Livermore City Council
June 13, 2022

is not in the Downtown Core. Because the 2080 Railroad Avenue site is outside of the Downtown Core, the hotel project as envisioned in the proposed DDLA is inconsistent with the Specific Plan, in that it would allow off-site parking for the hotel in an unlawful location.

Moreover, as part of the approval of the DDLA, staff recommends that City Council authorize a supplemental appropriation of $1,923,750 from the General Fund for a site acquisition loan for 2080 Railroad Avenue. However, as discussed above, the use of 2080 Railroad Avenue for surface parking is contrary to local planning and zoning rules—specifically the Downtown Specific Plan. Thus, such an exorbitant loan clearly constitutes an “illegal expenditure of, waste of, or injury to, the estate, funds, or other property of [the city]. (Code of Civil Procedure, § 526a.) In other words, this “loan” would be a waste of taxpayer funds.

Finally, the Staff Report contains a conclusory assertion that the sale of the hotel parcels to 2205 Railroad Avenue LLC is exempt from the Surplus Land Act. However, while the hotel property may be exempt under the current version of the Surplus Land Act set forth in 2019’s Assembly Bill 1486 and the accompanying Surplus Land Act Guidelines implementing it, Government Code sections 54234(a)(1) and (b)(1) are clear that the Surplus Land Act as it existed on December 31, 2019 still applies. (Gov. Code § 54234(a)(1) [“If a local agency, as of September 30, 2019, has entered into an exclusive negotiating agreement or legally binding agreement to dispose of property, the provisions of this article as it existed on December 31, 2019, shall apply. . . .”]; id. at 54234(b)(1) [explaining that the 2019 version of the Surplus Land Act applies to “land held in the Community Redevelopment Property Trust Fund. . .or that has been designated in a long-range property management plan when “[a] exclusive negotiating agreement or legally binding agreement for disposition is entered into not later than December 31, 2020” and “[t]he disposition is completed not later than December 31, 2022.”].) Here, the City’s staff report does nothing to demonstrate that the City complied with the prior version of the Surplus Land Act in proposing to dispose of the property to 2205 Railroad Avenue, LLC. Generally, the prior version of the Surplus Land Act required a city, prior to disposing of surplus land, to offer that land for sale or lease for affordable housing, park and recreational purposes, and school district facilities or open space. (See former Gov. Code, § 54222.) The City needs to explain on the record how it complied with the prior version of the Surplus Land Act with respect to the hotel parcels, and/or whether it contends that this disposition is also exempt from the former version of the law.

We appreciate your attention to the issues addressed in this letter, and we look forward to discussing them further with you. If you have any questions, please do not hesitate to call me at (213) 891-8983 or email me at [email protected].

Very Truly Yours,
Winston Stromberg
of LATHAM & WATKINS LLP
ATTACHMENT 5
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Los Angeles, California 90071-1560
Tel: +1.213.485.1234 Fax: +1.213.891.8763
www.lw.com

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Milan
May 24, 2022
VIA EMAIL ([email protected])
Chairperson Steven Dunbar and Members of the
Liverm
ore Planning Commission
City of Livermore
City Hall
1052 S. Livermore Ave.

Livermore, CA 94550
Re: May 24, 2022 Planning Commi ssion, Agenda Item No. 3.1 Dear Chairperson Dunbar and Honorable Commissioners:

On behalf of Save Livermore Downtown (“SLD”), we appreciate the opportunity to submit these comments on the proposed Downtown Design Review Modification (DDRM 2022- 001) and associated findings regarding the development of a hotel on the southeast corner of Railroad Avenue and South Livermore Avenue (the “Project”). These comments build on the January 10, 2022 letter that SLD submitted to the Livermore City Council regarding the proposed Amended and Restated Disposition, Development and Loan Agreement for the Project, which was included in the Planning Commission Staff Report materials.

SLD continues to support the development of a hotel in downtown Livermore and recognizes that the City and its voters realize the benefits the hotel will bring to downtown Livermore. However, as described below, SLD remains concerned by the fact that the Project’s use of the 2080 Railroad Avenue parcel for off-site parking is inconsistent with the Downtown Specific Plan and applicable planning and zoning rules. Because these inconsistencies persist and have not been addressed, SLD respectfully requests that the Planning Commission (1) refrain from approving the Downtown Design Review Modification application today and (2) direct Planning staff to work with the applicant to find a different location for the hotel’s required parking that complies with the requirements of the Specific Plan.

The Planning Commission Staff Report claims that the Project satisfies the requirements for parking in the Development Code and Downtown Specific Plan through a “combination of on-site surface parking and a valet service provided on-site.” (Staff Report, p. 8.) This includes a new parking facility that includes 120 valet spaces that will be located at 2080 Railroad Avenue. (Id., p. 4.) However, the Downtown Specific Plan explicitly states that for commercial, retail, office, and non-residential uses in the Downtown Core plan area—where the Project would be sited—“[r]equired parki ng shall be provided on-site, by payment of an in-lieu fee, off- site within the Downtown Core, or any combination thereof.” (Downtown Specific Plan, Ch. 8, ATTACHMENT 6
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May 24, 2022

p. 7 [emphasis added].) Thus, although the Downtown Specific Plan allows for the use of off- site parking, that parking is limited to off-site areas “within the Downtown Core.” Although the proposed hotel is within the Downtown Core, 2080 Railroad Avenue is not. “The Downtown Core is centered on the City’s historic crossroads, at the intersection of First Street and Livermore Avenue. Its northern boundary is Railroad Avenue from M Street to Livermore Avenue.” (Downtown Specific Plan, Ch. 4, p. 3 [emphasis added].) To that end, 2080 Railroad Avenue is within the “Downtown Neighborhood - North Side” area of the Downtown Specific Plan, which is not in the Downtown Core. Because the 2080 Railroad Avenue site is outside of the Downtown Core, the Project is inconsistent with the Specific Plan, in that it would allow off-site parking for the hotel in an unlawful location.

The Staff Report acknowledges SLD’s January 10, 2022 letter, which also addressed this issue, but claims that “valet parking is a type of on-site parking for purposes of the Specific Plan.” (Staff Report, p. 9.) The Staff Report does not cite any language from the Downtown Specific Plan that supports this interpretation, which is contrary to the common-sense reading of the Specific Plan. 2080 Railroad Avenue is obviously not “on-site”—it is nearly 700 feet away from the location of the proposed hotel.

The only support staff provide for their interpretation is a mitigation measure in the Downtown Specific Plan 2009 Subsequent EIR “that promotes valet parking operations in Downtown and adds an example that valet operators may be able to add an additional 30 parked vehicles on the top floor of the Livermore Valley Center garage.” (Staff Report, p. 9.) However, unlike 2080 Railroad Avenue, the Livermore Valley Center garage is located in the Downtown Core Area of the Specific Plan. (Ibid.) Therefore, the fact that off-site parking is permitted in the Livermore Valley Center garage has no bearing on whether off-site parking is permitted at 2080 Railroad Avenue.

Because the Project remains inconsistent with this clear requirement in the Downtown Specific Plan, SLD respectfully requests that the Planning Commission withhold its Project- related approvals until suitably located parking is identified.

We appreciate your attention to the issues addr essed in this letter, and we look forward to discussing them further with you. If you have any questions, please do not hesitate to call me at (213) 891-8983 or email me at [email protected].

Very Truly Yours,

Winston Stromberg
of LATHAM & WATKINS LLP
ATTACHMENT 6
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ATTACHMENT 7
PLANNING COMMISSION MINUTES 1 May 24, 2022
DRAFT

PLANNING COMMISSION

SPECIAL MEETING MINUTES
May 24, 2022

1. CALL TO ORDER – The meeting of the Planning Commission was called to order by Chairperson Steven Dunbar at 7:00 p.m., via Zoom teleconferencing.

1.1 Roll Call – Present were Chairperson Steven Dunbar, Vice Chairperson Daniel Leary, CM Jacob Anderson, CM Evan Branning, and CM John Stein.

Also present were: Planning Manager Steve Stewart, Senior Assistant City Attorney Kim Cilley, Associate Planner Tricia Pontau, Senior Civil Engineer Debbie Salgado, Engineering Specialist Mike Pato and Administrative Technician Fanny Ludwig.

1.2 PLEDGE OF ALLEGIANCE – Led by Chairperson Dunbar.

2. CITIZENS FORUM – None.

3. SPECIAL MEETING ITEM

AN OPPORTUNITY FOR THE PUBLIC TO ADDRESS THE PLANNING

COMMISSION REGARDING THE SPECIAL MEETING ITEM WILL BE
PROVIDED BY THE CHAIR.

3.1 Hearing to consider amendments to plans for a previously approved four- story, 133-room hotel on the southeast corner of Railroad Avenue and South Livermore Avenue.

Recommendation:

Staff recommends the Planning Commission recommend that City Council adopt the following resolutions:

1. finding the project is within the scope the Downtown Specific Plan 2009 Subsequent Environmental Impact Report, the 2004 Downtown Specific Plan Final Environmental Impact Report, and the previously adopted addendums thereto;

2. finding the project is exempt from the California Environmental Quality Act pursuant to Guidelines Section 15332; and

3. approving Downtown Design Review Modification (DDRM) 22-001, subject to conditions of approval.
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PLANNING COMMISSION MINUTES 2 May 24, 2022
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Planning Manager Steve Stewart introduced Associate Planner Patricia Pontau who gave a PowerPoint presentation and overview regarding the request for revisions to plans for a previously approved hotel and the recommendation for the Planning Commission to provide a recommendation to the City Council.

Chair Dunbar opened the public comment period.

An anonymous speaker stated with COVID cases surging, how would the City maintain the hotel financially when there could be high levels of vacancies for a prolonged period of time?
Commissioner Branning asked and confirmed the applicant did not have a presentation.

He thanked Presidio Company for their patience during COVID and economic changes over time. He referred to the bike parking requirement of 30 spaces and staff will work with the applicant on this. He thinks it is relatively unlikely that 30 people will bike and stay in the hotel, but there will be people using bikes in the surrounding area, possibly to the restaurant, bar and lounge area so he would request that they think about spreading some of it to the outer edges of the project space.

Regarding the letter received from Save Livermore Downtown to say personally in looking through the DSP, the need for valet parking was brought up specifically for the hotel. The language around it seems clear which is Chapter 8, page 6 and he thinks the project is completely in line with the DSP, General Plan, and he finds it compliant and ready to move forward.

Commissioner Stein voiced support for submerged parking generally and said as densities increase, going down and up is the only way to maintain space for setbacks and landscaping.

Of the three projects the Commission has seen so far, the Legacy Apartments were originally supposed to be submerged but they built an above ground garage wrapped with the rest of the project. This project is going from submerged parking to valet parking, and the only remaining one is Eden Housing which thus far is stuck with the submerged parking.

Overall, he supports the change and said everybody wants the hotel which will generate a substantial amount of Transient Occupancy Tax (TOT) which will help support amenities downtown, and for many of the guests having this type of parking might be what they desire.
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PLANNING COMMISSION MINUTES 3 May 24, 2022
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He asked whether there is any long-term security for the City loan and, in the future if the financial situation changes he questioned whether the applicant might put in an underground parking or at least a basement for things like employee meeting rooms, laundry, storage, and maybe even the gym. Overall, he voiced support of the staff recommendation to the City Council and hopes the City will look for ways of increasing the public and private open space and landscaping throughout the City, particularly in the downtown.

Commissioner Anderson asked if there will be heat pumps for the project.

Rikesh Patel, Presidio Companies, stated they are not that far along in terms of determining the full HVAC package but said it will be consistent with an upscale brand.

Commissioner Anderson suggested looking into multi-head unit heat pumps where you can use the heat from one room to heat another room without the transfer of air. He asked staff if they know the striping of the northbound side of Livermore Avenue before the hotel.

Engineering Specialist Mike Pato said the striping to the south of the hotel is remaining the same. They have the crosswalk with beacon flashing that goes form the parking lot to Veterans Way. South of the crosswalk is one lane of northbound traffic with some parking.

The transition is from the north side of that crosswalk where it becomes two lanes and reaches the two lanes at the Railroad Avenue intersection. The striping seen on this plan shows the transition of the striping moving out and modifying the median to compensate for the valet parking turnout. In general, the striping was trying to meet the existing configuration but it moved out a bit to compensate for the valet.

Commissioner Anderson stated he previously voted in favor of this hotel, thinks it was and still is a well-designed hotel, and thinks it will be a good fit for surrounding buildings.

Per letters received regarding valet parking not being in the DSP, he clarified it is in Chapter 8, page 6 under Parking Strategy for the Downtown. Number 3 states “Promote valet parking operations in downtown. Downtown restaurants, the boutique hotel, and performing arts theater are excellent candidates for valet parking, As parking subsidies become more utilized, valet parking will become a more attractive option.” He also can make the findings that this hotel meets the parking requirements in the DSP.

