Town Square

Post a New Topic

L.A. law firm hired to defend Pleasanton against Oak Grove developers' lawsuit

Original post made on Sep 8, 2010

Fresh off a settlement agreement that cost taxpayers nearly $2.5-million in legal fees, the city of Pleasanton is back in the courts again, this time hiring a Los Angeles law firm to defend the city against a lawsuit by property owners in the southeast hills who want to build 51 luxury homes there.

Read the full story here Web Link posted Wednesday, September 8, 2010, 5:47 AM

Comments (73)

Posted by Concerned Business Owner, a resident of Kottinger Ranch
on Sep 8, 2010 at 8:39 am

WOW
THe City Council certainly knows how to spend money on things they will not win...just like the other case mentioned that cost Pleasanton resident's $2.5 million this case too will cost them $100's of thousands if NOT millions and eventually the Lin's will win and be able to build and at this point I hope they don't give the 500 acres for open space and park lands for FREE since the City has put these people through hell in an effort to build houses that they should have always been able to build...this is a true case of NIMBY and those people who live there all knew that houses would eventually be built there the original owners all were given detailed disclosures telling them so and you can see the streets are all set to be extended anyone can clearly see that but since I was there when the original builder released their homes and lots I know for a fact that a disclosure was given and I believe it said up to 600 more homes would be built now it's down to 51
Good Luck City of Pleasanton I know this will go on for many, many more years


Posted by concerned citizen, a resident of Another Pleasanton neighborhood
on Sep 8, 2010 at 8:49 am

This time, if the city loses, they will be on the hook for $10-20 million! look at what happened in Half Moon Bay because elected officials were not smart. This is going to happen in Pleasanton. Let the developer build the lousy 51 houses, mitigate the ridge issues, take the tax money and move on.


Posted by Nosy Neighbors, a resident of Pleasanton Heights
on Sep 8, 2010 at 8:55 am

Neal Elementary-- LOST $2.6 Million
Urban Habitat-----LOST $1.9 Million
Oak Grove---------??? $??? Million

Are you people finally starting to understand the disconnect in our city government & where their agenda lies?

The best laid schemes of mice and men (& arrogant city officials) often go astray.


Posted by Not Original but it fits!, a resident of Pleasanton Valley
on Sep 8, 2010 at 9:10 am

"Success in almost any field depends more on energy and drive than it does on intelligence. This explains why we have so many stupid leaders."
-Sloan Wilson


Posted by Common Sense, a resident of Another Pleasanton neighborhood
on Sep 8, 2010 at 9:12 am

Well said Concerned Business Owner - RIGHT ON!


Posted by b, a resident of Another Pleasanton neighborhood
on Sep 8, 2010 at 9:19 am

Kay Ayala and Karla Brown are going to drive Pleasanton into bankruptcy, just like Half Moon Bay. You can't block reasonable development and not expect consequences.

"Concerned Business Owner," this is not the fault of the City Council. Remember, they SUPPORTED this development agreement with the Lins. The city was sued in both cases because NIMBYs put before the voters unreasonable housing caps and development blockades that prevented land owners from reasonably developing their land. This continued practice will bankrupt the city.


Posted by dancermom, a resident of Vintage Hills Elementary School
on Sep 8, 2010 at 10:21 am

I beg to disagree with Business Owner. The City Council is FINALLY listening to the people of Pleasanton and standing up to protect the hills from "unreasonable development." We wouldn't be in this lawsuit if the Council had done their jobs to begin with!


Posted by real concerned citizen, a resident of Birdland
on Sep 8, 2010 at 10:44 am

Hey "concerned citizen", why not say this will cost the city trillions and trillions of dollars? You are just making up numbers to scare the public. You must be part of the Lin delegation as they have been spreading this misinformation to scare the public.

I am thankful that the council is for doing the right thing here and hiring an outide attorney. And defending the will of the people. It seems that the people on this blog who say we should just give in to the Lins are the same people who voted for the development. Sore loosers.

The Lin's, the developer (James Tong) and the lawyers are just scum with all their lawsuits and threats. They spend $650K to try to convince the voters that their plan is good, they loose, and then they sue saying it does not matter what the voters said, they are going to build. I am so glad I voted against Oak Grove. Besides not being a good plan for the city, I now prefer the Lin's never do business in Pleasanton. I will also vote to outst the incumbants in the next election who supported this developer and their tactics.


Posted by b, a resident of Another Pleasanton neighborhood
on Sep 8, 2010 at 10:54 am

"real concerned citizen" while I understand your desire to not have anything built, it is the right of property owners to reasonably develop land that they own, as long as they follow the law, local zoning regulations, building codes, etc. While it may feel good to block these developments with all these referendums, they don't solve the problem. The city is being sued precisely because the landowner is being prevented from exercising their legal right to develop their land. If we continue on this strict NIMBY path, we will be bankrupted, just like Half Moon Bay.


Posted by b, a resident of Another Pleasanton neighborhood
on Sep 8, 2010 at 11:00 am

Regardless of the will of "the people" (which is actually only 54% of the people), a landowner still has the legal right to develop their land. If you want open land, move to North Dakota. If you choose to live in the Bay Area, you have to expect people to want to develop their land.


Posted by Pleasanton Parent, a resident of Pleasanton Meadows
on Sep 8, 2010 at 12:31 pm

I have mixed feelings on this - I voted against the development, however I am not willing to deplete city funds fighting this issue.

Perhaps we're trying to achieve the end result through the wrong means. What if the development were approved but a well written piece of legislature were put into place first making it cost prohibitive for the Lins to want to pursue their current development plans? I.e. a narrowly defined "tax" / permit / sewage fee / etc?


Posted by Matt Morrison, a resident of Pleasanton Meadows
on Sep 8, 2010 at 12:44 pm

Matt Morrison is a registered user.

