Move Eden Housing v. City of Livermore

Filed 3/6/24
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MOVE EDEN HOUSING et al.,
Plaintiffs and Appellants,
v.
CITY OF LIVERMORE et al., A167346
Defendants and Respondents;
(Alameda County
EDEN HOUSING, INC., Super. Ct. No. 22CV015399)
Real Party in Interest and
Respondent.

Plaintiffs and appellants Move Eden Housing (Move Eden), Richard
Ryon, and Thomas Ramos (jointly, plaintiffs) appeal the superior court’s
denial of their petition for a writ of mandate requiring respondents City of
Livermore (City) and Livermore City Clerk Marie Weber (City Clerk) (jointly,
respondents) to process plaintiffs’ referendum petition in accordance with the
Elections Code. The proposed referendum challenges a City Council
resolution approving a development agreement between the City and real
party in interest Eden Housing, Inc. (Eden Housing) for development of
housing in downtown Livermore.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this

opinion is certified for publication with the exception of part V.

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 The referendum petition presented to the City Clerk contained more
than the minimum number of signatures required by the Election Code, but,
on advice from the City Attorney, the City Clerk refused to take further
action on the petition. The City took the position that the proposed
referendum would be invalid because the challenged resolution was an
administrative act. The superior court agreed and denied the writ petition.
We reverse. Adoption of the challenged resolution was a legislative act
subject to the referendum power, because the development agreement at
issue approved the construction of and improvements to a new public park.1
We also conclude that, in approving the development agreement, the City did
not act as an administrative agent for the State of California under the
statutes dissolving California’s redevelopment agencies, enacted starting in
2011. We direct the superior court to order respondents to process the
referendum petition as required by the Elections Code. We also reverse the
court’s order requiring plaintiffs to file an undertaking under Code of Civil
Procedure section 529.2 as a security for costs and damages due to the action.
BACKGROUND
The present appeal involves a proposed residential development and
new public park in downtown Livermore (the Project), at the location of a
former supermarket, in an area bounded by Railroad Avenue, Livermore
Avenue, First Street, and L Street (the Property). (See Save Livermore
Downtown v. City of Livermore (2022) 87 Cal.App.5th 1116, 1122 (Save
Livermore Downtown) [describing the Project in a proceeding challenging the
City’s compliance with environmental and zoning laws].)

1 In a portion of the opinion not certified for publication, we conclude

the City did not act legislatively in approving loan terms and an indemnity
provision relating to hazardous waste.

2
 In 2008, the City’s former Redevelopment Agency acquired the
Property using the City’s inclusionary housing funds, and, in 2009, a portion
of the purchase price was refinanced using “Residential Development Loan
Program” funds from the State of California. The funds were awarded to the
City for “site acquisition and pre-development expenses” in the City’s
downtown. The City loaned the funds to the former Redevelopment Agency,
and a deed restriction was recorded requiring any development of the
Property to include “at least” 28 units of “low-income” housing and 56 units of
“moderate-income” housing. The restriction was “a condition of accepting”
the development funds from the State. When the State of California
dissolved the Redevelopment Agency (see Part IV.A., post), the Property was
included in a long range property management plan (Long Range Plan),
which the State approved. The Long Range Plan identified the Property as a
housing asset to be transferred to the City as the successor to the former
redevelopment agency; it specified that the “goal” is to develop the Property
“as a high density residential project with an affordable component and repay
the $5,000,000 State” redevelopment loan.
In 2018, the City and Eden Housing entered into a Disposition and
Development and Loan Agreement for development of the Property (2018
Agreement). The 2018 Agreement recited that, in January, the City Council
“approved the development of the Livermore Village Site2 to include a public
park, up to 130 units of workforce housing, a science center, a black box
theater, and retail space.” The City selected Eden Housing to develop
housing at the Property, and the agreement states a portion of the Property
“will be dedicated to the City for a park.” The City agreed to sell the Property
to Eden Housing, after satisfaction of various conditions, for the Property’s

2 The Livermore Village Site is a larger area that includes the Property.

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fair market value at the time of sale and to make “a future acquisition loan to
[Eden Housing] in the amount of the Purchase Price of the Property.” The
term of the loan would be 55 years, at either “3% annual simple interest” or
“the long-term applicable federal rate for annual compounding published by
the Internal Revenue Service,” with the City and Eden Housing agreeing
“upon the Site Acquisition Loan’s applicable interest prior to Site acquisition,
based on the Project’s overall financial feasibility and Investor requirements.”
The 2018 Agreement also stated that Eden Housing “and City shall enter into
an indemnity agreement to apportion any potential liability related to
Hazardous Materials at, on, in, beneath, or from the Property from and after
the date of the close of escrow between the Parties. The form of the
indemnity agreement shall be mutually agreed upon by the Parties.”
In December 2020, the City reviewed “Conceptual Plans” and
“instructed staff to move forward” (capitalization omitted) with the Project.
In May 2021, the City approved land use entitlements for the Project, subject
to conditions. That same month, the City approved an amended development
agreement (2021 Agreement). The approval resolution and the 2021
Agreement recited that the City and Eden Housing “wish to amend the [2018
Agreement] to clarify the definition of the Property subject to transfer by City
for development of the Project, define development and financial obligations
for Veteran’s Park, allow for reimbursement by City to Developer for certain
emergency vehicle access road improvements adjacent to the Project, and to
update the entitlement, financing and development timeline in the Schedule
of Development.” With respect to the park, the 2021 Agreement stated, “[a]t
City’s option, City and Developer may negotiate a future construction and
reimbursement agreement with Developer to coordinate the construction of

