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Poison Pill for Oak Grove

Original post made by Jack, Danbury Park, on Jan 25, 2010

I read in the January 21, 2010 issue of the Independent paper (no coverage by the Weekly- not sure why), that there is a "poison pill" in the Oak Grove PUD (roads, lots and infrastructure) and one in the Development agreement (gift of a fire truck, land for the park, etc.). The purpose was if the project were to be referended (signatures gathered to go to a vote of the people), both documents were null and void. The other reason is that the folks gathering sigantures would not have to carry both the PUD and the Development agreement. The poison pills were agreed on by the council and voted in.

Now the OG attorney wants the city council to remove the poison pills. According to the article, the removal could mean that if voters say NO to OG, it could come back again in another form because part of it was grandfather-in as a pre-measure PP! And if the council didn't, the city they might get sued again by the developer. Why, because the city approved language in the development agreement and PUD like, "obligates the city to take any and all actions as may be necessary and appropriate to ensure that the vested rights provided provided by the development agreement can be enjoyed by the Lins." Who would agree to this type of blank check/open statement?!!! Your progrowth council majority - that's who. Sounds like they are more concerned with the developer than the citizens, again.




Comments (18)

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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 25, 2010 at 12:14 pm

Stacey is a registered user.

Maybe the real problem is that there was no referendum petition circulated for the development agreement.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 25, 2010 at 12:21 pm

Stacey is a registered user.

Recall during the meeting that Hosterman warned Ayala that there's two ordinances. Then there was some discussion and the Council threw in that "poison pill" language. I guess the majority were trying to do a favor for the Oak Grove opponents so that the opponents would only have to circulate a petition for one ordinance. Cook-Kallio was not in favor of the "poison pill".

The fact that Sabey brought this issue up at the last meeting is definitely a clue into what may be the formulation of more lawsuits. Why would anyone be surprised?


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Posted by frank
a resident of Pleasanton Heights
on Jan 25, 2010 at 9:26 pm

Furthermore, the development agreement was certified by the city clerk in December, 2008 after the Lins sued the city for not exercising its duty to certify the agreement within 30 days after the ordinance passed in November, 2007. The judge found in favor of the Lins after the city clerk dragged it out for a year.

So, the existence of the poison pill in a certified ordinance raises legal questions. Even without explicit language in a ordinance addressing vested rights it is normally expected that such rights shall vest after 30 days the ordinance is passed. This whole issue of poison pills to get two-for-one referendums on behalf of special interest groups like the anti-Oak Grove people is certainly questionable. It is an attempt to get around state law that requires a referendum petition be filed within 30 days after a law is passed. The city deserves getting sued again.


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Posted by reader
a resident of Another Pleasanton neighborhood
on Jan 25, 2010 at 10:07 pm

Sorry Frank but you got it wrong. It was the Lins that dragged it on for a year. If they did not file this suit, this item would have been before the voters a year ago. The reason for two separate ordinances was clever work by the Lins lawyers.It should have been a single agreement but they split it up into two to make it difficult to referend and this was found at the last moment and that is why the poison pill was put in to tie them back together.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 25, 2010 at 10:27 pm

Stacey is a registered user.

The reason for two separate ordinances is...

65864. The Legislature finds and declares that:
(a) The lack of certainty in the approval of development projects
can result in a waste of resources, escalate the cost of housing and
other development to the consumer, and discourage investment in and
commitment to comprehensive planning which would make maximum
efficient utilization of resources at the least economic cost to the
public.

Web Link


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Posted by Jack
a resident of Danbury Park
on Jan 26, 2010 at 8:40 am

Good points. Sounds like it boils down to the Lin's attorney setting this into motion from the beginning.

But what about the quote:

"obligates the city to take any and all actions as may be necessary and appropriate to ensure that the vested rights provided provided by the development agreement can be enjoyed by the Lins."

It looks like the city was horribly biased on the side of the land owner. Didn't the planning commission and council review this type of language? Why wasn't it removed?


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 26, 2010 at 9:58 am

Stacey is a registered user.

Jack, read the California Government Code in the link above for your answer. Then read like the first page or two of Ordinance 1962 and notice how it echoes the Government Code. The City gets a, b, and c in exchange for the property owner getting x, y, and z. That's what a contract is for.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 26, 2010 at 10:01 am

Stacey is a registered user.

"65865.2. A development agreement shall specify the duration of the
agreement, the permitted uses of the property, the density or
intensity of use, the maximum height and size of proposed buildings,
and provisions for reservation or dedication of land for public
purposes. The development agreement may include conditions, terms,
restrictions, and requirements for subsequent discretionary actions,
provided that such conditions, terms, restrictions, and requirements
for subsequent discretionary actions shall not prevent development of
the land for the uses and to the density or intensity of development
set forth in the agreement. The agreement may provide that
construction shall be commenced within a specified time and that the
project or any phase thereof be completed within a specified time.
The agreement may also include terms and conditions relating to
applicant financing of necessary public facilities and subsequent
reimbursement over time.
"


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Posted by Jack
a resident of Danbury Park
on Jan 26, 2010 at 10:08 am

I guess I did not ask the question clearly. The fact that there is a developement project and the definition is fine. What is NOT right is this statement,

"obligates the city to take any and all actions as may be necessary and appropriate to ensure that the vested rights"

That says the City is now OBLIGATED to take all actions.... and that is the sentence that will end up in court. Vague - you bet! Commitment? You bet. The basis of a lawsuit? Most likely.


