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Council to consider response to Oak Grove lawsuit at special meeting Thursday

Original post made on Aug 24, 2010

The Pleasanton City Council has scheduled a special meeting Thursday to review a lawsuit filed by landowners of 562 acres in the city's southeast hills who are seeking a court order to allow them to develop 51 large lots on a part of their property for custom homes.

Read the full story here Web Link posted Tuesday, August 24, 2010, 6:57 AM

Comments (42)

Posted by Get Rid of the Council, a resident of Amador Estates
on Aug 24, 2010 at 8:22 am

Another reason to get rid of our council. The residents voted against and the council decides they know better. Oust them in the next election including the mayor.

Posted by Stacey, a resident of Amberwood/Wood Meadows
on Aug 24, 2010 at 8:44 am

Stacey is a registered user.

In this case the Council is damned if they do and damned if they don't.

Posted by sickofit, a resident of Amador Estates
on Aug 24, 2010 at 8:46 am

Of course, the weakly doesn't give all the facts. Like the fact that the Lin's on attorney, in court, has said that if the referendum were to be defeated there would be no development. The Independent has a much more 'newsworthy' description of this issue. BTW, if the referendum really didn't matter, why did the Lin's spend over 600 K to try and get it passed? Nope, the Lins found a new set of attorneys and are trying yet another legal maneuver to bypass the will of the people.

Posted by Stacey, a resident of Amberwood/Wood Meadows
on Aug 24, 2010 at 9:34 am

Stacey is a registered user.

That's not the real issue in this case. The issue is that prior to the referendum, the Lins had a valid contract with the City and the Lins are claiming that the City breached it because they didn't remove the poison pill language from Ord. 1962.

Posted by Fed Up Tax Payer, a resident of Downtown
on Aug 24, 2010 at 9:35 am

The City should not fight this lawsuit unless Kay Ayala and Karla Brown agree up-front to pay for all of the City's legal fees and court costs. Those two are responsible for this current mess because they failed to challenge the Lin's development properly. We taxpayers should not have to pay for their mistakes.

Posted by sickofit, a resident of Amador Estates
on Aug 24, 2010 at 10:30 am

Stacey - the real issue is that this has been voted on by the it or not, that is our system. The other real issue is that in court filings, they have admitted that if the referendum were to fail, they would not have a development. Sorry, to me this is just more of the same.

Posted by get real, a resident of Downtown
on Aug 24, 2010 at 11:39 am

in response to Stacey,

I agree but why don't we choose the cheaper and more efficient option of letting them build 51 houses. The City does no to need to pour any more money and time down this Ayala created hole.


This is a new case like it or not so it really doesn't matter what an attorney said in a prior case. The Lin's could have chosen this route to start but wanted to get a development passed without having to "switch to guns". Ayala and company forced their hands on this one.

Posted by Don, a resident of Country Fair
on Aug 24, 2010 at 12:10 pm

Shame on these people. The city needs all the money they have and we dont need to spend it on lawsuits by its own. If theses people cared about Pleasanton they would listen to the vote and stop being such money hungry idots!

Posted by Curious, a resident of Del Prado
on Aug 24, 2010 at 1:53 pm

@ Don - So you want to build a second home on your property for your mother-in-law, but a group of your neighbors passes a referendum to block development on YOUR PROPERTY. They do not want their views obstructed by a building on your property. You would be very upset by your neighbor's actions especially considering you went through the proper channels and obtained the appropriate permits from the city. Wouldn't you take legal action?

Posted by Lance, a resident of Danbury Park
on Aug 24, 2010 at 3:05 pm

I hope the city doesn't have to foot the bill on this. It seems that a lot of time and effort, and now money, are being spent on this little groups personal vendetta. I say Kay and Karla should pay the legal fees, whatever they may be.

Posted by Fed Up Tax Payer, a resident of Downtown
on Aug 24, 2010 at 3:34 pm

If the City does fight and then loses this, it will not only have to pay its own legal fees but the Lins attorneys as well. The final bill WILL BE in the MILLIONS. And for what???????