4
the Veteran’s Park Improvements. These improvements would be exclusive
of any development loan provided by the City for development of the Project.”
In June 2021, a group known as Save Livermore Downtown filed a
petition for a writ of mandate alleging that the City violated the California
Environmental Quality Act (CEQA) and state and local planning and zoning
laws in approving the Project. The trial court denied the petition and this
court affirmed. (Save Livermore Downtown, supra, 87 Cal.App.5th 1116.)
On May 24, 2022, the City adopted Resolution No. 2022-085 (the
Resolution), which is the subject of the present action. The Resolution
authorized the execution of an “Amended and Restated Disposition,
Development and Loan Agreement” for the Project (2022 Agreement). The
2022 Agreement states that it supersedes the original 2018 Agreement, as
amended in 2021. Among other provisions, the 2022 Agreement requires the
City to make a loan to Eden Housing for the purchase price of the Property
($7.8 million), at an interest rate of 3 percent and payable over 55 years. The
2022 Agreement also reflects the City’s decision to spend $5.5 million on
constructing and improving Veteran’s Park as part of the Project. In
particular, the agreement provides, “The Parties agree that the Developer
will manage the construction of the Veteran’s Park Improvements but that
the City will pay for the costs of the Veteran’s Park Improvements at its sole
expense. City and Developer will negotiate a future construction
management and reimbursement agreement to coordinate the construction of
the Veteran’s Park Improvements. The Agreement shall authorize
reimbursement for the construction of the park, per the designs and
specifications issued by the City, and shall not exceed [$5.5 million] . . .
without additional approval of the City Council.” Finally, to address historic
subsurface contamination of the Property, the 2022 Agreement requires the

5
City and Eden Housing to enter into an indemnity agreement “to apportion
costs and potential liability related to Hazardous Materials” at the Project
site, with the City’s obligation not to exceed $4.3 million.
On May 27, 2022, counsel for plaintiff and appellant Richard Ryon
provided the City Clerk with a proposed summary of the Resolution for the
purpose of a proposed referendum on the Resolution. On June 3, plaintiff and
appellant Move Eden was formed to, among other things, promote the
qualification of the proposed referendum. On June 9, the City Attorney
approved a summary for purposes of the proposed referendum. Move Eden
then sought to obtain the statutorily required number of signatures from
registered voters to qualify the referendum for the November 2022 ballot. On
July 8, the referendum proponents submitted the referendum petition to the
City Clerk with more than the required number of signatures.
On July 13, 2022, the City Clerk sent a letter to plaintiff and appellant
Ryon stating that she “took in the petition . . . for the purpose of making the
prima facie count of signatures to determine whether the total number of
signatures equals or is in excess of the minimum number of signatures
required, which is 5,702,” citing Elections Code section 9210.3 A prima facie
signature count was prepared, counting 9,737 total signatures and noting it
was “not a determination that signatures are valid.” However, rather than
accepting the petition for filing and determining the validity of the signatures
pursuant to statutory requirements (see Part II, post), the City Clerk’s letter
stated that, “[b]ased on the advice from the City Attorney and special
counsel, . . . the City has determined that Resolution No. 2022-085 was an
administrative act, not a legislative act, and not subject to referendum.” On
that basis, the City Clerk stated that the petition is “not eligible for filing or

3 All undesignated section references are to the Elections Code.

6
processing as a referendum” and “the City is taking no further action on this
petition.”
In August 2022, plaintiffs commenced the present action by filing a
petition for writ of mandate (Petition) seeking to compel the City and the City
Clerk to process the referendum petition in accordance with the Elections
Code.
In September 2022, Eden Housing filed a motion for a bond pursuant to
Code of Civil Procedure section 529.2. In October, the superior court granted
the motion, directing plaintiffs to file an undertaking in the amount of
$500,000 as security for costs and damages due to the action.
In January 2023, the superior court denied the Petition on the merits.
The court concluded the Resolution was not subject to challenge by
referendum because it was an administrative act or, in the alternative,
because the City acted as an administrative agent of the State in adopting it.
The court concluded that either it was lawful for the City Clerk to refuse to
process the referendum petition, or it is proper to “ ‘retroactively validate[]’ ”
the conclusion that the proposed referendum is invalid, even if the City Clerk
violated the law. The superior court denied the Petition, and the present
appeal followed.
DISCUSSION
I. Standard of Review
A traditional writ of mandate under Code of Civil Procedure section
1085 “ ‘is used to compel a public entity to perform a legal and usually
ministerial duty.’ ” (Schmid v. City & County of San Francisco (2021)
60 Cal.App.5th 470, 484–485.) “ ‘On appeal following a trial court’s decision
on a petition for a writ of mandate, the reviewing court “ ‘need only review
the record to determine whether the trial court’s findings are supported by

7
substantial evidence.’ ” [Citation.] However, we review questions of law
independently. [Citation.] Where, as here, the facts are undisputed and the
issue involves statutory interpretation, we exercise our independent
judgment and review the matter de novo. [Citation.]’ [Citations.] [¶] The
trial court’s determination that [respondents’] actions did not violate the
Elections Code is a legal finding subject to independent review.” (Lindelli v.
Town of San Anselmo (2003) 111 Cal.App.4th 1099, 1104 (Lindelli).)
II. Referendum Process and Judicial Review
“Under the California Constitution, ‘[t]he legislative power of this State
is vested in the California Legislature . . . but the people reserve to
themselves the powers of initiative and referendum.’ (Cal. Const., art. IV,
§ 1.) . . . The initiative power allows voters to propose new measures and
place them on the ballot for a popular vote. If the measure is approved by
popular vote, it becomes law. (Cal. Const., art. II, §§ 8, 10, subd. (a).) The
referendum power, by contrast, allows voters to weigh in on laws that have
already been passed by their elected representatives. Any voter or group of
voters that gathers enough signatures can place a legislative enactment on
the ballot for an up or down vote. A referendum suspends operation of the
law until it is approved by a majority of voters.” (Wilde v. City of Dunsmuir
(2020) 9 Cal.5th 1105, 1111.)
“Under [] section 9237, if a petition protesting the adoption of an
ordinance is signed by more than 10 percent of the voters of the city, ‘the
effective date of the ordinance shall be suspended and the legislative body
shall reconsider the ordinance.’ If the legislative body does not repeal the
ordinance, then it ‘shall submit the ordinance to the voters’ and ‘[t]he
ordinance shall not become effective until a majority of the voters voting on
the ordinance vote in favor of it.’ ([]§ 9241.) Local governments are not

