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A judge will soon decide whether the city of Dublin must revoke Measure II, absent a related environmental review prior to its placement on last year’s general election ballot.
The measure dubbed “Dublin Traffic Relief, Clean Air/Open Space Preservation Measure”, permitted the City Council to approve limited commercial development on 80 acres of land on the Crosby property — owned by Livbor-Manning LLC (Harry Crosby) — to cover some of the cost of extending Dublin Boulevard to Livermore. The area east of the city’s eastern boundary was previously barred from development in the city’s General Plan.
Shortly after the council’s decision, nonprofits Save Mount Diablo and Friends of Livermore filed a lawsuit against the city of Dublin, its City Council and other involved parties for placing Measure II on the ballot. The plaintiffs alleged noncompliance with the California Environmental Quality Act, a state law that requires public agencies to consider the potential environmental consequences of their discretionary actions.
A tentative decision and preliminary statement of decision issued Oct. 1 by Alameda County Superior Court Judge Michael Markman granted the petition for writ of mandate to repeal Measure II.
A forthcoming hearing Nov. 13 is set to consider objections to the tentative decision by the city and Livbor-Manning LLC as well as the plaintiffs’ response.
The final decision revolves around one main question: May the Measure II resolution cause a foreseeable indirect physical change in the environment and therefore require an environmental review under CEQA?
Markman may issue a final decision same-day, but he has up to 90 days. Once the decision becomes final, defendants will have 60 days to appeal.
“We are very confident the judge’s decision will not change, that our victory will be upheld, and that the city of Dublin will have to rescind Measure II’s general plan amendment, protecting the beautiful Crosby property from development without proper environmental review and a detailed public process,” Save Mount Diablo officials said in a statement.
The city of Dublin declined to comment on the ongoing litigation. Crosby was not available for comment as of Tuesday afternoon.
During a Dublin City Council meeting July 16, 2024, representatives approved a resolution to place Measure II on the ballot by a 3-2 vote.
Under CEQA, an agency must prepare an environmental impact report for projects that may have a significant effect on the environment, according to a document available through the state’s Land Use and Climate Innovation website.
But the city argued that environmental review was not necessary because the resolution was not a project under the CEQA, according to the tentative decision.
Even if the resolution constituted a project, the city argued that an environmental review was not necessary because the resolution was exempt by the common sense exception. In other words, the city argued that it’s impossible that the activity may have a significant effect on the environment.
One month after the council’s approval, plaintiffs sued for its alleged violation of CEQA. They sought preliminary relief ahead of the November 2024 election, but the request was denied to “avoid interfering with the ballot”, the tentative decision states.
Dublin voters then approved the measure by 53.11% tally.
Voter approval meant the city could accept a land donation to connect Dublin Boulevard 1.5 miles east to North Canyons Parkway. The extension of Dublin Boulevard was said to include bike lanes, pedestrian access as well as improved 911 response times and traffic flow.
The city also gained authority to approve limited commercial development on 80 acres adjacent to Dublin Boulevard, while 100 acres of open space was set to be preserved.
Voter-approved housing development restrictions were set to remain and there would be no cost to taxpayers, the measure states.
In effect, Measure II revoked the portion of the Dublin Open Space Initiative of 2014 which prohibited additional development in the Doolan and Collier Canyons area.
Under the initiative, any development in protected areas would require voter approval, according to an Aug. 2, 2024 impartial analysis of the measure by city attorney John Bakker.
Notably, the initiative allowed for the future construction of the Dublin Boulevard extension and directed the council in 2024 to consider whether “commercial development is needed to fund its construction or maintenance”.
It also permitted the council to place a measure on the ballot to authorize development along the Dublin Boulevard extension, generally up to 1,200 feet north of Interstate 580.
Both sides of the case agree that the resolution does not cause a direct physical change in the environment, according to the tentative ruling.
The point of contention is whether the Measure II resolution may cause foreseeable, indirect physical change in the environment.
In the tentative decision, Markman determined that the Measure II resolution was a “project” for CEQA purposes and the common sense exemption does not apply
“There is an ‘eminently reasonable possibility’ that the city will use its new authority and that the Crosby properties will eventually be developed,” the tentative decision states.
“This is an unusual situation,” according to the tentative decision.
A city typically has the authority to make zoning changes and at that point CEQA review would begin, the tentative decision states.
However, the 2014 Open Space Initiative altered the city’s baseline to measure whether an action may cause a “reasonably foreseeable indirect physical change in the environment”. Reversion of the baseline constitutes a project under CEQA.
“The tentative decision was a significant David versus Goliath win for Save Mount Diablo, our partner Friends of Livermore, our wonderful supporters, and everyone who cares about open spaces and following the rules,” Save Mount Diablo Executive Director Ted Clement said in a statement.
The city and Livbor-Manning LLC later objected to the tentative decision Oct. 16 and urged the court to reconsider.
“Measure II is not a land use approval – the measure only restores the city council’s authority to consider potential future land use decisions for uses at the Crosby properties,” defendants argued.
Since Measure II didn’t change approved land-uses, any CEQA review would require the city to speculate about the type of land use that city council could consider in the future as well as associated environmental impacts, the objection adds.
“If an activity does not allow for meaningful environmental review and requires agencies to simply speculate about potential environmental impacts, the activity is not a CEQA project,” according to the objection.
The city and Livbor-Manning also contend that the tentative decision errors include misapplying the concept of “baseline” under CEQA, incorrectly relying on previous cases involving changes in land use approvals and misapplying the “common sense” exception.
Following the defendants’ objections, Save Mount Diablo and Friends of Livermore filed a response with the court Oct. 30 requesting that each of the respondents’ objections be overruled and the court enters the tentative decision as the final decision.
The defendants’ objections do not present new facts or legal arguments that the court has not already considered in the briefs or at trial, the plaintiffs stated in their response.
“They’re trying to confuse the issues to muddy the water,” said attorney Rebecca Davis at Lozeau Drury and representative of Save Mount Diablo and Friends of Livermore, in a statement.
“We anticipate the judge will ultimately enter the tentative as the final decision,” Davis told the Weekly.