Posted by sick of the lins, a resident of Another Pleasanton neighborhood
on Aug 24, 2010 at 4:07 pm

So were the Lin's lawyers lying in the last court case they were in:

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."

I received a copy of the transcripts of that court case, and as the Independent Newspaper reported this last week, it is correct.

Are you also saying that our city attorney is incompetent because he wrote the Impartial Analysis of Measure G and stated that the poison pill makes the development agreement, 1962, go away?

In the minutes of the meeting of July 20th, the City Attorney states on page 4, "Based on the clear intent of the City Council in including the poison pills provision in both ordinances, the fact that the city manager did not sign the Development Agreement until required to do so by a court, and statements made by both parties during the litigation, he found the consistent extension of the City's position to be that the Development Agreement itself is of no force or effect."

Also, the City has a signed agreement that James Tong, the developer, acknowledging that if ordinance 1961 (Oak Grove) were referended, ordinance 1962 goes away because of the poison pill.

Looks like the Lins are trying to threat the community again. They probably worked with the Weekly to make sure only their side was reported so the community thinks there is nothing we can do. The Lin's already have the council majority in their back pocket because of the campaign contributions made. There is also most likely an agreement with the mayor that if she puts her name on every phone call and literature for Oak Grove that the developer will assist her in her campaign for mayor.

Seems to me the Council has two options. If they believe the developer has a strong case, they should fire our city attorney for the improper analysis on the voter handbook and the improper poison pill in the ordinance and an improper acknowledgment that Tong signed, or, Two, fight the Lins on this case.

Posted by javadoc, a resident of Dublin
on Aug 24, 2010 at 4:08 pm

javadoc is a registered user.

Hey sickofit,

Is the issue really the "will of the people" and a nefarious plot to circumvent it?

The "will of the people" is expressed, in this case, in various laws. What matters is therefore the rule of law. I don't see anything that indicates the legal system is being circumvented to resolve the matter.

It sounds more like "the people" expressed their will imprecisely and probably incorrectly.

None of this changes the fact that "the people" shouldn't have a say in what is done with private property in the first place.

Posted by Db, a resident of Bridle Creek
on Aug 24, 2010 at 5:41 pm

Let the Lins spend money on lawyers, we'll vote on a new measure to block it.

Posted by Arroyo, a resident of Another Pleasanton neighborhood
on Aug 24, 2010 at 5:47 pm

Many of the people of Pleasanton do not want the Lins to build a single road or home. It's confiscation without compensation, pure and simple..!! Find out the purchase price and let all those No on D voters chip in their share and buy it. We should've been happy with the land the Lins were willing to give to the City.

Pleasanton has lost the best deal they could've ever hoped for with that property. Now, it's time to pay for the stupidity.

Posted by Arroyo, a resident of Another Pleasanton neighborhood
on Aug 24, 2010 at 5:51 pm

I remember when there was opposition to the Bridle Creek development and many thought it was a mistake. Enjoy your home - Welcome to the world of NIMBYs.

Posted by Stacey, a resident of Amberwood/Wood Meadows
on Aug 24, 2010 at 7:39 pm

Stacey is a registered user.

It may not be clear to others. The referendum did not occur until June 8th, 2010. Prior to that, the Lins had a valid contract with the City. It was not on hold or suspended while we were all waiting for June 8th. The contract requires the City to protect the Lins' interests in the contract from changes in law via things like referendum. The Lins agreed that the development agreement would be set aside by the referendum so they requested that the City remove the poison pill language. The City didn't.

I'm very interested to see how our new City Attorney frames this case. Any decision would hinge upon whether or not we think the case is winnable. If we don't defend, it may just mean that the development agreement gets put back in place and the Lins can build the 51 homes. If we defend and lose, we may be liable for damages in addition to legal fees because the Lins' interests in the contract were damaged by the City's breach of contract and the setting aside of that contract. If we defend and win, who knows then? Is this winnable?

Posted by sick of the lins, a resident of Another Pleasanton neighborhood
on Aug 24, 2010 at 8:05 pm

Stacey, you fail to mention/acknowledge that the Lins sued the city to force signature on the development agreement. They argued in court that they know it would go away if the other ordinance fails with the voters. (How long have you been working for the Lin's?)

