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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,  

Winston Stromberg  

of LATHAM & WATKINS LLP 

 

ATTACHMENT A

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.  

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  

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  

 

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,  

  

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.