Save Livermore Downtown v. City of Livermore ( 2023 )


Menu:
  • Filed 12/28/22; Certified for Publication 1/26/23 (order attached)
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION THREE
    SAVE LIVERMORE DOWNTOWN,
    Plaintiff and Appellant,
    A164987
    v.
    CITY OF LIVERMORE et al.,                                (Alameda County
    Super. Ct. No. RG21102761)
    Defendants and Respondents;
    EDEN HOUSING, INC.,
    Respondent and Real Party
    in Interest.
    The City of Livermore (City) approved a 130-unit affordable housing
    project in the downtown area. A local organization calling itself Save
    Livermore Downtown (SLD) unsuccessfully challenged the project approval
    on the grounds the project is inconsistent with the planning and zoning law
    and that further review of the project’s environmental impacts is necessary.
    Like the trial court, we reject these contentions. We further find no abuse of
    discretion in the trial court’s order requiring SLD to post a bond. We affirm
    the judgment.
    1
    FACTUAL AND PROCEDURAL BACKGROUND
    The City adopted a General Plan and a Downtown Specific Plan in
    2004, for which it completed and certified an environmental impact report
    (EIR). A subsequent EIR (SEIR) was certified in 2009, after the City made
    amendments to the Downtown Specific Plan that, inter alia, increased the
    amount of development allowed.
    In January 2018, the City approved a plan for redeveloping City-owned
    sites in the “Downtown Core” area. The plan included public park space,
    commercial retail buildings, cultural facilities, multifamily workforce
    housing, a public parking garage, and a hotel. In May 2018, the City selected
    Eden Housing, Inc. (Eden) as the developer for the multifamily housing
    component of the plan. An addendum to the 2009 SEIR was prepared in
    2019. Two further addenda were prepared in 2020 when the project was
    modified.
    The housing project Eden proposed (the project) would redevelop the
    northwestern quadrant of the Downtown Core with two four-story buildings
    (a north and a south building) containing a total of 130 affordable housing
    units. These are reserved for people with incomes of 20 to 60 percent of
    Alameda County’s median income (i.e., low-, very low-, and extremely low-
    income households). Land between the two buildings would become a public
    park, and private open space reserved for residents would be adjacent to each
    building. Parking would be underground, with additional parking in a
    nearby parking garage. The project site is bounded by Railroad Avenue on
    the north, L Street on the west, and Veterans Way on the south. It was
    previously the site of a Lucky’s grocery store, and before that a railroad
    depot. To the east is a further portion of the Downtown Core area, including
    2
    a theater, retail space, and a park, with Livermore Avenue to the east of
    those facilities.
    The project site has a land use designation in the General Plan of
    “Downtown Area.” Its designation in the Downtown Specific Plan is
    “Subarea 4—Special Condition Sub-District D.” Uses allowed for the site’s
    zoning include affordable multifamily housing.
    In 2021, the City’s Planning Commission voted to approve Eden’s
    application to develop the affordable housing component of the Downtown
    Specific Plan. On May 25, 2021, the City approved the project’s application
    for design review and a vesting tentative parcel map for the project, finding
    the project conformed with the General Plan and the Downtown Specific
    Plan’s standards and guidelines, and that no substantial changes were
    proposed that would require major revisions to the previous EIR, SEIR, or
    addenda. The City found the project exempt from the California
    Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) on
    multiple grounds, including that it was consistent with a specific plan for
    which an EIR had been certified (Gov. Code, § 65457; 14 Cal. Code Regs.,
    § 15182, subd. (c))1 and that it was an infill development project (Guidelines,
    § 15332).
    SLD brought a petition for writ of mandate challenging approval of the
    project on June 24, 2021. SLD alleged that the project violated state and
    local planning and zoning laws in that it was inconsistent with the
    Downtown Specific Plan’s development and design standards, that the project
    1 The CEQA Guidelines are found at sections 15000 to 15387 of title 14
    of the California Code of Regulations. We afford them great weight, unless
    clearly unauthorized or erroneous under CEQA. (California Building
    Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 
    62 Cal.4th 369
    , 381.) We shall refer to them as the Guidelines.
    3
    was not exempt from CEQA, and that the City violated CEQA by failing to
    conduct further environmental review.
    Eden moved for a bond under Code of Civil Procedure section 529.2,
    which under certain conditions authorizes a bond of not more than $500,000
    in an action brought to challenge qualified low- or moderate-income housing
    projects. The trial court granted the motion and required SLD to file an
    undertaking of $500,000 as security for costs and damages Eden would incur
    as a result of litigation-related project delays, finding as it did so that the
    action was brought for the purpose of delaying the provision of affordable
    housing and that the undertaking would not cause SLD undue economic
    harm. SLD filed a petition for writ of mandate in this court seeking relief
    from the undertaking requirement, and a different panel of this division
    denied the petition. (Save Livermore Downtown v. Superior Court (Oct. 7,
    2021, A63603) [pet. den.].)
    On the merits, the trial court denied SLD’s petition, stating as it did so
    that “[t]his is not a close case,” that “[t]he CEQA arguments are almost
    utterly without merit,” and that substantial evidence supported the City’s
    conclusion that the project was consistent with the specific plan. This timely
    appeal ensued. The City and Eden then brought a motion in this court to
    expedite the appeal or dismiss it as frivolous. We granted a slightly
    accelerated schedule, declining to dismiss the appeal.