8
empowered to exercise discretion in determining whether a duly certified
referendum is placed on the ballot. [Citations.] If the local government
believes an initiative or referendum is unlawful and should not be presented
to voters, it should file a petition for a writ of mandate seeking to remove it
from the ballot.” (Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th
657, 663 (Save Lafayette); see also Friends of Bay Meadows v. City of San
Mateo (2007) 157 Cal.App.4th 1175, 1185–1186 (Bay Meadows).)4
Although the law is clear that local governments are not permitted to
refuse to process a referendum due to concerns about its validity, “[i]n
practice, and in the interest of equity and judicial economy, courts have
allowed local governments to assert such invalidity as a ‘defense’ in the
original writ proceeding. [Citation.] But in doing so, neither courts nor
litigants should lose sight of the fact that the burden of establishing this
‘defense’ falls squarely on the entity or person asserting the” referendum’s
invalidity. (Save Stanislaus, supra, 13 Cal.App.4th at p. 150.) The standard
for such “preelection review” of a referendum “is one of great deference where

4 Courts have not distinguished between referendums and initiatives

with respect to the ministerial duty to act in accordance with the Elections
Code in processing referendum and initiative petitions. (See Save Stanislaus
Area Farm Econ. v. Bd. of Supervisors (1993) 13 Cal.App.4th 141, 152, fn. 3
(Save Stanislaus) [“There is no textual basis for construing the power of
referendum as broader than the initiative power, or vice versa.”]; see also,
e.g., Yost v. Thomas (1984) 36 Cal.3d 561, 564, fn. 2 (Yost) [substituting word
“referendum” for “initiative” in quoting prior case on issue of clerk’s duty to
process referendum]; Save Lafayette, supra, 20 Cal.App.5th at pp. 663–664
[relying on both initiative and referendum caselaw on the topic].)
Respondents cite no authority to the contrary.
We also observe that, “it is well established that any legislative act may
be enacted by initiative and may be subject to referendum, regardless of
whether that act is denominated an ‘ordinance’ or ‘resolution.’ ” (DeVita v.
Cnty. of Napa (1995) 9 Cal.4th 763, 787, fn. 9 (DeVita).)

9
‘a court will remove an initiative [or referendum] from the ballot only “on a
compelling showing that a proper case has been established for interfering.” ’
[Citation.] If a city refuses to place a referendum on the ballot, ‘this refusal—
improper as it is—may be retroactively validated by a judicial declaration
that the measure should not be submitted to the voters.’ ” (Save Lafayette,
supra, 20 Cal.App.5th at pp. 663–664.)
“The Constitution ‘speaks of the initiative and referendum, not as a
right granted the people, but as a power reserved by them.’ [Citation.] Since
then, courts have consistently declared it their duty to ‘ “jealously guard” ’
and liberally construe the right so that it ‘ “be not improperly annulled.” ’
[Citation.] Moreover, when weighing the tradeoffs associated with the
initiative [or referendum] power, we have acknowledged the obligation to
resolve doubts in favor of the exercise of the right whenever possible.”
(California Cannabis Coal. v. City of Upland (2017) 3 Cal.5th 924, 934; see
also Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d
582, 591 (Associated Home Builders).)
Respondents appear to argue the City Clerk’s action was not unlawful
because the superior court subsequently agreed the proposed referendum was
invalid. They are mistaken. An election official may not “refuse to submit an
initiative [or referendum] measure to the electorate on the ground that it
deals with a matter not subject to the initiative [or referendum].” (Farley v.
Healey (1967) 67 Cal.2d 325, 327; accord Yost, supra, 36 Cal.3d at p. 564, fn. 2
[following Farley in referendum context]; see also Bay Meadows, supra,
157 Cal.App.4th at p. 1187 [“The role of the election official is meant to be as
impersonal as possible. There is to be no concern with whether a referendum
‘will be valid if enacted.’ ”].) Rather, “In certifying a referendum petition, a
clerk’s duty is limited to the ministerial function of determining whether the

10
procedural requirements have been met.” (Lin v. City of Pleasanton (2009)
175 Cal.App.4th 1143, 1155 (2009).) The case respondents rely upon, Am.
Fed’n of Lab. v. Eu (1984) 36 Cal.3d 687, is not to the contrary. That case did
not involve a local government’s refusal to process a petition; instead,
opponents of an initiative filed an action to prevent it from appearing on the
ballot. (Id. at p. 694.)
In the present case, the City Clerk made a determination “that the
number of signatures, prima facie, equals or is in excess of the minimum
number of signatures required.” (§ 9210, subd. (b).) In these circumstances,
the law directs that the clerk “shall accept the petition for filing” (§ 9210,
subd. (b)) and then “shall examine the petition and certify the results”
pursuant to statutory procedures (§ 9240).5 “The word ‘shall’ indicates a
mandatory or ministerial duty.” (Lazan v. Cnty. of Riverside (2006) 140
Cal.App.4th 453, 460.) But, instead of complying with her statutory
obligations, the City Clerk refused to process the referendum petition based

5 Section 9210 provides in relevant part, “When the petition is

presented for filing, the elections official shall do all of the following: [¶] (a)
Ascertain the number of registered voters of the city last reported by the
county elections official to the Secretary of State pursuant to Section 2187
effective at the time the notice specified in Section 9202 was published. [¶] (b)
Determine the total number of signatures affixed to the petition. If, from this
examination, the elections official determines that the number of signatures,
prima facie, equals or is in excess of the minimum number of signatures
required, he or she shall accept the petition for filing.” Section 9240 provides,
“After the petition has been filed as herein provided, the elections official
shall examine the petition and certify the results in the same manner as are
county petitions in Sections 9114 and 9115 except that, for the purposes of
this section, references to the board of supervisors shall be treated as
references to the legislative body of the city.” Sections 9114 and 9115 detail
procedures for validation of signatures on a petition. If “the petition is found
to be sufficient, the elections official shall certify the results of the
examination to the [city council].” (§§ 9114, 9115, subd. (f).)

