Developers Jennifer Lin and her brother Frederic have asked the state Court of Appeal to deny a bid by a citizens' coalition to overturn a lower court ruling that, in effect, would allow them proceed with their Oak Grove project on 562 acres of wooded land in Pleasanton's southeast hills.
In a 50-page brief with another 20 pages of attachments, the Lins, through their attorney Andrew B. Sabey, argue that Save Pleasanton's Hills coalition and its founder, former City Councilwoman Kay Ayala, have no basis for challenging a decision of Superior Court Judge Frank Roesch who ruled that a petition by the group was invalid. The petition, which Ayala said had more than 5,000 signatures from registered voters in Pleasanton, called for a public vote aimed at repealing a City Council decision to allow the Oak Grove project to proceed.
The petition, Roesch ruled, failed to comply with state law that requires all relevant materials related to the petition to be carried by those seeking signatures. In the case of Ayala and her coalition, representatives failed to have a number of documents Roesch said were vital to offer to those interested in signing the petition.
"Among (the group's) many omissions of text," Sabey argues in his brief, the referendum petition as circulated for signature...did not include a copy of the Development Plan, the focal point of and actual legislation adopted by the PUD (Planned United Development) ordinance (the group) seeks to referend."
The Lins, again through Sabey and other lawyers with his San Francisco law firm, asked City Clerk Karen Diaz on Dec. 5, 2007, to reject the petitions Ayala and her group had delivered. The next day, City Atty. Michael Roush advised Diaz to continue processing the petitions, an action that led the Lins to file a suit in Judge Roesch's court asking that the petitions be declared invalid. On Feb. 22 of this year, Roesch agreed and tossed out the petitions.
Ayala and the citizens' coalition have appealed that ruling, arguing chiefly that they carried with them all of the documents that the city attorney's office had said were relevant during their signature-gathering effort a year ago.
Roush said this week that he never advised the coalition as to which documents or how many were needed under state law, only giving them the actual documents that were finally approved by the council at its Nov. 6, 2007 meeting.
The next day, on Nov. 7, Ayala and her group began circulating for voter signatures a referendum calling for a public vote to reverse the council's decision, which approved the Oak Grove project in a 4-1 vote with only Councilwoman Cindy McGovern opposed. Actually, there were two votes, each with the same margin of approval: one to grant the Lins their PUD request to develop 51 homesites in the hills they own atop Kottinger Ranch and the other a Development Agreement awarding 496 acres--the rest of their property--to the city of Pleasanton free of charge for uses as a park, trails, equestrian pathways and open space.
Since then, though, the Lins have been block from proceeding because of the Superior Court, and now the Court of Appeal litigation. Two weeks ago, the Lins won a legal side battle when Roesch ordered City Manager Nelson Fialho to officially sign the development agreement on behalf of the city, which he has since done.
In his lengthy brief, Sabey cites numerous other lawsuits that have since been resolved where courts have determined that all documents related to a proposal must be on hand for prospective signers of petitions to read if they wish. But Ayala and her group, according to Sabey, carried only the basic PUD documents with her referendum petition "not providing voters the information required to make an educated decision whether to sign."
"Since the referendum petition failed to attach the full text of the Development Plan, voters clearly had no way of informatively evaluating the challenged law when deciding whether to sign the petition," Sabey argues in this brief. "Accordingly, the lower court correctly determined that...the referendum petition this case is fatally flawed and therefore invalid."
Sabey also questioned Ayala's argument that she relied on city officials or staff to determine what needed to be carried while gathering signatures.
"Local election officials have no authority to save proponents from their failure to comply with the procedural requirements governing the referendum process," he said.
Sabey added that records of the Nov. 6 council meeting reported that Ayala said "she consulted with at least three lawyers about circulating a referendum petition."
"Accordingly, Ms. Ayala, a former Pleasanton City Council member, cannot now claim that she was unfamiliar with applicable referendum law," Sabey said.
Sabey also argues in his brief that those appealing Judge Roesch's ruling, "in an apparent effort to prejudice this court against (the Lins) and their current project argue that (the Lins) are outsiders who 'do not live in Pleasanton' and wish to 'short circuit the democratic process and head to court.'"
"A review of the project's history demonstrates that the appellant's mischaracterization of (the Lins) is meritless," Sabey said.
With this latest brief filed, it will now be up to Attorney Ronald Katz, Ayala and the citizens' coalition's lawyer, to respond. Katz, of the Palo Alto law firm of Manatt, Phelps and Phillips, has about 30 days to file his brief.
After that, legal analysts say it could take three-to-nine months before the Court of Appeal schedules a hearing, although it's expected that a decision will be rendered before the end of 2009.