Court Of Appeal Clarifies When Development Agreements Are Subject To Referendum In California

The First District Court of Appeal's recent decision in Move Eden Housing v. City of Livermore, ___ Cal. App. 5th ___, 2025 WL 2837353 (Oct. 7, 2025) (Move Eden II), illustrates how California cities and developers should structure approvals for housing projects in light of the electorate's referendum power. The court ultimately green-lit an affordable housing development agreement in the city—but only after multiple rounds of litigation and city council action.

In 2022, the Livermore City Council approved a development agreement between the city and Eden Housing, Inc. for the development of affordable workforce housing in downtown Livermore. A local anti-housing group, plaintiff Move Eden Housing, submitted a referendum petition seeking to undo the agreement. The city argued that the 2022 resolution merely implemented prior approvals for the affordable housing project and thus was not legislative in nature, but an administrative action not subject to referendum.

In Move Eden Housing v. City of Livermore, 100 Cal.App.5th 263 (2024) (Move Eden I), the Court of Appeal rejected that argument. It held that the resolution went beyond administrative implementation of existing city law because it included a new policy initiative—namely, the City's commitment to spend $5.5 million on Veterans Park, a new public park adjacent to the development. That discretionary action, the court explained, rendered the 2022 resolution legislative in nature and therefore subject to referendum under California law.

Following the Move Eden I decision, in 2024, Livermore's City Council repealed the 2022 resolution. It acted pursuant to Elections Code section 9241, which provides that once a city council faced with a referendum petition repeals the challenged measure in its entirety, the referendum is nullified and the measure is no longer subject to a vote. Section 9241 also specifies that when a city council repeals a measure to avoid a referendum in this manner, it may not re-enact the same legislation for a period of one year following the repeal.

Separately—but on the same day as it repealed the 2022 resolution—the city council adopted a new resolution that reaffirmed the 2022 resolution in all respects, except that it omitted all provisions relating to the new park. Displeased with that outcome, Move Eden Housing returned to court, arguing that the city council's actions violated section 9241—both because, in its view, the 2022 resolution had not been repealed in its entirety and the city council had violated the one-year stay requirement.

The trial court agreed, but the Court of Appeal reversed, ruling in favor of the city. The court explained that Livermore's 2024 repeal fully satisfied section 9241 because the only legislative element of the 2022 resolution—the park funding—was no longer in effect and was not revived by the city's reaffirmation of the 2022 resolution. And the city had not violated the one-year stay requirement because it had eliminated the provisions relating to the new park that had made the 2022 resolution subject to referendum. Because the development agreement without those provisions was administrative rather than legislative in nature, it was not subject to referendum. The court explained: "By giving full effect to the voters' ability to challenge approval of Veterans Park—the only legislative act in the 2022 Resolution—this court complies with its duty to jealously guard and liberally construe the referendum power

That distinction between legislative and administrative acts—and between repeal and re-enactment—matters significantly for future housing developments. The court's reasoning reaffirms that while an implementing resolution that includes new policy decisions may be vulnerable to referendum, a resolution confined to administrative execution of existing approvals is not. It also signals that cities may respond to a referendum petition by repealing a legislative act and replacing it with a narrower administrative one, so long as the new resolution truly omits the earlier policy choices.

Both cities and developers can draw important lessons from the two Move Eden decisions. Cities should be cautious about deferring major policy commitments—particularly public spending, park improvements, or infrastructure obligations—to later-stage development agreements. When such commitments are first made, they constitute legislative action subject to referendum. But where a city confines its later actions and development agreements to implementation of existing policy, the referendum power no longer applies. Developers, in turn, should be attentive to when and how project-related public benefits are formalized: the more a resolution involves discretionary policymaking, the greater the potential for delay or reversal at the ballot box.

At the same time, the decision underscores that cities retain tools to navigate the intersection of housing approvals and direct democracy. By clearly distinguishing between legislative and administrative actions—and ensuring that later resolutions stay within the administrative category—local governments can reduce referendum risk while keeping projects on track. For housing proponents, the key takeaway is that careful sequencing and structuring of approvals remain essential. In California's politically charged housing environment, the Move Eden cases serve as a reminder that the form and timing of a city council resolution can determine whether a project advances smoothly or faces another round of public challenge.

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