Lastly, Commissioner Anderson thanked Mr. Patel and Presidio Companies for sticking with this and he spoke about how wonderful Livermore truly is and thinks this hotel has brought this community together.

Vice Chairperson Leary said he did not see the trash enclosure on the plan and he asked what the approval process is for this.
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PLANNING COMMISSION MINUTES 4 May 24, 2022
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Planning Manager Stewart replied that the solid waste disposal facility has already been designed and approved at a staff level. It will be located on the small triangular parcel on the eastern side of the Bank Head in between the theater wall and where the ice cream and small bookstore are located. It is designed in brick to be compatible with the theater and downtown design standards and guidelines, and will have odor control, secure access, and will replace the temporary facility on the south side of the hotel site behind the bakery and First Street mixed use buildings.

Vice Chairperson Leary asked what is the timeline for the parking lot at 2080 Railroad Avenue in terms of construction and who will use 2080 Railroad first.

Mr. Stewart stated the City is already making improvements to that property to accommodate parking during construction of the projects in the Downtown Core Plan.

The intention is to have the valet operational in advance of the hotel’s opening and it will be open to the general public first and then the general public through valet after the hotel opens.

Vice Chairperson Leary noted the staff report states there will be a solar powered beacon at the crosswalk by Uncle Yu’s and he asked and confirmed with Mr. Pato it will be a rapid flashing rectangular beacon.

Vice Chairperson Leary referred to architecture and said the Council approved the architecture for the downtown hotel in September 2018 and then previously, the Planning Commission approved the downtown hotel architecture in August 2018. The underground parking has changed since 2018 but he asked if the hotel architecture, the interior floor plans, the awnings, the windows, the stone, tile, plaster is all the same.

Ms. Pontau confirmed this is correct.

Vice Chairperson Leary referred to and asked staff to display the site plan showing Livermore Avenue and the striping condition in the front of the hotel. South Livermore Avenue is one lane all the way through from the post office going north past Peet’s and then to Uncle Yu’s as are much of First, Second and Third Streets. When developing final plans he suggested keeping the three lanes at Railroad but from the front door back he suggested just maintaining the one lane northbound. What that will do is help out with the weaving for the valet drivers trying to get over to the left turn lane.

Also, if the valet were made more of a single lane from the front door and going back towards the exit drive and have the bulb out there to protect the valet, this would create space between the valet area and the single lane to do the weaving to get over to the left turn pocket.
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PLANNING COMMISSION MINUTES 5 May 24, 2022
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Vice Chairperson Leary referred to the exit drive and he thinks the driveway will conform to the City standard driveway detail which is ST-8 rather than having curb returns there.

He referred to the back of the hotel, the row of ADA parking closest to the building on the east side, and asked to check the walkway widths which seem to be too narrow.

He then referred to valet parking which has been supported by Commissioners, the DSP and the applicability of the program. He looked further into the DSP to better understand the intent of the parking policies and recited the first paragraph of Chapter 8 under Parking. After his review of this, he recognized that the policy is to be taken from the point of view of the customer so customers will have easy access to businesses. Therefore, he can find that the onsite valet parking program at the hotel meets the goal for on-site parking as stated in the DSP.

Senior Assistant City Attorney Kim Cilley stated this afternoon the Commission received a letter from Mr. Winston Stromberg on behalf of Save Livermore Downtown. In response to the letter she provided three points:

1. Save Livermore Downtown states that the staff report does not cite language from the DSP that supports its position that valet parking is on-site parking. This statement is incorrect. The staff report on pages 12 and 13 specifically quote language from the DSP in support of its interpretation. The staff report explains why its interpretation furthers the purposes of the DSP and also explains that the policy reasons for limiting off-site parking to within the downtown core are not implicated when users bring their car directly to a site within the downtown core, leave their cars there and pick them up as part of a valet program.

2. The letter indicates that Save Livermore Downtown states that staff’s only support for their interpretation is a mitigation measure in the DSP 2009 subsequent EIR which includes an example that valet operators may be able to add an additional 30 parked vehicles on the top floor of the Livermore Valley Center Garage. This statement is also incorrect.

As stated previously, staff did support its interpretation of valet parking as on-site parking; however, the mitigation measure from the subsequent EIR only supports that the City has long-contemplated valet parking as a way to satisfy the DSP parking requirement. The example provided in the subsequent EIR is only that. It is only an example. It happens to involve valet cars being parked in the Livermore Valley Center Garage within the downtown core; however, nothing suggests that the City is limited to valet lots in the downtown core. 600
ATTACHMENT 7
PLANNING COMMISSION MINUTES 6 May 24, 2022
DRAFT
In fact, as many Commissioners have pointed out on page 6 of the DSP, it indicates that valet parking is not limited to the downtown core. If you look at the parking strategy which a couple of Commissioners have cited, it states one of the strategies is to “promote valet parking operations in downtown.” It does not say in the downtown core but states “in downtown”. Therefore, valet parking is encouraged in the downtown, which includes 2080 Railroad Avenue.

3. It is important to note that the applicant satisfies the DSP requirements in two separate and distinct ways. First, there has been a good deal of discussion on on- site parking. The second way is through off-site parking in new parking structures in the Livermore Valley Center Garage Expansion and the L Street Garage, both of which are in the downtown core. Each of those is a separate and independent basis for the applicant to satisfy the City’s parking requirements.

Chairperson Dunbar stated this meeting is going faster than he would have expected, but he thinks the good reason for it is that the staff report is exceptional. He asked if the rooftop deck is public, and Ms. Pontau confirmed it is.

He suggested staff consider how they might handle things like this through requirements in the future, as there is nothing like this currently. He knows San Francisco has gone through this because the city has many open deck space given the way they develop now.

Mr. Stewart said the only similar downtown of that will be the Legacy Apartments which have a sky deck with swimming pool and outdoor use areas for their tenants but not for the public.

Chairperson Dunbar referred to the parking behind the unit and said it is public which means it can be used by anyone, which he appreciates, especially for the Bankhead and the fact it furthers the City’s parking goals of allowing different users and different times when the hotel may not need it.

He then referred to the access road and asked if staff knows whether a left turn is allowed from the end of that road, or he asked if it has not yet been determined.

Mr. Pato said a left turn is currently available out of the parking lot. Staff will have to be in a wait-and-see safety standpoint if it works out. He thinks traffic conditions in general will dictate how often a left turn usage is made out of there. During major peak hours it will be more conducive to make a right turn out. Also, he noted there is public parking there but one of the primary reasons for that drive aisle is for circulation as part of the valet. There may be a few people going south but he thinks the primary turning movement will be heading north.
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PLANNING COMMISSION MINUTES 7 May 24, 2022
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Chairperson Dunbar agreed and said this is something he is happy that staff will be reviewing. He said he agrees with Vice Chairperson Leary’s comment about the crosswalk at that drive aisle. He thinks it needs to be prioritized for pedestrians and having it raised and level is the right call. He asked if staff could speak to the design of the crosswalk at the stop light at Livermore and Railroad Avenue. He asked if it is complete or he asked if additional work will be on-going.

Mr. Pato said currently all crosswalks in that intersection are being worked on as part of a CIP project for widening of Railroad Avenue. All improvements will be completed by the City prior to construction of the hotel, including moving the sidewalk on the south side on Railroad Avenue back about 4 to 5 feet to compensate for the elongated median to allow for more left turn access into the Livermore Valley Center Garage. There are utility relocations currently being done now and they are also working on items with the Livermore Valley Center Garage expansion and making sure all ADA ramps and crosswalks meet what is needed to be done. The City is about two-thirds through that design but when it is all done, it will be CASP certified and ADA compliant.

Chairperson Dunbar called out the Downtown Livermore Concept Plan Design Guidelines, page 3-19, 3-20 and 3-22 which specifically state that the south crosswalk of Livermore Avenue at Railroad should be enhanced for increased safety and crossing visibility, so if this can be tied into the hotel project in a low cost way, now is the time to do it.

Mr. Stewart agreed and staff will be looking at those design guidelines for the remainder of the project.

Chairperson Dunbar said with regards to the photometric plan conditions, the recommended condition by staff talks about the security ordinance of the Livermore Municipal Code. He found the ordinance just talks about the foot candles of one particular area. There are further guidelines for that in the DSP on page 6-88 and the General Plan Design Guidelines on page 119, section 5-F. He encouraged staff include this in the condition for a future motion if there is no objection by staff.

Mr. Stewart stated staff has no objection.

Chairperson Dunbar said Commissioner Branning brought up the bicycle parking requirement recommended condition and he also does not believe all of them will be used, but possibly some workers might consider using them. He was a little concerned with the idea that it would be dispersed, especially at the I Street Parking Facility which is farther away and defeats the purpose of bike parking and suggested having it directly in front of the place people want to go.
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PLANNING COMMISSION MINUTES 8 May 24, 2022
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He was also not sure all 30 stalls would fit without getting in the way of café seating, but recommended to staff that some need to be near the entrance of the hotel, but instead of diverting some to the Livermore Valley Center Garage, he recommended some lockers in lieu of the Livermore Valley Center Garage bike parking because he did not think that would be highly used. He would look to staff to find the equivalent cost effectiveness for lockers or perhaps bike parking in a locked room in the building if there is space available for that. Therefore, he recommended the condition be modified for this.

Mr. Stewart said one of the recommended conditions is for the CDD staff and the applicant to look at the design location of those stalls and these comments provide direction for implementing that condition.

Chairperson Dunbar thanked the commissioners who were involved in the initial approval for doing all of the work, given there was a subcommittees and design details for work on the exterior facades of the buildings, which look fantastic. He said he can make all of the findings for this design review modification requested.

He said the goals for parking are designed with the perspective of the user in mind in making those findings and he agrees. The way he would say it is the plan requirements are interpreted in the context of the plan goals which talk about the customers’ perspective of parking.

If the Commission was to accept what was proposed in the letter by Save Livermore Downtown, the plan goals would not be achieved by valet parking, as you would not be facilitating development to the degree you could and you would not be relieving the core area for higher turnover uses to the degree you could, and so to him, the common sense interpretation of the rules are as stated in the staff report which is valet parking on site is on site parking. It is in the context of the person using it on site. So, he can make all findings staff has compiled. He thinks the project will be a great development and it meets all regulations.

Commissioner Branning referred to dispersing bike parking and said in the golden triangle it can be tricky to find bike parking, so he was hoping that by putting it on some of the perimeter of this project, particularly towards the Bank Head would help alleviate that, given he finds himself locking his bike to a fence when in that area.

Chairperson Dunbar stated also Commissioner Leary talked about the drop-off zone being extended south. It looked like that was where a café may go in the future.

Commissioner Leary emphasized he is supportive of staff working this out. 603
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PLANNING COMMISSION MINUTES 9 May 24, 2022
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Commissioner Stein referred to the exit onto South Livermore Avenue and said there will be a drop-off point and fairly large trucks coming in and out. He thinks the radius there is important for those trucks and possibly for fire equipment. He asked not to make this too narrow and not to make the radii on the curb cuts too tight. He thanked staff and the applicant and believes all findings can be made necessary for this project.

MOTION BY ANDERSON, SECONDED BY BRANNING, TO 1) FIND THE PROJECT IS WITHIN THE SCOPE THE DOWNTOWN SPECIFIC PLAN 2009 SUBSEQUENT ENVIRONMENTAL IMPACT REPORT, THE 2004 DOWNTOWN SPECIFIC PLAN

FINAL ENVIRONMENTAL IMPACT REPORT, AND THE PREVIOUSLY ADOPTED ADDENDUMS THERETO; 2) FIND THE PROJECT IS EXEMPT FROM THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT PURSUANT TO GUIDELINES SECTION 15332; AND 3) APPROVE DOWNTOWN DESIGN REVIEW MODIFICATION (DDRM) 22-001, SUBJECT TO CONDITIONS OF APPROVAL, WITH COMMISSIONER LEARY’S RECOMMENDATIONS FOR CROSSWALKS AND HIS ADDITIONAL

RECOMMENDATIONS FOR BIKE PARKING STALLS, FOR THE CROSSWALKS, FOR

THE PHOTOMETRIC PLANS, AND THE STAFF REOCMMENDATION TO CONSIDER HOW THE CITY DOES PUBLIC ACCESS FOR ROOFTOPS.

AYES: ANDERSON, BRANNING, DUNBAR, LEARY, STEIN.

NOES: NONE.

ABSENT: NONE.