There was an article in The Independent back on August 19th which provides some basis that Pleasanton might have a winning argument on this one...

In the Alameda County Superior Court case No, VG08 41651,heard last December the lawyer for the Lin's told the judge, "we acknowledge that if the referendum by the opponents were successful in setting aside the PUD ordinance [Oak Grove], the poison-pill language as it's called — will have the effect of setting aside the Development Agreement as well. We accept that." The judge then responded with, "It seems absolutely clear."

***Please note that the judge quoted above is Judge Frank Roesch who is hearing the current case***

In addition, James Tong, the Lin's representative, and the Lin's attorney R. Clark Morrison, signed an acknowledgement in 2008 that there would be no claim of vested rights under the development agreement approved by the city if the PUD ordinance was set aside through the referendum process.

Web Link


Posted by Concerned Pleasanton Resident and Homeowner, a resident of Another Pleasanton neighborhood
on Sep 8, 2010 at 1:01 pm

Isn't Karla Brown running for something? She will not get my vote for sure.

Read about Half Moon Bay:
Web Link

some backgroung about the half moon bay deal:
Web Link

The Lins own the property, they have the right to build there, yet Karla Brown and Kay Ayala and their group organized others to vote against the development. Most who voted against it didn't understand what was going on, or the legal implications.

Why can't the Lins sue Karla Brown, Kay Ayala and group? The city council had voted YES on the development, so why are they being sued?

Shouldn't the Lins sue the group of people responsibe for not being able to develop their land?

Or shouldn't the city council pass on the legal costs to Brown, Ayala et al?


Posted by Lana, a resident of Canyon Meadows
on Sep 8, 2010 at 2:34 pm

As I see it, the Lins are suing the people that were against the developement - the citizens. Kay and Karla may have helped put it on the ballot, but it was 54+% of the voters that said NO to the development. They were only 2 of the 9544 votes that said NO to Oak Grove.

Stop trying to blame other people, it makes you look like like a bitter old fool.


Posted by Stacey, a resident of Amberwood/Wood Meadows
on Sep 8, 2010 at 2:36 pm

Stacey is a registered user.

Matt Morrison,

I think that won't be any sort of central defense. That argument actually works in the Lins' favor because it shows exactly why the Lins asked the City to remove the poison pill language. If they didn't agree that such a thing would occur, they'd have had no reason to ask the City to remove the language. The only way I see that the development agreement could stand after the referendum is through a settlement.

I think this article jumps to a conclusion about defense against the lawsuit. It is too early to tell exactly what action the City will take. To me it looks like all that has occurred is that the City has voted to hire outside counsel expert in the issue. The City will need such counsel no matter if it goes to court or a settlement.

I'm looking forward to learning what the arguments in defense could be. There's probably a million law firms out there waiting to sell an argument to the City. Will this LA firm provide one that is winnable?

I am also wondering if Allen Roberts will donate to the City's legal defense fund.


Posted by Matt Morrison, a resident of Pleasanton Meadows
on Sep 8, 2010 at 3:33 pm

Matt Morrison is a registered user.

Hi Stacey! I hope all is well. I ought to be studying!

I forgot about the Lin's attorney asking for the "poison pill" language to be removed from the referendum.

The Independent reported an interesting response on that topic back in January from the then-new Pleasanton City Attorney Jonathan Lowell...

Lowell said there is reference in the development agreement to the PUD, which basically says that if the Lins gave the city certain amenities, they would receive approval for housing in return. "It is possible they could come back and ask for the same housing," he said. There is the possibility that could trigger the need for another referendum.

Web Link

So perhaps if the Lins deed the parkland and provide the other amenities the City might be contractually required to approve the PUDs as agreed, but that doesn't preclude another referendum since City voters can referend a PUD approved by the City Council.

A wild-card is whether the City Council can approve a new PUD that doesn't comply with the Measure PP Hillside Protection Ordinance. The lay-figure I heard was that probably only 16 homes could be built on the property under Measure PP guidelines.

P.S. In the interests of disclosure, since Karla's name was brought up, I am Treasurer for her campaign committee. :~)


Posted by javadoc, a resident of Dublin
on Sep 8, 2010 at 4:13 pm

javadoc is a registered user.

For Matt, or Stacey, or anyone with a better grasp of case law concerning development agreements:

1. The Lins asked that poison pill language be removed - the impression I get is that this was done after it was clear that a referendum would be held. Can a development agreement be modified legally at that stage? Is anything required other than a change in language approved by both the council and the landowner/developer?

2. If such a modification can be made, is the city legally obligated to remove the poison pill at the Lins' request, given that vested rights could be abrogated "indirectly" via the pill? Is there any case law covering this type of situation?

3. Is there any case law on how many development agreements can be repealed via referendum before the landowners can sue for some flavor of "taking?" Isn't it the law that arbitrary legislative actions denying landowners reasonable economic use of their property aren't kosher? I doubt that the "save our hills" (our hills, indeed, sheesh) folks will let any development agreement stand without another referendum attempt to repeal it.


Posted by George, a resident of Canyon Meadows
on Sep 8, 2010 at 4:39 pm

Quick Question here:

What exactly is thew amount of money that PUSD needed to keep class size reduction and other programs we lost funded.

Just trying to understand the magnitude of the City (citizen) legal fee's weighed against school issues here.

Thanks


Posted by Sue, a resident of Val Vista
on Sep 8, 2010 at 7:16 pm

If the Lin's truly cared about Pleasanton they wouldn't build on the ridge. l It's just all about the money to them.. Shame on them.


Posted by Sue 'em, a resident of Mariposa Ranch
on Sep 8, 2010 at 7:19 pm

So if the Linds don't do what you want them to do with their own land, they don't care about Pleasanton?