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on legal advice that the Resolution was not subject to the referendum power.
In doing so, the City Clerk violated her duties under the Elections Code.
“ ‘Improper as’ ” the clerk’s conduct was, we nevertheless proceed to the
question of whether the City has made a “ ‘ “compelling showing” ’ ” that the
proposed referendum “ ‘should not be submitted to the voters.’ ” (Save
Lafayette, supra, 20 Cal.App.5th at pp. 663–664).
III. Due to The Policy Decision to Construct and Improve Veteran’s Park,
Adoption of The Resolution Was a Legislative Act
“Courts have long observed that ‘[t]he power of referendum applies only
to acts that are legislative in character; executive or administrative acts are
not within the scope of that remedy.’ . . . ‘This legislative-administrative
dichotomy reflects a determination to balance the ideal of direct legislation by
the people against the practical necessity of freeing municipal governments
from time consuming and costly referenda on merely administrative
matters.’ ” (San Bruno Comm. for Econ. Just. v. City of San Bruno (2017)
15 Cal.App.5th 524, 530 (San Bruno); see also Yost, supra, 36 Cal.3d at p. 569
[“The powers of referendum and initiative apply only to legislative acts by a
local governing body.”].)
“Although the test is not precise and the published decisions reflect
some inconsistency in approach, ‘[l]egislative acts generally are those which
declare a public purpose and make provisions for the ways and means of its
accomplishment. Administrative acts, on the other hand, are those which are
necessary to carry out the legislative policies and purposes already declared
by the legislative body.’ [Citation.] Alternatively stated, ‘ “[t]he power to be
exercised is legislative in its nature if it prescribes a new policy or plan;
whereas, it is administrative in its nature if it merely pursues a plan already
adopted by the legislative body itself, or some power superior to it.” ’

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[Citation.] ‘The plausible rationale for this rule espoused in numerous cases
is that to allow the referendum or initiative to be invoked to annul or delay
the executive or administrative conduct would destroy the efficient
administration of the business affairs of a city or municipality.’ ” (San Bruno,
supra, 15 Cal.App.5th at p. 530 [italics omitted].)
The Supreme Court’s decision in Hopping v. Council of Richmond
(1915) 170 Cal. 605 (Hopping), is instructive. In Hopping, the issue was
whether city council resolutions providing “for the acquisition . . . of certain
tracts of land and the construction of a building thereon for a city hall and
city offices” were legislative and subject to referendum. (Id. at p. 607.) The
Supreme Court concluded the challenged resolutions were legislative because
“[t]hey involved and required a determination by the council that the public
interest of the city required that it should have a city hall, that the same
should be located on the land offered for that purpose, that said offer should
be accepted, that a suitable building should be erected thereon, that the
money of the city should be appropriated and used in the construction
thereof, and that, when completed, the building should be occupied and used
by the city officers as a city hall and for municipal purposes . . . .” (Id. at
pp. 614–615; see also Citizens Against a New Jail v. Bd. of Supervisors (1976)
63 Cal.App.3d 559, 563 [“factors of cost and practicality” make decision to
build new jail or renovate old jail legislative]; Duran v. Cassidy (1972)
28 Cal.App.3d 574, 581 [whether to invest public funds in a municipal golf
course is a legislative policy decision]; Reagan v. City of Sausalito (1962)
210 Cal.App.2d 618, 624, 628 (Reagan) [decision to purchase property is a
legislative act]; Knowlton v. Hezmalhalch (1939) 32 Cal.App.2d 419, 435
[determination to construct city hall and appropriation of funds therefor were
legislative acts]; Burdick v. City of San Diego (1938) 29 Cal.App.2d 565, 569

13
(Burdick) [determination to construct police station and appropriation of
funds therefor were legislative acts].)
The 2022 Agreement, for the first time, authorizes the construction of
and improvements to Veteran’s Park. Respondents argue the City had
“already approved a future negotiation” regarding construction of Veteran’s
Park, but we observe that the 2021 Agreement only states the City in its “sole
discretion” has the “option” to negotiate an agreement to fund construction of
the park and improvements. At oral argument, respondents argued only that
the 2021 Agreement “put[] the possibility on the table.” (Italics added.)
Thus, the record demonstrates that the Resolution approving the 2022
Agreement was the initial relevant policy determination regarding the park’s
construction and improvements. Contrary to respondents’ suggestion, with
respect to the park, the Resolution did not involve merely the City’s
determination to appropriate specific amounts of public funds for a plan that
had already been adopted.
Burdick informs this analysis. There, the City of San Diego decided to
erect a police station at a designated site and, in a series of acts, developed
plans for the facility and appropriated funds for the project. (Burdick, supra,
29 Cal.App.2d at pp. 566–568.) Subsequently, the city council approved a
resolution authorizing a call for construction bids. (Id. at pp. 568–569.) The
court of appeal held that the final resolution was not subject to referendum,
explaining, “Prior to the passage of [the resolution], the site for the police
station had been designated and accepted. The city council had decided to
erect the structure on that site. Money for the work had been appropriated
and was available. The plans for the building had been approved and
remained unchanged. The specifications and form of the contract had been
approved. The three earlier acts were legislative in character and fixed the

14
policy of the City of San Diego to erect the police station on the designated
site.” (Id. at p. 569.) In the present case, the challenged Resolution is not
analogous to the final resolution at issue in Burdick; instead, in approving
the construction and improvement of Veteran’s Park, the Resolution
corresponds to the prior legislative approval of construction of a police
station.
The trial court relied on San Bruno, supra, 15 Cal.App.5th 524, in
deciding adoption of the Resolution was an administrative act. In San
Bruno, the Court of Appeal concluded a resolution approving the sale of
property to a hotel developer was not a legislative act subject to a
referendum. (Id. at p. 528.) The San Bruno court distinguished Hopping in
language that undermines respondents’ position: “In the present case, the
City is not acquiring land for any municipal purpose, and is not appropriating
any of its own funds in connection with the real estate transaction. Instead,
the City is selling land to a private developer for a profit, and is not providing
any subsidy to the developer.” (San Bruno, at p. 531.) In contrast, the
Resolution at issue here involves a public policy determination to construct
and improve Veteran’s Park at the public’s expense. (Hopping, supra,
170 Cal. at pp. 613–614.)
San Bruno also concluded the contract to sell land in that case was an
administrative act because “the primary substantive decisions pertaining to
the proposed development [had] already been made.” (San Bruno, supra,
15 Cal.App.5th at p. 536.) In the present case, although the “primary
substantive decisions” relating to the housing aspects of the Project were
made prior to the 2022 Agreement, the “primary substantive decisions”
regarding Veteran’s Park were only set out in the 2022 Agreement. (Cf. id. at
p. 536 [noting that the resolution at issue in the case did “not include any

