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Housing proposed in East Bay hills derailed by court ruling

LIVERMORE — A housing development more than a decade in the making is now on hold, following a state appeal court ruling that the city’s environmental review process for the project was flawed.

The March 30 decision from a three-judge panel of California’s First District Court of Appeal notches a big victory for a group of residents who sued to block development of a nearly 32-acre plot of the Garaventa Hills area in north Livermore because they want to see the environmentally sensitive hillside land preserved.

San Ramon developer Lafferty Communities wants to build 44 houses on the parcel, which the Livermore City Council approved in 2019. But the panel of judges said Livermore’s environmental impact report didn’t properly and thoroughly evaluate the “no-project alternative” — the option of not developing the land at all — making the report inadequate under state law.

“I am grateful to the three appellate court justices who heard what we were saying,” said Bianca Covarelli, a member of the group called Save the Hill, which sued Livermore in 2019 over its approval of the environmental review and the project.

While Alameda County Court Judge Frank Roesch agreed in a fall 2020 ruling that the city’s evaluation was “deficient,” he ultimately ruled that the citizens group didn’t “exhaust” all its options of bringing the issue to the city’s attention before challenging the environmental review in court.

The appeal court disagreed with Roesch, and ordered his ruling be reversed.

“The record is replete with incidences of Save the Hill representatives urging council members to consider the possibility of obtaining funding to purchase and conserve the project site,” the judges wrote.

Several million dollars from two different previous settlements — the Dougherty Valley Settlement Agreement and the Altamont Landfill Settlement Agreement — which stemmed from lawsuits over a major housing project and the expansion of the landfill, were available to the city for buying open space, the judges wrote. But the city did not include that information in its environmental report.

When council members asked staff during public meetings in 2019 about the option of buying the land and preventing development, “they were advised by staff and attorneys that it was too late and would expose the city to liability,” the judges wrote.

“They were also instructed to limit their focus to the project in front of them — even though (the California Environmental Quality Act) required them to focus on both the project and feasible alternatives, including the no-project alternative,” the judges wrote.

The city and East Bay Regional Park District used some of those same funds in 2011 to purchase environmentally sensitive land known as the Farber Property, which was also being eyed for development, according to the court. The land is now part of Brushy Peak Regional Preserve.

“The fact that two funding sources exist for the precise purpose of enabling the city to acquire environmentally sensitive areas such as Garaventa Hills for conservation is just the sort of information (the California Environmental Quality Act) intended to provide those charged with making important, often irreversible, environmental choices on the public’s behalf,” the judges wrote.

The judges said because the City Council was “lacking adequate information regarding the no-project alternative,” it could not make an “informed, reasoned decision” on the project. They ordered the city’s previous approval of the environmental report and the project “must be set aside” and a new environmental report needs to be prepared before any construction can occur.

“We should have been heard in the numerous City Council meetings and Planning Commission meetings when we had been trying to communicate, cooperate and collaborate on the ways we could conserve this land, because it’s such a rare and unique ecosystem,” Covarelli said in an interview.

The land proposed for development by Lafferty since 2011, along with the adjacent Garaventa Wetlands Preserve, provides habitat for a wide range of species and plants protected under the California or federal Endangered Species Act, including the California red-legged frog, California tiger salamander, California burrowing owl, San Joaquin kit fox, western spadefoot toad and vernal pool fairy shrimp.

The Livermore tarplant, palmate-bracted bird’s beak and Congdon’s tarplant are also found in the area.

Lafferty originally proposed building 76 houses in the area in 2011 with a vehicle bridge over Altamont Creek but reduced it to 47 homes before the project was rejected in 2014 and 2015 by the Planning Commission and City Council. The current proposal, 44 houses and a pedestrian bridge over the creek, was first floated in 2017, and approved in April 2019. The citizens group filed its lawsuit the next month.

“It’s a very beautiful location, and it’s the last open space rolling hill in our urban growth boundary, within our city limits. They’re building everywhere else in Livermore,” Covarelli said.

“I’m not going to rest until we see that land conserved in perpetuity,” she said.

Livermore City Attorney Jason Alcala said in an email that his office is “reviewing the Court of Appeal’s opinion and does not have any comment at this time.”

“Hopefully the legality parts of it are in the rearview mirror,” Covarelli said, “and we can work together, as we should have three years ago, to conserve the land.”

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