4. ADJOURNMENT – 7:58 p.m. to the next Regular Planning Commission meeting on June 7, 2022 via Zoom.

Minutes prepared by:

Lisa Harper Consulting
604
PLANNING COMMISSION STAFF REPORT ITEM NO. 3.1
DATE: May 24, 2022
TO: Chairperson and Members of the Planning Commission
FROM: Steve Stewart, Planning Manager
SUBJECT: Hearing to consider amendments to plans for a previously approved four-story, 133- room hotel on the southeast corner of Railroad Avenue and South Livermore Avenue.

RECOMMENDED ACTION
Staff recommends the Planning Commission recommend that City Council adopt the following resolutions:

1. finding the project is within the scope the Downtown Specific Plan 2009 Subsequent Environmental Impact Report, the 2004 Downtown Specific Plan Final Environmental Impact Report, and the previously adopted addendums thereto;

2. finding the project is exempt from the California Environmental Quality Act pursuant to Guidelines Section 15332; and

3. approving Downtown Design Review Modification (DDRM) 22-001, subject to conditions of approval.

SUMMARY
The Downtown Specific Plan (Specific Plan) identifies the Livermore Valley Center as a Catalyst Project that will stimulate private investment by providing a high-quality example of successful Downtown redevelopment. The Livermore Valley Center was planned to include a parking structure, a performing arts facility, a local theater, a boutique-style hotel, restaurants and retail centered around a park plaza.

The proposed Downtown Hotel will complete development of the Livermore Valley Center and set the st age for increasing the value and attraction of nearby properties that will stimulate new investment in Downtown Livermore. Together with the Bankhead Theater, Livermore Cinema, First Street/Railroad Avenue Commercial Projects, Bankhead Plaza, and Livermore , the hotel will contribute to successful Downtown revitalization.

The proposed hotel conforms to all applicable Downtown Specific Plan standards and is consistent with the Downtown Plan approved by City Council in 2018. The project is compatible with and complementary to surrounding uses. All of the required findings to approve a Downtown Design Review Modification ATTACHMENT 8
605
application can be made. Therefore, staff recommends the Planning Commission recommend the City Council approve this application.

DISCUSSION

BACKGROUND

On July 27, 2016, the City entered into an Exclusive Negotiating Rights Agreement (ENRA) with Presidio to establish procedures and standards for the negotiation of a Purchase and Sale Agreement for disposition and development of a downtown hotel. The City Council extended the ENRA with Presidio throughout the public engagement and plan development process for the new Downtown Plan. On February 26, 2018, the City Council adopted Resolution 2018-024 authorizing the execution of a Hotel Term Sheet with Presidio for the preparation of a Disposition and Development Agreement (DDA) for a downtown hotel.

On September 10, 2018, the City Council adopted Resolution 2018-154 approving Specific Plan Amendment 18-001 (the “September 2018 Amendments”) to facilitate the phased implementation of the approved Downtown Plan and provisions to allow up to a four-story hotel. At the same meeting, the City Council adopted Resolutions 2018-155 and 2018-156 approving Downtown Design Review 18-015 and Disposition and Development Agreement 18-003, respectively, for a four-story, 133-room hotel on the southeast corner of Railroad and South Livermore Avenue.

On October 11, 2018, the City received a referendum petition entitled “Referendum Against Portions of a Resolution Passed by the City Council Resolution No. 2018-154” (hereinafter “Referendum”). The Referendum challenged three portions of the September 2018 Amendments, specifically the amendments to Chapter 5 (Development Standards –Core), Chapter 7 (Circulation and Transportation), and Chapter 8 (Parking Standards).

On November 26, 2018, the City Council adopted Resolution 2018-200 accepting certification by the City Clerk as to the sufficiency of signatures on the Referendum. The Council’s successive adoption of Resolution 2018-201 repealed the Specific Plan Amendments listed in the referendum petition (Chapters 5,7 and 8) and confirmed that the remaining amendments to the Downtown Specific Plan approved by Resolution No. 2018-154 remain in effect.

Specifically, the Council’s adoption of Resolution 2018-201 repealed the three challenged portions of the September 2018 Amendments, reverting the following chapters to the versions that existed before the September 2018 Amendments:

Chapter 5 – Development Standards – Core
Chapter 7 – Circulation and Transportation
Chapter 8 – Parking Standards

The Council’s adoption of Resolution 2018-201 also confirmed that the September 2018 Amendments to the following chapters, not having been protested by the Referendum, remained effective, valid, and enforceable:

Chapter 1 – Orientation
Chapter 2 – Existing Conditions
ATTACHMENT 8
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Chapter 3 – Revitalization Strategy
Chapter 4 – Land Use and Development Policies
Chapter 10 – Implementation
Chapter 11 – Financing

The repeal of the September 2018 Amendments to Chapters 5, 7, and 8 necessitated several adjustments to the Downtown Plan. The adjustments included reduced building heights for the hotel and the L Street parking structure, requiring two-story buildings adjacent to Blacksmith Square, and an adjustment to the land use standards to accommodate additional surface parking. The remaining components of the Downtown Plan were consistent with the Specific Plan that existed before the September 2018 Amendments.

California Elections Code section 9241 provides that, until November 27, 2019 (one year from the repeal), the City could not readopt the same amendments to Chapters 5, 7, and 8 that were challenged by the Referendum. However, the City could consider amendments to the same chapters within the one-year repeal period, provided the amendments were different from the previous amendments and avoid the objections made to the previous amendments. On May 13, 2019, within the one-year time frame, the City Council readopted amendments to Specific Plan Chapters 5, 7, and 8, that were outside the Referendum’s issues of concern, including provision of additional parking and the removal of a regional theater from the Downtown Specific Plan. Removal of the regional theater language was also included in the amendments to the Specific Plan that were not challenged.

On July 29, 2019, the City Council adopted Ordinance No. 2089 approving a Development Agreement with 2205 Railroad Avenue LLC for the Wine Country Hotel at the Bankhead Project (Development Agreement 19-001). The Development Agreement (DA) between the City of Livermore and Presidio Companies (doing business as 2205 Railroad Ave. LLC) was intended to provide certainty regarding land use standards for the development of a Wine Country Hotel at the Bankhead.

On August 28, 2019, a referendum petition protesting Ordinance No. 2089 was filed with the City Clerk’s Office by the Friends of Livermore Committee. The referendum (Measure P) allowed voters to affirm or reject the DA. On March 3, 2020, Livermore voters passed Measure P by over a 2/3 majority vote in favor of the Development Agreement approved by the City Council on July 29, 2019, for the downtown hotel.

On May 11, 2020, the City Council readopted the Specific Plan Amendments to Chapters 5, 7, and 8 that were challenged by the 2018 Referendum, with the exception of the amendments related to the downtown hotel site at the southeast corner of Railroad Avenue and South Livermore Avenue. At the same meeting, City Council directed staff to return with another Specific Plan Amendment to reintroduce the hotel amendments.

On October 26, 2020, the City Council adopted Resolution 2020-179 approving another Downtown Specific Plan Amendment to reestablish the four-story height limit for the hotel and enable implementation of the approved downtown hotel consistent with the approved Downtown Plan.

The approved DDA included commencement of construction in June 2020 and opening of the hotel in December 2021. However, the failed effort to overturn the City Council's approval of the Development Agreement for the hotel and subsequent impacts on the hospitality industry from the COVID-19 pandemic caused a significant delay in the project.

ATTACHMENT 8
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On January 10, 2022, the City Council reviewed and approved an Amended and Restated Disposition, Development and Loan Agreement (DDLA) for the project. The DDLA established new terms of sale of the City-owned hotel site and terms for a loan to acquire an approximately 0.77-acre property to develop a parking facility. The DDLA also secures additional public benefits and improvements including contributing to the maintenance of Stockmen’s Park, allowing public access to the hotel's roof-top deck, providing public valet parking, developing and operating a joint solid waste facility for the Livermore Valley Center, and constructing sidewalk and median improvements along South Livermore Avenue.

PROJECT DESCRIPTION

The project under consideration includes modifications to the Downtown Hotel site plan originally approved through Downtown Design Review 18-015 on September 10, 2018. The applicant (2205 Railroad Avenue, LLC but referenced throughout as its parent company "Presidio") is proposing to develop a 133-room hotel, with an approximately 3,300 square foot bar/lounge, a 1,500-2,000 square foot meeting space, rooftop deck, fitness center, outdoor pool, and an open courtyard and patio. Ten guest rooms will be located on the ground floor and consist of loft-style rooms with a mezzanine level.

Per the terms of the DDLA, Presidio will develop a hotel with a quality that meets or exceeds the quality of Marriott AC, Marriott Autograph Collection, Hilton Canopy, and the Curio Collection by Hilton. Hotel quality will be subject to evaluation by a hotel consultant to confirm the proposed hotel meets or exceeds the quality of the above listed hotel brands.

The hotel building will be four stories in height and approximately 70,000 square feet in floor area.

Building height will be approximately 55 feet to the building parapet, and approximately 63 feet at the highest point of the three tower elements located at the corner of Railroad Avenue and South Livermore Avenue, at the southeast corner of the building, and at the main entrance to the hotel at the midpoint of the South Livermore Avenue façade.

The project includes 25 public surface parking stalls that will be constructed between the hotel and the Bankhead Theater, including 13 ADA accessible stalls. The surface parking will be accessible via a new access road that connects Railroad Avenue and South Livermore Avenue along the south and east sides of the hotel building. A loading zone for passenger drop-off and deliveries will be located along the southern portion of the access road.

The project also includes 120 additional on-site parking spaces through a valet parking program. Valet parking will be available to hotel guests and the public through on-site pick up and drop-off of vehicles.

The previously approved hotel plans included a public underground parking garage with 120-spaces.

The underground garage is no longer feasible due to the increase in construction, operation, and maintenance costs over the course of the project construction delay. Presidio has acquired 2080 Railroad Avenue, formerly occupied by Valley Pool Center, and will construct a parking facility that will accommodate 120 vehicles for valet service. Based upon the terms of the DDLA, the valet program will provide publicly available parking for the City. Both hotel guests and the public will be able to utilize this parking.

If additional parking is required, the DDLA obligates the City to provide up to 30 parking spaces for valet use in other city parking facilities. The City will lease the 2080 Railroad property for public parking until the hotel opens.

ATTACHMENT 8
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Independent of the on-site parking, parking requirements are also satisfied by off-site public parking in the Livermore Valley Center Garage and its new expansion at the end of I Street, within the Downtown Core. It was always intended that businesses in the Livermore Valley Center would be able to use parking spaces in city garages north of Railroad Avenue. All other uses in the Livermore Valley Center (Bankhead Theater, Cinema, First Street/Railroad Avenue Mixed-Use Commercial) have used the public parking structures to meet the parking requirements set forth in the Specific Plan.

In addition to the new road, the project will modify the roadway along South Livermore Avenue, including an extended median, sidewalk improvements, and a new two-lane drop-off area in front of the hotel entrance. As part of the storm water treatment plans, bio-retention improvements and raised planters will be placed along the new access road and throughout the surface parking area.

PROJECT SITE CONTEXT

The project site is approximately 1.4 acres located on the southeast corner of Railroad Avenue and South Livermore Avenue. The site is currently owned by the City and contains surface parking and landscaping. The site was previously occupied by an automotive oil change facility, which was demolished to make way for the proposed hotel.

The Bankhead Theater is located directly to the east of the project site. Commercial and office uses are located to the south. Across Railroad Avenue to the north are the Livermore Valley Center Garage expansion and service commercial uses. Stockmen's Park and Blacksmith Square are located across South Livermore Avenue to the west.

The table below summarizes the General Plan land use designation, zoning classification, and existing uses on the project site and surrounding properties.

General Plan Designation Zoning Existing Use

North Downtown Area (DA)
Downtown Specific Plan -
Commercial, Parking Garage

Downtown Core, Subarea 2

South Downtown Area (DA) Downtown Specific Plan - Commercial

Downtown Core, Subarea 1

Downtown Specific Plan -

East Downtown Area (DA) Downtown Core, Subarea 3, Performing Arts Theater

Sub-district B

Downtown Specific Plan -

West Downtown Area (DA) Downtown Core, Subarea 4, Commercial, Public Park

Sub-districts A & B

Downtown Specific Plan -

Project Site Downtown Area (DA) Downtown Core, Subarea 3, Parking

Sub-district A

The Downtown Plan approved by Council will continue to change the site context to the west. The Downtown Plan includes an expansion of Blacksmith Square, SPARC black box theater, Quest Science Center, Eden's workforce housing, and a new parking garage.

STAFF ANALYSIS
ATTACHMENT 8
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General Plan

The project site is designated as Downtown Area in the General Plan. The Downtown Area designation is a general designation that applies to the area traditionally known as Downtown Livermore. The Downtown Area seeks to provide a unique, pedestrian-friendly shopping environment supported by higher-intensity residential development. The area supports a variety of mixed uses, including commercial, office, entertainment, lodging, and residential, which are implemented through the Downtown Specific Plan. The proposal to redevelop the project site with a hotel is consistent with the land use designation and General Plan goals for the Downtown Area.

