Oak Grove developers sue city that approved their Pleasanton project Comments on Stories, posted by Editor, Pleasanton Weekly Online, on Nov 12, 2008 at 9:32 am
Developers of a 600-acre tract in the southeast hills that would include 51 "estate" custom homes and provide 496 acres free of charge to the city of Pleasanton for public use have sued the city government that approved the plan but so far has refused to sign the agreement.
Read the full story here Web Link posted Wednesday, November 12, 2008, 5:56 AM
Posted by Stacey, a resident of the Amberwood/Wood Meadows neighborhood, on Nov 12, 2008 at 11:26 am
"Asked why the Lins are taking this new court action now, city officials said they can only conjecture that a favorable order by Judge Roesch might help influence the Court of Appeal to deny the Save Pleasanton's Hills appeal of Roesch's earlier ruling so that work on the project can get under way."
The Lins probably have to do this in order to maintain their rights on the issue so that it can't be argued in court that they failed to follow up and therefore should lose the appeal. It is similar to the little yellow card people receive in the mail for public meeting notices where it says "If you challenge the above-described action in court, you may be limited to raising only those issues you or someone else raised at the aforementioned public hearing, or in written correspondence delivered to the City of Pleasanton at, or prior to, the public hearing."
Posted by frank, a resident of the Pleasanton Heights neighborhood, on Nov 12, 2008 at 2:08 pm
This article is very misleading because it inaccurately states that the lawsuit was/is being filed on Nov. 13. No, that's the expedited hearing date at which parties have been ordered to appear. The lawsuit was filed October 22, 2008. The briefs and request for expedited hearing can be read at the courts web site and case number is VG08416511. Under register of actions read the request for the expedited hearing ("other ex parte") to get a sense why this lawsuit was filed.
Posted by iwastheretoo, a resident of the Amador Estates neighborhood, on Nov 12, 2008 at 4:50 pm
I wonder if this would have affected the elections at all. Our well supported development oriented Mayor's friends suing the City. Very convenient that it was kept quite until AFTER the election. Ah...politics, gotta love 'em.
Posted by frank, a resident of the Pleasanton Heights neighborhood, on Nov 12, 2008 at 5:08 pm
The fact that the Lin's filed BEFORE the election meant they did not care one iota about how knowledge of the lawsuit would affect any of the candidates. They simply are protecting their own interests.
While the Mayor's opponents always want to say these are the "Mayor's friends", the action of the lawsuit itself implies they are not.
I would agree it IS probable, though, the city personnel involved kept the lawsuit quiet so as to not affect the race, and therefore, they themselves being accused of playing politics. It is always safe to err on the side of saying nothing unless there is a compelling reason to.
Posted by frank, a resident of the Pleasanton Heights neighborhood, on Nov 12, 2008 at 9:40 pm
Yes, to keep quiet, staff is accused of playing politics. To publicize the lawsuit, staff is accused of playing politics. In politics, no good deed goes unpunished, like publicizing the lawsuit. So like I stated, it is always safe to err on the side of saying nothing.
And it worked. Note the lack of any uproar about the lawsuit just prior to the election and the lack of repercussions now against staff because of their silence.
Posted by Jeb Bing, editor of the Pleasanton Weekly, on Nov 13, 2008 at 9:46 am Jeb Bing is a member (registered user) of PleasantonWeekly.com
Frank's right. The Petition for Writ Filed for Petitioner took place on Oct. 22. The hearing is under way now on Nov. 13. The last date got mixed up with the first. Our apologies. An update will be posted after the hearing.
Posted by Stacey, a resident of the Amberwood/Wood Meadows neighborhood, on Nov 13, 2008 at 1:07 pm
Our City Attorney's argument hinged on the fact that both ordinances related to Oak Grove included some "poison pill" language that would result in one ordinance being "set aside" if the other was referended. The City Council voted 4-1 to add that "poison pill" during their approval of the Oak Grove project as a way of throwing a bone to Kay Ayala so she wouldn't have had to circulate two petitions for two referenda. Council doesn't listen? They did that because it was asked by Ayala! Read the meeting minutes if you don't believe me: Web Link And if you do happen read the minutes, check out the first paragraph on page 13 for some irony.
Posted by frank, a resident of the Pleasanton Heights neighborhood, on Nov 13, 2008 at 1:44 pm
The "you get two for the price of one" has come to an end. Last November when council passed the two companion ordinances, they set it up so that if you referend one successfully, you get both ordinances killed. No need to actually carry two referendum petitions and their associated texts. It was a "two for one" deal.
So, the referended ordinance has NOT been "set aside", rather it is SUSPENDED while the appeal proceeds. Today the judge ruled the city has to go forward honoring the non-referended ordinance by signing it and cannot under law SUSPEND it while the litigation proceeds. The Lins for many months have petitioned the city manager to sign it, and finally filed the lawsuit three weeks ago.
Posted by Stacey, a resident of the Amberwood/Wood Meadows neighborhood, on Nov 13, 2008 at 2:51 pm
After more thought on this, I suspect that having a signed Development Agreement could provide the Lins with a more secure legal position against having PP affect Oak Grove if the project were successfully referended regardless of the "poison pill".