Posted by Stacey, a resident of Amberwood/Wood Meadows
on Sep 8, 2010 at 9:04 pm

Stacey is a registered user.

javadoc,

Good questions.

1- First off, I think there was a legal strategy developed early on surrounding the poison pill language. It was well known by all ahead of time that the opponents were only going to referend the PUD ordinance and not also the development agreement. Ayala announced at the Council meeting that they were going to referend only the one ordinance. Hosterman reminded her that there were two ordinances that would need to be referended. Then, seemingly like magic, staff has some poison pill language to insert into the ordinances and most of Council agreed to it. The opportunity to have the referendum petition of Ord. 1961 ruled invalid (by suing Ayala, et al.) would have made the poison pill strategy moot. Recall, also, that the poison pill language is in the ordinances, not the actual development agreement.

2- The modification would have had to have been made to Ordinance 1962 (not the development agreement) and would probably have only required an action by Council. The lawsuit asserts that the City had a legal obligation via the development agreement to modify Ord. 1962. Did they? We'll find out!

3- I think this question is the larger legal issue that may not really be addressed in this lawsuit. I don't have much of an answer for it. I think there certainly must be a point at which the wheels have to stop spinning. The process was never meant to keep a property owner held in a perpetual state of development application while others work to implement laws to further restrict what could be developed. Someone could always buy the land as a way to stop the wheels. I'm sure it would be quite expensive.


Posted by Arroyo, a resident of Another Pleasanton neighborhood
on Sep 8, 2010 at 9:07 pm

If you want the hills left pristine -- it's quite simple, buy them from the Lin family. This denial of the Lins' rights to develop THEIR LAND is nothing more than confiscation without compensation. It's wrong!


Posted by curious, a resident of Vintage Hills Elementary School
on Sep 8, 2010 at 9:36 pm

Isn't there a question/problem in that the poison pill language inserted into the PUD was done at the second reading of the PUD ordinance. There wasn't a second reading with the poison pill included so is the poison pill part even valid? If its not valid then wouldn't the development agreement be in force as it wasn't referended? I realize this could be considered a technicality but at the same time, isn't the point of having two readings before something becomes an ordinance to give citizens a chance to
comment on it? In this case it was added at the second reading with no opportunity for people to comment on it unless they were at that City Council meeting.


Posted by Aj1111, a resident of Bridle Creek
on Sep 9, 2010 at 7:35 am

I propose a special assessment on Karla Browns property to pay for this lawsuit. I also invite the Lins to sue the Browns And any other person that has in effect produced this constructive taking of their property. I hope the Lins understand that there a lot of folks in this community that respect property rights and disagree with how they have been treated.


Posted by Lana, a resident of Canyon Meadows
on Sep 9, 2010 at 8:49 am

AJ,

The Lins are suing the people that were against the developement - the citizens. 54+% (almost 10,000 voters) said NO to the Oak Grove development. Get it through your thick skull - we DONT want it.


Posted by Concened Pleasanton Resident and Homeowner, a resident of Another Pleasanton neighborhood
on Sep 9, 2010 at 8:51 am

"As I see it, the Lins are suing the people that were against the developement - the citizens. Kay and Karla may have helped put it on the ballot, but it was 54+% of the voters that said NO to the development. They were only 2 of the 9544 votes that said NO to Oak Grove."

Without Kay Ayala and Karla Brown, people like you and the other 54% would NOT have had anything to vote for. That is, without the "leaders", there would not have been a measure on the ballot, and all the morons who joined Ayala's effort would not have done anything to interfere with the Lins' development.

The Lins have the RIGHT to develop THEIR land, and if you don't like it, then BUY it from them.

The Lins need to sue Karla Brown, Kay Ayala, and the people who organized the measure to be put on the ballot. Again, without those idiots, the rest would not have done anything, and we would right now have a development under way.

And that Palo Alto guy: is he going to cover the legal costs? Why is he giving advice unless he is willing to offer his wallet?


Posted by Concerned Pleasanton Resident and Homeowner, a resident of Another Pleasanton neighborhood
on Sep 9, 2010 at 8:55 am

"AJ,

The Lins are suing the people that were against the developement - the citizens. 54+% (almost 10,000 voters) said NO to the Oak Grove development. Get it through your thick skull - we DONT want it."


We have about 50,000 people in Pleasanton. So the idiots make up only about 1/5 of the Pleasanton residents.

Did you read a comment above about someone who supported Ayala's efforts but is not OK with these legal costs? I can guarantee you that if you had mentioned ALL the facts to the morons who supported Ayala, the Lins would not have lost. Look at what is happening in Half Moon Bay.


Posted by Agree, a resident of Another Pleasanton neighborhood
on Sep 9, 2010 at 8:58 am

"I propose a special assessment on Karla Browns property to pay for this lawsuit. I also invite the Lins to sue the Browns And any other person that has in effect produced this constructive taking of their property."

Well said. I hope the Lins do exactly what you are proposing.


Posted by Stacey, a resident of Amberwood/Wood Meadows
on Sep 9, 2010 at 9:06 am

Stacey is a registered user.

curious,

The second reading was waived. I'm not sure that constitutes a problem as to the validity of the poison pill language.


Posted by Stacey, a resident of Amberwood/Wood Meadows
on Sep 9, 2010 at 9:07 am

Stacey is a registered user.

That's a funny joke about a special assessment on Karla Brown's property. Maybe a group of citizens can put a measure on the ballot to do just that. I'm sure a majority of citizens would vote for such a measure and anyone who disagrees would just be a sore loser.


Posted by Tired on the East side of Pleasanton, a resident of Kottinger Ranch
on Sep 9, 2010 at 9:11 am

It upsets me that our city will have to pay to defend our city on this law suit brought about by the two ladies (Kay Ayala and Karla Brown) who live in Kottinger Ranch, the property this development abuts to. You can guarantee the referendum would have never come about if they lived in another neighborhood!If you ask me it is an abuse of power brought on by Kay Ayala.

