LIVERMORE — The city has rejected a petition to block a proposed downtown Livermore affordable housing complex, a move that could lead to more legal wrangling and delays for the project, which already has been held up more than a year because of previous legal challenges.
Following the City Council agreeing in May to sell a plot of downtown land to nonprofit Eden Housing for the project, a residents group calling itself “Move Eden Housing” filed a petition with the city, with thousands of residents’ signatures, to challenge the decision.
The petition sought to let voters decide in the November election whether the land sale should go through. But the city has blocked the group’s efforts.
In a letter last week, city clerk Marie Weber told the group pushing for the referendum that the council’s resolution to sell the land to Eden Housing was an “administrative” action and not a “legislative” one, and therefore cannot be challenged by a referendum.
The vote to sell the land only “implements the City Council’s prior legislative acts,” Weber wrote, referencing a similar situation in San Bruno that played out in the courts in 2017.
Weber, with advice from the city attorney, also wrote that the group’s petition “does not identify any specific act that it challenges or purports to be legislative.” She said “the petition has no legal effect and is therefore not eligible for filing or processing as a referendum.”
She said the city would not be taking any further action to process the petition or verify the signatures.
Jason Alcala, the city attorney, said in an interview Thursday the issue is an “open and closed” one in his view.
“If it was new legislation, yes, it would be subject to referendum. This is not new legislation; this is implementing decisions that were made years ago,” he said.
As an analogy, Alcala said the situation with the petition is akin to a wedding invite being sent out noting that guests are required to wear a tuxedo to attend.
“This petition is showing up in a T-shirt with a tuxedo printed on it,” he said.
“The maitre’d is telling them, ‘That is not a tuxedo, that is a T-shirt with a tuxedo printed on it, you don’t get admission.’ ”
Barry Fadem, an attorney for the residents group, said in a statement that Weber was “in violation of her purely ministerial duties” when she refused to process the petition.
“The city clerk does not have the power, even on advice of counsel, to not perform the clearly stated legal responsibilities set forth in the Elections Code,” Fadem said.
“We demand that the City Clerk treat the referendum petition as filed and proceed to verify the validity of signatures, as the Elections Code demands,” Fadem said.
Alcala said the “law is clear” and the city will stand by its decision.
“You can challenge legislation, but once that legislation is established, the implementation is administrative, not subject to either referendum or initiative,” Alcala said.
“The government has to be able to complete its business, and that’s where the line is drawn.”
Maryann Brent, a leader of Move Eden Housing, said in a press release issued Thursday that the clerk’s refusal to process the signatures “threatens to rob over 8,000 Livermore voters of their constitutional right to petition the city for a referendum.”
Brent is a supporter of Save Livermore Downtown, a group backed by wealthy and influential resident Joan Seppala. Save Livermore Downtown had previously filed a lawsuit against the city aiming to block the 130-unit affordable housing project planned for a plot at Railroad Avenue and South L Street.
After being ruled against in a county court, the group filed an appeal in April to a higher court that is pending.
Jean King, a spokesperson for Save Livermore Downtown, said while Save Livermore Downtown and Move Eden Housing may have some of the same members and may support some of the same causes, they are separate organizations. Asked if Seppala also helps fund Move Eden Housing, King said, “I am not going to say.”
Brent and Seppala did not respond to voicemails left seeking comment.
In the press release, Brent indicated the group may challenge Weber in court.
“The clerk has no authority or basis in law for this refusal, and Move Eden Housing will take whatever legal actions are required to force her to comply with her state-mandated duties,” Brent wrote.
Alcala, the city attorney, said he expected the group to file a lawsuit against the city after Weber’s initial letter on July 13. Instead, “they engaged in a letter-writing campaign” that is aimed at trying to change Weber’s actions in her capacity as an elections official.
He drew a comparison to President Donald Trump’s alleged meddling in elections processes after the November 2020 election.
“That level of bullying has presented itself during the election process. Does this rise to that level? It’s not as aggressive because you don’t have a president behind it, but it is troubling,” he said.
“I believe the petition is just one more frivolous attack to delay the affordable workforce housing project,” Livermore Mayor Bob Woerner said in a written statement Thursday.
“I expect the project will ultimately be built after many needless and very costly years of delay.”
