Citizens for Balanced Growth Posts

Whether or not the proposed Valley Link Rail train follows the same fate as “BART to Livermore”, remains to be seen. BART was a 50 year story with multiple chapters that ultimately amounted to nothing except tens of millions wasted on studies and planning. Added to that were hundreds of millions of Livermore tax funds that never went to serve our residents.

Since Valley Link’s inception, the agency in charge has produced occasional promotional updates. We can expect that to continue. You’ll hear about it in the news, at meetings and through various forms of commentary. But, will the train ever arrive?

We can’t know the answer to that question now. The problem is, Livermore officials are preemptively going about City business as if it will be built, rather than presenting it as something that may be built.

The Isabel Neighborhood problem

The so-called “Isabel neighborhood” area of town was prematurely rezoned for 4000 new homes in 2022. The City Council did not wait for public transit planning to be finalized prior to beginning to construct housing units. The disturbing part is that the developers are being told in very certain terms by city staff that the area will be served by a Valley Link train station. Currently, that is too strong a statement and is irresponsible to assert.

We are quite concerned that the overt promotion of Valley Link will encourage some of the home buyers, if not most of them, to expect to be able to use Valley link for daily transportation. If it does not come to fruition, one can envision a great deal of strife and very possibly lawsuits on the basis of false advertising. Those lawsuits might not be limited to the developers, as the city is openly publicizing to the developers that the train will be built. These developers will doubtlessly laud the train as one of the benefits to buyers.

We would caution everyone at this time (residents, city staff, developers, and any agency) to consider the Valley Link train as a potential transit project with an unknown operational date. Ideally, the actual construction of most Isabel related projects should be put on hold until we can have greater certainty about the transit availability.

It is also worth remembering that the original idea was for no Isabel neighborhood at all, unless the area was serviced by full, real BART. It won’t be fair to anyone if we end up creating a borough poorly planned from a traffic perspective, and not even a consolation train to show for it.

The status of the Lafferty Communities’ “Garaventa Hills” housing development is one of the most frequent questions we are asked. It is an understandable concern for may of our residents in an environment where there is very little new information.

Real Estate Robots

Some online real estate sites have listings that add to the confusion. Many of them are robots that scrape old information, present it as new, and the search engines treat it as current information despite it being bogus. Thus, if you search for “Garaventa Hill” or “Garaventa Hills” with any regularity, you are bound to see some misleading results. Today, we saw this:

This deceptive site masquerades as a place you can get actual real estate information. The date – April 2023 – gives one the impression that it is somewhat current information about a downtown Livermore development with inventory. When you click the link, you are shown other properties. Classic clickbait.

Legitimate Media Not Without Fault

There are also innocent mistakes that have caused unnecessary confusion. For example, there was the electrical expansion project that PG& E failed to realize was no longer necessary. There is no need to expand infrastructure for a cancelled development. It was a disturbing episode, but the way it was reported by The Independent was far from perfect. The headline “”Litigants Surprised By Renewal of Garaventa Project” accidentally suggested that the developer was preparing to move forward. The content of the article was well done, but anyone who stopped at the headline could get the wrong impression.

Garaventa Hill Is Safe (until further notice)

The “Garaventa Hills” housing development project does not exist. Rest assured, nothing has changed since the Supreme Court invalidated the EIR. No substantive attempt to resurrect it has been made. All the funding necessary to buy the land for the purpose of conservation is in a protected account and ready to be used whenever the landowners would like to sell. In the mean time, there is no development option.

It is always possible that someone will try something with any undeveloped piece of property. Fortunately for Garaventa Hill, there are now several organizations which will be ready to act promptly in opposition if any hint of development discussions comes about.

There is a proposal for a hotel called the Livermore Wine Country Inn. It would be located at the intersection of Hansen Road and Arroyo Road in deep South Livermore. The project is separate and has no connection with the Presidio Companies’ proposal for a potential downtown hotel.

Progress on the development was halted by the Court of Appeals. The reason behind the ruling against the developer follows a theme that is becoming uncomfortably familiar, as it is a result of elected officials insisting on not doing what the regulations state they must do, and ignoring public advice to do what is legal.

The proposed site is located in the South Livermore Vally Specific Plan area (SLVSP), which articulates the requirement for 100 foot setbacks on that parcel for the B&B. Instead, both the Planning Commission and the Livermore City Council sided with the developer and against the residents. The developer wanted to bend the rules and require only half the required setback (50 feet) – officials were happy to go along.