Why do these women think they should have more rights over the owner of the land. This issue was brought about because of their selfishness over their own homes not to save Pleasanton Hills.

Come on Karla your a Realtor!!! This was fully disclosed to you when you purchased your home but now our city has what could be a multi million dollar law suit because you now don't want this development in your neighborhood. How would it feel when a buyer decides to sue you over something that was fully disclosed. I'll bet you would think differently about the same rights your fighting against upholding. Should you have chosen to purchase somewhere else?? I assure you that you would not have helped to spearhead this campaign if it wasn't in your own backyard!!!

There are many of us in the neighborhood that wanted to have access to an amazing park and ridge.....not just have a view of the hills from afar.

On the West side of Pleasanton our Ridges are a jewel to the city for many hikers, bikers and outdoor enthusiast. Too bad our children will be grown before those of us on the East side of Pleasanton can enjoy those hills not just look at them.

So ladies enjoy the view from your homes and remember the rest of Pleasanton will not get to enjoy those hills for many years and millions of dollars due to your efforts.

We must preserve the rights of the individual property owners to develop "their land". If we start to say that any outside party should have more rights than the actual property owner then we are taking away the constitutional rights of all land owners.

Why should Greenbriar be able to build thousands of homes or Signature build thousands of homes in Ruby Hill but the Lin's are not afforded the same property rights to build just 51 homes. No wonder the Lin's are suing the City.

Karla Brown makes her living every day as a real estate professional who should help to uphold the rights of the property owner. Not to undermine the very rights of property owners she earns her living from and now you want to elect her to City Council??? She already proven she cant make good decisions when there is a conflict of interest.


Posted by Stacey, a resident of Amberwood/Wood Meadows
on Sep 9, 2010 at 9:15 am

Stacey is a registered user.

Actually, Ayala does not live in Kottinger Ranch, but Allen Roberts lives in neighboring Grey Eagle and has an extensive history with this issue.


Posted by Jacquelyn R., a resident of Grey Eagle Estates
on Sep 9, 2010 at 9:35 am

@ Tired on the East Side...God bless you! Living down in "lower Grey Eagle" we, for one, would not even be able see most of the development nor be affected by traffic, construction or other inconveniences of the Oak Grove project. There has been all too many lies thrown about by the Kay/Karla/Brozosky crowd (who by the way just happens to have a lovely ridge line home in the Southern hills himself) about it's visual impact but living in it's back yard, we just don't see it.

The rights of private property owners are being taken away & whether or not you people like the Lin's, despise them or are just being racist NIMBY's, & for that shame on all of you!


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 10:49 am

When will the Lin's work with the community instead of fighting it? Instead of fighting those of us who wanted a ballot vote, why didn't they just agree, then work on a solution that satisfied everyone? I realize that they thought they had a deal with the City Council, but that deal appeared to have been done behind closed doors. It's also their private property, but a city has a right through planning and zoning to influence dispensation of private property.

The Lin's need to stop fighting us and become a part of our community.


Posted by Meghan, a resident of Vintage Hills Elementary School
on Sep 9, 2010 at 11:34 am

Steve,

Wasn't the Lin's "Deal" with the City Council (I'm assuming you mean their Development Agreement) reached after many and lengthy meetings and workshops with Pleasanton residents, especially the ones in Kottinger Ranch, who had ample opportunity to provide their input in order to arrive at this latest plan for development? I hardly think that seems like something shady or "done behind closed doors."

I also like the idea of assessing Karla Brown's property...


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 1:08 pm

Meghan -

The deal was struck after closed door sessions with the City Council, many of whom disagreed with not putting the final agreement up for a vote. Perhaps the initial discussions were public, but the final discussions were not.

That was the whole idea behind placing the agreement on the ballot. Since the final agreement did not include public comment, the ballot initiative would allow at least an up and down vote.

I don't like the idea of the city government punishing a private landowner for exercising their first amendment protected rights through a special assessment (shame on you for suggesting the government punish a private citizen for speaking up).

I do like the city council hiring lawyers to ensure that a loophole won't undo a vote completed by the citizens.


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 1:18 pm

From a Jan. 2007 issue of the Pleasanton Weekly:

(Web Link)

"Although members of both the ad hoc committee and Parks and Recreation Commission listened carefully to the reports and public comments, their decision had, for all practical purposes, been decided three days earlier when some commission members and city officials met with the developers, environmentalists and the Kottinger Ranch Homeowners Association leadership to reach a compromise. By the time the private, closed-door meeting ended at the city's Operations Center, the group had a deal that will likely carry the proposal forward for approval by both the Planning Commission and City Council as early as next month.


No notice was given to the public about the meeting, including members of the homeowners association who went to the public hearing to object to the plan, only to find their leaders had already approved the deal."

The article heading was:

Parks group OKs Oak Grove homes, public trails

Approval follows "deal" made at unannounced, private meeting of officials, developers


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 1:20 pm

From a Jan 2007 article in the Pleasanton Weekly:

"Although members of both the ad hoc committee and Parks and Recreation Commission listened carefully to the reports and public comments, their decision had, for all practical purposes, been decided three days earlier when some commission members and city officials met with the developers, environmentalists and the Kottinger Ranch Homeowners Association leadership to reach a compromise. By the time the private, closed-door meeting ended at the city's Operations Center, the group had a deal that will likely carry the proposal forward for approval by both the Planning Commission and City Council as early as next month.


No notice was given to the public about the meeting, including members of the homeowners association who went to the public hearing to object to the plan, only to find their leaders had already approved the deal."


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 1:43 pm

I apologize for the double post. Something strange happened.