15
new action to further amend the Specific Plan, adopt new legislation, or
otherwise take legislative action”].) The City’s decision to construct and
improve Veteran’s Park for $5.5 million was “political in nature” (id. at
p. 534), and, in so deciding, the City “could consider the questions of public
good, public interests, and public policy involved solely by virtue of and in the
exercise of its legislative powers, and its action thereon was clearly an act in
the exercise of that power.” (Hopping, supra, 170 Cal. at p. 615.)
IV. The City Was Not Acting as the State’s Administrative Agent in
Approving the Resolution
The superior court also accepted respondents’ argument that, even if
the Resolution would typically be considered a legislative act, approval of the
Resolution was, in the language of Yost, “administrative in nature by virtue
of the fact that the council was acting under the authority delegated by the
state to implement [the redevelopment dissolution process]—that, in effect,
the [dissolution law] preempts the exercise of the power of referendum.”
(Yost, supra, 36 Cal.3d at p. 570.) We reject that alternate basis to affirm.
A. Legal Principles and the Dissolution Law
“Acts of a local governing body which, in a purely local context, would
otherwise be legislative and subject to referendum may . . . become
administrative ‘in a situation in which the state’s system of regulation over a
matter of statewide concern is so pervasive as to convert the local legislative
body into an administrative agent of the state.’ ” (Yost, supra, 36 Cal.3d at
p. 570.) Stated differently, acts are considered administrative where “the
state has acted to establish the basic policy and has vested the responsibility
for carrying out that policy” to a local governing body. (Simpson v. Hite
(1950) 36 Cal.2d 125, 130.) Nevertheless, in light of the presumption in favor
of the right to initiative and referendum, there must be a “definite indication

16
that the Legislature, as part of the exercise of its power to preempt all local
legislation in matters of statewide concern, has intended to restrict that
right.” (DeVita, supra, 9 Cal.4th at p. 776; accord City of Morgan Hill v.
Bushey (2018) 5 Cal.5th 1068, 1078–1079 (Bushey).)
“In the aftermath of World War II, the Legislature authorized the
formation of community redevelopment agencies in order to remediate urban
decay. [Citations.] The Community Redevelopment Law ‘was intended to
help local governments revitalize blighted communities.’ ” (California
Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 245–246
(Matosantos); see also Marek v. Napa Cmty. Redevelopment Agency (1988)
46 Cal.3d 1070, 1082 [the redevelopment law was intended to remove and
prevent blight, to create jobs and low-to-moderate income housing, and to
attract private investment].)
“[I]n the summer of 2011 the Legislature enacted legislation . . . that
barred any new redevelopment agency obligations, and established
procedures for the windup and dissolution of the obligations of the nearly 400
redevelopment agencies then existing.” (City of Pasadena v. Cohen (2014)
228 Cal.App.4th 1461, 1463.)6 The move “reflected a state policy to curtail
perceived abuses of the [redevelopment law] by which [redevelopment
agencies] and their ‘sponsor’ entities (usually cities) . . . used an increasing

6 The initial legislation was Assembly Bill No. 26 (2011-2012 1st Ex.

Sess., ch. 5), which was upheld in Matosantos and went into effect on
February 1, 2012. (Matosantos, supra, 53 Cal.4th at p. 275.) “The
Legislature subsequently adopted additional legislation—Assembly Bill
No. 1484 (2011-2012 Reg. Sess.), eff. June 27, 2012, Assembly Bill No. 471
(2013-2014 Reg. Sess.), eff. Feb. 18, 2014, and Senate Bill No. 107 (2015-2016
Reg. Sess.), eff. Sept. 22, 2015—to clarify or modify the dissolution and wind
down process. [Citations.] Taken together, we shall refer to these laws as
the ‘Dissolution Law.’ ” (City of Chula Vista v. Stephenshaw (2023)
91 Cal.App.5th 352, 357 (Stephenshaw).)

17
share of local property taxes as ‘tax increments’ (increases in property tax
attributable to [agency] projects) for their own benefit.” (City of Grass Valley
v. Cohen (2017) 17 Cal.App.5th 567, 573; see also Matosantos, supra,
53 Cal.4th at p. 248 [explaining that the Legislature was particularly
concerned that property tax revenues were shifted away from school
districts]; id. at p. 247 [pointing out that, by 2011, redevelopment agencies
received “12 percent of all property tax revenue in the state”]; Stephenshaw,
supra, 91 Cal.App.5th at p. 357.)
Prior to dissolution, redevelopment agencies were usually “governed by
the sponsoring community’s own legislative body. [Citations.] An agency
[was] authorized to ‘prepare and carry out plans for the improvement,
rehabilitation, and redevelopment of blighted areas.’ [Citation.] To carry out
such redevelopment plans, agencies [could] acquire real property . . . and
undertake certain improvements to other public facilities in the project area
[citation]. While redevelopment agencies [] used their powers in a wide
variety of ways, in one common type of project the redevelopment agency
[bought] and [assembled] parcels of land, buil[t] or enhance[d] the site’s
infrastructure, and transfer[red] the land to private parties on favorable
terms for residential and/or commercial development.” (Matosantos, supra,
53 Cal.4th at p. 246.)
As explained in Matosantos, the redevelopment dissolution legislation
“dissolves all redevelopment agencies [citation] and transfers control of
redevelopment agency assets to successor agencies, which are contemplated
to be the city or county that created the redevelopment agency [citations]. . . .
[S]uccessor agencies [are required] to continue to make payments and
perform existing obligations.” (Matosantos, supra, 53 Cal.4th at p. 251; see

18
also Health and Saf. Code, § 34167; Stephenshaw, supra, 91 Cal.App.5th at
pp. 357–358.)
As relevant in the present case, Health and Safety Code section
34191.5, subdivision (b) requires a successor agency to “prepare a long-range
property management plan that addresses the disposition and use of the real
properties of the former redevelopment agency” and submit the plan for
approval by the Department of Finance and a local “oversight board” (id. at
§ 34179). The plan must inventory the former redevelopment agency
properties with specified information and “[a]ddress the use or disposition of
all of the properties in the trust.” (Id. at § 34191.5, subd. (c).) A property
may not be transferred “unless the long-range property management plan
has been approved by the oversight board and the Department of Finance.”
(Id. at § 34191.5, subd. (c)(2)(C).) In reviewing such a plan, “[t]he department
shall only consider whether the long-range property management plan makes
a good faith effort to address the requirements set forth in subdivision (c)”
(id. at § 34191.5, subd. (d)), requiring an inventory and proposed disposition
of all properties. An approved plan “govern[s], and supersede[s] all other
provisions relating to, the disposition and use of the real property assets of
the former redevelopment agency.” (Id. at § 34191.3, subd. (a).) Finally, the
legislation specifies that “[a]ctions to implement the disposition of property
pursuant to an approved long-range property management plan shall not
require review by the department.” (Id. at § 34191.5, subd. (f).)
B. Respondents’ Authorities
The City’s Long Range Plan identified the Property as a housing asset
to be transferred to the City with the “goal” of development of a “high density
residential project with an affordable component.” The Long Range Plan was
approved by the Department of Finance.