Posted by Stan, a resident of the Amador Estates neighborhood, on Nov 13, 2008 at 6:36 pm
Nice summary, Frank. I took a look at the briefs and your description is spot on.
After reading the briefs on both sides, you have to feel a little sorry for the Lins. Here they are trying to give the city 497 acres of open space and the City Manager refuses to do what the law clearly requires of him, forcing the Lins into court to protect their rights. Shameful, really.
Posted by Karen, a resident of the Vintage Hills Elementary School neighborhood, on Nov 13, 2008 at 11:14 pm
Oh, get me a towel to dry up my tears. The pour Lin family, boo hoo.
Have we forgotten it is the LINS that are suing the city and a private resident for a technicality? The LINS that poured money into our local election to what??? Say either "Thank you" or "you will owe me a big favor later." And the LINS that will be able to dump the land they can't develop onto the city to reduce their tax base.
Posted by Stan, a resident of the Amador Estates neighborhood, on Nov 14, 2008 at 6:20 am
Circulating a referendum petition that does not include a copy of the development plan that the petition expects us residents to set aside, in violation of the law, is not a technicality. It's Kay Ayala intentionally hiding the ball.
Posted by Stuff and Nonsense, a resident of the Canyon Creek neighborhood, on Nov 14, 2008 at 8:07 am
"It's Kay Ayala intentionally hiding the ball."
Are you kidding "Stan?" Kay hid the "ball?" Are you seriously trying to purport that Kay "intentionally" ďhidĒ documents and then stood out in the cold for 2 weeks to get over 5,000 citizens to sign a referendum that could be overturned? What exactly would be the point of doing that? Was she terrified that your average Safeway shopper would read this somehow radioactively important document (that our city attorney, city manager, and city council were also unaware of) and refuse to sign?
Michael Rousch and the entire city council signed off saying that the documents were complete. Were they then intentionally trying to undermine this very public-and legal-process to see it end up in a courtroom-in the Linís favor?
If so, itís pretty terrifyingly sad donít ya think?
Posted by Stacey, a resident of the Amberwood/Wood Meadows neighborhood, on Nov 14, 2008 at 8:15 am
"And the LINS that will be able to dump the land they can't develop onto the city to reduce their tax base."
Why do you keep perpetuating this falsehood? You seriously think that wealthy people are going to just give you the land because of taxes? Why on earth would they do that? Why don't you give us YOUR HOUSE because it reduces your tax base? My kids could use a vacation home!
Posted by Jerry, a resident of the Oak Hill neighborhood, on Nov 15, 2008 at 12:16 am
"Kay Ayala had an obligation to consult her own lawyers on the completeness of the petition".
Now help me understand - If I contact the City Permits Dept. and request all necessary permits to install a new roof on my house, when I receive the permits from this dept, I have an obligation to contact my own Roofing Expert to verify I've received all the necessary permits... I don't think so...
Since the Permits Dept. has custody, and expertise, of the required permits, I would expect to receive all necessary permits. These are supposedly professionals in the issuance of permits... It's their job... If not, why have a Permits Dept...
Review the City Attorney job requirements and see what knowledge level and responsibilities are required(I had them but my computer crashed and I'm to lazy to find them again). He just simply screwed up. If I'm not mistaken, he's stated he thought he issued all required documents, but sat on his hands in court and didn't say a word to that effect...
Now we learn he, and perhaps other city employees, apparently sat on information related to a filing in this case during the election period for reasons known only to his office. If this information would have swayed the election one way or the other, so be it...
Posted by Stacey, a resident of the Amberwood/Wood Meadows neighborhood, on Nov 15, 2008 at 11:09 am
Nice try Jerry,
Certainly our City thought the petition was complete otherwise they wouldn't have accepted it. That doesn't leave the proponents of the petition off the hook. Blaming the City Attorney on this is like saying a person who took out a mortgage they couldn't afford isn't responsible for doing the math for affordability. It was the mortgage lender who gave them the mortgage after all.
The law is written in such a way as to say that the proponents are wholly responsible for the completeness of their petition. In the Elections Code (section 9295), it requires the City Clerk to be named only "respondent" and the proponents to be named "real parties in interest". This is why the courts give judgment against the "real parties in interest" and not the election official who accepted the petition. The legislature didn't intend that City officials would be responsible/sued for the actions of the average citizen.
Posted by frank, a resident of the Pleasanton Heights neighborhood, on Nov 15, 2008 at 5:38 pm
This is humorous. Equating a city attorney's knowledge of California Elections Code Section 9295 with whether a city building department clerk has been taught to respond accurately to a question regarding permits about roofing.
The latter is a matter of the training of the clerk and hardly requires hiring an attorney by the requestor or close, continuing oversight by the city attorney. The former is arguable. Should a city attorney be expected to fully understand the case law regarding decades of history regarding exactly what citizens should carry during the petition? In this case he certainly was aware of California Elections Code Section 9295 and advised best he could. But, at the end of day, he was not Ayala's attorney, and therefore had no duty to her.
