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The Pleasanton City Council decided in a 3-2 vote behind closed doors Tuesday night against appealing an Alameda County Superior Court ruling that, in effect, allows the Oak Grove development project to proceed.

Oak Grove is the proposed 51-luxury-home development proposed for a 600-acre site in the hills above Kottinger Ranch and Vintage Hills, where the developer also has agreed to turn over 496 acres to the city of Pleasanton for hiking, equestrian trails and a nature park.

The announcement of the council's decision came near the end of a three-hour meeting on a decision made Feb. 22 by Superior Court Judge Frank Roesch. That decision ruled that petitions filed by a citizens' coalition--Save Pleasanton's Hills, organized and led by former Councilwoman Kay Ayala--were invalid because they were improperly obtained. Ayala and her group immediately asked the First District Court of Appeal in San Francisco to overturn the ruling, an appeal that she asked the City Council to also file or at least to finance her group's continued litigation.

Tuesday night, the council took the unusual action of waiving the confidentiality of remarks and decisions made by individual council members in their closed door discussion in a 5-0 vote.

But that was the only unanimous decision made by the local legislators that night.

In 3-2 votes--with Mayor Jennifer Hosterman and council members Cheryl Cook-Kallio and Jerry Thorne voting in the majority and council members Cindy McGovern and Matt Sullivan casting the two dissenting votes--the council:

• Rejected a proposal to join the citizens' group in appealing Judge Roesch's decision;

• Rejected a proposal to hire outside legal counsel to review Roesch's ruling and advise the council if there were good reasons to appeal his verdict;

• Approved a motion to accept the Roesch ruling and move on with the Oak Grove project once the legal hurdles of the Ayala group appeal are concluded.

Of course, if the appeal to the state court is successful, legal experts expect the Roesch decision to be returned to the Superior Court for further review and reconsideration.

If Ayala and her coalition proceed with the appeal, these experts also predict that the process could take a year or more to resolve at a cost of up to $50,000.

"That's an uncertainty that I am unwilling to commit this city to," said Hosterman. "I am opposed to appealing this decision that favors a project that will be good for the community."

Sullivan said he was "torn" by his decision to support the appeal after earlier voting to approve the Oak Grove development plan. In addition to the 51 custom homes that were [

part of the approval, Sullivan especially liked the land grant the developers agreed to make to the city. Both he and Hosterman have worked for four years to seek these kinds of land grants along the southeast hills that could eventually provide a commitment of more than 2,000 acres in open space that could extend from the Callippe Preserve Golf Course to Shadow Cliffs Regional Park.

He said that the council, city staff and many other groups spent many hours in discussions to seek the compromise that Oak Grove developers and landowners Jennifer Lin and her brother Frederic supported. But in looking at the 5,000-6,000 signatures Ayala's group obtained in an effort to reverse the council's decision, Sullivan said he and others apparently had not included everyone in their Oak Grove discussion. He wanted the council to take another look at the issue or at least support a public vote in a referendum.

McGovern, who cast the lone vote against Oak Grove at the time it was approved last fall, said that Roesch's decision contained enough errors that an appeal was warranted.

Councilwoman Cook-Kallio disputed comments from others on the council and some of the 23 speakers who addressed the council at the start of its special Tuesday night session who called the Roesch decision precedent-setting that would discourage citizens throughout California from seeking referendums. These comments also included charges that City Attorney Michael Roush failed to provide the right information on what signature-gatherers were supposed to carry when they solicited signers to their petitions.

"The judge's (Roesch's) ruling is not predicated on the wrong-doings of the staff or council, but an acknowledgement of the evolution of the planning process and the law," she said.

"It is the duty of the judiciary branch to interpret statue," she added. "It is not unusual to have a difference of opinion between the judicial branch and the law-making body. That is why we have separation of powers."

After the council's vote to approve the Oak Grove project and land grant agreement last fall, Ayala's group spent the next 30 days collecting signatures on petitions seeking to force a referendum to overturn the council's action. The Alameda County Registrar's office later affirmed that the group had collected more than the 3,700 signatures needed from registered Pleasanton voters, as required by law.

However, the Lins filed a suit through their attorneys to block certification of the voter petitions on grounds that they were improperly obtained. Superior Court Judge Frank Roesch agreed.

In recent council meetings, Ayala has said that neither she nor her organization have the funds that will be required to appeal Roesch's ruling, although the appeal was filed nevertheless.

At Tuesday's meeting, she again asked the council to join in the appeal both to seek a new decision on the Lins' suit and also to protect the rights of those in Pleasanton and other cities and counties in California to seek referendums on public issues when they disagree.

Others also spoke at the council meeting in favor of filing an appeal, but more urged the council to stay out of further litigation, pointing out that the Roesch ruling, by invalidating the petitions calling for a referendum, was in fact a decision that supported the 4-1 council vote to approve the Oak Grove project.

Up to Tuesday night's meeting, the council has been unable to discuss the Oak Grove issue because of pending litigation before Roesch and until the judge actually signed his ruling in late March. With Councilman Jerry Thorne out of the country for several weeks, Tuesday night's special meeting was the first opportunity for the full council to come together for a discussion.

It's been four years since the Lins filed a development plan for Oak Grove. Since then, the project has gone from a 98-home development to the current plan for 51 homes and the gift of 496 acres by the Lin family to Pleasanton, which would be the largest land grant ever given to the city.

During that time, the council and several of its key commissions have held public hearings on the proposal, and the project has also been reviewed and revised by homeowners' groups, business organizations and ad hoc citizens groups concerned with the environmental impact of the project.

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