19
 Respondents assert that “Redevelopment Dissolution preempts local
governments’ legislative powers,” but they do not clarify why that is so.
Although the Dissolution Law required the City to inventory and describe the
disposition of the former redevelopment agency properties, and although the
approved Long Range Plan thereafter governed the disposition of the
Property, respondents fail to explain how that rendered the City’s decision to
construct and improve Veteran’s Park administrative. The Long Range Plan
says nothing about the construction of a public park, and respondents are
misplaced in arguing the City merely acted as an administrative agent of the
State in making the policy decision to do so.
The cases respondents rely upon are distinguishable because they
involve instances where “the local legislative body’s discretion was largely
preempted by statutory mandate.” (DeVita, supra, 9 Cal.4th at p. 776.)
Thus, in Simpson v. Hite, supra, 36 Cal.2d 125, 133–134, the court held that
the initiative or referendum power could not be used to interfere with a board
of supervisors’ duty to provide suitable accommodations for courts. But, as
explained in Yost, supra, 36 Cal.3d at p. 573, “the only discretion left to the
local government by the Legislature in Simpson was the choice of a site for a
municipal and superior court. The board of supervisors had a duty to provide
suitable quarters for the courts. . .” (See also Bushey, supra, 5 Cal.5th at
p. 1083 [distinguishing Simpson on same ground]; Associated Home Builders,
supra, 18 Cal.3d at p. 596, fn. 14 [characterizing Simpson as a case “in which
the state’s system of regulation over a matter of statewide concern is so
pervasive as to convert the local legislative body into an administrative agent
of the state”].) No analogous mandate constrained the City’s discretion here.
Also distinguishable are cases arising in the context of the Housing
Authorities Law, enacted “to take advantage of the federal loans provided by

20
the United States Housing Authority Act of 1937” and thereby provide for
“low-rent, safe and sanitary dwellings” throughout the State. (Kleiber v. San
Francisco (1941) 18 Cal.2d 718, 719, 723 (Kleiber).) The court in Klieber
rejected a claim that certain contracts entered into pursuant to the Housing
Authorities Law were void because they were legislative acts that under the
San Francisco charter had to be accomplished by ordinance. (Kleiber, at
p. 719.) The court concluded that the challenged resolutions were
administrative, because “[t]he public purpose here involved was declared and
made law by the legislature of this state . . . .” (Id. at p. 723.) Upon a local
finding of necessity, the law provided for the operation of a local housing
authority and “prescribed the powers, duties and obligations of the authority
and of the city in carrying out its salutary purposes. Every necessary
legislative act was completed by the legislature. There was nothing left to do
except to administer the law.” (Id. at pp. 720, 724.)
In Hous. Auth. of City of Los Angeles v. City of Los Angeles (1952)
38 Cal.2d 853 (Housing Authority of L.A.), the City of Los Angeles sought to
avoid performance of its obligations under an agreement between the city and
the local housing authority relating to a previously approved project. (Id. at
pp. 856–857.) The Supreme Court concluded that the applicable state and
federal laws did not permit “the city’s attempted cancellation, abandonment
and abrogation of its contracts.” (Id. at p. 870.) Citing Kleiber, the court
concluded that, “having taken the initial discretionary action to bring the
housing authority into operation and having approved a project and entered
into a cooperation agreement, there was nothing left to be done by either
contracting party but to perform administratively whatever was necessary to
carry the agreement into effect.” (Id. at p. 862.)

21
 A third housing authority case not cited by the parties is Hous. Auth. of
City of Eureka v. Superior Ct. of Humboldt Cnty. (1950) 35 Cal.2d 550
(Housing Authority of Eureka). That case, unlike Kleiber and Housing
Authority of L.A., did involve the referendum power. There, citizens sought
to challenge by referendum the local housing authority’s application to the
federal government for a loan of money to be used in the construction of low-
rent public housing, approved by the city council. (Id. at pp. 552–555.)
Citing Kleiber, the Supreme Court concluded that the city acted
administratively in approving the loan application and, therefore, the
resolution was not subject to the referendum power. (Housing Authority of
Eureka, at pp. 558–559.)
The Supreme Court subsequently narrowly construed the Housing
Authority of Eureka decision. Bushey characterized the decision as one
“where state law mandates a certain result with no discretion or that
involves an ‘administrative’ task.” (Bushey, supra, 5 Cal.5th at p. 1083.)
Similarly, the court in DeVita, supra, 9 Cal.4th at p. 776, characterized the
Housing Authority of Eureka decision as involving an “area[] in which the
local legislative body’s discretion was largely preempted by statutory
mandate.” The present case is distinguishable. The redevelopment
dissolution laws sought to free up real estate resources held by
redevelopment agencies while still honoring prior commitments.
(Stephenshaw, supra, 91 Cal.App.5th at pp. 357–358.) While the Long Range
Plan specifies use of the Property as high density housing with an affordable
component, in deciding to construct and improve Veteran’s Park, the City
made discretionary policy determinations that were not dictated by the Long
Range Plan or any provision of the Dissolution Law. Accordingly, contrary to
respondents’ view, this is not a case where there is a “ ‘definite indication’ or