Anyways, suppose he said "you should carry the complete PUD plan as well as the development plan", which would have comprised, according to Ayala and her attorneys, 14 pounds of paper. Would he had been listened to, given that Ayala was out for a "two for one" deal, referend one and kill both? The easy way.
Posted by Karen, a member of the Vintage Hills Elementary School community, on Nov 15, 2008 at 11:35 pm
Jerry is spot on. The City hires a City Attorney who is experienced in the specific areas of the law relating to running our city and representing its residence.
If the attorney was out of his element or unsure about a specific area of legal expertise, he should get advise from another attorney! I have seen City attorneys hire/consult a lawyer experienced and trained in a specific type of law before and this should not be any different.
Is it possible M Rousche did not represent his clients (the council and the citizens)as well as he should have? If so, what should be the City's responsibility to their citizens to repair the damage? Surely it would NOT be to back away and let the citizen fund this defense all on their own?!
Posted by Jerry, a resident of the Oak Hill neighborhood, on Nov 17, 2008 at 12:49 am
Stacey & Frank,
You can attempt to spin this in any direction you wish but the fact remains - he screwed up - he admitted it...
Per your, "Make sure your Roofing Expert builds according to code" - you apparently haven't had a roof replaced. When a permit is issued one can also request the applicable Code Section for the specific work to be performed... As a matter of fact, a competent contractor will have a complete copy of the necessary code in possession, or, have knowledge of where to find them - apparently unlike our city attorney...
It is indeed the responsibility of the city official that issued the permit "to make sure the job is done to code"(through his/her designated inspector).
A city code inspector inspects and signs off on each phase of the job and performs a final inspection. No work can be started on the next phase of the job until the completed phase has been inspected. That's his job - I've seen him do it.....:)
Posted by Stacey, a resident of the Amberwood/Wood Meadows neighborhood, on Nov 17, 2008 at 7:53 am
It isn't spin. It is a real simple concept. The City Attorney represents the City of Pleasanton, not individual residents. Roush is not everyone's personal consul.
A code inspector is protecting the interests of the City issuing the permit. They are not protecting the homeowner's interests, who is still ultimately responsible for any deficiency in the work. If a code inspector finds something wrong, it isn't the code inspector with the responsibility of fixing the problem. It is the homeowner and his roofing expert. This is no different from the City Clerk certifying the petition with the real party in interest being the petitioners.
Posted by Correct, a member of the Amador Valley High School community, on Nov 17, 2008 at 10:43 am
It is odd the roofing story used here. Almost 20 years ago after selling my first home in Pleasanton that had a room addition added. I was sued in small claims court after the new owner experienced a leak somehow related to my room addition. I had acknowledged the addition and all work performed with permits, yet when all was said and done, the judge ruled that while I followed the law to the letter of the law and had obviously done nothing wrong, I was still legally obligated to pay for repairs related to the damage. He actually apologized for the ruling, but stated he was following the "law". Weirdly applicable given the nature of this discussion.
Posted by Jerry, a resident of the Oak Hill neighborhood, on Nov 18, 2008 at 2:15 am
One more time - no one is implying the City Attorney represents individual citizens, but, his office does have a responsibility to provide all "city related documents" that citizen are legally entitled to request(review the job description). "He did his best" doesn't cut it. In my opinion, Karen from Vintage Hills thoroughly addressed this issue.
Now on to the permit issue - The code inspectors certainly are protecting the homeowners interest. They're there to assure all work is performed to codes the city/state has developed over time to assure the safety/welfare of citizens. That why so many people in some countries suffer such devastating casulties during earthquakes. Lax, or no, building codes for structures.
True, "it isn't the code inspector with the responsibility of fixing the problem". It's the inspector's responsibility to see that the problem is "fixed" before the job progresses to the next phase, or after job completion...
If during the final inspection a problem is found the inspector issues a compliance order to the person that did the work, with a time table attached. This can also apply to a problem discovered by the homeowner at a reasonable later date and a re-inspection is requested. Again, I've seen a city inspector do it... Also saw a state inspector do it...
How one came relate this to a City Clerk is "beyond my pay grade"(where have we heard that before :)).
Enough of this ...The City Attorney screwed up... He admitted it!!!
You don't give details of the problem you experienced(somehow related to my room addition). Could it be your problem wasn't "permit related" but a shoddy contractor...
If it was "contractor related", did you seek relief from the contractor, or those that issued the permits, within a reasonable time table...
Posted by anonymous, a resident of the Another Pleasanton neighborhood neighborhood, on Nov 18, 2008 at 5:51 am
Regardless of whether the city attorney made a mistake, the law is clear, it is the responsibility of the signature gatherers to have all related materials. I guess there is enough blame to go around since many involved were "experienced in government" having been past council members, planning commissioners etc.
The initiative and referendum process is not supposed to be easy. Most other states that have these options also have some legislative or judicial check on the wording and the legality of any proposed ballot measure. Maybe that would help solve the here we go again mentality of many of the measures we have seen over and over at the state level.