    DISCUSSION
    I.    Consistency with Downtown Specific Plan
    SLD contends the project was unlawfully approved because the project
    design is inconsistent with the Downtown Specific Plan in multiple respects:
    the lobby does not face a primary street and there is parking between the
    buildings and the street; the four-story portions of the buildings take up too
    4
    much of the site’s frontage; the external appearance of the units lacks
    “individuality”; some of the windows are not “ ‘vertically proportioned’ ”; and
    open space requirements are not satisfied.
    A development project must be consistent with the applicable general
    plan. (San Francisco Tomorrow v. City and County of San Francisco (2014)
    
    229 Cal.App.4th 498
    , 508; Sierra Club v. County of Napa (2004) 
    121 Cal.App.4th 1490
    , 1510 (Sierra Club).) This principle requires the project to
    be consistent with the Downtown Specific Plan, prepared to implement the
    General Plan. (See Sierra Club, at p. 1509; Gov. Code, §§ 65450, 66473.5.)
    The goal of consistency is accomplished, “ ‘ “if, considering all its aspects, [the
    project] will further the objectives and policies of the general plan and not
    obstruct their attainment.” ’ [Citation.] A given project need not be in perfect
    conformity with each and every general plan policy.” (Families Unafraid to
    Uphold Rural etc. County v. Board of Supervisors (1998) 
    62 Cal.App.4th 1332
    , 1336 (Families Unafraid); accord, Sierra Club, at p. 1511.) It is enough
    that the project is compatible with the plan’s objectives, policies, general land
    uses, and programs. (Bankers Hill 150 v. City of San Diego (2022) 
    74 Cal.App.5th 755
    , 776 (Bankers Hill 150).)
    “[I]t is the province of elected city officials to examine the specifics of a
    proposed project to determine whether it would be ‘in harmony’ with the
    policies stated in the plan. [Citation.] It is, emphatically, not the role of the
    courts to micromanage these development decisions.” (Sequoyah Hills
    Homeowners Assn. v. City of Oakland (1993) 
    23 Cal.App.4th 704
    , 719
    (Sequoyah Hills).) We decide merely whether city officials “considered the
    applicable policies and the extent to which the proposed project conforms
    with those policies, whether the city officials made appropriate findings on
    this issue, and whether those findings are supported by substantial
    5
    evidence.” (Id. at pp. 719–720.) We “defer to a procedurally proper
    consistency finding unless no reasonable person could have reached the same
    conclusion.” (Orange Citizens for Parks & Recreation v. Superior Court (2016)
    
    2 Cal.5th 141
    , 155.)
    A second factor is relevant because this project will provide affordable
    housing. Under the Housing Accountability Act (Gov. Code, § 65589.5)
    (HAA), a local agency may not disapprove a housing development project for
    very low-, low-, or moderate-income households, nor condition approval in a
    manner that renders the project infeasible, unless it makes one of several
    specific findings, among them that the project would have a specific, adverse
    impact on public health and safety or that the project is inconsistent with
    both the zoning ordinance and land use designation at the time the
    application was deemed complete. (Gov. Code, § 65589.5, subd. (d)(2) & (5).)
    And for any housing development, without regard to income-level, a local
    agency may not disapprove a project that complies with “applicable, objective
    . . . standards and criteria, including design review standards,” in effect when
    the application was deemed complete, unless the project would have a
    specific, adverse impact on public health or safety that cannot feasibly be
    mitigated or avoided. (Gov. Code, § 65589.5, subd. (j)(1), italics added.) An
    objective standard is one that can be applied without “personal interpretation
    or subjective judgment.” (California Renters Legal Advocacy & Education
    Fund v. City of San Mateo (2021) 
    68 Cal.App.5th 820
    , 840 (California
    Renters).)
    In reviewing challenges to approval of a project, we review the City’s
    actions rather than the trial court’s decision. (California Renters, at p. 837.)
    As a general matter, we determine “whether the City prejudicially abused its
    discretion in approving the [p]roject by not proceeding in a manner required
    6
    by law, by reaching a decision not supported by its findings, or by making
    findings not supported by the evidence.” (Bankers Hill 150, supra, 74
    Cal.App.5th at p. 768.)
    When a project is subject to the HAA, however, a different standard
    may apply: California Renters, in reviewing a decision denying an
    application to build new housing, explained that instead of asking, “as is
    common in administrative mandamus actions, ‘whether the City’s findings
    are supported by substantial evidence’ [citation], we inquire whether there is
    ‘substantial evidence that would allow a reasonable person to conclude that
    the housing development project’ complies with pertinent standards.”
    (California Renters, supra, 68 Cal.App.5th at p. 837; Gov. Code, § 65589.5,
    subd. (f)(4).) But the court in Bankers Hill recognized that this “stringent,
    independent review” may be unnecessary where, as here, the agency approves
    a project. (Bankers Hill 150, supra, 74 Cal.App.5th at p. 777.) In fact, there
    seems to be no practical difference in the two standards when an agency finds
    a project consistent with its general plan, as even under the ordinary
    standard that finding “ ‘can be reversed only if it is based on evidence from
    which no reasonable person could have reached the same conclusion.’ ” (The
    Highway 68 Coalition v. County of Monterey (2017) 
    14 Cal.App.5th 883
    , 896
    [applying deferential standard to consistency determination not involving the
    HAA].) Using either lens to review the project’s consistency with the specific
    plan—asking whether there is substantial evidence from which a reasonable
    person could find the project consistent, or whether there is substantial
    evidence supporting the City’s finding of consistency—leads to the same
    conclusion.