If the Lin's felt they had a binding agreement whether or not Measure G failed, why would they spend almost $700,000 to try and win that election?

The me it seems clear what the poison pill does. The Lin attorney in court said everything goes away if Measure G goes down, and the judge even thought it was obvious. All in the court transcripts.

Another attempt of the Lin's bullying the City & public. Threatening with massive court costs unless we give in to their demands.

Posted by frank, a resident of Pleasanton Heights
on Aug 24, 2010 at 8:56 pm

to sick of the lins

You don't get it: that is, how the attorney's for the Lin's countered the fact that Ayala was lazy and convinced the council to put a poison pill in ordnance that they were too lazy to carry for petitions. Development agreements usually contain language wherein the city agrees to protect the vested rights in the agreement. The city did not because they refused to remove the poison pill during the time the agreement was in effect (requested at a council meeting prior to June 8). A separate, earlier lawsuit resulted in the judge declaring the development agreement was valid, that is, at least up to the point in time that the referendum may invalidate it. The Lin's attorney's agreed in that case that invalidation may happen. They did not agree to NOT pursue their VESTED RIGHTS while the agreement was in force. So, if the the poison pill legally has the effect of invalidating the Development Agreement, then the city has breached its warranty and the Lin's can then sue for damages to the tune of $$$$$$$$$$$$$$$$$$$$.

The hill to climb for the city is to undo the earlier court decision that stated the DA is valid and the city clerk had a duty to sign it under law. If this court simply states that the poison pill is valid the city is deep trouble.

The lesson to be learned is "don't get sucked into trying to be creative in circumventing state law to be politically popular to special interests".

Posted by Stacey, a resident of Amberwood/Wood Meadows
on Aug 24, 2010 at 8:58 pm

Stacey is a registered user.

It's a good thing you brought up the fact that the Lins sued the City over signing the contract. In California, ordinances take effect 30 days after their approval. Ordinance 1962 became effective 30 days after the Council approved it because no citizen group gathered signatures to referend it. The City had an obligation under California law to sign. If citizens value the referendum, then referendum law has to be respected even when it seems to go against what citizens want. If an ordinance hasn't been made the subject of a referendum, it takes effect. What are you trying to advocate, that the City should flaunt State law and put an ordinance on hold for longer than 30 days? They tried that, got sued, and lost the case! If you read the last lawsuit, it will be totally clear to you that the poison pill does NOT put the law on hold.

You really miss the point too on this idea about having a binding agreement. You're right that if they felt they had a binding agreement then there was no need for them to spend money on the election. It's a big "if" and statements made recently by their representative are probably just propaganda. The Lins didn't have a binding agreement after June 8th, 2010. They only had a binding agreement prior to that date. They agreed to that in court! That's why they spent money on the election.

Posted by justwondering, a resident of Another Pleasanton neighborhood
on Aug 25, 2010 at 5:57 am

Another interesting point that hasn't been brought up is that the poison pill was inserted at the second reading of the ordinance. Aren't ordinances supposed to be read twice to become law? Since the poison pill only had one reading, could an argument be made that it isn't valid? I realize this is a technicality but nonetheless, there are rules that are supposed to be followed and it would seem there should have been another reading once the poison pill was added. Also, given that Karla Brown is a candidate for City Council, I would like to hear her position on this since if elected she would need to be making decisions on items such as this.

Posted by susan, a resident of Pleasanton Valley
on Aug 25, 2010 at 9:31 am

Its time to cut our losses and let the Lins build their 51 homes, how many they will sell, will be another story. THE CITY CANNOT AFFORD MORE LEGAL FEES AND NEITHER CAN THE TAXPAYERS.

Posted by Forgeting Democracy?, a resident of Bonde Ranch
on Aug 25, 2010 at 9:55 am

I want to know how many of you are lobbyists for the developer and/or are providing cover to the developer-indebted City Council majority to allow them cave in to the Lin's. After all, having the Council give them the development before they're gone is a sure bet!

