Roesch ruled in favor of a lawsuit by landowners Jennifer Lin and her brother Frederic that the agreement approved by the council in a 4-1 vote last fall should be put into place. The agreement calls for the Lins to give 496 acres of the land they own atop Kottinger Ranch to the city free of charge for public and recreational use as part of a Planned Unit Development (PUD) that was also approved for 51-custom home sites to be developed on the rest of the acreage.
The PUD approval was the target of a petition by Save Pleasanton's Hills, a citizens' coalition founded by former City Councilwoman Kay Ayala, for a referendum to overturn the council's decision. Earlier, Roesch ruled in favor of the Lins who had asked the court to nullify the petition, and Ayala and the citizens organization is appealing that decision in a case now before the state Court of Appeal.
With regard to the development agreement, the Lins, through their attorney, Andrew Sabey of the San Francisco law firm of Cox, Castle & Nicholson, successfully argued that the development agreement between the Lins and the city was separate from the PUD and should be signed as a contract.
City Manager Nelson Fialho, who was specifically ordered to sign the agreement, was advised by City Attorney Michael Roush not to sign the document. He told Roesch that the city preferred to await the outcome of the citizens' group's appeal since both the PUD and the land use agreement are related. Judge Roesch disagreed and said the council voted on each document separately.
Besides turning over the 496 acres to the city, the development agreement also agrees to pay the city $1 million in mitigation fees for traffic and other public impacts related to the Lins' housing project.
As a practical matter, both sides agree that without the PUD, the houses won't be built and the Lins won't turn any of their property over to the city. However, legal advisors said the sign development agreement gives the Lins another bargaining chip in persuading the appellate court to reject the Ayala appeal. If that happens, the public feud between the City Council and the Save Pleasanton's Hills citizens' organization would be over and the Lins can proceed with the provisions in the development agreement and start planning their development.
It's now been a year since the citizens' group was organized and took to the streets to gather enough signatures to force a referendum. By collecting more than 3,700 signatures from registered Pleasanton voters, their petition should have qualified to force a referendum.
However, Judge Roesch, responding to a suit by the Lins, said the citizens' group had not carried all of the documents they needed to thoroughly brief those signing the petition just what their argument was about. Because of that, he ruled the petitions invalid and said the Lins could proceed under terms of the council's approval of their project.
At the Dec. 2 meeting, the council will meet in closed session to consider an analysis of the development agreement order by City Attorney Roush and his recommendations. The council could appeal Judge Roesch's decision ordering Fialho to sign the development agreement on behalf of the city, or it could accept the ruling, sign the document and await a decision by the Court of Appeal on the main argument, the PUD that would actually allow the Lins to develop the home sites.