    SLD fails to show the project is inconsistent with the “objectives,
    policies, general land uses and programs” of the Downtown Specific Plan
    7
    under these standards. (Families Unafraid, supra, 62 Cal.App.4th at
    p. 1336.) In finding the project consistent with the plan, the City explained
    that the plan’s policies include allowing housing of a range of types and
    densities and focusing on redevelopment of “catalyst” sites like the former
    Lucky’s parcel, and that the purpose of the plan was to revitalize the City’s
    historic core as the pedestrian-oriented center of the City. The project would
    further this policy by developing affordable residential units and pedestrian
    connections to First Street. The City also found the project conformed with
    applicable development standards for setbacks, height, and open space: it
    would dedicate approximately 0.7 acres for a public park; and it included
    façades with horizontal plane changes at regular intervals, vertical modules,
    articulated and detailed building corners, minimal streetside setbacks to
    reinforce continuous public streets and pathway space, and distinctive
    architectural details that complemented other traditional building styles
    nearby.
    SLD makes no effort to show the project would not promote the
    overarching policies of providing housing, including affordable housing, and
    revitalizing the Downtown area. Rather, its challenges are limited to
    asserted inconsistencies between details of the project and standards in the
    Downtown Specific Plan. We reject each of SLD’s specific complaints in turn.
    Main Entrance/Siting and Orientation. The Downtown Specific
    Plan addresses “Main Entrance[s],” including an objective that “[e]ntrances
    shall convey a clear residential character, one that is welcoming to the
    building’s tenants.” The standards meant to further this objective recite that
    “[p]rimary entrances to multi-unit buildings shall front onto the primary
    street.” A related “Siting and Orientation” objective states that “[b]uildings
    shall be sited to reinforce the public street network of Downtown, aligning
    8
    with primary street frontages and public pathway spaces.” Under this topic,
    the standards provide that “[t]he backs of buildings shall not face public
    streets,” and that “[p]arking is not permitted between the public street and
    adjacent residential buildings.”
    SLD argues the project violates these standards because a lobby will be
    located on the park side of the north building and will not face a primary
    street and thus, the back of the building will face Railroad Avenue. The
    standards refer not to the location of lobbies, but to the location of entrances
    and the backs of buildings. The record shows a pedestrian entrance on the
    Railroad Avenue side of the building, as well as an accessible walkway
    leading to the same entrance, and a drawing of the exterior depicts that
    entrance as prominent. The area immediately by the entrance, described on
    site drawings as a lobby, appears to be connected to a larger lobby area on the
    park side of the building. This evidence is more than adequate to support the
    City’s conclusion—indeed, any reasonable person’s conclusion—that the
    project complies with the objective for main entrances. (See California
    Renters, supra, 68 Cal.App.5th at p. 837; Bankers Hill 150, supra, 74
    Cal.App.5th at p. 777.)
    We are no more persuaded by SLD’s argument that the project violates
    the prohibition on parking between the public street and residential
    buildings. SLD points out that the project drawings show street parking on
    Veterans Way, just south of the south building. But the City asserts, and
    SLD does not dispute, that the parking is existing parking on the public
    street. Parking for residents of the project will be under the buildings, not
    visible from outside. We see nothing to compel a finding that existing street
    parking renders the project inconsistent either with the objective that
    buildings “be sited to reinforce the public street network of Downtown,” or
    9
    with the supporting design standard prohibiting parking “between the public
    street and adjacent residential buildings.” (Italics added.)
    Site Frontage. The Downtown Specific Plan provides that residential
    development on the “Catalyst Project Site” located south of Railroad Avenue
    between L Street and South Livermore Avenue (the former Lucky’s site) may
    be four stories tall, “provided the fourth floor does not extend for more than
    60% of the site frontage along L Street, Railroad Avenue, and South
    Livermore Avenue.”
    SLD contends the project violates this rule because the fourth floor of
    the residential buildings extends along more than 60 percent of the frontage
    of the portions of the Catalyst Project Site the project occupies along Railroad
    Avenue and L Street, and the project does not run along South Livermore
    Avenue. SLD simply ignores the applicable language in the plan: the 60
    percent limitation applies not to the residential portion of the Catalyst
    Project Site, but to the entire perimeter along L Street, Railroad Avenue, and
    South Livermore Avenue. SLD makes no effort to show—and the site
    drawings refute—that the four-story residential buildings front on more than
    60 percent of this perimeter. SLD thus shows no inconsistency with the
    specific plan.
    Massing. The Downtown Specific Plan provides, “[t]he massing of
    larger residential buildings shall be broken down to convey a sense of ‘home’,
    and give individuality to each unit that lies within it.” To accomplish this
    objective, “[m]ultifamily buildings shall avoid a monotonous or overscaled
    massing, i.e., a ‘project’ appearance,” and “[b]uilding massing shall be
    subdivided into portions or segments compatible with the adjacent residential
    scale.” The plan also provides that “[h]orizontal mass shall be broken down
    to create architectural interest and provide visual separation between units
    10
    or modules of units.” Here, supporting standards require that “[f]acades of
    long buildings shall be architecturally subdivided into shorter segments
    every twenty-five (25) to fifty (50) feet maximum,” and that vertical modules
    of units incorporate features to distinguish them, “such as wall breaks,
    projections, distinct color schemes, and individual roof treatments.”
    SLD contends the project violates these standards because the units or
    groups of units have no “individuality,” for example with separate roof forms,
    balconies, or porches making them distinguishable from each other. Instead,
    SLD describes the project as “two massive walls of uniform development.”