Zoning and Downtown Specific Plan

The project site is located in the Downtown Core, Subarea 3, Sub-district A area of the Downtown Specific Plan. The purpose of the Downtown Core is to revitalize the City’s historic core area as the center of Livermore. The intent of this Plan Area is to promote the continued development and revitalization of the City’s pedestrian-oriented Downtown district that serves as the center of the Livermore community, its most unique shopping district, and as a neighborhood hub for the residences within and surrounding it. To support this objective, the Downtown Core permits a variety of specialty retail, restaurant, and residential uses and is intended to be the most densely developed part of the City. A boutique hotel with accessory uses, such as a spa, restaurant, bar, meeting facilities, and limited retail and personal service uses, is a permitted use in Subarea 3, Sub-district A of the Downtown Core. As set forth above, the Project directly furthers numerous elements of the General Plan, Downtown Specific Plan, and zoning. Weighing and balancing the policies of the applicable plans, and construing those policies in light of the plans’ purposes, the Project will further the objectives, policies, and general land uses and programs specified in the applicable plans.

Existing Uses

The proposed hotel is within walking distance of nearby restaurants, retail shops, the Bankhead Theater, Livermore Cinema, and other commercial uses. Furthermore, Stockmen’s Park and the future cultural facilities that are planned for directly across South Livermore Avenue will complement the proposed hotel use. The proposed hotel will provide a commercial use that will complement existing uses and strategically enhance activity at this prominent Downtown corner.

Development Standards

The Downtown Specific Plan includes development standards and design standards and guidelin es.

The following table summarizes the major development standards of Downtown Core, Subarea 3, Sub-district A of the Downtown Specific Plan and the proposed project.

Standard Required Proposed Analysis
Minimum Height 2 floors, 20 feet 4 floors, 54 feet 6 inches Complies ATTACHMENT 8
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The primary building height is 54

feet, 6 inches. The project has

4 floors, 55 feet. Uninhabited
three towers that are 63 feet tall.

The towers are located at the two

Maximum Height towers and other rooftop structures prominent corners of the building Complies

may exceed the height limit by 10 and in the middle of the façade

feet. facing S. Livermore Ave., which

highlights the main entrance to the

building.

Minimum 70% of the building

frontage must be built to the The building is built to the property

property line. Up to 30% may be

line on both the S. Livermore Ave.

Setback - Street recessed for entryways,

and Railroad Ave. frontages, with Complies

Frontage courtyards, and similar features. At

the exception of minor recesses at

corner parcels, the setback entryways and patios.

requirements apply to both

frontages.

The setback on south side of the

Minimum 0 feet, maximum 10 feet, building contains the driveway of

Setback - Sides except for driveways and the new access road and the Complies

sidewalk. The north side of the

pedestrian pathways.

building is a street frontage that

complies with the standard.

Setback - Rear
There are no rear setback
N/A Complies

requirements in the Core.

Setback - Surface
The surface parking area adjacent

Minimum 5 feet to the east property line is set back Complies

parking lots approximately 8 feet.

Site Design

The proposed site plan orients the building to the property lines along Railroad Avenue and South Livermore Avenue. The main entrance to the hotel lobby is at the midpoint along the South Livermore Avenue façade. A dual drop-off lane will be constructed in front of the entrance for hotel guests. A second entryway with access to the bar/lounge is located on the southeast corner of the building at the intersection of South Livermore Avenue and the new access road. The hotel pool, courtyard, and outdoor patio are located behind the building. This orientation creates a strong street presence that signals arrival into the Downtown Core.

The new access road connects Railroad Avenue to South Livermore Avenue along the east and south sides of the property. The surface parking and a loading zone are accessed along this road.

Bio-retention features and landscaping elements are located along the new road.

The site plan does not provide information on site lighting. Staff recommends the following condition regarding site lighting:

Recommended Condition: Provide a photometric plan for review and approval by the Community Development Department that shows lighting will minimize off -site glare and meet the illumination requirements of the Security Ordinance (Livermore Municipal Code, Chapter 15.18).

ATTACHMENT 8
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Staff supports the proposed site plan, subject to the noted condition of approval.

Parking

The Livermore Development Code (Development Code) requires hotel parking at a rate of one space per guest room, plus one space per 10 guest rooms. The Project requires 147 spaces.

The applicant satisfies the requirements for parking in the Development Code and the Specific Plan through a combination of on-site surface parking and a valet service provided on-site. This includes 25 spaces of surface parking, including 13 ADA spaces, 120 spaces in the valet parking lot on 2080 Railroad Avenue, and up to 30 valet parking spaces in the Livermore Valley Center Garage. Valet drop-off and pick-up will occur on the hotel site.

Independent of the on-site parking, the parking requirements are also satisfied by off-site parking in the Livermore Valley Center Garage expansion and new L Street Garage, within the Downtown Core, in accordance with the Specific Plan. The City provided parking for the existing properties in the Livermore Valley Center, often referred to as the "Golden Triangle," including the Bankhead Theater, Plaza, Livermore Cinema, and First Street/Railroad Avenue commercial buildings, by constructing the original Livermore Valley Center Garage. The Specific Plan, the environmental documents prepared for the Specific Plan, and the entitlement approvals for the Livermore Valley Center projects contemplated that the Livermore Valley Center Garage and other new public parking structures would provide parking for the Livermore Valley Center properties, and other Catalyst Project development, including the hotel and Regional Performing Arts Theater. The Downtown Hotel is a property within the Livermore Valley Center, and therefore is entitled to use parking spaces in the new off-site public parking structures within the Downtown Core, consistent with the parking allocations provided to the other Livermore Valley Center projects. This off-site parking within the Downtown Core would also be sufficient to satisfy the requirements of the Downtown Specific Plan.

On January 20, 2022, the City received a letter from an attorney on behalf of Save Livermore Downtown alleging the hotel project is inconsistent with the Specific Plan because it included off-site parking for the hotel outside of the Downtown Core (Attachment 5). Chapter 8, Parking Standards, of the Downtown Specific Plan states as follows:

"In the Downtown Core plan area, new surface lots are required to remain open for non-exclusive use; private surface parking lots are not permitted. New parking structures in the Downtown Core may be reserved for private use. Required parking shall be provided on-site, by payment of an in-lieu fee, off- site within the Downtown Core, or any combination thereof." (DSP Chapter 8, Page 7 of 10)

Chapter 8 of the Specific Plan provides the Parking Strategy for the Downtown including the following strategy:

"Promote valet parking operations in downtown. Downtown restaurants, the boutique hotel, and the performing arts theater are excellent candidates for valet parking. As parking supplies become more utilized, valet parking will become a more attractive option. Valet operators can enter into agreements with businesses to use their privately owned parking and can accommodate approximately 10% more vehicles (depending on the size of the facility) than a self-parked facility." (DSP Chapter 8, Page 6 of 10) ATTACHMENT 8
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Consistent with the Specific Plan, the required parking for the hotel will be provided on-site through 25 surface parking spaces and a valet service with on-site drop off and pick up that will provide 120 additional spaces.

The Specific Plan promotes the use of valet services and identifies the boutique hotel and performing arts theater as excellent candidates for valet parking. The 2009 Subsequent Environmental Impact Report for Specific Plan Amendments and the Regional Performing Arts Theater includes Mitigation Measure TRANS-10c that promotes valet parking operations in Downtown and adds an example that valet operators may be able to add an additional 30 parked vehicles on the top floor of the Livermore Valley Center garage. The 2014 Downtown Parking Management Study includes a strategy for the City to encourage downtown businesses to initiate a privately-operated valet parking program during peak periods of demand to improve parking availability in downtown and address future changes in parking supply and demand.

The 2080 Railroad Avenue site is not contemplated as an off-site parking option for the Project; it is proposed for the use of the on-site valet parking program, which will provide vehicle drop off and pick up at the hotel site. As the City has consistently interpreted its Specific Plan and Development Code, valet parking is a type of on-site parking for purposes of the Specific Plan, and any contrary interpretation would frustrate the purposes of the plan which clearly contemplate valet parking programs like the one proposed in this Project. The policy purpose of limiting off-site parking options to areas within the Downtown Core is to ensure that visitors are not required to walk long distances from the place they leave their cars to visit businesses in the Downtown Core. If users bring their cars directly to the site, this concern is not implicated, and it would be contrary to the purposes of the Specific Plan and Development Code to consider this type of valet service to be a type of "off-site" parking.

Independent of the surface parking on-site and on-site valet program provided by the hotel developer, the hotel project, like the other uses in the Livermore Valley Center, is entitled to use parking spaces in the new parking structures in the Downtown Core, including the Livermore Valley Center Garage expansion and the L Street Garage, in order to meet the City's parking requirements.

As a result, the City's parking requirements are satisfied by on-site parking alone, and are additionally satisfied through off-site parking in the Downtown Core.

The site plan does not provide information on bicycle parking. According to the Development Code, the project requires 30 bicycle-parking stalls. Staff recommends the following condition regarding bicycle parking.

Recommended Condition: The design and location of 30 bicycle parking stalls are subject to review and approval by the Community Development Department prior to submittal for building permits. The stalls may be dispersed among the new access road and I Street parking facility.

Staff supports the proposed parking plan, subject to the noted condition of approval.

Infrastructure and Services

The new access road will provide one-way entry onto the site from Railroad Avenue and one-way egress from the site onto South Livermore Avenue. Additionally, the southern portion of the access road will have a 10-foot wide loading zone for pedestrian and delivery drop off to the hotel and the adjacent ATTACHMENT 8
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businesses.

The project includes roadway improvements along South Livermore Avenue to create a dual drop-off zone in front of the proposed hotel lobby. The drop-off zone will consist of a minimum eight foot wide sidewalk in the front of the lobby, a nine foot wide drop-off lane adjacent to the sidewalk, an eight foot wide drop-off lane, and a two foot wide striped buffer separating the travel lanes from the drop-off lanes. The two existing northbound travel lanes would be rerouted around the new drop-off lanes.

The project will also install a solar-powered pedestrian flashing beacon at the existing crosswalk just south of the hotel exit driveway. The South Livermore Avenue roadway improvements are detailed starting on Sheet C11.0 in Attachment 4.

The project will utilize a new joint solid waste facility that will be developed on the east side of the Bankhead Theater to serve the Livermore Valley Center. This facility will replace the temporary enclosure that currently exists to the south of the project site. The applicant will design and construct this facility prior to removal of the existing structure and construction of the hotel.

Architecture and Design

The architecture is the same design and style approved by the City Council in 2018. It incorporates classic design influences typical of Italianate architecture and includes design features that complement other traditional building styles in Downtown Livermore. The building’s distinguishing features include projecting eaves with corbels, prominent cornices, balconies with decorative railing, and tall first-floor storefront windows topped with transom windows. Other design details include trellises, fabric awnings, and ornamental metal railings. Attachment 4 includes the elevations and renderings that illustrate the building’s key features. Plan sheet 8 includes architectural details for the building features.

Orientation - The proposed building is aligned with the street frontages on Railroad Avenue and South Livermore Avenue to reinforce the public street network. The building maintains quality architectural articulation and finishes around all visible sides of the building.

Massing - The massing of the buildings is broken down into segments using façade protrusions, roof articulation, material changes, and a defined base. Horizontally, the façades are architecturally subdivided into increments, both at the ground floor and at the upper stories. The segments combine wall plane changes as well as changes in colors and materials. Vertically, the building has a three-part composition where the first and second floors form the base, the floors above the base form the main body of the building, and the prominent cornice caps the façade composition.

Corners and Prominent Intersections - The northwest corner of the building at the intersection of South Livermore Avenue and Railroad Avenue and the southwest corner of the building at the intersection of South Livermore Avenue and the new access road have prominent architectural treatments that anchor the street intersections and denote the importance of the location and building. Both corners feature a two-story rounded stone base, large decorative balconies, distinctive red awnings, and towers topped by projecting eaves with corbels.

Main Entrances - The building’s main entrances contribute to the public and pedestrian realm, and are prominent and easy to identify. The main entrance to the hotel lobby is located at the midpoint of the façade along South Livermore Avenue. It is marked by a prominent red canopy above the doorway, red awnings on upper floors, and a tall roof tower element with projecting eaves supported by corbels. The main entrance to the hotel bar/lounge is located at the prominent ATTACHMENT 8
614
southwest corner discussed in the previous section.

Secondary Entrances - Entries at the rear of the building are visible and easy to find, but visually secondary to the main entrances. They are enhanced with elements that are consistent with the character of the building, such as awnings or transom windows.