Now the entire project is uncertain. If all parties would have simply followed the rules and developed the space as originally envisioned in the SLVSP, Livermore Wine Country Inn might be hosting guests already and supporting our tourist industry. Instead, it is possible it can’t be built at all, and tremendous time, money and attention will have been wasted.

Planning Commission should have done everyone a favor and rejected the design in 2019. Failing that, the Council should have listened to the pleas of residents to make the project conform.

The next mistake to be made is up to the City Attorney. He could keep it going in the courts, or support the community and accept the loss. Let us hope the legal process is over and that the project can be reworked accordingly into a form more closely envisioned in the framework of the South Livermore Valley Specific Plan.

New housing developments of 11 or more units are required to make at least 15% of those units permanently priced significantly below market value. This applies apartments, condos, townhomes, single family homes – any form of dwelling unit.

Developers usually don’t like building them, so they take advantage of a loophole. Instead of creating affordable units, they are allowed to offer a payment to the City as a condition of making more or all of the units available at market rate. This fee goes into a special fund that is held with the City, that is supposed to eventually be used in some manner to build affordable units in the future. There are a number of problems with this arrangement that directly lead to the inadequate affordable inventory.

Not enough units have been built

This is the obvious primary problem. Many people who work in Livermore cannot live there due to insufficient income. A variety of essential occupations fall into this trap, such as teachers, healthcare workers, first responders, and the list goes on.

Affordable projects take too long

As the fees are collected over time, the challenge becomes how to spend them. The typical scenario is that City staff and the Council should be proactive in getting them applied toward actual, shovel-ready projects in what would hopefully be a sufficiently rapid pace. The expensive market rate projects can be ready to be occupied in as little as a year or two, but the affordable projects can languish for decades. When they do get built, they tend to be 100% below market concentrated compounds. It has long been known that such a configuration is not the best way to welcome people with diverse income levels into the fabric of the city.

“Inclusionary Housing” is superior to affordable housing projects

Like most communities, Livermore practices inclusionary zoning policies (also known as inclusionary housing policies and IZ policies). They aim to create affordable housing units by encouraging or requiring housing developers seeking to construct new market-rate units to set aside 15% of the units as affordable for moderate-income to low-income tenants or homeowners. IZ policies are designed to encourage new housing developers to build affordable homes in market-rate housing areas with the goal of creating communities with diverse income levels.

Here’s how it works in Livermore

Inclusionary zoning can be mandatory, voluntary, or a combination. Livermore requires new constructions of 11 units or more to set aside 15% of dwelling units for affordable housing programs. Developers often claim that the project won’t be feasible for a variety of reasons and may offer to pay their way out of building as many, or any. Sometimes several factors interact to either increase or decrease the number of units built such as: density bonuses, expedited approvals, fee waivers, and subsidies.

Benefits of Inclusionary vs. Concentrated Affordable Zoning

1. Increased supply of affordable housing: Inclusionary zoning policies help increase the amount of affordable housing available to lower-income and moderate-income households. IZ also offers a path to meeting federal fair housing standards set by the Department of Housing and Urban Development.
2. Greater opportunity for low-income households: As housing prices soar, inclusionary zoning ordinances aim to help low-income renters and homeowners afford to live in areas with greater access to employment, schools, and public transportation.
3. Decrease economic and racial segregation: Inclusionary zoning can help create a more economically and racially diverse city by enabling people to live throughout Livermore and not just relegated to parts of town deemed less desirable.
4. Healthier: Living in a mixed-income community can have a positive effect on our residents’ health, such as a reduction in stress and overall improved mental health.

Solutions

Fees are too low

With developers so commonly choosing to buy their way out of building the units, clearly the fee structure is inadequate. The city council has the sole authority to adjust the fee.

The usual standard in the US is for the fee to be adequate to construct each of the unbuilt units at a future date. A case in point is the Lassen Road Townhomes, where the developer (WestGate Ventures) was allowed to avoid building 14 townhomes for a mere $776,000. In no version of reality could a future unit be built for $55,000. This has been a common condition in recent years, and fees need to be substantially higher.

Systemic Dysfunction

City Staff and Council are prone to run on autopilot when it comes to developers. Projects get proposed Planning Department, then run through Planning Commission with a lot of negotiations and modifications. By the time it gets to Council, it is easier to say “yes” than it is to challenge the process for adequacy, as was not done with Lassen Road Townhomes. Council needs to demand much more to ensure a better affordable mix within future housing developments.