Posted by i was there too, a resident of Another Pleasanton neighborhood
on Sep 9, 2010 at 2:00 pm

Steve,

There was a huge error in the Weekly article you posted from which was corrected in a subsequent issue. There were ABSOLUTELY no park & rec commissioners at the meeting refered to in the article.

Here's a question for you; Why is it okay that an agreement was worked out on Staples Ranch with a couple of neighbors, the County and some environmental group in the City Manager's office. Isn't that a closed door meeting? How is that different from the meetings that took place over Oak Grove?


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 2:03 pm

Because such a meeting is not binding, and didn't result in a deal for or against development.


Posted by javadoc, a resident of Dublin
on Sep 9, 2010 at 2:07 pm

javadoc is a registered user.

Steve,

Which First Amendment Right are you referencing, and with regard to which action?

Speaking out against a proposed development is certainly protected. "I don't think they should build that."

Organizing a referendum on a ballot initiative to repeal ordinances and development agreements is not protected by the First Amendment, which deals with elements of natural law. The referendum in question here is an exercise of California law, since it is there that the referendum process is defined, and where the vesting of development rights through development agreements is similarly defined.

There is an alternative method of securing vested rights called something like a "vesting map." That is defined as an administrative action in California law, as opposed to a development agreement, which is a legislative action. As such, DA's can be repealed through referendum, but vesting maps cannot. I am not sure of the technical differences between the two instruments, but I wonder if we will see the next round pursued in that vein.


Posted by The real issue, a resident of Downtown
on Sep 9, 2010 at 2:17 pm

I have a real issue when someone (read Karla Brown), decides that she doesn't want 500 car trips per day down Hearst Drive her neighborhood, and doesn't want the general population of our town driving through her neighbor in order to get to the new park. She then gets a couple of friends and armed with nothing but lies and deception gets close to 5,000 signatures supposedly in support of "save our ridgelines". What it really says about Pleasanton is the we are extremely gullible and don't do our homework. Anyone who was asked to sign was simply told lies and told if they signed the document they could "protect our hills". Problem is they don't belong to us, they belong to someone else. Pleasanton has evolved into a place that allows a very tiny vocal minority the ability to stop things from happening that are not only for the benefit of all, but stop good development from considering doing anything of value here. If we don't stop this mentality instead of the "city of planned progress" which was an accurate modo 15 years ago, we have unfortunately become the "city of NO progress".


Posted by trekmtb, a resident of Heritage Oaks
on Sep 9, 2010 at 2:28 pm

While Oak Grove failed with a 54% to 46% vote it is my belief that many of the nearly 10,000 who voted against it were not really understanding of the issues and "defaulted" to a no vote "Saving the Hills" or saving anything must be good. If in doubt, vote no...


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 3:18 pm

You're right javadoc. Thanks for setting me straight.

However, I still think it would be abhorrent for the city to punish someone retroactively for exercising their rights under California law.

Perhaps people who would like to punish Kay would be better advised to seek the repeal of the referendum process.

By the way, I voted "No" simply because the other side fought so hard against the ballot initiative. Not because I believed any "lies". I just didn't see any reason to fight so hard against a ballot initiative, unless you don't want the input from, or care about, the community.

I'm sure that many others voted for that reason as well.


Posted by Stacey, a resident of Amberwood/Wood Meadows
on Sep 9, 2010 at 3:31 pm

Stacey is a registered user.

Steve,

The closed door meeting did not result in a binding agreement. The agreement only became binding after public hearings on the matter, approval of the ordinances by the Council, and the lawsuit wherein the City Manager was required to execute his ministerial duties and sign the contract authorized by an ordinance that became active law 30 days after approval.

Even in the Staples Ranch example, it didn't become binding until Council held a public hearing on the issue.


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 4:48 pm

You're correct Stacey, it didn't become binding until AFTER the public hearings. However, even the article in the Weekly indicated that "their decision had, for all practical purposes, been decided three days earlier..."

In other words, "for all practical purposes" the decision made behind closed doors was binding.

I guess the difference between private citizens making a decision behind closed doors, and public officials making a decision behind closed doors, is that it is much easier for the public official to make the results of the decision into reality (no matter how many follow-on hearings).


Posted by informed resident, a resident of Pleasanton Valley
on Sep 9, 2010 at 4:49 pm

This isn't the City Council's fault---10 years of different city councils working with a developer to get the best for the city.
Kay Ayala and Karla Brown(who lives in Oak Grove area) are to blame for self interests and misinforming the public on all the input and work and changes put into the deal. There goes any money to build the Bernal Sports park.


Posted by Steve, a resident of Stoneridge
on Sep 9, 2010 at 5:08 pm

Why didn't the Lin's want smaller homes on the land either?

What would it matter if the zoning was for homes that fit with the rest of the homes in that area?

Was it the cost of subdividing a larger number of lots?

I'm just curious why the Lin's went to court to stop the referendum process, and became the symbol of "Yes"? They could have just as easily made themselves the symbol of "Maybe" by answering some of the claims with changes to the plan.

If the Lin's had come forward (even now) and said that they were sorry for not working directly with residents earlier and are now willing to work with residents to answer reasonable issues, I'm sure this would fade away.

Instead the Lin's dug in their heels and appeared quite unreasonable. Perhaps they aren't well versed in public relations. God knows if I somehow came to own a lot of land, and tried to develop it, public relations may be low on my list. However, after the first rebuff, I'd learn pretty quickly.


Posted by Michael Leonard, a resident of Vineyard Avenue
on Sep 9, 2010 at 7:13 pm

Michael Leonard is a registered user.

Some people are now going to learn a lesson that in the USA we are not governed by "the will of the people", we are governed by the rule of law. Let's just hope that this lawsuit isn't too expensive for the people of Pleasanton and that it is settled soon.