I guess another option is that you're one of the cromagnon Chamber-types whose capitalist religion trumps democracy.

Posted by sick of the lins, a resident of Another Pleasanton neighborhood
on Aug 25, 2010 at 10:13 am

To justwondering, a second reading is so the public is aware of a vote. Some cities put the first reading on the consent calendar with all the comments and changes on the 2nd reading. Others do it the other way.

However, if you think the development agreement is not valid because there were changes on the second reading, then the whole development agreement is invalid and should be thrown out.

Posted by Kaitlyn, a resident of Amador Estates
on Aug 25, 2010 at 10:40 am

Maybe if Karla and Kay had drafted their referendum correctly the City of Pleasanton would not be in this predicament. There is a movie that comes to mind when I think of them and it's called dumb and dumber. A vote for Karla Brown in the next election is a vote for Karla Brown and not what's best for Pleasanton. Remember that voters!!

Posted by Becky Dennis, a resident of Foxborough Estates
on Aug 25, 2010 at 11:10 am

Hi, Just Wondering -

If Karla Brown is elected, I don't think she will be able to vote on any matter pertaining to Oak Grove, or even participate in any Council discussions about Oak Grove due to California conflict of interest laws. She lives too close to the proposed development.

Posted by Someone with common sense, a resident of Another Pleasanton neighborhood
on Aug 25, 2010 at 11:13 am

If we all had voted against any more housing in the past, we wouldn't be living here now would we? Come on people Kay cost ALL OF US a lot of money. It's time for the developement to go thru as planned it's only 50 or so houses who cares if they are bigger than the rest it will bring good people to Pleasanton & alot of permit fees & taxes that will benefit all, especially the schools who need that money. Common sense people - use your brains. Kay, move away!

Posted by Bruce, a resident of Pleasanton Heights
on Aug 25, 2010 at 11:42 am

The people who bought the Lin developed homes in Kottinger Ranch knew that there were more homes to be built on the rest of the Lin owned land above them. None of them put stipulations in their purchase contracts to prevent that, as the deal would have fallen through. But now they are trying to stop that by spending taxpayer dollars and using the term democracy to say they are right. If my memory holds true, I believe the Constitution gives us the right to property and if they didn't try to stop the construction of Kottinger Ranch, they shouldn't be allowed to stop Oak Grove now.

Posted by building, building, building, a resident of Another Pleasanton neighborhood
on Aug 25, 2010 at 9:04 pm

Good thinking 'someone with common sense'. We should never vote against any housing. We should allow any proposed home to be approved as we do not want to get in their way. Any housing we deny now is not allowing a future resident in the community. We should not give up until we look like Los Angeles. Dublin is doing a great job in trying to look like Los Angeles. Not fair. We should be doing the same thing here in Pleasanton. I am getting excited about the possibility of tearing down my older 1900 square foot house with a yard and replacing it with multi-story high-density. I can make some money and think about all those people I would be allowing to live in Pleasanton. Heh, the constitution gives us the right to property. At least that is what I read in this blog. Or is that what the foreign-based land speculator of Oak Grove is telling us.

Posted by frank, a resident of Pleasanton Heights
on Aug 25, 2010 at 10:09 pm

No, building^3, that is not what "the foreign-based land speculator of Oak Grove is telling us". Read your constitution, fifth amendment, which says " nor shall private property be taken for public use, without just compensation." Your constitution is telling you that! After 18 years of trying to develop this property, the developer is getting very close to winning "just compensation" which Pleasanton taxpayer's will fund.

Posted by Stacey, a resident of Amberwood/Wood Meadows
on Aug 25, 2010 at 10:16 pm

Stacey is a registered user.

No democracy lasts long that does not ensure rights or the rule of law. Or is that also forgotten?

Posted by oh,stickitalready, a resident of Avila
on Aug 26, 2010 at 9:01 am

Frank and Stacey, how funny is it that the Lin's never sued on Constitutional grounds?
Apparently even they don't think they have a case there, patriots that they are.
What Kay and Karla did with the referendum is not against the law, how come you always seem to forget that?
And Frank, don't call Kay lazy. She may be a lot of things but lazy isn't one of them. She has done more for this community than you ever have on your computer. You and your family should respect that.