The standard practice of producing EIRs was upended to some degree by a recent loss in the Supreme Court by the City of Livermore. We decided to investigate deeper into the process of how these reports are created and by whom.

In Livermore’s case, the report with the salient deficient information was produced by Lamphier-Gregory for a development that would have been called Garaventa Hills. Now, an effort by Save Seven Hills Ranch to preserve open space instead of developing it into housing gives us the opportunity to examine the DEIR documents of these two nearby proposed developments. The first one has already failed, and we believe this new one is on its way to a comparable

Recently, we noticed a striking similarity within a key element of each report: the “No Project Alternative”. This is the component that was found to be out of compliance with CEQA law in three different courts, with finality at the California Supreme Court. Although we are a Tri-Valley organization, we do share some environmental kinship with neighboring counties; we also receive court mandated compliance reports on water delivery in Contra Costa County, where Seven Hills Ranch is located. Thus, we’ll wade into the Spieker development for the purposes of education and study.

Comparing the “No-Project Alternatives”

For the Livermore “Garaventa Hills” proposal, the DEIR was written by Oakland based Lamphier-Gregory. The DEIR for the Spieker proposal was written by San Jose based David J. Powers & Associates.

EIRs are usually very long documents – well over 100 pages. As we have observed before, the purpose of these reports is often far less about environmental protection and much more about pushing a development project forward. For the good of the environment, CEQA requires a No-Project Alternative for a legislative body to consider. It usually is identified as the environmentally superior alternative among all the others, as to avoid describing it this way would be inaccurate.

Here they are side by side:

Notice the similarity in the language, and the general disinterested “mood” of the content. It is hard to believe the reports were prepared by two entirely different companies, for different counties, and different developers. Let’s face it, Lamphier-Gregory and David J. Powers are both essentially saying to their respective legislative bodies, “you seriously can’t do this”. As one of three alternatives presented in the massive EIRs, they occupy less than a page each.

We believe we see rather unhelpful brevity and insincerity of the overall effort to truly examine the alternative that is in the public’s best interest. That is what was struck down by the Court.

The Appellate justices noted (in “Save the Hill”): “As the Guidelines make clear, an EIR “shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly.” (Guidelines, § 15126.6, subd. (b), italics added.)” and:

“Lacking adequate information regarding the no-project alternative, the city council could not make an informed, reasoned decision on whether this Project should go forward. Accordingly, its decisions to certify the RFEIR and approve the Project must be set aside… (See Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236;”

Getting Involved Earlier

The public often desires to make a real difference in how our government agencies impact the environment due to legislative actions. Typically intervention begins after the information spreads about an undesirable proposal, at some point after a DEIR is first produced. Community organizing then starts, with the focus on the legislative body being primary. This may be too late. Could there be a better way?

If the public can get ahead of the process at an earlier stage, (for example, if active concerned residents were to intervene at the bidding stage where environmental consultants first get involved) it might go a long way toward redirecting the momentum of staff and the elected body.

Let’s suppose an RFP is bid on by three consultants. The choice of vendor will be made at a public meeting, where comments could be given at this earlier date and perhaps encourage the bidders to reconsider their interest. Bidders may learn about crucial elements that might make the project unbuildable or very difficult evaluate. Perhaps they would need to adjust their bids to reflect additional costs, consider undiscovered obstacles, or not get involved at all. No consultant, no project.

Conclusion (for now)

CBG has not spent an extensive amount of time collecting the large number of EIR documents that would be required to discuss any definitive patterns within the Environmental Consultancy industry. What we do see in this case is an extraordinary similarity in the methods by which environmentally superior alternatives to development are disadvantageously positioned in legislative body reports. We expect to add more information as it becomes available.

The Garaventa Hills development process evolved from a fairly straightforward housing development proposal, onward through considerable public pushback, and now moving forward toward full preservation as open space. A core enabling factor of saving “The Hill” was the discovery of a specific sum of money to buy the land – the Dougherty Valley Settlement Agreement Fund, or DVSA. Many people have been asking for more details on the origin and structure of the funding, and how CBG relates to it.

Litigation Cornucopia

There were many lawsuits and other settlements associated with the various Dougherty housing projects. This page discusses our settlement as it relates to CBG’s actions and has nothing to do with other funds similarly named in Contra Costa County. Feel free to investigate, as we haven’t focused on that. There was some legal action with Danville. In San Ramon there was a lot happening – here is a Dougherty Valley Settlement document that might get you going in the right direction.

