Move Eden Housing v. City of Livermore: A Guidance on Housing Project Approvals in Light of Electorate's Referendum Power

Strategic Insights -

In the recent decision of Move Eden Housing v. City of Livermore, ___ Cal. App. 5th ___, 2025 WL 2837353 (Oct. 7, 2025), the First District Court of Appeal provided crucial insights into the structure of approvals for housing projects in California cities, considering the electorate's referendum power. The case involved a dispute over an affordable housing development agreement in downtown Livermore, which was challenged by a local anti-housing group through a referendum petition. The city's argument that the development agreement was merely an administrative action, not subject to referendum, was rejected by the Court of Appeal in a previous decision. The city then repealed the agreement and adopted a new resolution, which the Court of Appeal ultimately upheld, ruling in favor of the city.

Key Takeaways:

  • A city's resolution is considered legislative in nature and subject to referendum if it includes a new policy initiative or discretionary action, such as spending public funds on a new park.
  • When a city council repeals a challenged measure in its entirety, the referendum is nullified, and the measure is no longer subject to a vote.
  • Cities may respond to a referendum petition by repealing a legislative act and replacing it with a narrower administrative one, as long as the new resolution truly omits the earlier policy choices.
  • Cities should be cautious about deferring major policy commitments to later-stage development agreements, as they may be subject to referendum.
  • Developers should be attentive to the form and timing of a city council resolution, as it can determine whether a project advances smoothly or faces another round of public challenge.

Statistics:

  • $5.5 million: the amount the City of Livermore committed to spend on Veterans Park, a new public park adjacent to the development, which motivated the referendum petition.
  • 2022: the year the Livermore City Council approved a development agreement between the city and Eden Housing, Inc.
  • 2024: the year the city council repealed the 2022 resolution and adopted a new resolution reaffirming it, with certain provisions omitted.
  • 1 year: the period during which a city council may not re-enact the same legislation after a repeal, as specified in Elections Code section 9241.
  • 13th Street, NW: the street address of the Perkins Coie LLP, where Josh Patashnik is a member of the firm.

Sources:

  • Move Eden Housing v. City of Livermore, ___ Cal. App. 5th ___, 2025 WL 2837353 (Oct. 7, 2025)
  • Move Eden Housing v. City of Livermore, 100 Cal.App.5th 263 (2024)
  • Elections Code section 9241
  • Perkins Coie LLP, 700 13th Street, NW, Suite 800, Washington, DC 20005-3960.