    We note that in the main, these standards are subjective: questions of
    whether the building’s façades are sufficiently “broken down to convey a
    sense of ‘home’ ” and individuality, or “create architectural interest and . . .
    visual separation” inherently require personal interpretation and subjective
    judgment. As a result, we doubt that under the HAA these standards may be
    used to deny approval of the project. (California Renters, supra, 68
    Cal.App.5th at pp. 839–840; Bankers Hill 150, supra, 74 Cal.App.5th at
    pp. 777-778.)
    In any event, substantial evidence in the record supports the finding
    that the project conforms to the applicable standards because it includes
    varied massing, façades with horizontal plane changes at regular intervals,
    vertical modules, articulated and detailed building corners, and other
    architectural features. SLD draws our attention to drawings of the proposed
    buildings that, in our view, support rather than undermine these conclusions.
    Certainly nothing in them compels a finding that the buildings have a
    “monotonous,” “overscaled,” or “ ‘project’ ” appearance in violation of the
    massing standards or that there is no differentiation among clusters of units.
    11
    Windows. The Downtown Specific Plan provides that windows within
    a building and across a façade be related in design, operating type,
    proportions, or trim, and “shall be used as architectural elements that add
    relief to the façade and wall surface.” Among the relevant standards,
    “[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). Where glazed horizontal
    openings are used, they shall be divided with multiple groups of vertical
    windows.” (Italics added).
    To argue that the project conflicts with these standards, SLD contends
    that some of the windows are wider horizontally than vertically. That may
    be true, but it is irrelevant. Our review of the drawings of the project
    confirms that most of the windows are oriented vertically—and, as a result,
    that the buildings “include” vertically proportioned windows—amply
    supporting a finding that the project is in conformity with this standard.
    Open Space. The Downtown Specific Plan provides that residential
    uses must provide “publicly accessible common outdoor space for the
    development, as well as private open space (e.g. balconies or patios accessible
    only to the dwelling/dwellings served).” Specifically, for residential and
    mixed-use developments, the specific plan requires 150 square feet of publicly
    accessible open space and 60 square feet of private open space per residential
    unit.
    To meet the private open space requirement, the project includes—
    inset into the south building—recreational and play facilities with a low
    perimeter fence, a communal seating area with trellis overhang and benches,
    and an area designated private open space and “south park frontage.” For
    the north building, an open courtyard is inset and an open area is designated
    12
    “north park frontage.” According to a staff report, these areas would be for
    the exclusive use of residents.
    SLD contends the project does not live up to the private open space
    requirement because these areas do not appear to have physical barriers to
    prevent the general public from using them. But SLD does not show that the
    Downtown Specific Plan requires physical barriers or that a layout in which
    private open space is inset into residential buildings cannot satisfy the
    private open space requirement. We bear in mind that it is not our province
    to “micromanage” development decisions (Sequoyah Hills, supra, 23
    Cal.App.4th at p. 719); it is enough that a project is compatible with the
    plan’s objectives, policies, general land uses, and programs (Bankers Hill 150,
    supra, 74 Cal.App.5th at p. 776). In our view, the record supports a
    conclusion that these open space areas are sufficiently separate from the
    public park to qualify as private open space as required by the Downtown
    Specific Plan.
    As to the public open space requirement, a sizable area between the
    north and south buildings and east of the south building will be dedicated as
    the future Veteran’s Park. SLD surmises that the City, rather than Eden,
    will be paying for the public park, as the City has put out a request for
    proposals for landscape design services to develop the park. As a result, SLD
    contends, Eden has not fulfilled its obligation to provide 150 square feet of
    public open space per unit. This contention is meritless. SLD points to
    nothing in the Downtown Specific Plan specifying who must fund the public
    open space. Evidence that land between and adjacent to the residential
    buildings—already City-owned, as is the rest of the site—will be dedicated for
    a public park fully supports a finding that the public open-space requirement
    is satisfied.
    13
    Conclusory Findings. In addition to challenging the evidentiary
    basis for the City’s consistency findings, SLD also contends the findings are
    so conclusory that they fail to “bridge the analytic gap between the raw
    evidence and ultimate decision or order.” (Topanga Assn. for a Scenic
    Community v. County of Los Angeles (1974) 
    11 Cal.3d 506
    , 515.) While
    findings must be sufficient to meet this standard, they “do not need to be
    extensive or detailed. ‘ “[W]here reference to the administrative record
    informs the parties and reviewing courts of the theory upon which an agency
    has arrived at its ultimate finding and decision it has long been recognized
    that the decision should be upheld if the agency ‘in truth found those facts
    which as a matter of law are essential to sustain its . . . [decision].’ ” ’
    [Citation.] On the other hand, mere conclusory findings without reference to
    the record are inadequate.” (Environmental Protection Information Center v.
    California Dept. of Forestry & Fire Protection (2008) 
    44 Cal.4th 459
    , 517–
    518.)
    Although the findings are relatively brief, we have had no difficulty
    discerning the basis of the City’s conclusions. The City found that the project
    will promote the goals of providing housing and revitalizing the City’s core
    area, and it went on to find that the project conforms to applicable
    development standards related to setbacks, height, and open space, and to
    the design standards in the Downtown Specific Plan, with reference to
    architectural details supporting its finding. Although the findings did not
    specifically discuss each of the project details SLD contends were inconsistent
    with the specific plan, SLD has not shown they were inadequate.