Loading and Services Entrances - The service entries are located to the rear of the building and do not face primary streets. The service doors on the east façade are integrated into the architectural composition of the larger building façade design, maintaining a high-quality appearance.

Windows - The building incorporates a variety of window sizes and styles that are well proportioned and appropriate to the architecture. Consistent with the Specific Plan, the project insets windows from the exterior walls by approximately four inches (see detail on Sheet 8, Attachment 4). The ground-floor features large windows on South Livermore Avenue and Railroad Avenue that evoke the storefront pattern that exists in the Downtown Core, and contribute to a visually interesting and appealing pedestrian experience along the building frontage. Transom windows above the ground-floor storefront windows also suggest the historic commercial character of Downtown.

Colors and Materials - The Specific Plan calls for colors that are light in color and tone, in keeping with the character of Downtown Livermore. Accent colors may be more saturated in color and used to highlight special features. The primary building materials for the proposed project are cultured stone veneer, stone veneer tile, and cement plaster in tan and beige. The awnings that signify the prominent corners and entries are terracotta-colored canvas. The building incorporates a variety of complementary colors and textures to provide visual interest.

Based on this analysis, staff concludes that the proposed building architecture and design are consistent with applicable Design Standards and Guidelines.

Landscape Design and Stormwater Management

The project as proposed will retain four existing trees and add 25 new trees. The proposed plant palette includes six different species of new trees, including flame ash, Wilson olive, sawleaf zelkova, armstrong maple, palo verde, and purple smoke tree. The landscape plan shows the new trees will be augmented by a wide variety of shrubs and groundcover. A decorative trellis with climbing vines will provide shade over the parking spaces along the west wall of the Bankhead Theater. Bio-retention swales and raised bio-retention planters will capture storm water runoff from the hotel.

Staff recommends the conditions below in order to provide additional shade, soften the appearance of the Bankhead Theater wall, and show consistency with the Downtown Livermore Concept Plan Landscape Design Standards.

Recommended Condition: The applicant shall replace the proposed flame ash street trees with a deciduous species recommended in the Downtown Livermore Concept Plan Landscape Design Standards.

Recommended Condition: The applicant shall work with City staff to determine the location and species of additional trees among the ADA parking along the west Bankhead Theater wall.

These trees will further soften the appearance of the wall and provide additional shade for the parking area.

Recommended Condition: The applicant shall work with City staff to add trees to the South Livermore Avenue median that are consistent with the Downtown Livermore Concept Plan ATTACHMENT 8
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Landscape Design Standards.

Recommended Condition: New concrete design shall be consistent with the Downtown Livermore Concept Plan Landscape Design Standards.

The landscaping will provide color and plant material that will complement the buildings. The landscape plan also includes preliminary calculations that indicate the project will conform to the Water Efficient Landscape Ordinance. Staff supports the proposed landscape plan, subject to the noted conditions.

Public Art

The applicant is proposing to install public art on the property rather than pay the in-lieu fee. A concept for the art is still in development and will be approved by the Arts Commission prior to issuance of a building permit. The Municipal Code requires installation of the public art before the City issues a Certificate of Occupancy.

Findings

All of the findings required for approving a Downtown Design Review can be made (see attached Resolution).

ENVIRONMENTAL DETERMINATION

The hotel project was included in the scope of the Downtown Specific Plan 2009 Subsequent Environmental Impact Report (“2009 Subsequent EIR”), the 2004 Downtown Specific Plan Final Environmental Report (“2004 Final EIR”), and the addendums thereto that were adopted by City Council on September 10, 2018, by Resolution 2018-153, May 13, 2019 by Resolution 2019-064, and October 26, 2020 by Resolution 2020-178. As stated in those addendums, there were no substantial changes in environmental circumstances that would result in new or more severe significant environmental effects than were identified and evaluated in the 2004 Final EIR and 2009 Subsequent EIR and no new information of substantial importance relating to the project has become available.

None of the changes to the approved Downtown Design Review Modification application affect the fact that the Project remains fully consistent with the scope of the analysis in the 2004 Final EIR and 2009 Subsequent EIR and the addendums thereto.

The project is also categorically exempt from CEQA pursuant to CEQA Guidelines Section 15332 (in- fill development projects).

ATTACHMENTS

1. Location Map

2. Hotel Conditions

3. Engineering Considerations

4. Hotel Development Plans

5. Save Livermore Downtown Letter

6. Resolution - CEQA Notice of Determination (NOD)

7. Resolution - CEQA Notice of Exemption (NOE)

8. Resolution - Project
ATTACHMENT 8
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Prepared by: Tricia Pontau
Associate Planner
ATTACHMENT 8
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RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION FINDING THE ENVIRONMENTAL IMPACTS OF THE DOWNTOWN HOTEL ARE WITHIN THE SCOPE OF THE DOWNTOWN SPECIFIC PLAN 2009 SUBSEQUENT ENVIRONMENTAL IMPACT REPORT, THE 2004 DOWNTOWN

SPECIFIC PLAN FINAL ENVIRONMENTAL IMPACT REPORT, AND THE

ADDENDUMS THERETO
Downtown Design Review Modification (DDRM) 22-001
In 2004, the City of Livermore (“the City”) certified the Downtown Specific Plan Final Environmental Impact Report (State Clearing House No. 2003032038). In 2009, the City certified the Downtown Specific Plan Subsequent Environmental Impact Report (State Clearing House No. 2008092085).

On January 29, 2018, the City Council approved the Downtown Plan, which included a boutique hotel at the southeast corner of Railroad Avenue and South Livermore Avenue.

The City prepared addendums to the Downtown Specific Plan Environmental Impact Report, adopted by City Council on September 10, 2018, by Resolution 2018-153, May 13, 2019 by Resolution 2019-064, and October 26, 2020 by Resolution 2020-178, for Downtown Specific Plan Amendments to implement the Downtown Plan.

On September 10, 2018, the City Council adopted Resolutions 2018-155 and 2018-156 approving Downtown Design Review 18-015 and Disposition and Development Agreement 18-003, respectively, for a four-story, 133-room hotel on the southeast corner of Railroad and South Livermore Avenue.

Developer applied for Downtown Design Review Modification (DDRM) 22-001 for amendments to the plans for a previously approved four-story, 133-room hotel on the southeast corner of Railroad Avenue and South Livermore Avenue. The revised plans include site plan changes to remove an underground parking garage. The project includes on-site surface parking with public ADA accessible stalls and valet parking, a new public street, new street frontage improvements, storm water treatments, and landscaping.

Parking will also be available off-site. (“Project”).

On May 24, 2022, the Planning Commission held a duly noticed public hearing to consider the Project and staff recommendation, heard public testimony, made the necessary findings, and adopted Planning Commission Resolution No. 09-22 recommending the City Council find the environmental impacts of the Downtown Hotel were analyzed by, and are consistent with, the Downtown Specific Plan 2009 Subsequent Environmental Impact Report, the 2004 Downtown Specific Plan Final Environmental Impact Report, and the addendums thereto.

On June 13, 2022, the City Council held a duly noticed public hearing to consider the Project, Planning Commission and staff recommendations, and all public comments and testimony, and findings.
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RESOLUTION NO. ________
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that prior to taking action on the Project, and at a properly noticed public hearing, the City Council reviewed written and oral staff reports, conducted a public hearing on the Project and took testimony, and received into the record all pertinent documents related to the Project (collectively, the “Record Evidence”). The City Council’s determination is based on the Record Evidence, which is incorporated into this Resolution by reference.

BE IT FURTHER RESOLVED that the City Council of the City of Livermore, has considered the findings made in Planning Commission Resolution No. 09-22, attached hereto as Exhibit A, and hereby adopts the same findings by this reference and incorporates them as their own findings as part of this resolution. Based upon the City Council’s own independent review of the Record Evidence and considerations, the City Council finds the environmental impacts of the Downtown Hotel are within the scope of the Downtown Specific Plan 2009 Subsequent Environmental Impact Report, the 2004 Downtown Specific Plan Final Environmental Impact Report, and the addendums thereto in accordance with the California Environmental Quality Act (“CEQA”).

1. Findings. The Downtown Specific Plan 2009 Subsequent Environmental Impact Report (“2009 Subsequent EIR”) and the 2004 Downtown Specific Plan Final Environmental Report (“2004 Final EIR”) analyzed the impacts of up to 300 rooms of lodging in the Downtown Specific Plan area, none of which have been developed. The implementation strategy established in the DSP identifies a hotel as a component of the Livermore Valley Center catalyst site. The Project is located within the Livermore Valley Center catalyst site. The September 10, 2018, addendum analyzed a 135-room, four-story boutique hotel with an underground parking garage. The May 13, 2019, addendum analyzed a 125 to 135-room, three-story boutique hotel with valet parking. The October 26, 2020, addendum analyzed a 125 to 135-room, four-story boutique hotel with valet parking. Because the impacts of the boutique hotel have been adequately analyzed by the addendums to the 2009 Subsequent EIR and the 2004 Final EIR, no additional environmental review is required.

2. Findings. No substantial project changes are proposed which would require major revisions to the 2004 Final EIR, 2009 Subsequent EIR, or addendums.

The EIRs analyzed up to 300 rooms of lodging in the DSP, none of which have been developed. The implementation strategy established in the DSP identifies a hotel as a component of the Livermore Valley Center catalyst site. The Project site is located within the Livermore Valley Center catalyst site and is designated as Subarea 3 – Sub-district A in the Downtown Core. The Project is consistent with the hotel use allowed in Subarea 3 – Sub-district A, as analyzed in the addendums, and is consistent with applicable development standards including, heigh, setbacks, and parking. There were no substantial changes in environmental circumstances that would result in new or more severe significant environmental effects than were identified and evaluated in the 2004 Final EIR, 2009 Subsequent EIR, or addendums. The previous automotive service building has been removed and the site has since been used as surface parking. The site context remains heavily urbanized in the City’s core, precisely 619
RESOLUTION NO. ________
as analyzed in the Specific Plan’s certified EIR. There is no new information of substantial importance that would result in more severe impacts or require modifications to the existing mitigation measures.

BE IT FURTHER RESOLVED that the City Council of the City of Livermore directs the Planning Manager to file a Notice of Determination with the Alameda County Clerk, if the project is approved.

The documents that constitute the record of proceedings upon which this decision is based can be found in the City Clerk’s Office, 1052 S. Livermore Avenue, in Livermore, California. This resolution shall be effective upon adoption by the City Council.

On motion of Council Member , seconded by Council
Member , the foregoing resolution was passed and adopted on June 13, 2022, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
/s/ Kimberly D. Cilley
Marie Weber Kimberly D. Cilley
City Clerk Senior Assistant City Attorney
Exhibit A – Planning Commission Resolution No. 09-22
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EXHIBIT A
621

EXHIBIT A
622

EXHIBIT A
623
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION FINDING THAT THE DOWNTOWN HOTEL

IS EXEMPT FROM THE PROVISIONS OF THE CALIFORNIA ENVIRONMENTAL

QUALITY ACT
(Downtown Design Review Modification (DDRM) 22-001)
The City received applications for Downtown Design Review Modification (DDRM) 22-001 for amendments to the plans for a previously approved four-story, 133-room hotel on the southeast corner of Railroad Avenue and South Livermore Avenue. The revised plans include site plan changes to remove an underground parking garage. The project includes on-site surface parking with public ADA accessible stalls and valet parking, a new public street, new street frontage improvements, storm water treatments, and landscaping. Parking will also be available off-site (“Project”).

On May 24, 2022, at a duly noticed public hearing, the Planning Commission considered the Project, made the necessary findings, and adopted Planning Commission Resolution No. 10-22 recommending the City Council find the Project is exempt from the provisions of the California Environmental Quality Act (“CEQA”).

On June 13, 2022, the City Council held a duly noticed public hearing to consider the Project, Planning Commission and staff recommendations, and all public comments and testimony, and findings.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that prior to taking action on the Project, and at a properly noticed public hearing, the City Council reviewed written and oral staff reports, conducted a public hearing on the Project and took testimony, and received into the record all pertinent documents related to the Project (collectively, the “Record Evidence”). The City Council’s determination is based on the Record Evidence, which is incorporated into this Resolution by reference.

BE IT FURTHER RESOLVED that the City Council of the City of Livermore, has considered the findings made in Planning Commission Resolution No. 10-22, attached hereto as Exhibit A, and the City Council hereby adopts the same findings by this reference and incorporates them as their own findings as part of this resolution. Based upon the City Council's own independent review of the Record Evidence and considerations, the City Council hereby finds that the Project is categorically exempt from CEQA in accordance with CEQA Guidelines Sections: 15332, infill projects.

