDC recognizes that “Lead-contaminated soil continues to be a hazardous source of lead exposure for young children in the United States,” and that “Lead-contaminated soil continues to be a hazardous source of lead exposure for young children in the United States,” and that “[e]xposure to lead can seriously harm a child’s health and cause well-documented adverse effects,” including brain and nervous system damage, slowed growth and development, learning and behavior problems, and hearing and speech problems.” (See
https://www.cdc.gov/nceh/lead/prevention/health-effects.htm, attached hereto as Exhibit C.) ]
be enough. Substantial cleanup needs to be done in order to avoid subjecting residents of the Project and visitors of the public park subject to significant health risks, which may make the Project unaffordable.7In addition, because further characterizations are required, it is impossible to know whether mitigation can feasibly avoid the specific adverse health impact of soil vapor intrusion. Therefore, City Council should not approve the Project at this time.
In addition, the HAA states:
[N]othing in this section shall be construed to prohibit a local
agency from requiring the housing development project to comply
with objective, quantifiable, written development standards,
conditions, and policies appropriate to, and consistent with,
meeting the jurisdiction’s share of the regional housing need
pursuant to Section 65584. However, the development standards,
conditions, and policies shall be applied to facilitate and
accommodate development at the density permitted on the site and
proposed by the development.
(Gov’t Code § 65589.5(f)(1).) In other words, the HAA’s savings clause does not preempt or displace the City’s ability to regulate the design of the Project through development and design standards. Thus, because the Lucky site allows affordable housing under relevant City planning and zoning documents, the City should be requiring the Project to comply with the applicable standards in the Specific Plan. The City’s failure to do so is an abuse of discretion.
B. Section 65589.5(j(1) Does Not Prevent the City from Denying the Project
Generally, this section of the HAA disallows cities from denying housing projects that comply with “applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards,” unless two findings can be made. (Gov’t Code § 65589.5(j)(1).) But as noted above, the Project does not comply with objective, applicable standards and criteria. Thus, this issue is not implicated by the Project.
Further, to the extent that the City and/or Eden were to assert that the Project is “deemed” consistent with the applicable rules under Section 65589.5(j)(2), application of this section to the Project would result in violations of constitutional procedural due process rights. Such an argument would essentially deny interested persons the ability to comment on a project that might be inconsistent with applicable objective land use standards before the project was “approved.” “Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612.) California courts have recognized that surrounding landowners whose interests may be adversely affected by a project approval enjoy a constitutional right to notice and an opportunity to be heard. (See Selinger v. City Council (1989) 216 Cal.App.3d 259,
[7See https://www.enviroforensics.com/blog/what-makes-cleaning-up-perc-spills-so-expensive/, attached as Exhibit C. ]
274 [holding former Permit Streamlining Act unconstitutional because it led to approval of development applications that could lead to substantial deprivation of property of neighboring landowners without providing notice and hearing]; Horn, 24 Cal.3d 605, 617 [plaintiff had a substantial property interest alleging that subdivision plan would substantially interfere with his use of the only access from his parcel to public streets and would increase both traffic congestion and air pollution].) Similarly, such an argument would also violate applicable public hearing notice requirements. (See Gov’t Code § 65090.)
III. THE PROJECT IS NOT EXEMPT FROM CEQA ANALYSIS
The Project also does not comply with CEQA, and the City must conduct further environmental analysis before approving the Project.
A. The Project Is Not Statutorily Exempt
The Staff Report first concludes that the Project is exempt from CEQA review under Government Code Section 65457 and CEQA Guidelines Section 15182 (c). (Staff Report, p. 19; id., Attachment 4 [draft CEQA Resolution], pp. 1-2.) As discussed in our May 18, 2021 letter to City Council, this is incorrect. A residential project implementing a Specific Plan is only exempt from CEQA review if (1) an agency has prepared an EIR on a Specific Plan after January 1, 1980, (2) the residential project conforms to the Specific Plan, and (3) no events under Public Resources Code Section 21166 have occurred since the adoption of the Specific Plan. (Gov’t Code § 65457(a).)
Here, and as explained in our May 18, 2021 letter, the Project does not conform to the Specific Plan with regards to parking, site frontage, setbacks, overall building massing, main entrance/siting and orientation, windows, horizontal mass, or private open space requirements. Because the project does not comply with the required standards in the Specific Plan, the CEQA exemption cannot be used.8(Gov’t Code § 65457(a) [project must be “consistent with a specific plan for which an environmental impact report has been certified”] [emphasis added]; see also CEQA Guidelines § 15182(c)(1) [“[A] residential project undertaken pursuant to and in conformity to that specific plan is exempt from CEQA if the project meets the requirements of this section.”] [emphasis added].)