    Moreover, the HAA has changed the legal landscape for considering
    SLD’s challenges to the consistency findings. The HAA deems a housing
    project consistent with a plan’s policy, standard, or requirement “if there is
    14
    substantial evidence that would allow a reasonable person to conclude” it is
    consistent. (Gov. Code, § 65589.5, subd. (f)(4).) The City recited, when
    making its findings, that it was acting based on its own independent review,
    in accordance with the HAA. We have considered SLD’s challenges and are
    satisfied as to each of them that a reasonable person could conclude the
    requirements in question are satisfied. We thus reject SLD’s contention that
    the consistency findings were inadequate.
    II.   Exemptions from CEQA
    A. Residential Project Consistent with Specific Plan
    The City determined the project is exempt from CEQA under
    Government Code section 65457, which exempts from CEQA review
    residential development projects that are consistent with a specific plan for
    which an EIR has been certified. SLD contends this exemption does not
    apply and further environmental review is necessary because new
    information about soil and groundwater contamination arose after the 2009
    SEIR was certified.
    1. Additional Factual Background
    The 2009 SEIR for the amendments to the Downtown Specific Plan
    examined the environmental impacts of a proposed theater on three
    alternative sites, one of which encompassed the location of the proposed
    housing project now before us. Among the issues the SEIR considered was
    the possible presence of hazardous materials at the potential sites for the
    theater. The SEIR explained that soil and groundwater there had been
    affected by historic land uses such as railroad operations, service stations,
    dry cleaners, fuel storage, and machine shops. At the current project site,
    former railroad operations might have caused the presence of heavy metals,
    petroleum hydrocarbons, and pesticides in the soil and groundwater; dry
    15
    cleaning operations adjacent to the site might have led to the presence of
    chlorinated solvents in the groundwater; and hazardous materials might
    have been released by a petroleum company and an automobile company.
    The 2009 SEIR included among potential environmental impacts that
    development of the theater at any of the alternative sites might expose
    construction workers and future site patrons, residents, or workers to
    hazardous concentrations of contaminants from soil and groundwater. It
    concluded that, before mitigation, this impact would be significant. As
    mitigation, the SEIR provided that before grading permits were issued, a soil
    management plan would be prepared; this plan would include any available
    environmental data from sampling at the specific site, a worker health and
    safety plan, requirements for soil management and off-site disposal, and a
    contingency plan for sampling and analysis of previously unknown hazardous
    materials. Further remediation might be required if evidence of
    contaminated groundwater was identified.
    As to the current project site in particular, the 2009 SEIR explained
    that release of hazardous materials during demolition and earthwork
    activities could pose a hazard to construction workers, others nearby, and the
    environment; that future residents and patrons could be affected by
    hazardous materials if they came into contact with contaminated soil or
    groundwater; and that vapors from soil or groundwater could migrate into
    buildings constructed over sources of contamination. As mitigation, due to
    prior railroad and dry cleaner presence at or adjacent to the site, a licensed
    professional would prepare a soil and/or groundwater investigation work plan
    to evaluate potential hazardous materials, including sampling and analysis
    for heavy metals, petroleum hydrocarbons, pesticides, and chlorinated
    solvents and, if the results could affect public health or the environment,
    16
    regulatory agency oversight would be requested. The SEIR concluded these
    mitigation measures would reduce the impacts of the potential release of
    hazardous materials to a level of less than significant.
    Three addenda updating the 2009 SEIR confirmed this analysis. The
    March 2019 addendum concluded the SEIR adequately evaluated impacts
    from hazardous materials and that, with implementation of the mitigation
    measures, “there would be no new impacts related to hazards and hazardous
    materials associated with the proposed project.” Two further addenda
    prepared in August 2020 concluded there would be no new impacts, and no
    SEIR or further CEQA review was necessary.
    In February 2021, the San Francisco Bay Regional Water Quality
    Control Board (Water Board) informed the City that soil, groundwater, and
    soil vapor sampling had been conducted at the project site. It reported that
    investigation conducted since 2009 had identified selected metals in soil,
    petroleum hydrocarbons in soil and groundwater, and volatile organic
    compounds, including tetrachloroethene (PCE, a dry-cleaning chemical) and
    its breakdown products, in groundwater and soil vapor; that soil containing
    metals would require management during site grading and use; and that
    additional action, focused on soil vapor and groundwater, was warranted to
    assess, remediate, and mitigate PCE and its breakdown products at the site.
    The Water Board asked the City to submit a data gap assessment workplan
    proposing soil, groundwater, and/or vapor sampling to collect necessary data,
    as well as an interim remedial action plan presenting the results of the
    investigation conducted under the workplan and describing the remedial
    alternatives evaluated and selected.
    PANGEA Environmental Services, Inc., prepared the requested data
    gap assessment workplan in May 2021. It reported that PCE had been
    17
    detected in soil gas and groundwater, and that this impact merited further
    characterization and possible mitigation or remediation. It also reported that
    other metals, such as arsenic, lead and nickel, had been detected. It
    explained that PCE in soil gas could intrude into future structures, that this
    problem could be remediated by soil vapor extraction if necessary, and that
    engineering controls (such as ventilation in a parking structure) could
    safeguard occupants from residual vapor intrusion.
    PANGEA also prepared a site assessment and summary report in 2020,
    which explained that engineering controls such as ventilated parking
    structures and chemical vapor barriers could safeguard future occupants
    from potential vapor intrusion, and that additional groundwater sampling
    and well monitoring was merited to monitor the stability of the PCE plume.
    PANGEA recommended a soil management plan to facilitate proper handling
    and disposal of metal-bearing soil during construction.