Zone 7’s Journey into the Abyss

It all started in 1998. Zone 7, the Tri-Valley’s wholesale water supplier, was considering whether to broaden its services to include delivering water to future customers in Contra Costa County. A series of housing developments, sometimes referred to as the Dougherty Valley Project, would be a massive, unpopular development of 11,000 houses that faced many obstacles. Crucially, it did not have a source of water and thus would not be buildable.

The developer was unable to find a supplier until cooperative talks began with Zone 7 (via DSRSD), even though the area was outside of its allowable service boundary. Dublin was agreeable to provide the infrastructure, but they did not have a source for water. That’s where some all too creative methods began to be employed.

Here’s what they figured they would do. Dublin would provide water connections, and Zone 7 would “wheel” water from the Berrenda Mesa source, and on to Contra Costa County. They reasoned that doing it this way wasn’t really servicing outside the Tri-Valley, even though it was, and they could get around the inconvenient restrictions. Illegal, but technically possible with the addition of some infrastructure.

CBG’s Dougherty Valley Lawsuit

A public hearing process was required. On January 28, 1998, the Board held a public hearing on proposed contracts and an escrow agreement associated with the multifaceted plan. Many members of the public, including CBG and some of our executives (such as former Livermore Mayor Don Miller, former Zone 7 Director Margaret Tracy, former LVJUSD Director Jim Day), as well as Livermore Vice Mayor Tom Reitter, future DSRSD Director Tom Ford, and Sierra Club’s Cynthia Patton, pointedly informed Zone 7 that they were about to break the law. The minutes also reveal that the negotiations were rushed and had just concluded, giving the public only hours to review the many pages of documents. They felt the process was being ushered through the approval too quickly.

Representatives from the housing development interested parties also stated their case and recommended that Zone 7 should indeed serve their development projects.

In the end, the Directors reiterated the many benefits they claimed justified the actions, ignoring out of hand the many issues of law and insufficient review presented by resident speakers. Setting aside all the testimony, the Zone 7 Board then voted 6-1 to authorize the President to sign five agreements approving and implementing the contracts for delivery of water by Zone 7 for the Dougherty Valley Project.

CBG sued Zone 7 on behalf of Valley residents March 19, 1998. Days later, we were joined by the City of Livermore. Months of court mandated proceedings ensued. To avoid prolonged litigation and a near certain loss in court, Zone 7 offered to settle our litigation in November 1999. As part of the provisions, the settling parties paid all of CBG’s and Livermore’s legal expenses, as is common when plaintiffs prevail in court, and the DVSA Fund was established.

So how does the Fund benefit Valley residents?

The purpose of the Fund is to provide some measure of relief from excessive traffic and also support habitat preservation. One of the many reasons I-580 is so congested is because our water agency in essence, played a small part in creating thousands more commuter cars that take to the roads every day. Many of them go straight for the freeway, and that traffic is reduced to a small degree by preserving some land that would otherwise be built up and therefore a traffic source. When such purchases protect endangered species, all the better. In this way, we got “something” in exchange for the traffic caused by the defendants.

Process of Implementation

The money itself resides with the City of Livermore. Over the years, the Fund has been put to use for its intended purposes as needed.

We believe that Garaventa Hill will be the next acquisition in the chain. It will be leveraged as soon as the City Council receives a request for funding via a bona fide buyer who enters a purchase agreement, and wants to own and preserve the Hill in perpetuity.

Expenditures are geographically limited. In the Tri-Valley, we can consider funding any open space purchase east of Collier Canyon Road and North of I-580.

Ongoing oversight

The City of Livermore, DSRSD, and Zone 7 continue maintain actionable responsibilities to CBG. DSRSD and Zone 7 make regular reports to us in connection with the Settlement. They have cooperated fully and courteously over the years.

Livermore performed admirably for more than a decade. Their performance has declined recently, most notably in their failure to inform us, discuss or pursue the possibility of protecting Garaventa Hill. We hope to make arrangements for improving the ways we work together on applying funding in the best interests of residents.

References:

Resolutions

• Berrenda Mesa EIR
• Contract with Water Transfer Associates
• Dougherty Valley Service

Minutes

• Zone-7-01-28-98-Minutes
• Zone-7-02-18-98-Minutes

As reported in The Independent:
“After noticing the PG&E workers near Bear Creek Drive and Garaventa Hill, nearby neighbors began asking questions about why power was being extended to an open space area that environmentalists recently battled and later won in court protecting it from a luxury housing project proposed by Lafferty Communities Inc.”