Posted by Aj1111, a resident of Bridle Creek
on Sep 9, 2010 at 8:17 pm

Earlier today I suggested a special assessment on Karla Browns property to pay for the lawsuit. Upon further reflection I retract that proposal. It isn't practical. It leaves too much to chance. Better to have a referendum to simply stop her from using her house That ensures that she will come to the bargaining table and write a check to pay for the litigation. And hey, if you have neighbors you don't like let's put their names on this initiative and lock them out of their homes. As long as a majority of us vote to stop folks from using their property that's OK in Pleasanton. It's fair and democratic.


Posted by Voter, a resident of Pleasanton Meadows
on Sep 9, 2010 at 11:20 pm

Well you got what you voted for.


Posted by b, a resident of Another Pleasanton neighborhood
on Sep 10, 2010 at 9:24 am

I'm confused about these comments that public input wasn't sought. Isn't the point of the Kottinger Homeowners Association to represent the people of that neighborhood? Isn't Karla Brown the President of that association? Isn't it that association's responsibility to seek input from their members before participating in an important meeting that will affect the neighborhood? This is why we have associations and councils of elected officials. It sounds like there was plenty of opportunity for the neighbors to provide input--but it was apparently Karla Brown's association that failed to communicate with the neighborhood, not the city or developer.


Posted by Why the Karla bashing?, a resident of Another Pleasanton neighborhood
on Sep 10, 2010 at 12:07 pm

Why all the Karla bashing? She was and is only excercising her rights as guaranteed by the state and US constitution. Must be the campaign minions of Cook-Kallio and Thorne ... both of whom just LOVE to take away our citizens rights!


Posted by javadoc, a resident of Dublin
on Sep 10, 2010 at 12:36 pm

For all the heat this issue has raised, you'd think the Lins were installing a brothel, or a chicken farm, or an abattoir.

Steve (and others), I understand where you are coming from, but I want you to think about something.

I'll start with the "save our hills" gang. They would prefer that nothing get built up there, in order to preserve the "pristine views of our hills and ridgelines." By attempting to control the use of the land through legislative action (in other words, by government force if needed), they are attempting to extract value from the property. They don't own it, but they want to direct its use for their own benefit. They are surely trying to use it, and frustrate the actual owner's use of it. No matter how you sugar coat that, it is theft, and it is despicable. Better they should raise money and buy the land, as organizations like the Nature Conservancy do.

A step down from that are positions concerning the number and size of homes to be built. The difference between that and the "no construction of any kind" position is a matter of degree, not of kind. At what point do you wake up and decide that it is your Rightful course to try to control what people do with their property? I think AJ's final point about depriving someone of the use of his home through referendum is spot-on, even if far-fetched. It is conceptually the same thing.

The Lins fought the referendum (I surmise) because they don't think it is Right that private landowners have to cede authority over the use of their land to people who do not own it. Imagine! It is even more galling to think that they had already formulated a plan that seems, to this outsider, to have been astonishingly generous and reasonable as a compromise in the first place.

So some here are wondering why the Lins did not "work with the community" on how to use their property. Quite frankly, the answer should be that they shouldn't have to - and someone needs to call out the attitude of the busybodies and petty tyrants who take pleasure in treating others like marionettes. And rebuff them.

The state of the law is not currently proper, and it enables, rather than discourages, some unwholesome aspects of human nature.

Don't get me started on homeowners' associations either.


Posted by Stacey, a resident of Amberwood/Wood Meadows
on Sep 10, 2010 at 3:29 pm

Stacey is a registered user.

Rights were only exercised half-way. There were two ordinances to referend, two sets of documentation that needed to be carried around with two different clipboards. The gamble to use the poison pill language to referend two ordinances is only now paying off (</sarcasm>).


Posted by Matt Morrison, a resident of Pleasanton Meadows
on Sep 10, 2010 at 3:49 pm

Matt Morrison is a registered user.

Property Law 101 - Property rights don't give the owner rights to a thing, they give the owner rights governing their relationship with other people over a thing.

The rights are determined by social policy through law, part of which is the municipal law. Pleasanton's municipal law, as a result of Measure PP being enacted by the voters, has a hillside protection ordinance which defines where property owners cannot build in relation to ridgelines and hillside slopes. The Hillside Protection ordinance applies to all property owners in Pleasanton.

Adhering to Pleasanton's municipal laws is part of the civic relationship that provides property owners the benefit of Pleasanton's roads, schools, police and fire departments, water, sanitation, etc.

If a property owner doesn't wish to avail themselves of Pleasanton's amenities, perhaps they can de-annex themselves and develop through the County. Of course, then the development would need to supply its own services – how much is that worth?

Tthe Lins' representatives SIGNED A LETTER OF AGREEMENT that IF THE PUD WERE SET ASIDE THROUGH REFERENDUM THE DEVELOPMENT AGREEMENT WOULD CEASE TO BE OF FORCE AND EFFECT. The Lins agreed, "We will claim no vested rights."

According to a letter to the City Council from Allen Robert's attorney, Robin Kennedy, "It is clear the Lins had no intention of keeping their promise made in the Letter Agreement," and, "the City can raise as a defense… that performance cannot be enforced against a party to a contract, if assent," (i.e. the City signing the Development Agreement), "was obtained by the misrepresentation, circumvention, or unfair practices of any party to whom performance would become due under the contract."

The Lins had a PUD approved for Oak Grove that was successfully referended under the law. Now, if the Lins wish to develop Oak Grove, they need to come up with a new PUD plan that adheres to the hillside protection ordinance enacted by the voters since the Lins' last PUD.


Posted by Steve, a resident of Stoneridge
on Sep 10, 2010 at 8:10 pm

Nice explanation Matt. Landowners also agree to develop in accordance with code and zoning regulations.