    2. Analysis
    With narrow exceptions, CEQA requires preparation of an EIR before a
    public agency approves or carries out a project that may have a significant
    effect on the environment. (Sierra Club v. County of Fresno (2018) 
    6 Cal.5th 502
    , 511–512, 523; Pub. Resources Code, § 21151.) And, relevant to our
    analysis, CEQA permits “ ‘ “the environmental analysis for long-term,
    multipart projects to be ‘tiered,’ so that the broad overall impacts analyzed in
    an EIR at the first-tier programmatic level need not be reassessed as each of
    the project’s subsequent, narrower phases is approved.” ’ ” (Citizens’
    Committee to Complete the Refuge v. City of Newark (2021) 
    74 Cal.App.5th 460
    , 468 (Citizens’ Committee).)
    Government Code section 65457 provides one of the exceptions to the
    requirement for CEQA review. That statute states that a residential
    18
    development project that is “undertaken to implement and is consistent with
    a specific plan for which an environmental impact report has been certified
    after January 1, 1980, is exempt from the requirements of [CEQA].” (Id.,
    subd. (a).) However, if “an event specified in Section 21166 of the Public
    Resources Code occurs” after the specific plan is adopted, the exemption does
    not apply unless an SEIR is prepared and certified. (Gov. Code, § 65457,
    subd. (a).)
    Public Resources Code section 21166, in turn, provides that after an
    EIR has been prepared, no SEIR is required unless substantial changes to
    the project or its circumstances will require major revisions to the EIR, or
    “[n]ew information, which was not known and could not have been known at
    the time the [EIR] was certified as complete, becomes available.” The
    Guidelines explain that the new information must be of “substantial
    importance,” for example when the new information shows the project would
    have significant effects not discussed in the EIR or when significant effects
    will be substantially more severe then shown in the previous EIR.
    (Guidelines, § 15162(a)(3).) We review for substantial evidence the City’s
    determinations that a statutory exemption from CEQA applies and that none
    of the circumstances under section 21166 exist. (North Coast Rivers Alliance
    v. Westlands Water Dist. (2014) 
    227 Cal.App.4th 832
    , 850; Citizens’
    Committee, supra, 74 Cal.App.5th at p. 470.)
    SLD contends the information from the Water Board and PANGEA
    about the presence of PCE’s, metals, and other substances on the site
    constituted new information that takes the project outside the scope of this
    exemption. We disagree. The 2009 SEIR specifically considered the
    possibility that the soil and groundwater at the site might contain
    contaminants from historic railroad, automotive, and dry-cleaning uses at or
    19
    adjacent to the project site, and that those contaminants might include
    chemicals used in dry cleaning. Consistent with this possibility, the SEIR
    proposed mitigation measures, potentially to include regulatory agency
    oversight, and concluded that with those measures the impact would be less
    than significant. The City could reasonably conclude that the evidence the
    site was contaminated with dry-cleaning chemicals and other byproducts of
    the site’s earlier uses—as contemplated in the 2009 SEIR—did not constitute
    new information that was not or could not have been known when the SEIR
    was certified.
    SLD argues that the analysis in the 2009 SEIR was only cursory and
    thus inadequate to analyze the effects of the contamination now that it has
    been found. And, SLD points out, the 2009 SEIR analyzed impacts “at a
    programmatic level” rather than a project level because specific projects
    associated with amendments to the Downtown Specific Plan had not yet been
    finalized. We reject SLD’s contentions. First, whether programmatic or
    project-specific, the SEIR considered the uses to which the project site had
    historically been put and the contaminants that might have resulted from
    those uses, and it took into account the effect of those contaminants on future
    occupants of buildings to be constructed there.
    More fundamentally, SLD offers no support for its suggestion that
    Government Code section 65457’s exemption does not apply when the
    previously certified EIR for the specific plan was a program-level EIR. As our
    colleagues in Division Four recently explained, while considering the
    exemption in the context of a program-level EIR, Government Code section
    65457 “set[s] a higher threshold for review of a residential development
    consistent with a previously analyzed specific plan than for a project tiered
    under a program EIR. [Citation.] ‘The [Government Code] section 65457
    20
    exemption, like other statutory exemptions, reflects the Legislature’s
    determination that the interest promoted is “important enough to justify
    forgoing the benefits of environmental review.” ’ ” (Citizens’ Committee,
    supra, 74 Cal.App.5th at p. 476; accord, Concerned Dublin Citizens v. City of
    Dublin (2013) 
    214 Cal.App.4th 1301
    , 1312.) While in some cases it may be
    necessary to prepare a project-level EIR as a later tier after a program EIR,
    “in others, the analysis will be completed by determining that the project is
    exempt from further CEQA analysis.” (Concerned Dublin Citizens, at
    p. 1316.) The City properly made that determination here.
    Because we uphold the City’s finding that the project is exempt from
    CEQA review under Government Code section 65457, we need not consider
    whether the City properly found the project was also exempt as an infill
    project. Neither do we address whether, under California Building Industry
    Assn. v. Bay Area Air Quality Management Dist., supra, 
    62 Cal.4th 369
    , the
    contamination of which SLD complains constitutes an environmental impact
    for purposes of CEQA.
    III.   Bond under Code of Civil Procedure Section 529.2
    When a litigant brings an action challenging a qualified low- or
    moderate-income housing development project, the party defending the
    project may move under section 529.2 of the Code of Civil Procedure for an
    order requiring the plaintiff/petitioner to furnish an undertaking as security
    for costs and damages that may be incurred as a result of delay in carrying
    out the project. (Code Civ. Proc., § 529.2, subd. (a).) The grounds for such a
    motion are that “(1) the action was brought in bad faith, vexatiously, for the
    purpose of delay, or to thwart the low- or moderate-income nature of the
    housing development project, and (2) the plaintiff will not suffer undue
    economic hardship by filing the undertaking.” (Ibid.) If the court determines
    21
    these grounds have been established and grants the motion, the resulting
    bond may not exceed $500,000. (Id., subd. (b).)