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Posted by reader
a resident of Another Pleasanton neighborhood
on Jan 26, 2010 at 10:26 am

The Planning Commission question is a great one. Why? The PUD and development agreement was never voted on by the Planning Commission. The Planning Commission could not approve the EIR but the Council overrode them and then said that the Planning Commission will not have a chance to vote on the development plan! The Council stripped the Planning Commission from all of its power in this development. I think this is the first time this has ever been done and actually I do not know if it is legal what the Council did. I believe State law is that the Planning Commission must take a vote (even if it is only a recommendation) on development plans before it goes to the City Council. The Planning Commission is one of the few commissions that are required by law and they have legal authority.

The City Council wanted to support the developer so badly that they did an end-run around the Planning Commission. I wish some lawyer could tell me if that is even legal.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 26, 2010 at 10:34 am

Stacey is a registered user.

Here's the link to Ordinance 1962 Web Link

I guess I'm not really understanding why you'd consider that a problem. In a contract one party agrees to a, b, and c in exchange for the other party agreeing to x, y, and z. Why would a developer ever enter into a contract with the City where the developer is obligated to give 500 out of 600 acres to the City, fund park access facilities, fund traffic infrastructure improvements, purchase fire fighting equipment, etc. in exchange for nothing? What does the City have that it can offer in exchange?

"Section 4.02. Protection of Vested Rights. To the maximum extent permitted by law, City shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by this Agreement can be enjoyed by Developer and to prevent any City Law, as defined below, from invalidating or prevailing over all or any part of this Agreement. City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. Except as otherwise provided herein, City shall not support, adopt, or enact any City Law, or take any other action which would violate the express provisions or intent of the Project Approvals or the Subsequent Approvals. "


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 26, 2010 at 10:43 am

Stacey is a registered user.

Good questions. I'd frame it differently though. Instead of "overrode" I'd say that the decision of the Planning Commission was APPEALED, as the law provides for.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 26, 2010 at 10:57 am

Stacey is a registered user.

Web Link

"COMMISSION RECOMMENDATIONS
Planning Commission:
At its public hearing held on June 27, 2007, the Planning Commission determined that the Final EIR was not adequate and therefore voted not to recommend certifying the Final EIR for the Oak Grove development . For this reason, the Planning Commission
did not make a recommendation on the PUD development plan and the Development Agreement, effectively denying the project.

Housing Commission:
At its public hearing held on January 18, 2007, the Housing Commission recommended approval of the terms of a Housing Agreement to meet the City's Inclusionary Zoning Ordinance.

Parks and Recreation Commission:
At its public hearing held on January 11, 2007, the Parks and Recreation Commission, after meeting with the Trails Ad-Hoc Committee, recommended City ownership of the open space area and the construction of local/regional trails and a trail staging area.
"


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jan 26, 2010 at 11:05 am

Stacey is a registered user.

It looks like because the Planning Commission denied the Draft EIR and the applicant appealed, the Planning Commission basically lost it's ability to vote later on the PUD and Development Agreement.

"As a result of this action, the Planning Commission was unable to make a recommendation on the PUD development plan and the Development Agreement, effectively denying both. Note that three Planning Commissioners -Narum, Olsen, and Pierce -stated their support of the visual analyses in the Final EIR using the 28-mm. lens. On July 7, 2007, the applicant appealed the Planning Commission's actions.. "


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Posted by reader
a resident of Another Pleasanton neighborhood
on Jan 26, 2010 at 3:30 pm

The planning commission was told they could not yet vote on the development plan since the plan had to be consistent with the EIR and they could not approve the EIR. Staff told them to stop at that point. What was supposed to happen was after the council approved the EIR, the project/development plan should have been given to the Planning Commission so they could see if the plan was consistent with the EIR the Council approved. That step was left out.

In most cities, the EIR and development plans are not scheduled for the same day. This was trying to be rushed through by the Council. Typically an EIR goes through first and after the EIR has been ratified (and possibly amended), the development plan is submitted to the city.

So I still believe what the council did was illegal by not having the development plan be voted on by the Planning Commission.


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Posted by frank
a resident of Pleasanton Heights
on Jan 26, 2010 at 8:28 pm

reader makes a lot of criticisms, levels charges, and contends illegal actions, but clearly never really has studied the facts of the case because reader never cites sources which are available and date back far more than two years. Stacey, on the other hand, rebuts with references and quotes from official meetings and documents. The ordinances in question had been in the making for many years before November, 2007. Go read the history. There was nothing "rushed through".

reader ends up stating beliefs: "So I still believe what the council did was illegal by not having the development plan be voted on by the Planning Commission."


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Posted by reader
a resident of Another Pleasanton neighborhood
on Jan 26, 2010 at 9:30 pm

Frank, tell me when the planning commission took a vote on the development plan for Oak Grove (whether they denied it or approved it). It did not happen. Typically that is when all the development documents are looked at and would have found some of the problems that the city council does not have the time, or interest, to go through in detail.

I applaud Stacey for finding references to things. Frank, find me the references where the planning commission voted on this plan. You are asking me to document something that did not happen. That cannot be done. You have to document what happened. The ball is in your court.


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Posted by frank
a resident of Pleasanton Heights
on Jan 30, 2010 at 7:56 pm

reader, you are so blind to what you wrote..."So I still believe what the council did was illegal by not having the development plan be voted on by the Planning Commission."

What, specifically, was illegal? Or is your "belief" enough for us to accept? Oh, by the way, the savepleasantonhills website stated:

"The Planning Commission voted against the certification of the Environmental Impact Report. They did not discuss or modify the development plan. The City Council then overrode the Commission and certified the Environmental Impact Report and then immediately approved the development plan the developer submitted instead of sending the development plan back to the Planning Commission. This is extremely unusual for the Planning Commission to not vote on a housing development."

Web Link

Of course, it is incredulous to write that the Commission did not vote on the housing development when in fact it prevented such an up or down vote by voting against the EIR...... the political manuevering was dizzying at the time.

So, how was it illegal for the Council to proceed? I would like to see something other than your "belief".


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