If your neighborhood has a particular character, then residents have a vested interest in maintaining that character to maintain resale value for their property.

That's the downside of community for folks that belive in absolute property rights. Of course, the upside is that if you follow the local zoning and code regulations, you're neighbors will like you more.

If you want to be a hermit and enjoy absolute freedom, you'll need to move much further away than the Lin's property would allow.


Posted by javadoc, a resident of Dublin
on Sep 11, 2010 at 10:38 am

javadoc is a registered user.

Like I said, the state of existing law isn't proper. But thanks for the explanation/reminder of that fact.

I like the jump from reasonable exercise of property rights to hermitage, also. As if it is inconceivable that people can live in proximity without some form of legalized collectivism. Rather than allowing each person to direct the use of his property, why not let everyone direct the use of everyone's property! Talk about a scaling nightmare on the original problem.

Why don't you propose, here in writing, a plan for the Lins' land that you would find acceptable? I am curious how this exercise of virtuous benevolent oversight looks, in practice.


Posted by Michael Leonard, a resident of Vineyard Avenue
on Sep 11, 2010 at 12:09 pm

Michael Leonard is a registered user.

People can debate the legal nuances all they like but the bottom line is that Pleasanton went from a position standing to receive money and benefits to a position of having to pay money to defend its self and the benefit of that is uncertain.

Putting the rhetoric about land use aside it appears that this turnabout was instigated by people who wanted to reduce traffic through their neighborhood.

Right or wrong or what ever the Lins have the resources and enough legal standing to drag Pleasanton through court and cost the residents a lot of money for an outcome that could easily be worse than what we already had offered.



Posted by Matt Morrison, a resident of Pleasanton Meadows
on Sep 11, 2010 at 12:35 pm

Matt Morrison is a registered user.

Voters enacted the hillside protection ordinance. That ordinance is now Pleasanton's municipal law.

An acceptable plan for Oak Grove is one that adheres to the hillside protection ordinance. Pretty simple.

Part of the reason citizens bind themselves together in a municipality is to collectively defend their community from contrary interests. In short, this is part of what we pay the City to do.


Posted by javadoc, a resident of Dublin
on Sep 11, 2010 at 1:15 pm

Can the city recoup any attorneys' fees if they prevail in this case?

Do you believe the value of the Lins' land has decreased as a result of the hillside protection ordinance, and any other changes that occurred while the process dragged out?

Looking back at the original Oak Grove plan, do you personally breathe a sigh of relief that the city was there to protect you from that "contrary interest?" The way you state it, it sounds like you're talking about a gated wall to keep the Huns at bay. Is a landowner wanting to build some homes on his land a "contrary interest" that you really need protection from? Really?

If you believe that the value of the Lins' land has decreased, wherefore art thou, preservation of property resale values?


Posted by Matt Morrison, a resident of Pleasanton Meadows
on Sep 11, 2010 at 4:48 pm

Matt Morrison is a registered user.

Typically, a city will not recoup attorney fees from the court unless the plaintiff's suit is shown to be frivolous or malicious.

Since the Lins' representatives signed a Letter of Agreement that if the PUD were set aside through referendum the Development Agreement would cease to be of force and effect and the Lins agreed, "We will claim no vested rights," it remains to be seen whether their claim is of a sort which the court will award the City attorney fees.

Property values reflect changes in the locational pattern of demand for real property. If a place becomes more desirable for people as a place to live then demand for that location would increase as more people desire to locate there, and property values would be driven up. Changes in property values are driven by, and hence reflect, the value associated with local changes in community impacts (accessibility, safety, noise, visual amenity, and community cohesion), as well as economic development impacts.

Thus, as much as a property owner might view property value as personal wealth, property values are by nature speculative. Property owners are compensated by the government when they are deprived of an economic use of their land - they do not get compensated for loss of property value.

In the case of the Lins', I expect their Oak Grove property value has not decreased compared to what they paid for the land, even if calculated in 2010 dollars.


Posted by Jacob and Alma, a resident of Carlton Oaks
on Sep 11, 2010 at 8:28 pm

Thanks K and Karla. How much is this going to cost the city?


Posted by Matt Morrison, a resident of Pleasanton Meadows
on Sep 11, 2010 at 8:51 pm

Matt Morrison is a registered user.

The Lins' representatives signed a Letter of Agreement that if the PUD were set aside through referendum the Development Agreement would cease to be of force and effect. The Lins agreed, "We will claim no vested rights."

Now that the PUD was set aside through referendum the Lins are dragging the City into court claiming just those vested rights they agreed not to.

The blame costing the City money lies with the Lins who, according to attorney Robin Kennedy, "...had no intention of keeping their promise made in the Letter Agreement."


Posted by frank, a resident of Pleasanton Heights
on Sep 11, 2010 at 9:14 pm

To Matt Morrison:

1. The presiding judge in the current lawsuit is NOT Frank Roesch. A budding lawyer should know how to research this.

2. You keep referring to a "Letter of Agreement" that the Lin's signed regarding the poison pill but you only reference an article in the Independent that talks instead about a letter of acknowledgement, which is, of course entirely different than an "agreement". I think you are misleading and don't actually know who wrote what. In any event, such acknowledgement is irrelevant in the present lawsuit (which hardly anybody really understands - these various threads bear such witness).

3. As a budding lawyer you should read the lawsuit, if you have not already, which is a breach of warranty lawsuit. If the poison pill stands as valid, and the Lin's agree that under such conditions their vested rights will go away (the acknowledgement), then the city breached its warranty to protect those rights while the DA was in effect until June 8 of this year. Not true?