    The parties agree that the decision whether to grant the bond is
    properly reviewed for abuse of discretion, although SLD points out that, to
    the extent it claims an error in statutory interpretation, we interpret the
    statute de novo. (See ABBA Rubber Co. v. Seaquest (1991) 
    235 Cal.App.3d 1
    ,
    14, 17 [Code Civ. Proc., § 529 undertaking in connection with preliminary
    injunction]; Department of Fish & Game v. Anderson-Cottonwood Irrigation
    Dist. (1992) 
    8 Cal.App.4th 1554
    , 1560–1561 [preliminary injunction].) We
    disturb the trial court’s exercise of its discretion only if it “ ‘ “ ‘exceeded the
    bounds of reason or contravened the uncontradicted evidence.’ ” ’ ” (ABBA
    Rubber Co., at p. 17.)
    In its motion for a bond under section 529.2 of the Code of Civil
    Procedure, Eden argued that this action had the effect of delaying the project
    and threatened its viability by putting at risk the tax credits that would
    assist in financing the project. According to Eden, SLD “kn[ew] full well the
    consequences” of bringing this action, as its members had a history of
    opposing projects in the City and its counsel was a sophisticated law firm
    experienced in land use litigation.
    As evidence that the action was brought for the purpose of delay and to
    thwart affordable housing, Eden pointed to an allegation in the petition that
    the City and Eden originally promised housing for those with incomes of up
    to 120 percent of area median income, but that as now proposed the project
    would house those with incomes of 20 to 60 percent of area median income, a
    level that would exclude teachers and firefighters; Eden suggested SLD
    opposed the project for being too affordable. Eden also pointed out that SLD
    alleged it had developed an alternative plan that would allow the project site
    22
    to become a park and would place additional affordable housing across the
    street, north of Railroad Avenue. But, Eden contended, this “alternative”
    was a ruse, in that the City did not own the site, neither the City nor Eden
    controlled it, the site was not for sale, it had not been evaluated for affordable
    housing, it had no housing entitlement, there was no evidence the necessary
    financing would be available, and at best it would take “many, many years”
    to develop affordable housing there. And, Eden argued, SLD’s proposal that
    a public park be placed on the project site belied any genuine concern that
    the soil was dangerous to human health. Eden also argued that all of SLD’s
    claims were meritless, further demonstrating the action was brought for the
    purpose of delay. Finally, as evidence of an intention to delay, Eden provided
    evidence that SLD elected to prepare the administrative record but, almost
    60 days after filing its petition for writ of mandate, it had made only minimal
    progress in doing so.
    As to whether SLD would suffer undue economic hardship, Eden
    argued the organization was comprised of various wealthy people who could
    afford to file the undertaking; two of them regularly donated significant sums
    to other organizations opposing development in Livermore; SLD was
    “reported to have spent” more than $2,000,000 opposing the project; and SLD
    had hired and was paying “one of the largest and most expensive law firms in
    the country.”
    In opposition to Eden’s motion for a bond, SLD submitted evidence that
    it was a nonprofit, unincorporated association formed in early 2021 and that
    it had spent approximately $37,000 on architectural services related to the
    alternative it suggested be built across Railroad Avenue. This amounted to
    “much of its funding,” according to a supporting declaration, which also
    denied SLD had spent $2,000,000 opposing the project and asserted a
    23
    $500,000 bond would impose financial hardship and limit its ability to carry
    out its nonprofit activities and continue to prosecute this action. Another
    supporting declaration stated that SLD’s finances were separate from those
    of its members, that SLD had received financial contributions from more
    than 50 people, that the purpose of the organization was to advocate for open
    space and against sprawl, that it supported affordable housing and did not
    file the action due to the project’s low-income nature or for purposes of delay,
    and that a $500,000 bond would damage the organization and prejudice its
    ability to act in the public interest by challenging the City’s incorrect legal
    decisions. SLD’s counsel submitted a declaration averring that when a
    petitioner in a CEQA action elects to prepare the administrative record,
    commonly the agency compiles the relevant documents and sends them to the
    petitioner for review, organizing, and indexing, and that it was common to
    seek extensions of time to complete and certify the record.
    SLD argued Eden failed to meet its burden to prove the undertaking
    would not cause undue economic hardship. It also objected to much of the
    evidence Eden presented to support its motion, including newspaper articles
    discussing the opposition to the project and the amount of money SLD and its
    members had allegedly spent, on-line estimates of the value of real property
    allegedly owned by SLD’s members, and an estimate of the annual revenue of
    a business alleged to be partially owned by one of SLD’s members.
    In granting Eden’s motion for a bond, the trial court found that the
    evidence did not show the action was brought in bad faith, vexatiously, or to
    thwart the low- or moderate-income nature of the housing project. However,
    it found, the action had the effect of delaying the provision of affordable
    housing and the preponderance of the evidence showed the action was
    brought for the purpose of delay. In so concluding, the court noted that the
    24
    petition was filed “at the very last moment[] permitted by the short statute of
    limitations,” and that SLD allowed two months to elapse before starting to
    prepare the administrative record, did so only when prompted by the City,
    and then sought a 60-day extension of time, causing the hearing on the
    merits to be delayed. The court also found the undertaking would not cause
    SLD undue economic harm, in that it had at least 50 people contributing
    money to it, and that SLD’s evidence that it would suffer harm was
    conclusory. The court therefore ordered SLD to file an undertaking of the
    statutory maximum, $500,000. Before making its ruling, the court sustained
    SLD’s objections to newspaper articles discussing the opposition to the project
    and evidence of the personal wealth of SLD’s members.