22
a ‘ “clear showing” ’ ” the Legislature intended, in enacting the Dissolution
Law, to “limit[] the local legislative body’s discretion such that its task is
‘administrative’ rather than ‘legislative.’ ” (Bushey, at p. 1079.)7
C. The Yost and Bushey Decisions
Yost, supra, 36 Cal.3d 561, is instructive. That case involved a petition
for writ of mandate to compel a city clerk to process a referendum petition
challenging a city council’s authorization of a hotel and conference center on
undeveloped coastal land pursuant to the city’s local coastal plan approved by
the Coastal Commission. (Id. at pp. 565–566, 569.) The Supreme Court held
that the Coastal Act did not preempt local planning authority or the power of
the voters to act through referendum. (Id. at p. 565.) Although the court
recognized that “the Coastal Act is an attempt to deal with coastal land use
on a statewide basis,” the court observed that the act only “sets minimum
standards and policies with which local governments within the coastal zone
must comply; it does not mandate the action to be taken by a local
government in implementing local land use controls.” (Id. at pp. 571–572.)
Because the law “leaves wide discretion to a local government not only to
determine the contents of its land use plans, but to choose how to implement
these plans,” in making planning decisions “a city is acting legislatively and

7 Although respondents do not cite to them, we observe that several

cases have held that local decisions pursuant to the Community
Redevelopment Law were beyond the reach of the referendum power. (Gibbs
v. City of Napa (1976) 59 Cal.App.3d 148, 154; see also PR/JSM Rivara LLC
v. Cmty. Redevelopment Agency (2009) 180 Cal.App.4th 1475, 1482; Walker v.
City of Salinas (1976) 56 Cal.App.3d 711, 718; Andrews v. City of San
Bernardino (1959) 175 Cal.App.2d 459.) But the City in this case did not act
pursuant to the redevelopment law. Instead, the present case involves the
Dissolution Law. As we have explained, the City was bound only by the very
general specification in the Long Range Plan to build housing with an
affordable component on the Property.

23
its actions are subject to the normal referendum procedure.” (Id. at p. 573.)
Similarly, the Dissolution Law and the approved Long Range Plan left wide
discretion to the City in determining the content of the 2022 Agreement.8
Bushey, supra, 5 Cal.5th 1068, though not cited by the parties, is also
instructive. In Bushey, a city filed a petition for writ of mandate contesting
the validity of a referendum on a city rezoning ordinance in support of a hotel
project. (Id. at pp. 1076–1077.) The Supreme Court held the ordinance was
subject to challenge by referendum even though, if approved, the referendum
would create a temporary inconsistency with the city’s general plan. (Id. at
pp. 1075–1076.) The court acknowledged that local zoning and general plans
raise issues of “ ‘statewide concern’ ” and that the Legislature had mandated
local governments to adopt general plans and required conformity between
general plans and zoning ordinances. (Id. at p. 1079.) Nevertheless, the
court concluded that the Legislature had not “preempted local electors’ power
to challenge by referendum a local government ordinance . . . aligning the
relevant zoning designations with the amended general plan.” (Id. at
p. 1080.) Critically, the local government had other options to bring the
general plan and zoning into conformity if the referendum passed. (Id. at pp.
1083, 1090–1091.) As the court explained, “Where the local government can
still implement one of multiple approaches to achieve consistency between
the zoning ordinance and the general plan while complying with [state law],

8 Respondents argue Yost is distinguishable because section 30500,

subdivision (c) of the Public Resources Code states, “The precise content of
each local coastal program shall be determined by the local government,
consistent with Section 30501, in full consultation with the commission . . . .”
(See also Yost, supra, 36 Cal.3d at pp. 571–572.) However, even though the
Dissolution Law does not contain a precisely analogous provision,
respondents point to no provision denying cities a comparable level of
discretion over local developments.

24
the zoning ordinance is best understood as the product of a discretionary
policy choice about the proper use of the land.” (Id. at p. 1083 [emphasis
added].) The same reasoning applies here. Although the 2022 Agreement is
consistent with the Long Range Plan, it is not the only consistent approach.
Because the City had many choices about how to develop the Property, its
decision to construct and improve Veteran’s Park as part of the Project was,
as Bushey phrased it, “a discretionary policy choice about the proper use of
the land.” (Ibid.)
D. Conclusion
Under respondents’ view, the City acts as a mere administrative agent
of the State in developing the Property as a “high density residential project
with an affordable component,” regardless of the discretionary decisions the
City makes in doing so. Respondents are mistaken. Because there is no
“ ‘definite indication’ ” (Bushey, supra, 5 Cal.5th at pp. 1078–1079) that the
Legislature, in enacting the Dissolution Law, intended to preempt local
discretionary policy decisions regarding municipal developments, the
superior court erred in concluding the referendum power did not encompass
the Resolution on the ground that the City was acting as an administrative
agent of the State.
V. The City’s Approvals of the Loan Terms and Indemnification Provision
in the 2022 Agreement Did Not Render the Resolution Legislative
Plaintiffs also contend the Resolution was legislative because, in the
2022 Agreement, the City (1) agreed to provide Eden Housing with a $7.8
million loan at 3 percent simple interest to be repaid over 55 years, and (2)
agreed to bear up to $4.3 million in liability under an indemnification
provision. At oral argument, both parties agreed that, moving forward, it
would be helpful for this court to resolve those contentions.

25
 As to the loan terms, the 2018 Agreement provided that, “The price of
the property shall be equal to the appraised fair market value of the
Property, and such appraisal shall be performed by an appraiser that is
mutually agreed upon by the City and the Developer.” That policy decision to
sell the Property for fair market value was the relevant declaration of policy
and “provision[] for the ways and means of its accomplishment,” and the
subsequent approval of the amount was an administrative act carrying out
the previously determined “legislative policies and purposes.” (San Bruno,
supra, 15 Cal.App.5th at p. 530.) The same is true of the specification of 3
percent as the rate of interest. The 2018 Agreement provided that 3 percent
was one of two potential interest rates, with the rate to be agreed upon
“based on the Project’s overall financial feasibility and Investor
requirements.” The ultimate determination that the Project finances
supported selection of the 3 percent rate was an administrative
determination pursuant to the policy established in the 2018 Agreement.
Finally, the 55-year loan term was already specified in the 2018 Agreement.
Accordingly, approval of the loan terms in the 2022 Agreement was not a
legislative act.
The indemnification provision in the 2022 Agreement authorizes the
City Manager “to negotiate and execute [an] indemnity and cooperation
agreement in an amount not to exceed $4,300,000,” in order to “apportion
costs and any potential liability related to Hazardous Materials at, on, in,
beneath, or from the Property . . .” At oral argument, plaintiffs conceded
that, absent agreement from Eden Housing to assume a portion of the
liability, the City would bear the liability. Plaintiffs further conceded that
the effect of the 2022 Agreement was to cap the City’s potential liability at
$4.3 million, and that the cap benefitted taxpayers by limiting the City’s