Vladimir Pavlushkin worked for an environmental engineering consulting firm and has experience with encroachment permits. He asked for a copy of the work permit and looked at the specifications. It showed that a residential power line was being pulled down Bear Creek Drive, parallel to existing utilities. It will serve no purpose and basically dead-ends with the street and never be needed.

It turns out that PG&E asked the city for a permit to do work on the street, which is a common activity for any utility, and the company did not look deeper into the issue of whether electrical service would still be needed. The housing development it would have supplied was to be called Garaventa Hills, and it should have been common knowledge by then that the site is not buildable for environmental reasons. That part of the memo did not seem to reach all the right people.

Apparently the previous developer of the proposed tract (Lafferty Communities) had requested the work be done at some point, and PG&E eventually followed up with a request of their own from the City of Livermore. It seems to be an extreme case of one hand not knowing what the other is doing.

We applaud PG&E for taking any steps to improve the grid reliability and safety. It would be prudent for them to more carefully determine which projects are necessary and which should not be pursued. With all the power outages we had recently, priority should be given to areas that suffer failures due to capacity constriction.

The City of Livermore had difficult choices to make

Lafferty Communities‘ attempt to develop Garaventa Hill into a housing tract began in 2011 and ended in 2022. Here’s a brief look back at the series of tasks were undertaken, and how it all unraveled in the courts.

• 2011 Lafferty sought out Lamphier-Gregory to begin the environmental review process.
• 2011 Lamphier-Gregory arranged to be paid by the City of Livermore to produce the EIR (no competitive bid)
• Lamphier-Gregory drafted a Notice of Preparation

Our City staff submitted the Notice of Preparation to the State in 2011

Various episodes followed over the next several years, including a Draft EIR in 2012, a “Final” EIR in 2014, and then a “Reissued” final EIR in 2018. Upon the Council’s (now illegal) 2019 certification of the FEIR, a lawsuit was filed by residents which ultimately resulted in their Supreme Court victory.

Upon being “noticed” that a lawsuit would be filed, City staff had the responsibility to make recommendations to the Council. Legally, when a legislative body votes on a decision, they must stand by that decision in court no matter how regrettable the original vote might have turned out to be in hindsight. So, Staff was responsible for presenting options for the kind of defense case they would mount on behalf of Livermore residents, against Livermore residents. Though unfortunate and ironic, it is not an uncommon corner into which agencies can find themselves painted.

The best possible outcome would be for Livermore to lose the case, and thusly save The Hill. Public opposition to Lafferty Communities and concern for the health of the environment made for an attractive potential outcome – win by losing.

Three options to consider

1. Concede the case and negotiate a costly compensatory arrangement with Lafferty Communities.
2. Have the City Attorney prepare a reasonable case and argue it in a manner which satisfies the legal defense obligation but might not have the greatest chance of winning. Cost would be minimal. (Pro Tip #1: losing is winning on this issue).
3. Make a side deal with Lafferty communities where they would manage the case, cost, and liability. (Pro Tip #2: winning is losing on this issue).

They chose option 3. The City would fight its residents in the most aggressive way at their disposal. Lafferty Communities was motivated by tens of millions in profit if they won the case, and were willing to finance a vigorous defense. City Staff thought this would be a good idea, as it absolved them from having to do any work. They also mistakenly thought they had a winning defense case.

The Trials

Livermore outsourced its defense to the discretion of Lafferty Communities. They hired the Buchalter Law Firm in San Francisco, with their attorney Doug Straus heading up the case. On the advice from CBG and others, the residents (“Save the Hill Group”) hired Greenfire Law to serve as plaintiff’s representative.

CBG was able to witness the trials in action. We were highly impressed with Mr. Straus’ performance and command of his various arguments. Basically, he really knew his stuff. Likewise, Greenfire’s Jessica Blome was every bit Straus’ equal, and based on the final result, superior.

Lafferty Communities was disadvantaged from the beginning. The property is more environmentally sensitive than the nearby Farber property, where developers tried to get an EIR for 15 years before giving up. Livermore’s Council received some bad advice from Livermore’s City Attorney during the EIR process. The EIR also had fatal flaws, as Lamphier-Gregory (the company that produced it) left out some key research and findings related to preserving the property as a “No-Build” option. In the end, all things being equal, this case was lost from the start.