4. Development Agreements are codified in California law. I wrote in an earlier post:

GOVERNMENT CODE
SECTION 65864-65869.5

This is CA law that codifies Development Agreements. Their purpose is readily defined as follows:
(b) Assurance to the applicant for a development project that upon
approval of the project, the applicant may proceed with the project
in accordance with existing policies, rules and regulations, and
subject to conditions of approval, will strengthen the public
planning process, encourage private participation in comprehensive
planning, and reduce the economic costs of development.

Therefore, DA's vest rights conveyed from one party to the other party. They are subject to state referendum law, which states that a valid petition must be filed within 30 days. Common to any such agreement is a warranty that the conveying party gives to the receiving party. Such standard warranty states that conveying party will do everything in its power to effect the conveyance.

5. In a defense, the city will have to convince the present judge that the DA was in suspension prior to June 8 because of the poison pill language. However, a previous court ruled that it wasn't.

6. The city will have breached its warranty when it failed to remove the poison pill language from the ordnance prior to June 8. The city will be liable for damages. May I repeat.... The DA was in effect up until June 8, in the very least. Therefore, Pleasanton breached the DA. All because the city attorney fell over himself to satisfy Ayala and her cohorts to create ordnance language to circumvent state law on referenda.





Posted by frank, a resident of Pleasanton Heights
on Sep 11, 2010 at 9:33 pm

Addendum: The only council member who thought it was a bad idea to insert poison pill language in the ordnances was Cook-Kallio. In November, 2007 she alone voted against the inclusion of such language (which would have meant Ayala would have to referend both ordnances, which would have been the right thing to do), and then again this year in February, when the Lin's attorney requested the council to fulfill its obligations under the terms of the DA to protect the Lin's vested rights she alone voted against retaining the poison pill. Now we have this lawsuit with Pleasanton taxpayers on the hook for damages suffered by a property owner. Why couldn't Ayala and her supporters have carried two signature boards? What's all this stuff about needing poison pills, anyways?


Posted by frank, a resident of Pleasanton Heights
on Sep 11, 2010 at 9:48 pm

Let's give a big round of applause to Allen Roberts and his hired attorneys who under his direction are doing everything possible to inject themselves into the lawsuit to assure that the poison pill language is valid under a court ruling and therefore we citizens of Pleasanton will be on the hook for exposure to damages for breach of warranty. Of course, then there will be no development in "his backyard". Stinks, doesn't it?


Posted by Matt Morrison, a resident of Pleasanton Meadows
on Sep 11, 2010 at 11:18 pm

Matt Morrison is a registered user.

Ha! Thanks for your advice, Frank. Of course, I'm more "present" law student than "budding" lawyer! ;~)

Yes, I see now the case is being heard by Judge Patrick Zika. I am surprised Judge Roesch didn't retain jurisdiction over the Development Agreement issues. I am just taking Civil Procedure, so I am unsure if there is a technical reason for assigning Judge Zika. Does anyone know why not Judge Roesch?

The article in the September 9th issue of The Independent refers to "a letter of agreement" and attorney Robin Kennedy refers to "the Letter Agreement" (caps in original). I have been unable to locate the letter on the City's website, it would be nice if someone can reference a location where we can all read the actual document.

At any rate, the key language quoted in The Independent from this letter and attributed to the Lins is, should the PUD be set aside through referendum, "We will claim no vested rights." That language certainly seems to be proof-positive agreeing to certain behavior, not merely an acknowledgement that under such conditions their vested rights will go away.

As such, and since the Lins are suing for breach of warranty, this seems to my limited-trained eye to put the agreement/acknowledgement under contract law with the PUD referendum as a condition subsequent that invalidates the Developer Agreement, and at the very least conflicts with the implied covenant of good faith and fair dealing (not being good faith to agree to certain behavior in order to get a Developer Agreement approved then renege on that agreement).


Posted by Matt Morrison, a resident of Pleasanton Meadows
on Sep 11, 2010 at 11:36 pm

Matt Morrison is a registered user.

Frank, I looked through the filing again. Sabey, Morrison and Brownlow make no mention of an agreement/acknowledgment letter.

Such a glaring omission smells the gestation of a parol evidence rule argument...


Posted by javadoc, a resident of Dublin
on Sep 12, 2010 at 4:21 pm

I have not read the documents, but it sounds like the letter is simply a statement that the vested rights obtained through the development agreement would indeed be lost if the referendum were successful. In effect, "Yes, the poison pill would kill everything."

Now they are suing for breach of warranty because the vested rights are gone, as a result (partially) of the failure of the warranty.

Is it more complicated than that?


Posted by DingoDogg, a resident of Ridgeview Commons
on Sep 16, 2010 at 11:00 pm

ˇHola!
Super post, tienen que marcarlo en Digg
Gracias

[url=Web Link]


Posted by monicabrownom9, a resident of Avignon
on Mar 23, 2011 at 11:30 pm

monicabrownom9 is a registered user.

I need more information about this article.
______________
Monica.


If you were a member and logged in you could track comments from this story.

Post a comment

Posting an item on Town Square is simple and requires no registration. Just complete this form and hit "submit" and your topic will appear online. Please be respectful and truthful in your postings so Town Square will continue to be a thoughtful gathering place for sharing community information and opinion. All postings are subject to our TERMS OF USE, and may be deleted if deemed inappropriate by our staff.

We prefer that you use your real name, but you may use any "member" name you wish.

Name: *

Select your neighborhood or school community: *

Comment: *

Verification code: *
Enter the verification code exactly as shown, using capital and lowercase letters, in the multi-colored box.

*Required Fields

Understanding Early Decision in College Admissions
By Elizabeth LaScala | 1 comment | 1,115 views

Sentinels of Freedom Newsletter
By Roz Rogoff | 0 comments | 918 views

When those covering the news become the news
By Gina Channell-Allen | 2 comments | 734 views

New heights for NIMBYs
By Tim Hunt | 12 comments | 724 views