Section: 15332 exempts infill projects where:

1. The project is consistent with the applicable General Plan designation and all applicable General Plan policies as well as applicable zoning designation and regulations.
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RESOLUTION NO. ________
Findings. The project site is designated as Downtown Area (DA) in the General Plan. The Downtown Area designation is a general designation that applies to the area traditionally known as Downtown Livermore. The area supports a variety of mixed uses, including commercial, office, entertainment, lodging, and residential, which are implemented through the Downtown Specific Plan. The proposed hotel is consistent with the land use designation and General Plan goals for the Downtown Area. The project also implements General Plan objectives and policies in the Economic Development Element that call for supporting wine country amenities, including full-service hotels in the Downtown.

The project site is located in the Downtown Core area of the Downtown Specific Plan (DSP). The purpose of the Downtown Core is to revitalize the City’s historic core area as the center of Livermore. The intent of this Plan Area is to promote the continued development and revitalization of the City’s pedestrian-oriented Downtown district that serves as the center of the Livermore community, its most unique shopping district, and as a neighborhood hub for the residences within and surrounding it. To support this objective, the Downtown Core permits a variety of specialty retail, restaurant, and residential uses and is intended to be the most densely developed part of the city. The implementation strategy established in the DSP identifies a hotel as a component of the Livermore Valley Center catalyst site. Within the Downtown Core, the project site is located in Subarea 3, Sub-district A. A boutique hotel with accessory uses, such as a spa, restaurant, bar, meeting facilities, and limited retail and personal service uses, is a permitted use in this Sub-district. The project also conforms to the applicable Downtown Core development standards, such as height and setbacks, and is consistent with the DSP Design Standards and Guidelines for commercial buildings. The architectural quality of the structure and site plan reflect the intent of the DSP to create a high quality and active urban fabric in Downtown Livermore. Therefore, the proposed hotel project is consistent with the land use standards and revitalization strategy in the DSP.

2. The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses.

Findings: The project site is approximately 1.4 acres in the most densely urbanized area of Downtown Livermore. The site was previously occupied by an automotive oil change facility, which was demolished to make way for the proposed hotel, and is surrounded by commercial, parking, cultural, and public park uses.

3. The project site has no value as habitat for endangered, rare, or threatened species.
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RESOLUTION NO. ________
Findings: The site is completely urbanized, graded, and currently contains surface parking and landscaping. Therefore, it has no value as habitat for endangered, rare, or threatened species.

4. Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.

Findings: The hotel project is within the scope of the Downtown Specific Plan 2009 Subsequent Environmental Impact Report (“2009 Subsequent EIR”), the 2004 Downtown Specific Plan Final Environmental Report (“2004 Final EIR”), and the addendums thereto that were adopted by City Council on September 10, 2018, by Resolution 2018-153, May 13, 2019 by Resolution 2019-064, and October 26, 2020 by Resolution 2020-178. The EIRs analyzed up to 300 rooms of lodging in the DSP, none of which have been developed. The implementation strategy established in the DSP identifies a hotel as a component of the Livermore Valley Center catalyst site. The Project site is located within the Livermore Valley Center catalyst site and is designated as Subarea 3 – Sub-district A in the Downtown Core, which allows a boutique hotel with accessory uses as a permitted use. The September 10, 2018, addendum analyzed a 135-room, four-story boutique hotel with an underground parking garage. The May 13, 2019, addendum analyzed a 125 to 135-room, three-story boutique hotel with valet parking.

The October 26, 2020, addendum analyzed a 125 to 135-room, four-story boutique hotel with valet parking. The Project includes a 133-room, four- story hotel with valet parking, consistent with the hotel use allowed in Subarea 3 – Sub-district A, as analyzed in the addendums. The Project is also consistent with applicable development standards including, height, setbacks, and parking. There were no substantial changes in environmental circumstances that would result in new or more severe significant environmental effects than were identified and evaluated in the 2004 Final EIR and 2009 Subsequent EIR and no new information of substantial importance relating to the project has become available. The project is subject to the applicable mitigation measures and will not result in any significant effects relating to traffic, noise, air quality, or water quality.

5. The site can be adequately served by all required utilities and public services.

Findings: Given its existing urbanized nature, the site is currently served by all required public utilities and services, including water, sewer, storm drain, telecommunications, electricity, police, fire, and medical services. The project is consistent with the Specific Plan’s and EIR’s anticipated development intensity, and therefore existing services have sufficient capacity to accommodate the incremental increase in demand.

Exceptions - Section 15300.2
626
RESOLUTION NO. ________
None of the exceptions to the categorical exemption listed in CEQA Guidelines Section 15300.2 apply, as described below.

1. Location. The project site is not located within a sensitive area. The site has not been designated a wetland by the CA Natural Resources Agency and, although the property is located within a liquefaction zone according to the CA Department of Conservation, it is not located on any faults or within any Alquist-Priolo earthquake fault zones. It is not located in a California Department of Forestry and Fire Protection ‘Very High Fire Hazard Severity Zone’ for a local responsibility area nor in a ‘Fire Hazard Severity Zone’ in a state responsibility area. The site is not located within a Flood Hazard Area identified by the Federal Emergency Management Agency.

2. Cumulative Impact. The approval does not involve “successive projects of the same type in the same place over time.” The project will not result in any cumulative impacts and is consistent with, and analyzed by, the Downtown Specific Plan and 2009 Subsequent EIR (SCH: 2008092085), and the 2004 Final Environmental Impact Report (SCH: 2003032038) as dicsussed above which together analyze any significant cumulative impact of the project along with other reasonably foreseeable projects.

3. Significant Effects. There is no reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. The project is conditioned to comply with all mitigation measures established in the EIRs and addendums described above. The Project has no pertinent features that are unusual for projects in the Class 32 exemption category. As noted, the Project is fully consistent with the surrounding zoning and land uses and specifically anticipated in the Downtown Specific Plan as a planned infill land use.

4. Scenic Highways. The project site is not located along any of the scenic routes identified in Livermore’s General Plan nor identified as a Scenic Highway by the CA Department of Transportation. No damage to scenic resources will occur.

5. Hazardous Waste Sites. The project site is not included on the list of hazardous waste facilities compiled pursuant to California Government Code section 65962.5, which comprises the following five parts: the list of Hazardous Waste and Substances sites from the Department of Toxic Substances Control (DTSC) EnviroStor database; the list of Leaking Underground Storage Tank (LUST) sites from the State Water Resource Control Board (SWRCB) Geotracker database; the list of solid waste disposal sites identified by the SWRCB with waste constituents above hazardous waste levels outside the waste management list; the list of active Cease and Desist Orders or Cleanup and Abatement Orders that concern the discharge of wastes that are hazardous materials; or the list of hazardous waste facilities subject to corrective action pursuant to Section 25187.5 of the Health and Safety Code identified by DTSC.

6. Historical Resources. No substantial adverse change will occur to the significance of any historical resource. The project site does not contain any 627
RESOLUTION NO. ________
resource listed in Livermore's 2021 Historic Resources Inventory, the State Register of Historic Places, or the National Register of Historic Places.

BE IT FURTHER RESOLVED that the City Council of the City of Livermore directs the Planning Manager to file a Notice of Exemption with the Alameda County Clerk, if the project is approved.

The documents that constitute the record of proceedings upon which this decision is based can be found in the City Clerk’s Office, 1052 S. Livermore Avenue, in Livermore, California. This resolution shall be effective upon adoption by the City Council.

On motion of Council Member _______________________, seconded by Council Member _______________________, the foregoing resolution was passed and adopted on June 13, 2022, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
_____________________________ /s/ Kimberly D. Cilley
Marie Weber Kimberly D. Cilley
City Clerk Senior Assistant City Attorney
Exhibit A – Planning Commission Resolution No. 10-22
628

EXHIBIT A
629

EXHIBIT A
630

EXHIBIT A
631

EXHIBIT A
632

EXHIBIT A
633
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION APPROVING DOWNTOWN DESIGN REVIEW MODIFICATION (DDRM) 22-001 SUBJECT TO THE CONDITIONS OF APPROVAL FOR THE

DOWNTOWN HOTEL
The City received application Downtown Design Review Modification (DDRM) 22- 01 for revisions to the plans for a previously approved four-story, 133-room hotel on the southeast corner of Railroad Avenue and South Livermore Avenue ("Project"). The revised plans include site plan changes to remove an underground parking garage. The project includes on-site parking including surface parking with public ADA accessible stalls and valet parking, a new public street, new street frontage improvements, storm water treatments, and landscaping. Parking will also be available off-site.

At a duly noticed public hearing on May 24, 2022, the Planning Commission considered the Project and staff recommendation, heard public testimony, made the necessary findings and adopted Planning Commission Resolution No. 11-22, attached hereto as Exhibit A, containing the Planning Commission’s actions and/or recommendations thereon.

On June 13, 2022, the City Council held a duly noticed public hearing to consider the Project, Planning Commission and staff recommendations, all public comments and testimony, and findings.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that prior to taking action on the Project, and at a properly noticed public hearing, the City Council reviewed written and oral staff reports, conducted a public hearing on the Project and took testimony, and received into the record all pertinent documents related to the Project (collectively, the “Record Evidence”). The City Council’s determination is based on the Record Evidence, which is incorporated into this Resolution by reference.

BE IT FURTHER RESOLVED that the City Council of the City of Livermore has considered the Record Evidence and adopted a resolution finding the project was included in the scope of the Downtown Specific Plan 2009 Subsequent Environmental Impact Report (“2009 Subsequent EIR”), the 2004 Downtown Specific Plan Final Environmental Report (“2004 Final EIR”), and the addendums thereto that were adopted by City Council on September 10, 2018, by Resolution 2018-153, May 13, 2019 by Resolution 2019-064, and October 26, 2020 by Resolution 2020-178.

BE IT FURTHER RESOLVED that the City Council of the City of Livermore has considered the Record Evidence and adopted a resolution finding the project to be exempt from the California Environmental Quality Act.
634
RESOLUTION NO. ________
BE IT FURTHER RESOLVED that the City Council of the City of Livermore has considered the findings made in Planning Commission Resolution No. 11-22, attached hereto as Exhibit A, and the City Council hereby adopts the same findings by this reference and incorporates them as the Council’s own findings as part of this resolution.

BE IT FURTHER RESOLVEDthat based upon the City Council’s own independent review of the Record Evidence and considerations, the City Council hereby finds that the Downtown Specific Plan’s parking requirements for the Project are satisfied by both on- site parking, as well as by off-site parking in the Downtown Core, each as a separate and independent basis, and approves Downtown Design Review Modification (DDRM) 22-01 subject to the Conditions of Approval attached hereto as Exhibit B, for the Downtown Hotel.

BE IT FURTHER RESOLVED , in the alternative, that based upon the City Council’s own independent review of the Record Evidence and considerations, the City Council hereby finds that in the unlikely event the proposed valet parking program is not considered on-site parking under the Downtown Specific Plan, the proposed valet parking plan constitutes a minor deviation from the Downtown Specific Plan since it is consistent with the intent of the Downtown Specific Plan and the City’s General Plan and approves Downtown Design Review Modification (DDRM) 22-01 subject to the Conditions of Approval attached hereto as Exhibit B, for the Downtown Hotel.

BE IT FURTHER RESOLVED that the City Council of the City of Livermore directs the Planning Manager to file a Notice of Determination with the Alameda County Clerk.

BE IT FURTHER RESOLVED that the City Council of the City of Livermore directs the Planning Manager to file a Notice of Exemption with the Alameda County Clerk.

The documents that constitute the record of proceedings upon which this decision is based can be found in the City Clerk’s Office, 1052 S. Livermore Avenue, in Livermore California.

On motion of Council Member , seconded by Council
Member , the foregoing resolution was passed and adopted on June 13, 2022, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
635
RESOLUTION NO. ________
/s/ Kimberly D. Cilley
Marie Weber Kimberly D. Cilley
City Clerk Senior Assistant City Attorney
Exhibit A – Planning Commission Resolution No. 11-22
Exhibit B – Conditions of Approval
636

EXHIBIT A
637

EXHIBIT A
638

EXHIBIT A
639
1 CONDITIONS OF APPROVAL
Downtown Design Review Modification (DDRM) 22-001
Revisions to the plans for a previously approved four-story, 133-room hotel on the southeast corner of Railroad Avenue and South Livermore Avenue. The revised plans include site plan changes to remove an underground parking garage. The project includes on-site parking including surface parking with public ADA accessible stalls and valet parking, a new public street, new street frontage improvements, storm water treatments, and landscaping. Parking will also be available off-site.

Location: 2205 Railroad Avenue
Recommended for Approval by Planning Commission: May 24, 2022 Approved by City Council: June 13, 2022
A. PROJECT AUTHORIZATION

1. The project shall be in conformance with all City Ordinances, rules, regulations, and policies. The conditions listed below are particularly pertinent to this permit and shall not be construed to permit violation of other laws and policies not so listed.