Additionally, recent activity and concerns raised by the Regional Board require that the City engage in supplemental or subsequent environmental review before approving the Project under Public Resources Code Section 21166. Although the Staff Report’s draft CEQA Resolution asserts that the Project will comply with the 2009 EIR mitigation measures, these mitigation measures do not address recent concerns of the Regional Board. (See May 18, 2021 Letter, pp. 7-9.)
[8Even if the HAA arguably precludes a city from denying an affordable housing project except in certain circumstances and precludes the use of design review standards in such a denial, the HAA does not change CEQA, and it does not eliminate a city’s duty to comply with CEQA requirements. (Gov’t Code § 65589.5(e).) ]
Thus, the Project is not exempt from further environmental review under Government Code Section 65457.
B. The Project Is Not Categorically Exempt
The Staff Report also asserts that the Project is separately and independently exempt from CEQA review under CEQA Guidelines Sections 15332 (infill projects), 15304 (a) and (b) (minor alterations to land), and 15308 (actions taken by regulatory agencies to ensure the maintenance, restoration, enhancement, or protection of the environment). (Staff Report, p. 19.)
As an initial matter, the Project does not meet the requirements for any of the three exemptions. First, the CEQA Guidelines Section 15332 exemption for in-fill development projects requires a project to be “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.” (CEQA Guidelines, § 15332(a).) As discussed above and in our May 18, 2021 letter, the Project does not conform to the City’s applicable development standards set forth in the Downtown Specific Plan, which serve as the zoning regulations for the property.
Second, Staff argues that the Project is exempt under CEQA Guidelines Section 15304 as a minor alteration to land. (See Staff Report Attachment 4 [draft CEQA Resolution], p. 5.) Specifically, Staff asserts the Project is exempt because it proposes minor grading on the parcel and new landscaping activities. This is a misapplication of the law. That the Project involves landscaping and minor grading does not qualify the Project in its entirety to be exempt as a minor alteration. Under Staff’s logic, the City of Livermore could build any project under the “minor alteration to land” exemption so long as it involved landscaping activities.
Third, Staff relies on CEQA Guidelines Section 15308, asserting that the Project is exempt as an action taken by a regulatory agency for the protection of the environment. (See Staff Report Attachment 4 [draft CEQA Resolution], p. 5.) Staff reasons that the park dedication on Parcel Two contributes to the enhancement of the environment and therefore qualifies the Project for this exemption. (Ibid.) However, “[c]onstruction activities and relaxation of standards allowing environmental degradation are not included in this exemption.” (CEQA Guidelines, § 15308.) As discussed above and in our May 18, 2021 Letter, construction of the Project would exacerbate the current contamination issues and result in a significant impact on the environment and public health. The Project therefore does not qualify for this exemption.
Even if the Project did fall under these exemptions, the presence of unusual circumstances prevents the use of any of the three categorical exemptions relied upon in the Staff Report. (Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, 967 fn. 8 [“Categorical exemptions . . . are subject to exceptions that defeat the use of the exemption”] [citation omitted].) As stated in CEQA Guidelines 15300.2(c), “[e]ven if an activity fits within an otherwise exempt category, the agency may not find it exempt if the project will have a significant effect on the environment due to unusual circumstances.” The “unusual circumstances” exception to a categorical exemption involves two inquiries: (1) whether the project presents unusual circumstances; and (2) whether there is a reasonable possibilitythat a significant environmental impact will result due to those circumstances. (Committee to Save the
Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1186 [citation and footnote omitted, emphasis added].) Further, if the agency finds the project will have a significant impact, that finding necessarily establishes that some circumstance of the project is unusual, and the exception applies. (Berkeley Hillside Preservation v City of Berkeley (2015) 60 Cal.4th 1086, 1105.)
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. (See May 18, 2021 Letter, pp. 7-9; April 18, 2020 Site Assessment and Summary Report – Old Train Depot, dated Apr. 18, 2020 [stating that the site has several chemicals of concern in the soil and groundwater, including arsenic, lead, petroleum hydrocarbons, and volatile organic compounds].) At the very least, the Regional Board’s concerns constitute evidence demonstrating a reasonable possibility that a significant impact will result from this Project. That the risk of soil vapor intrusion releasing into the residential structure constitutes an “unusual” circumstance for a housing project is without question. Most in-fill development projects within city limits or projects constituting minor alterations to land do not include the risk of soil vapor intrusion harming the residents of the project. In addition, projects falling under the exemption for regulatory actions protecting the environment would not include the potential significant impact of hazardous chemicals seeping into groundwater and soil. Thus, the presence of unusual circumstances defeats any categorical exemption relied upon in the Staff Report.