Conclusion

Greenfire was able to tease out the necessary facts of the law in order for the plaintiffs to prevail on the merits in all three courts where the case was heard. On this basis we don’t believe Council made a good decision to fight their own residents with everything they had. In hindsight, we hope they would agree. All parties would have been much better served by gracefully allowing the inevitable loss to transpire with far less drama. It would have saved Lafferty Communities time and money as well. The saddest part though, is the magnitude of mistrust created by Council’s desire to fight their own constituents tooth and nail. That’s not how good government is supposed to work.

Livermore’s appeal to the California Supreme Court in an effort to erase their Appellate Court loss was unsuccessful.

Lafferty Communities cannot develop Garaventa Hill

The Garaventa Hills Lamphier-Gregory Environmental Impact Report (originally prepared by Rebecca Auld of Lamphier-Gregory) was upheld as defective on July 13th 2022 by the California Supreme Court. The case remains officially published, despite the additional request by the City of Livermore to have the decision “depublished”. As such, it is now “California Case Law” which can be referenced in other environmental lawsuits indefinitely.

On March 30th 2022, a three-judge panel on the California Court of Appeal First District ruled in favor of the residents who brought the case.  The Livermore City Council erred in allowing a housing development to proceed on the environmentally sensitive property. 

The proposed “Garaventa Hills” housing tract was to be located in Northeast Livermore between Laughlin Road and Vasco Road, just north of Altamont Creek School.  For nearly a decade, developers attempted to push their plans through the City’s processes, only to be repeatedly thwarted by a myriad of unmitigable environmental consequences that would result from development.

The Hill is home to a number of threatened and endangered species, including the endangered Vernal Pool Fairy Shrimp, California Tiger Salamander, Burrowing Owls, the Livermore Tarplant and other species on and around the site.  The U.S. Dept of Fish & Wildlife Service has designated it as critical habitat for the Vernal Pool Fairy Shrimp.

The Appellate panel of judges agreed with the Save the Hill, who argued that the City Council failed to adequately consider whether Garaventa Hill could be purchased and preserved in perpetuity for conservation as a part of a “No-Action” EIR alternative. Lafferty Communities, the applicant and developer at the time, paid for the EIR, then court actions, all the way through the eventual defeat.

Conservation funds have been available to buy it for decades, and the California Environmental Quality Act requires that there be appropriate attention applied to a “no project” option as part of the EIR certification process.  The funds were left completely out of the Report, as Lamphier-Gregory failed in their due diligence to include conservation funding as part of their research and discovery process. Without this vital information, even after being asked to provide it by the plaintiffs during public testimony, the City Council’s certification of the EIR violated the law.

What is an EIR – why did Lafferty Communities need it?

An Environmental Impact Report is required by California law whenever a new proposal will have enough potentially negative effects on the environment to be of significant concern. This is a very broad description, and the law has many complex parameters and requirements. If we attempt to peel back several layers of metaphorical curtains, here’s a very abbreviated example of how one might be created.

After a developer decides that it is worth risking capital for the chance of making a profit, it all begins by a public agency’s staff being approached about starting a permitting process to build a project . The agency, in this case a city council and staff, invokes a “positive declaration” to indicate a developer’s proposal will require a legal EIR prior to permits being issued. A private company that specializes in writing these lengthy documents is required.

An environmental consultant is first retained.

Typically, the developer will assure the retention of a company with a reputation that supports the likelihood of success, not necessarily one that leans toward environmental protection, as the stakes are very high if the report doesn’t get certified. Here’s where the potential for conflict of interest begins and the players start to dance an ethically loaded tango.

By law, the agency (council in this case) is the customer of the EIR company. This is because the council should be looking out for the best interests of the residents, and the primary allegiance of the EIR company should be to the council and residents. However, the report costs money; it is nearly universal that the agency will include a side deal with the developer where council will not be liable for the costs of the report – the developer pays back the agency as soon as the agency pays the consultant. While the council has the final word in choosing the EIR company (the one often requested by the developer), the REAL customer is the developer, and they will demonstrate their alliance throughout. Corrupt? Unethical? There is nothing illegal about this sort of out-in-the-open money laundering.

Enter Lamphier-Gregory

In the Garaventa case, Lafferty sought out and chose a company called Lamphier-Gregory. They may have done so in part because of Lamphier’s extraordinary success in another controversial local project: The Sunol Valley Aggregate Quarry. Similar to Garaventa, the conversion of a productive stretch of farmland to a gravel quarry faced stiff opposition from virtually every environmental group that spoke on the matter. The locals were infuriated by the prospect, and made every effort to derail the progress. Lamphier-Gregory’s EIR was a resounding success, as the property was converted and not stopped by a successful lawsuit.