2. The Downtown Design Review Modification permit shall expire upon the expiration or termination of Development Agreement 18-003 or Amended Disposition, Development and Loan Agreement approved by the City Council on January 10, 2022, whichever is later, unless an extension is submitted and approved prior to the expiration of the Agreement with the later expiration/termination date.

B. PROJECT SPECIFIC CONDITIONS
The applicant shall respond in writing to all conditions contained in this document and its attachments. Responses shall describe how the condition has been met and shall, where applicable, direct the plan checker to the page and/or drawing detail that demonstrates compliance with the condition. A copy of these responses shall be provided with each set of improvement plans.

1. Pedestrian-oriented areas, including walkways and paths, plazas, parking lots, and parking structures shall be illuminated to provide clear views both to and within the site. Provide a photometric plan for review and approval by the Community Development Department that shows lighting will minimize off-site

EXHIBIT B
640

2 glare and meet the illumination requirements of the Security Ordinance (Municipal Code, Chapter 15.18), the Downtown Specific Plan Design Guidelines, and the General Plan.

2. This Downtown Design Review Modification approval does not include the approval of the signs shown on the development plans. All signs are subject to review and approval by the Community Development Department of a separate Downtown Design Review application.

3. The design and location of 30 bicycle parking stalls are subject to review and approval by the Community Development Department prior to submittal for building permits. The stalls may be dispersed throughout the hotel site and the Livermore Valley Center Garage parking facility.

4. The applicant shall replace the proposed flame ash street trees with a deciduous species recommended in the Downtown Livermore Concept Plan Landscape Design Standards.

5. The applicant shall work with City staff to determine the loca tion and species of additional trees among the ADA parking along the west Bankhead Theater wall.

These trees will further soften the appearance of the wall and provide additional shade for the parking area.

6. The applicant shall work with City staff to add trees to the South Livermore Avenue median that are consistent with the Downtown Livermore Concept Plan Landscape Design Standards.

7. New concrete design shall be consistent with the Downtown Livermore Concept Plan Landscape Design Standards.

8. Pedestrian crossings should have unique, detailed, and well -articulated paving design that is used throughout the Downtown Concept Plan area consistent with the Downtown Livermore Concept Plan Design Guidelines.

a. A high v isibility stamped asphalt crosswalk paving treatment should be consistently applied within the Downtown Concept Plan area. b. All crosswalks and curb ramps shall meet the requirements of the Americans with Disabilities Act Accessibility Guidelines (ADAAG) and the State of California Code of Regulations Title 24.
c. A standard 12-inch wide white stripe or concrete band should be provided on either side of all crosswalks to designate the crossing within the roadway.
d. Accessible and non-slip surfaces shall be used on all crosswalks. e. All crosswalks shall include ADA accessible curb ramps with truncated domes to safely and easily access pedestrian crossings. Curb ramps

EXHIBIT B
641

3 should align in the direction of the crosswalk.
f. An advance stop bars, advance yield warning markings, and/or pedestrian crossing signage should be used to alert drivers of crosswalks. g. Pedestrian refuge islands should be located on all roadways with medians. h. On-street parking should be restricted around crosswalks to improve the visibility for pedestrians.
i. Site distance at crosswalk should be maintained to ensure safe visibility.

Shrubs and groundcover plantings should not exceed three 3 -feet in height, and trees should be set back from intersections to promote visibility.
j. Wayfinding signage is recommended at key pedestrian crossings.

9. Special paving treatments should be incorporated at the South Livermore Avenue at Railroad Avenue intersection (one southern crosswalk) to define the Downtown Concept Plan area and increase pedestrian crossing visibility.

10. Exterior backflow preventers shall be screened from public view with landscape.

11. Livermore Municipal Code section 12.51 establishes a public art requirement for all projects. For this project, the developer has elected to provide public art on- site. The applicant shall comply with the following conditions regarding public art:

a. The proposed art is subject to review and approval by the Commission for the Arts prior to receiving a building permit.
b. A certificate of occupancy shall not be issued until the approved work(s) of art has been installed.
c. The developer or owner shall execute a restrictive covenant, which shall be recorded against the project site and shall run with the land for a period of 30 years from the installation date.
d. In the event the public art is stolen, destroyed or vandalized within the 30-year period, the developer or owner must replace or repair the public art pursuant to the Livermore Municipal Code.

12. Prior to occupancy, the applicant shall demonstrate compliance with Municipal Code Section 13.25.060 (Landscape Installation Certification Package).

13. The project is subject to applicable mitigation measures in the 2004 Downtown Specific Plan Environmental Impact Report, the 2009 Subsequent Environmental Impact Report and the addendums that were adopted by City Council on September 10, 2018, by Resolution 2018-153, May 13, 2019 by Resolution 2019-064, and October 26, 2020 by Resolution 2020-178.

EXHIBIT B
642

4 C. GENERAL CONDITIONS OF APPROVAL

1. Development shall conform to the map designated by the City as Exhibit B-1.

Exhibit B-1 plans shall include but are not limited to subdivision, landscape, and architectural plans reviewed and approved by the Planning Commission and City Council and amended by the applicant to reflect any changes indicated above in the Project Specific Conditions or required by the City in the approval process.

2. For all proposed projects, Bay Area Air Quality Management District (BAAQMD; “Air District”) recommends requiring the implementation of all Basic Construction Mitigation Measures, listed in Table 8-1 of the BAAQMD CEQA Guidelines, whether or not construction-related emissions exceed applicable Thresholds of Significance. These basic construction stage recommendations are incorporated below into these Conditions of Approval as project requirements.

a. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day. b. All haul trucks transporting soil, sand, or other loose material off-site shall be covered.
c. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited.
d. All vehicle speeds on unpaved roads shall be limited to 15 mph. e. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.
f. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points.
g. All construction equipment shall be maintained and properly tuned in accordance with manufacturer’s specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation.
h. Post a publicly visible sign with the telephone number and person to contact at the Lead Agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District’s phone number shall also be visible to ensure compliance with applicable regulations.

3. Any awnings over windows shall be maintained as an integral architectural feature, in an attractive, serviceable state throughout the life of the project.

EXHIBIT B
643

5 4. The development impact fees (e.g., traffic impact, housing in-lieu, park dedication in-lieu,) and project processing fees due in connection with this permit shall be based upon the fees in effect at the time the fee is paid.

5. The Community Development Department may approve minor amendments to the permit, provided that the permit is still in substantial conformance with the original approval.

6. Prior to receiving a building permit for excavation, grading or construction on development site, the applicant shall contact the Alameda County Vector Control Services District to determine if any pre-baiting requirements are necessary to control migration of vermin to adjacent property.

7. To the extent permitted by law, the project applicant shall defend, indemnify and hold harmless the City, its City Council, its officers, boards, commissions, employees and agents from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside, or void the approval of the project or any permit authorized hereby for the project, including (without limitation) reimbursing the City its attorney’s fees and costs incurred in defense of the litigation. The City may, in its sole discretion, elect to defend any such action with attorneys of its choice.

8. Approval of the Downtown Design Review Modification permit is not an authorization to commence construction. Building construction, alterations, repairs, sign erection, or occupancy shall not be permitted without prior approval of the Building Division through issuance of any required permits.

9. Several bioretention areas designed to facilitate stormwater infiltration and treatment are an integral part of the site’s utility functioning and any proposed changes to physical design or function shall be subject to prior review and approval by the City Engineer.

D. ENGINEERING DIVISION - DEVELOPMENT

1. Development shall conform to the attached Engineering Considerations, dated March 30, 2022.

E. ENGINEERING DIVISION - TRANSPORTATION

1. Provide wheel stops for the parking spaces on the east side of the drive aisle.

2. Provide accessible ramps for the accessible aisles on the west side of the drive aisle.

EXHIBIT B
644

6 F. BUILDING DIVISION

1. The project shall comply with currently adopted California Building Standards Code - including Part 11 - the Green Building Standards Code.

G. MAINTENANCE DIVISION

1. All landscaping shall be privately owned, irrigated, and maintained.

2. All proposed sidewalk, pedestrian curb ramps, and driveways shall be installed in accordance with current ADA Access Board Guidelines and City of Livermore Standards.

3. Applicant shall review all sidewalk and pedestrian ramps adjacent to the property for compliance with ADA standards. Any deficiencies shall be corrected prior to issuance of a Certificate of Occupancy.

4. All existing trees along Livermore Avenue and Railroad Avenue that are to remain will need to be inspected by a qualified Arborist through the Contractor.

If trees are deemed structurally deficient and/or unhealthy, the existing trees need to be removed and replaced with a more suitable tree species.

H. WATER RESOURCES DIVISION

The Water Resources Division has the following comments regarding this project:

1. All restaurants/food service facilities incorporated within this project shall comply with Livermore Municipal Code 13.32.330, which states the following:
“Food Preparation Facilities. All facilities where food is prepared or served shall be equipped with an oil and grease interceptor with a minimum size capacity of 750-gallons. The interceptor shall be connected to the sanitary sewer, and all kitchen generated wastewater with the exception of dishwasher and garbage disposal drainage, shall discharge through the interceptor.”

2. Swimming Pool: A drain to the sanitary sewer shall be provided which allows for the proper discharge of draining the pool and/or back-flushing of pool filter equipment to the sanitary sewer.

I. FIRE DEPARTMENT

1. None

J. POLICE DEPARTMENT

1. The project shall be required to conform to the provisions of the security section of the Livermore City Code.

EXHIBIT B
645

CITY COUNCIL STAFF REPORT
ITEM NO. 7.1

DATE:

June 13, 2022
TO:

Honorable Mayor and City Council
FROM:

Jason Alcala, City Attorney
SUBJECT:

Report on Referendums, Power Limited to Legislative Acts

RECOMMENDED ACTION

Staff recommends the City Council receive this report on referendums.

SUMMARY
Referendum is the exercise of the inherent legislative power reserved by the people in the State Constitution. It is the power to approve or reject legislative acts taken by the City Council. As a result, a referendum is only available to set aside City Council acts that are legislative in nature. Executive, administrative, and ministerial acts are not subject to referendum.

The power of referendum cannot be invoked to annul or delay the implementation of previously approved legislative policy since that would impair essential governmental functions. Likewise, the power of referendum is expressly prohibited for certain legislative acts such as the adoption of urgency ordinances, ordinances calling for elections, as well as tax levies and other fiscal appropriations.

DISCUSSION
Referendum limits the legislature’s power by reserving to the electorate the final approval of legislation.

In California, the right to referendum is established in the state constitution and may be exercised by the City’s electors. However, not all acts by a City Council are subject to referendum.

Through a petition process prescribed by the State Legislature, a referendum is available only to approve or reject acts that are legislative in nature. Executive, administrative, and ministerial acts by a City 646
Council are not subject to referendum.

A. Legislative Acts and Administrative Acts.

The City Council exercises its legislative authority when it adopts policies, enacts laws, as well as when it declares a public purpose and provides ways and means of its accomplishment. Essentially, the power to be exercised is legislative when it prescribes a new policy or plan.

In contrast, a City Council exercises its administrative power when it acts to carry out legislative policies that have been previously declared, whether by itself or by the State of California. In other words, the power to be exercised is administrative when it pursues a policy or plan that has already been adopted.

Therefore, a resolution that implements a previously adopted plan or gives procedural effect to a previously determined City Council policy is not subject to referendum.

There are many examples of the legislative/administrative distinction in reported cases. For example, in San Bruno Committee for Economic Justice v. City of San Bruno, the City refused to process referendum
petitions seeking to challenge a City Council adopted resolution approving a purchase and sale agreement to sell land for a hotel that had been previously approved. The Court agreed with the City and held that because the resolution implemented the City's long-standing policy and prior legislative decisions for the development of the subject property as a hotel. The Court then concluded the resolution was an administrative act, not a legislative act. In that case, the Court held the resolution was not subject to referendum and therefore any petition against it was not eligible for processing as a referendum.

In another example, the California Attorney General issued an opinion that a resolution authorizing the execution of an agreement to sell property for development pursuant to an approved plan for the disposition of former redevelopment agency property is not subject to referendum.

California Courts have consistently held that the electorate cannot invoke a referendum to annul or delay the government’s actions that carry out its legislative policies. The Courts have reasoned that referendum is not applicable because the inevitable effect would impair governmental operations. They have also reasoned that if administrative decisions were subject to referendum, then a small group of electors, through repeated referendums, could interfere with essential governmental functions making it impossible to carry on the public business.

The California Attorney General has also opined that the referendum power cannot apply when the potential consequences could indefinitely prevent the sale of property for development consistent with an approved long range property management plan for the disposition of former redevelopment agency 647
property.

B. Other Exceptions.

The California Constitution and statues also exempt urgency measures, statutes calling elections, and tax levies or appropriations for usual current expenses from the referendum process.

