The City Council received notice of the possible litigation May 6, just hours before it was to vote on the second reading of the Measure PP ordinance. At the recommendation of City Attorney Jonathan Lowell, City Manager Nelson Fialho tabled the action until the council could hold a closed session to consider the letters.
Environmental attorney Stuart Flashman of Oakland, who told the council in a letter that he represents "The Ridge & Hillside Protection Association," which he said is an unincorporated association of Pleasanton residents and taxpayers, objected to the ordinance because it "attempts to modify the measure without a vote of the people of Pleasanton."
Measure PP was adopted by voters in November 2008, but was recognized at the time as an incomplete document that lacked specifics that needed to be added before it could become law. Basically, the measure prohibits structures and developments on steep hillsides with grades of 25% or greater.
The authors and backers of Measure PP agreed and since 2008 a series of public meetings have been held with the Planning Commission, City Council and city staff to address the changes needed. Most recently, the council voted 3-1 to clarify the part of Measure PP referring to roads, with Councilwoman Karla Brown insisting that roads are structures and therefore banned from the hillsides along with other structures such as houses, while Mayor Jerry Thorne and council members Jerry Pentin and Cheryl Cook-Kallio agreed with city staff's recommendation that roads be considered infrastructure, which would not be covered by Measure PP.
It's this change, along with alterations to what constitutes a hillside "peak," that Flashman considers a change not yet addressed by voters.
San Francisco attorney Kristina Lawson of the law firm of Manatt, Phelps & Phillips uses the pronoun "we" throughout her six-page letter to the Pleasanton Council without ever mentioning whom she's representing. She, too, objects to changes in the Measure PP ordinance over revised definitions of "ridgeline" and "structure" which she argues "contravenes Measure PP (and) constitutes an implied repeal of the measure and requires a vote of the people."
Flashman also insists that the Measure PP ordinance undergo a careful analysis under rules covered in the California Environmental Quality Act, or CEQA. The Pleasanton city attorney, in conducting a legal analysis of the Measure PP initiative before it went to voters, determined that citizen initiatives, such as Measure PP, are not subject to a CEQA evaluation.
"However, the Municipal Code Amendment (which the ordinance before the City Council is) is not a citizens initiative," Flashman stated. "In short, moving forward to enact the proposed (code amendment) would violate not only the California Constitution and Election Code, but also CEQA."
In summing up his plea, Flashman warned the council that "you still have time to step away from the brink and avoid costly and unnecessary litigation."
In the meantime, Measure PP and its enforcement provision lay in wait of the council's or a court's decision.