    SLD argues this ruling was an abuse of the trial court’s discretion.
    Without the evidence the trial court excluded, SLD contends, there was no
    evidence to support Eden’s argument that SLD would not suffer undue
    economic hardship if required to post a bond. We disagree. The record before
    the court showed not only that more than 50 people had contributed to SLD,
    but also that the organization had spent some $37,000 commissioning plans
    for an alternative and unrealistic location for affordable housing. And,
    although the court did not mention this in making its ruling, SLD was
    represented by a prominent private law firm, further suggesting it could bear
    the cost of posting a bond without undue hardship.
    SLD argues the burden of producing evidence of its financial status was
    not SLD’s, but even if this is true 2 the fact remains that SLD did provide the
    number of its contributors and the amount it had spent on the alternative
    2 Although respondents point out that information regarding SLD’s
    assets and ability to support a bond is uniquely within SLD’s possession, they
    do not take the position that SLD had any burden to produce evidence of its
    financial position, and we do not consider the issue.
    25
    proposal. The trial court was not required to ignore the evidence before it.
    Indeed, at the hearing on the motion, counsel for SLD conceded that the trial
    court could consider all of the evidence. While the evidence that SLD would
    not suffer undue financial hardship is not particularly strong, neither was
    the contrary evidence, and the court’s ruling was not beyond the bounds of
    reason.
    We are no more persuaded by SLD’s argument that the trial court
    abused its discretion in concluding the action was brought for the purpose of
    delay. SLD contends the court should not draw an adverse inference from
    the fact that it filed its petition at the end of the 30-day limitations period.
    (Gov. Code, § 65457, subd. (b).) And, according to SLD, the evidence shows
    the delay in preparing the administrative record was routine writ practice.
    But the trial court could reasonably see the evidence that SLD did not seek to
    advance preparation of the record for almost two months after filing this
    action as an indication that it was not prosecuting the action diligently. (See
    Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 
    72 Cal.App.3d 675
    , 681 [“unfair delay” occurred where plaintiffs did not request
    administrative record until 55th day of the 60 days allowed].) We also note
    that one of the bases for Eden’s argument that the action was brought for
    purpose of delay was that SLD’s substantive arguments lack objective merit.
    After reviewing this appeal thoroughly, we can only agree. With the trial
    court we conclude, “[t]his is not a close case.” SLD’s contentions regarding
    the project’s consistency with the Downtown Specific Plan and its CEQA
    arguments lack merit, so much so that the inherent weakness of these claims
    further supports the trial court’s finding that SLD brought this action to
    delay the project.
    We see no abuse of discretion in the trial court’s ruling.
    26
    DISPOSITION
    The judgment is affirmed.
    TUCHER, P.J.
    WE CONCUR:
    FUJISAKI, J.
    PETROU, J.
    Save Livermore Downtown v. City of Livermore et al. (A164987)
    27
    Filed 1/26/23
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION THREE
    SAVE LIVERMORE DOWNTOWN,
    Plaintiff and Appellant,
    A164987
    v.
    CITY OF LIVERMORE et al.,                       (Alameda County
    Super. Ct. No. RG21102761)
    Defendants and Respondents;
    EDEN HOUSING, INC.,
    Respondent and Real Party
    in Interest.
    THE COURT*:
    Appellant has filed a petition for rehearing of this court’s December 28,
    2022 opinion, and multiple requests for publication have also been filed.
    Appellant’s January 12, 2023 petition for rehearing is DENIED.
    The requests for publication are GRANTED. The written opinion
    which was filed on December 28, 2022 has now been certified for publication
    pursuant to rule 8.1105(b) of the California Rules of Court, and is ordered to
    be published in the official reports.
    Dated:__1/26/23_______                     ______TUCHER, P.J._____ P.J.
    *    Tucher, P.J., Fujisaki, J., and Petrou, J. participated in the decision.
    1
    Trial Court:                Alameda County Superior Court
    Trial Judge:                Hon. Frank Roesch
    Counsel:                    Latham & Watkins, Winston P. Stromberg, Michelle
    Cornell-Davis, and Kevin A. Homrighausen for Plaintiff
    and Appellant
    Jason R. Alcala, City of Livermore Attorney, and Kimberly
    Cilley, Staff Attorney; Burke, Williams & Sorensen,
    Stephen E. Velyvis, Eric S. Phillips, and Nicholas J.
    Muscolino for Defendants and Respondents
    Rob Bonta, Attorney General of California, Daniel A.
    Olivas, Senior Assistant Attorney General, Christina
    Bull Arndt, Supervising Deputy Attorney General,
    Andrew R. Contreiras, Deputy Attorney General for the
    Attorney General of California as Amicus Curiae on
    behalf of Defendants and Respondents
    Goldfarb & Lipman, James T. Diamond, Jr., Barbara
    Kautz, and Nazanin Salehi for the League of California
    Cities as Amicus Curiae on behalf of Defendants and
    Respondents
    Cox, Castle & Nicholson, Andrew B. Sabey, Scott B. Birkey,
    and Robbie C. Hull for Respondent and Real Party in
    Interest
    Save Livermore Downtown v. City of Livermore et al. (A164987)
    2