26
liability. Finally, plaintiffs conceded that approval by the City of a stand-
alone agreement identical to the indemnification provision would be an
administrative act. On appeal, plaintiffs, as appellants, bear the burden of
showing the superior court erred. (L.O. v. Kilrain (2023) 96 Cal.App.5th 616,
619.) Given their concessions, they fail to do so. They cite no authority that
or reasoning why a municipality’s decision to enter into a contract that
potentially saves public funds by limiting liability is legislative, especially
after the municipality has already approved a contract acknowledging its
potential liability. And they cite no authority that or reasoning why a
determination that is otherwise administrative may be treated as legislative
because the provision at issue is part of a larger agreement, the approval of
which is legislative due to a wholly unrelated provision. Accordingly,
plaintiffs have not shown approval of the indemnification provision in the
2022 Agreement was a legislative act.9
VI. The Superior Court Erred in Requiring a Bond
As noted previously, the superior court required plaintiffs to furnish an
undertaking in the amount of $500,000 under Code of Civil Procedure section
529.2. That statute provides that a defendant in a civil action “brought by
any plaintiff to challenge a housing project which is a development project . . .
and which meets or exceeds the requirements for low- or moderate-income

9 At oral argument, respondents requested that this court direct the

superior court to process the referendum only as to those parts of the 2022
Agreement that involved legislative determinations, citing Dye v. Council of
City of Compton, 80 Cal.App.2d 486, 487. But the issue in Dye was whether
the referendum power permitted a challenge to only parts of a city ordinance.
(Id. at p. 488.) The court did not suggest that, where a referendum petition
challenges the whole of a resolution or ordinance, as in the present case, it
would be proper to limit the scope of the referendum. Given respondents’
failure to present authority supporting their request, we decline it.

27
housing” may request an order requiring the plaintiff “to furnish an
undertaking as security for costs and any damages that may be incurred by
the defendant by the conclusion of the action or proceeding as the result of a
delay in carrying out the development project.” (Code Civ. Proc. § 529.2,
subd. (a).) “The motion shall be made on the grounds 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.)
On appeal, plaintiffs contend the superior court erred in concluding the
present action is within the scope of Code of Civil Procedure section 529.2.
They argue the writ was brought “to enforce provisions of the Elections Code
and secure for the City’s voters their right to referendum” rather than to
challenge the Project.
We agree. Although the proposed referendum challenges the Project
and would have the effect of delaying the Project if it meets the statutory
requirements, the present action is not itself a challenge to the Project.
Instead, it is a challenge to the City Clerk’s violation of the Elections Code.
(Cf. Save Livermore Downtown, supra, 87 Cal.App.5th at p. 1123 [bond
appropriate in action alleging “the project violated state and local planning
and zoning laws” and CEQA].) It is revealing that, if the City Clerk had
complied with her legal obligations and processed the referendum, then
plaintiffs would not have had to file the present action. Instead, any
challenge to the validity of the referendum could have been heard pursuant
to a petition brought by the City. (Save Lafayette, supra, 20 Cal.App.5th at
p. 663 [“If the local government believes an initiative or referendum is
unlawful and should not be presented to voters, it should file a petition for a

28
writ of mandate seeking to remove it from the ballot.”].) In those
circumstances, no colorable claim that plaintiffs were required to post a bond
under Code of Civil Procedure section 529.2 would exist. Requiring plaintiffs
to file an undertaking in the present circumstances, in effect, rewards the
City’s chosen partner Eden Housing for the City’s violation of clear and well-
established law protecting the people’s constitutional referendum power.
(See Part II, ante.)
Real party in interest Eden Housing argues that, in challenging the
City Clerk’s refusal to process the referendum petition, plaintiffs’ action
“challenges a City determination that directly impacts the Project.” But
Eden Housing proposes no plain language interpretation of Code of Civil
Procedure section 529.2 that encompasses an action that does not directly
challenge any aspect of a housing project. At oral argument, Eden Housing
attempted to analogize plaintiffs’ action to enforce the referendum power to a
CEQA action to enforce environmental protections. But Code of Civil
Procedure section 529.2 expressly states that CEQA actions are within the
scope of the statute. (Code Civ. Pro. § 529.2, subd. (a) [referencing “actions
brought pursuant to Section 21167 of the Public Resources Code”].)
Because the present action does not come within the plain language of
Code of Civil Procedure section 529.2, the superior court erred as a matter of
law in requiring plaintiffs to file an undertaking under that statute.
DISPOSITION
The judgment is reversed and the case is remanded to the superior
court with directions to issue a peremptory writ of mandate ordering
respondents to process the referendum petition and to place the proposed
referendum on the ballot for municipal election, provided there has been
compliance with the formal filing requirements. The superior court’s order

29
requiring plaintiffs to file an undertaking under Code of Civil Procedure
section 529.2 is also reversed. Costs on appeal are awarded to
plaintiffs/appellants.

SIMONS, J.
We concur.

JACKSON, P. J.
CHOU, J.

(A167346)

30
Move Eden Housing, et al. v. City of Livermore, et al. (A167346)

Trial Judge: Hon. Michael Markman

Trial Court: Alameda County Superior Court

Attorneys:
Latham & Watkins LLP, Winston P. Stromberg, Michelle
Cornell-Davis, and Kevin A. Homrighausen for Plaintiffs and
Appellants.

Richards, Watson & Gershon, T. Peter Pierce and Steven A.
Nguy; Jason Alcala and Kimberly D. Cilley, City Attorney, for
Defendants and Respondents.

Cox, Castle & Nicholson LLP, Andrew B. Sabey, Scott B. Birkey,
Robbie C. Hull, for Real Party in Interest and Respondents.

31