Fiscal and Administrative Impacts

This report has no fiscal of administrative impacts other than staff time to prepare and present the report.

ATTACHMENTS

Prepared by: Jason Alcala

City Attorney

Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
648

CITY COUNCIL STAFF REPORT
ITEM NO. 7.2

DATE:

June 13, 2022
TO:

Honorable Mayor and City Council
FROM:

Christine Martin, Assistant City Manager
SUBJECT:

Discussion and direction regarding the City's Commemorative Flag Display policy

RECOMMENDED ACTION

Staff recommends the City Council provide direction regarding the City's Commemorative Flag Display policy.

SUMMARY
At the May 23, 2022, City Council meeting, Council directed staff to agendize the Commemorative Flag Display policy for discussion and direction.

DISCUSSION

BACKGROUND

On September 23, 2019, Council adopted a Commemorative Flag Display policy. Refer to Attachment 1 for the staff report, resolution and adopted policy.

The policy allows

the Mayor (by placing an item on the Council agenda) or a Council Member (by making a request at a Council meeting during "Matters Initiated") to request display of a commemorative flag at
the Civic Center campus, on the City of Livermore flagpole, beneath the City of Livermore flag. Once a request has been made
by the Mayor or
a Council Member, the Council will consider the request at a duly noticed public meeting.

The City's policy is constructed to allow the display of commemorative flags as a form of government expression. Such flags may be displayed for a period of time that is reasonable and customary for the subject that is to be commemorated, but no more than thirty-one consecutive days.

Since adoption of the policy the Council has authorized the display of commemorative flags on six occasions (the pride flag in 2019, 2020 and 2021 and the POW/MIA flag in 2019, 2020, and 2021). Each display was requested
by the Mayor or
a City Council member and approved by the City Council at a 649
duly noticed meeting.

The City's current flag policy is consistent with the recent U.S. Supreme Court opinion in Shurtleff v. City
of Boston.

Attachment 2 includes a memorandum dated May 13, 2022, from City Attorney Jason Alcala further explaining this.

ATTACHMENTS

1. Staff Report, Resolution and Policy Dated September 23, 2019

2. City Attorney Memorandum Dated May 13, 2022

Prepared by: Christine Martin
Assistant City Manager

Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
650

CITY COUNCIL STAFF REPORT
DATE: September 23, 2019
TO: Honorable Mayor and City Council
FROM: Marc Roberts, City Manager
SUBJECT: Commemorative Flag Display Policy

RECOMMENDED ACTION
ITEM 6.03
Staff recommends the City Council consider the commemorative flag display policy and either adopt a resolution establishing the policy or provide further direction.

SUMMARY
On June 10, 2019, Council directed staff to provide flag policy options and provide information regarding observances such as Black History Month, Women's History Month, Asian Pacific Heritage Month, and Pride Month.

Staff reviewed a number of flag policies and has prepared a policy for Council consideration. If the policy meets the Council's objectives, a resolution has been prepared for Council adoption. Alternatively, staff requests that Council provide further direction so that staff can return with appropriate revisions.

DISCUSSION
Historically, the City has displayed the United States Flag, the State of California Flag, and the City of Livermore Flag, in accordance with Federal and State law. The City does not currently have a policy governing display of commemorative flags.

Staff reviewed a number of other jurisdictions' flag policies. Those cities that have a policy addressing the display of commemorative flags, allow such display under the government speech doctrine. While the First Amendment's Free Speech Clause limits regulation of private speech, it does not restrict the government when the government speaks for itself. The government speech doctrine, as defined by the United States Supreme Court, provides that the government can advance its own speech without ATTACHMENT 1
651

requiring viewpoint neutrality when the government itself is the speaker, so long as the government does not show religious preference or encourage a certain vote in an election. The proposed policy is structured to ensure that any commemorative flags flown would be considered government speech.

The proposed commemorative flag display policy would augment existing practice by providing a process for the display of commemorative flags at City Hall (see Exhibit A to the resolution). The policy provides for the display of commemorative flags only as authorized by resolution of the City Council, and as an expression of the City's official sentiments, as government speech. Any authorized commemorative flag will be displayed below the City of Livermore flag at City Hall during the designated period.

The policy would ensure that the City's flagpoles do not serve as a forum for free expression by the public. Rather, the City's flagpoles are to be used exclusively by the City, where the City Council may display a commemorative flag as a form of government expression.

The proposed policy complies with Federal and State laws, as well as the City's practices and customs and is structured in a manner that treats commemorative flags as government speech. The policy would allow for the display of commemorative flags when the request is brought forth by a City Council member and then authorized by the City Council, as an expression of the Council's official sentiments, and only on the outdoor flagpoles at City Hall.

FISCAL AND ADMINISTRATIVE IMPACTS
There is no fiscal impact associated with the adoption of the commemorative flag display policy.

ATTACHMENTS
None.

Prepared by:

Christine Martin
Deputy City Manager
Approved by:
�tld::-
Marc Roberts
City Manager
Fiscal Review by:

Douglas Alessio
Administrative Services Director
ATTACHMENT 1
652

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION TO ESTABLISHING THE CITY OF LIVERMORE OUTDOOR

COMMEMORATIVE FLAG DISPLAY POLICY
The City of Livermore displays the United States flag, the California State flag, and the City of Livermore flag at City facilities.

The City of Livermore has not historically had a policy regarding the outdoor display of commemorative flags. At the June 10, 2019 City Council meeting, the City Council directed staff to bring options for commemorative flag display for City Council consideration.

The City Council desires to establish a policy for the outdoor display of commemorative flags at the City Hall flagpole.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore adopts the Commemorative Flag Display policy attached hereto as Exhibit A.

On motion of Council Member __________ , seconded by Council Member __________ , the foregoing resolution was passed and adopted on September 23, 2019, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST:

Sarah Bunting
City Clerk
APPROVED AS TO FORM:

Jason Alcala
City Attorney
Exhibit A - Commemorative Flag Display Policy
RESOLUTION NO. ----
ATTACHMENT 1 653
City of Livermore
Commemorative Flag Display Policy
Exhibit A
The City's flagpoles are not intended to serve as a forum for free expression by the public. The City shall display commemorative flags only if authorized by the City Council as an expression of the City's official sentiments. Any such authorization shall be given at a duly noticed meeting of the City Council.

The City Council shall only consider a request to display a commemorative flag if the request is made by a member of the Livermore City Council.

Commemorative flags shall be displayed for a period of time that is reasonable or customary for the subject that is to be commemorated, but no longer than thirty-one (31) continuous days.

Commemorative flags shall be displayed exclusively on the Livermore Civic Center flagpoles in last position of honor beneath the City of Livermore Flag, unless otherwise directed by Council and to the extent such display does not conflict with federal or state law, or this policy.

ATTACHMENT 1
654

INTEROFFICE MEMORANDUM
Date: May 13, 2022
To: Marc Roberts, City Manager
From: Jason Alcala, City Attorney
Subject: City Attorney Analysis and Opinion regarding Livermore’s Commemorative Flag Display Policy and its consistency with Shurtleff v. City of Boston This memorandum analyzes the City of Livermore’s Commemorative Flag Display Policy and provides a City Attorney opinion on its consistency with the recent U.S. Supreme Court opinion in the Shurtleff v. City of Boston

1. Question: Is Livermore’s Commemorative Flag Display Policy governmental expression consistent with the U.S. Supreme Court’s opinion Shurtleff v.

City of Boston?
Answer: Yes, Livermore’s Commemorative Flag Policy contains the salient facts necessary for governmental expression by the City of Livermore consistent with the U.S. Supreme Court’s opinion in Shurtleff v. City of Boston.

In Shurtleff, the U.S. Supreme Court concluded the City of Boston’s flag policy for the use of its flagpole was not an exercise of governmental expression because Boston created a public forum since it did not control the flag raisings and did nothing that suggested it wished to speak for itself by raising flags.

Livermore’s Commemorative Flag Display Policy is much different. It does not allow private groups to raise their own flags on Livermore’s flagpole, and it restricts use of Livermore’s flagpole to the City Council for the governmental expression of the City’s official sentiments.

City of Livermore Commemorative Flag Policy
On September 13, 2019, the City Council for the City of Livermore established the City of Livermore Commemorative Flag Policy for the display of commemorative flags on a flagpole at the Livermore Civic Center in the last position of honor beneath the City of Livermore flag. A copy of the policy and the approving resolution are included in Attachment 1 to this memorandum.
1 Shurtleff v. City of Boston, (2022) ____S.Ct.____, 2022 WL 1295700.

ATTACHMENT 2
655
May 13, 2022

When Livermore’s policy was adopted, the City Council considered the requirements necessary for the exercise of governmental expression, which is different than the government’s ability to regulate private speech.

Livermore’s policy states:

1. The City’s flagpoles are not intended to serve as a forum for free expression.

2. The City shall display commemorative flags only if authorized by the City Council as an expression of the City’s official sentiments.

3. Any such authorization by the City Council shall be given at a duly noticed meeting of the City Council.

4. The City Council shall only consider a request to display a commemorative flag if the request is made by a member of the Livermore City Council.

The specific intent for the policy is to ensure the flagpole is used exclusively by the City for governmental expression and not as a forum for free expression by the public.

Since the policy was adopted, the City Council for the City of Livermore has authorized the display of commemorative flags on six occasions. Each display was requested by a City Council member and approved by the City Council at a duly noticed meeting.

Copies of the resolutions approving the following displays are included in Attachment 2 to this memorandum:

Resolution No. Requesting Council Member Displayed Flag 2019-160 Munro Rainbow Pride flag
2019-179 Marchand POW-MIA flag
2020-055 Marchand Rainbow Pride flag
2020-200 Marchand POW-MIA flag
2021-070 Kiick Philadelphia Rainbow Pride flag
2021-180 Woerne r POW-MIA flag
Shurtleff v. City of Boston
The dispute in Shurtleff was whether the City of Boston reserved its flagpole to only fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. The U.S. Supreme Court’s opinion, included Attachment 3 to this memorandum, notes the importance of the distinction. The opinion states that government can choose which flags it wants to fly as governmental expression, but the First Amendment’s Free Speech clause prevents government from refusing to allow a private group from flying a flag in a public forum based upon viewpoint.

ATTACHMENT 2
656
May 13, 2022

The U.S. Supreme Court opinion concludes the City of Boston’s flag policy did not make the raising and flying of private group’s flags a form of governmental expression. The opinion reached this conclusion because the policy allowed the public to use the flagpole as a public forum. The flagpole in question was located adjacent to a plaza that is a public forum, and the flagpole and a crank were made available to groups using the plaza to also raise and lower flags of their choosing for the duration of their event in the plaza.

Boston’s policy is “[w]here possible,” “to accommodate all applicants seeking to take advantage of the City of Boston’s public forums” including the plaza and the area at the flagpole’s base. Considering these salient facts, the U.S. Supreme Court’s opinion concluded Boston did not make the raising and flying of flag by private groups a form of governmental expression, and that its policy and practice had created a public forum that prohibited Boston from refusing to allow the private group to fly a flag based upon viewpoint.

The opinion also states that “Boston could easily have done more to make clear it wished to speak for itself by raising flags.” By way of example, the U.S. Supreme Court cites language from the City of San Jose’s policy that reads “flagpoles are not intended to serve as a forum for free expression by the public.”
Analysis and City Attorney Opinion
Livermore’s Commemorative Flag Display Policy is different that Boston’s.

Livermore’s policy does not allow private groups to raise their own flags on Livermore’s flagpole. Livermore’s policy only allows the City Council to use the flagpole, and only to communicate the City’s official sentiments. Unlike Boston, and similar to the City of San Jose, Livermore’s policy states that the City’s flagpole is not intended to serve as a forum for free expression.

In practice, and unlike Boston, Livermore has not allowed private groups to raise and lower flags of their choosing on Livermore’s flagpole. The City Council has consistently adhered to its policy and only allowed flags to be displayed on Livermore’s flagpole that are requested and approved by the City Council.

These salient facts distinguish Livermore’s policy from Boston’s policy and provide the key evidence necessary for the City Council’s policy to constitute the exercise of governmental expression that the U.S. Supreme Court did not find when it evaluated Boston’s policy.

Therefore, it is the opinion of the City Attorney that Livermore’s Commemorative Flag Policy is consistent with the U.S. Supreme Court’s opinion on Shurtleff v. City of Boston.

Attachments

1. Resolution No. 2019-156

2. Resolution Nos. 2019-160, 2019-179, 2020-055, 2020-200, 2021-070, and 2021-180.

3. Shurtleff v. City of Boston, (2022) ____S.Ct.____, 2022 WL 1295700. cc: Mayor and City Council Members
ATTACHMENT 2
657
ATTACHMENT 1
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