After Lafferty instructed Lamphier-Gregory to pursue the Garaventa project, they went through the administrative movements to get themselves hired by Livermore as the environmental consultant without a competitive bid. The deck was stacked against the residents from the outset. The weak approach by Lamphier-Gregory to expend only minimal effort to include a legitimate “no project alternative” was ideal for Lafferty’s interests. It was also their downfall. Unfortunately for them, and fortunately for Livermore residents, that’s illegal. The Supreme Court said so.

More about the attempted “depublication” of the ruling

Save the Hill‘s Supreme Court win was a powerful message to any California agency that is required to adhere to CEQA. There are many public and private interest groups who generally prefer to avoid protecting the environment, as it can get in the way of their development plans. After the Appellate Court victory, no less than five separate entities decided to take action.

With the goal of making it harder to protect the environment in the future, they thought it would be wise to try to cover up the ruling by requesting “depublication”. They submitted their requests to the only remaining court that could do it – The California Supreme Court. If successful, future development strategies would no longer face the inconvenience of complying with the newly enhanced CEQA power.

It didn’t work. As a published case, Save The Hill Group v. The City of Livermore is far reaching and widely relevant. For the record, the five requestors were:

• The California State Association of Counties. Attorney: Robert Tyson Sohagi of the Sohagi Law Group
• The League of California Cities. Attorney: Robert Tyson Sohagi of the Sohagi Law Group
  The League of California Cities seems to approach depublication aggressively. Their letter involving this Lafferty Communities Garaventa Hill decision is fascinating reading, as they attempt multiple arguments to justify why protecting the environment is a bad idea. They were even bold enough to write an instruction manual to teach other people how to hide court judgments (they removed it from their website).
• The City of Livermore. Attorney: Sabrina Vansteenki Teller
• The California Building Industry Association. Attorney: Linda C. Klein
• The Building Industry Association of the Bay Area. Attorney: Linda C. Klein (who tried three times!)
• That’s not all. A more complete list of the parties

The effect of the published ruling is that in the future, any plan for new developments that do significant damage to the environment must include a genuine study of a “no-project alternative”. This means that there needs to be a sincere effort to investigate any and all ways a damaging project can be avoided in order to protect California from unnecessary harm. Not all development projects threaten the environment, so this ruling does not unduly impede development in California. But, if you want to abuse the environment for profit, you can’t do so in an illegal manner, or as easily as before.

Will there be another EIR ordered by the City (Developer)?

Since the court decision, there have been ongoing communications between City staff and Lafferty Communities regarding Lamphier-Gregory. The City performed their court mandated duty to rescind the approval in November 2022. The election of a development opponent to the council district (Ben Barrientos) in 2022 will provide for at least four years of pushback within the City administration that never existed before.

Attempts were made to contact Lamphier-Gregory in order to gain more insight, but they did not want to speak with us. We hope they might reconsider, as we want to make sure the information we post is accurate and fair. One particular item we would like to explore is a statement they made about the project. “Lamphier-Gregory was also asked to help the City negotiate the process of choosing an identified alternative in place of the project at the Final EIR stage.” This was precisely the issue that the justices called out most explicitly in ruling against them, so it seems odd to have promoted this service to Livermore as a “value added” feature.

After such a publicized defeat at the supreme court, one might speculate that Garaventa Hill is too hot to handle, and Lamphier-Gregory may decide not to participate again. Other environmental consultants may also need to carefully consider the potential downside as well.

For eight long years, the resident opponents did what they could without a completely equipped skill set to guide them through the various complexities. Though poorly armed, they brought their case all the way to the Supreme Court and won. Now, the same people are more motivated, have a GREAT Environmental law firm, are apparently well funded, highly visible, and have newfound political power. It seems unlikely that Lamphier-Gregory will reenter the fray, but why would any competent environmental consultant want to walk straight into a buzz saw? The same question applies to Lafferty Communities.

Maybe they’re thinking about trying anyway.

Lafferty Communities have said very little. They are active on Facebook, but seem to ignore their Yelp page which has a 1 star rating. In an interview with the San Francisco Chronicle just after the court defeat, attorney Alicia Guerra stated, “Lafferty Communities remains fully committed to its in-fill housing project in the city of Livermore which will offer needed excellent and affordable housing to the community.”

