Case Involved A Challenge To A Referendum Denial Decision Under The Elections Code, Not A Direct Challenge To A Housing Project.
Move Eden Housing v. City of Livermore, Case No. A167346 (1st Dist., Div. 5 Mar. 15, 2024) (partially published; undertaking discussion published) involved a superior court’s denial of a writ mandate petition by plaintiffs to obtain Livermore’s processing of their proposed referendum in accordance with the Elections Code, with the proposed referendum challenging City Council’s agreement between city and a developer for development of housing in downtown Livermore. The lower court also ordered plaintiffs to post an undertaking of $500,000 in accordance with CCP § 529.2. Plaintiffs, on appeal, obtained a reversal of both orders.
Section 529.2 provides that a defendant in a civil action brought by any plaintiff to challenge a low/moderate-income housing project may request an order requiring plaintiff to furnish a undertaking for costs and damages incurred by defendant at the conclusion of the action as a result of a delay in carrying out the development project, with the defendant having to show both that the action was brought in bad faith/for delay in thwarting the project and the plaintiff will not suffer under economic hardship in filing the undertaking.
The undertaking was erroneous because plaintiffs’ action was to enforce the provisions of the Elections Code rather than a direct challenge to the housing project. The proposed referendum did challenge the project, but the action itself was not a challenge to the project. Although real party in interest developer analogized plaintiff’s action to a CEQA action, that analogy was flawed because CEQA actions are directly within the statute—unlike the referendum action brought by plaintiffs.