Alameda County Superior Court Judge Frank Roesch ruled yesterday that Pleasanton City Manager Nelson Fialho must sign a develoment agreement that is part of the Oak Grove project even though a petition to seek cancellation of the development is still under Appealate Court review.
It was the second time this year that Roesch has ruled in favor of a suit by Jennifer Lin and her brother Frederic, who plan to develop 51 large home sites on their 600 acres of wooded land that they own in the southeast hills above Kottinger Ranch. In a development agreement, they also promised to give 496 acres of that total acreage free of charge to the city for public use as well as to contribute more than $1 million in cash and amenities to mitigate traffic, roadway and safety concerns over their development.
Earlier, Roesch ruled in favor of the Lins who had asked the court to nullify a petition by Save Pleasanton's Hills, a citizens coalition founded by former City Councilwoman Kay Ayala.
The group had obtained 5,000 signatures from registered Pleasanton voters during the Thanksgiving holiday period last year to force a voter referendum on Oak Grove. The referendum would have sought voter approval of a measure to reverse an earlier City Council decision that approved the Oak Grove project and development agreement, an approval made in a 4-1 council vote.
But the referendum petition never made it out of the county courthouse. Ruling on a suit by the Lins, Roesch agreed that the citizens group failed to show those who signed thelr petition enough data about the project, including the development agreement.
Since then, Ayala and the citzens' coalition have asked the state Court of Appeal to reverse Roesch's ruling, an appeal that is awaiting a court hearing.
Thursday's ruling has no immediate impact on the Oak Grove project. It simply requires Fialho to sign the development agreement which, until now, he has refused to do.
City Attorney Michael Roush said earlier, and argued in Roesch's courtroom Thursday, that the city of Pleasanton, even though its council approved the develoment agreement, prefers to await the outcome of the Court of Appeal litigation before taking any further action on the Oak Grove project.
But Roesch ruled in favor of a motion by the Lins' attorney, Andrew Sabey of the San Francisco law firm of Cox, Castle & Nicholson, that the development agreement between the Lins and the city was separate from the Planned Unit Development that the council also approved. It's the PUD that would allow the project to proceed and it's that action that the citizens' coalition wants to reverse.
Roush said that if the Save Pleasanton's Hills coalition successfuly gains voter approval to reverse the City Council's approval of the Oak Grove project, the development agreement, which was part of the approval, would also be cancelled.
To reach that point, Roush explained, the Court of Appeal would have to reverse Judge Roesch's earlier ruling that invalidated the coalition's petition, a new hearing would have to be heard on the coalition's bid to have its petition certified, and a voter referendum would have to be held and the coalition's bid to reverse the council action would have to be approved by a majority of the voters.
Roush said he will review Judge Roesch's ruling in favor of the Lins and against the city with the City Council either at its Dec. 16 meeting or in early January.
At that time, the council will consider whether to appeal Roesch's decision to force Fialho to sign the development agreement or to go ahead and sign the document while awaiting the outcome of the citizens' coalition's litigation.