The process itself would really be a return to where they started in 2011, but from an even more disadvantaged posture. It’s a lot of work, new surveys, a greatly expanded “no-project alternative”, etc. The public scrutiny will be substantial, and could be overwhelming.

Actions do speak louder than words though, and a bewildering action by PG&E did take place. A high capacity power line was run up to The Hill a few months after the court ruling. Apparently there was an old request for infrastructure and they failed to put the brakes on in time, as they were unaware that Garaventa Hill is no longer being urbanized. A lot of money went to waste.

What if Lafferty Communities were to restart the process?

The procedure would not be easy, quick, or cheap. An RFP for a new EIR has to be ordered by city staff, and they will be encouraged to exactly NOT prepare one. If an RFP is produced, this time it will be challenged. Then if it goes out for bids, bidders may be reluctant to participate (based on what happened to Lamphier-Gregory). If it receives bids, the applicants will become the subject of immediate public attention (and not the good kind). Don’t forget the Notice of Preparation, and the staff time it takes to process that prior to any work on a new EIR.

Unlike the passive exercises that took place in 2011, nothing will be left unattended. Active vigilance can be expected from the very first moment, now that the residents know what to do, and with a greater sense of confidence.

If all of this somehow gets as far as a draft EIR, it has to first go through planning commission and be posted as a public hearing item in advance. At the meeting, it will face unrelenting scrutiny and public input. That’s the first test of its survival, and if it somehow succeeds, then it will be on to City Council.

Once there, the same obstacles apply, and more. DEIR for public comments. Advance posting. City Council public hearing with expected opposition. In addition, Garaventa Hill is habitat sensitive territory that would be unlikely to obtain buildable evaluation. Even if a future council did certify one, it would undoubtedly face more lawsuits by an even better prepared legal team. Finally, the legal defense Lafferty employed did a splendid job, lost anyway, and it is doubtful Lafferty Communities could find more effective representation.

Final Thoughts

The story of Garaventa Hill is a tribute to what local residents can do if they are persistent in an attempt to pursue justified environmental protection. Neither a hostile City Council, aggressive developer, nor lack of legal sophistication or money can overturn the will of the people as long as it stays strong and resolute.

References:

• 2012 Lamphier-Gregory Garaventa Hills DEIR. This is the original proposal for 76 homes. The “no project” Alternative A is included
• 2014 Lamphier-Gregory Garaventa Hills Final DEIR. This includes public comments and letters.
• 2018 Lamphier-Gregory Garaventa Hills Reissued Final DEIR

The longtime goal of Livermore residents to protect Garaventa Hill in North Livermore has achieved a monumental victory.  On March 30th, a three-judge panel on the California Court of Appeal First District ruled against the City of Livermore and in favor of the residents who brought the case.  The Livermore City Council erred in allowing a housing development to proceed on the environmentally sensitive property. 

The proposed “Garaventa Hills” housing tract was to be located in Northeast Livermore between Laughlin Road and Vasco Road, just north of Altamont Creek School.  It was approved at an infamous City Council meeting on April 22, 2019.

For nearly a decade, developers attempted to push their plans through the City’s processes, only to be repeatedly thwarted by a myriad of unmitigable environmental consequences that would result from development.

The Hill is home to a number of threatened and endangered species, including the endangered Vernal Pool Fairy Shrimp, California Tiger Salamander, Burrowing Owls, the Livermore Tarplant and other species on and around the site.  The U.S. Dept of Fish & Wildlife Service has designated it as critical habitat for the Vernal Pool Fairy Shrimp.

The panel of judges agreed with the Save the Hill, who argued that the City Council failed to adequately consider whether Garaventa Hill could be purchased and preserved in perpetuity for conservation as a part of a “No-Action” EIR alternative. 

Conservation funds were available to buy it, and the California Environmental Quality Act requires that appropriate attention be applied to such an option as part of the EIR certification process.  Failing to divulge this information, especially after being asked to provide it, violated the law.

Bianca Covarelli has been spearheading the protection efforts for over a decade.  “The City failed to apply due consideration to the Hill’s preservation as open space”, said Ms. Covarelli. “We are happy the legal issues are in the rearview mirror. As we have said from the beginning, our goal is to buy the property and preserve it forever.  We will be ready to talk to the landowners about consummating a purchase agreement whenever they are ready.”

The panel also noted similarities to another property a few hundred feet away which also failed after 15 years of development attempts.  Known as “ The Farber Property”, it was eventually bought by East Bay Regional Parks and added to the Brushy Peak trail system North of Livermore.