Posted by Throw the bums out, a resident of Amador Estates
on Aug 26, 2010 at 9:04 am

I don't understand why a majority council would agree to the terms Sabey quotes, "the pending PUD Referendum Petition presents a circumstance requiring the city to acknowledge, protect and reaffirm the Development Agreement and the vested rights it confers in favor of the Lins."

Is this why the Mayor sent out 5 or 6 mass mailings with her name on it, and why Cook-Kallio stood on street corners trying in vain to convince voters that Oak Grove was actually good for the City? They promised something they could not deliver. And the Lin's asked for too much. Their smooth attorney wrote in "gotcha" phrases like this one.

If they are not smart enough edit these out or at least to run this through the Planning Comm. to get this paragraphs OUT of the contract, they are not smart enough to run the city.

Posted by frank, a resident of Pleasanton Heights
on Aug 26, 2010 at 8:37 pm

frank calls it as he sees it. Trying to admonish me for that will never have any effect upon me, except to tell you (stickitalready) that. Now that you have lauded Ayala about her great contributions to Pleasanton other than to snag its citizens into lawsuits, use your opportunity to cheer-lead by listing them in this thread. I am giving you an opening to elevate her in the eyes of all who today read these threads. Go for it!

Posted by Really?, a resident of Another Pleasanton neighborhood
on Aug 26, 2010 at 8:58 pm

The greatest irony was watching Kay bash the school district, interupt, and call out rudely at a community wide meetings discussing the lack of funds for our schools, only to have her waste our money with her special interests. And people say she is doing so much for our community? Yeah right.

Posted by Longtime Resident, a resident of Birdland
on Aug 26, 2010 at 9:26 pm

It is interesting to see how well represented the Lin and Tong families are in this blog.

We had an election and the majority said they do not want Oak Grove. We seem to have a lot of whiners on this blog. Sore loosers. If you cannot win on the merits of the issue, you go and insult those who took the time to get this to the ballot against all the hurdles presented by the council majority, and the Lin's lawyers. I thank all of those who have the passion for an issue and bring the issue to the voters whether I agree with the issue or not.

The Council majority did not want this going to the voters because they knew the voters did not want the project they approved. Council members standing in front of signs saying "do not sign the pertition to put this issue on the ballot as we do not want the voters to have any say." Seems pretty arrogant to me. I think the power had gone to their heads. Anytime an elected official tries to prevent me, the voter, to vote on an issue, I vote that elected official out. I will be doing so at the next opportunity.

Posted by Stacey, a resident of Amberwood/Wood Meadows
on Aug 26, 2010 at 9:40 pm

Stacey is a registered user.

And in Palestine they had an election and the majority said they wanted terrorist group Hamas in power. What's your point?

Posted by frank, a resident of Pleasanton Heights
on Aug 26, 2010 at 10:05 pm

46 percent of the voters wanted the project approved. How about that?!

So you think that the "Council majority did not want this going to the voters because they knew the voters did not want the project they approved." That's your opinion and should be modified to say 54% of voters, not "the voters". Your opinion as stated is inaccurate.

Tell me which council member "tries to prevent me, the voter, to vote on an issue." What did they do to prevent you. Block your access to the voting booth? Someone put a gun to your head? Who was it? In my opinion you are "off the charts" because that statement is FALSE and over the line. Nobody tried anything to prevent you to vote!!!! This is nonsense. Like anybody who stands up on their soap box and speaks against something is "preventing you". Ridiculous.

Posted by frank, a resident of Pleasanton Heights
on Aug 26, 2010 at 10:39 pm

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.

The ordinance approving the DA was NOT referended!

Prior to the date of the referendum of the PUD, the Lin's requested the City to remove the poison pill language in the DA ordinance, which would undue their vested rights, if it were to become valid by the PUD referendum election. The City refused to do so, the referendum passed, and now the City is accused of breaching its warranty IF the poison pill language is legal. Quite simple.

In November, 2007 at the "poison pill creation" council meeting, there is no way that council members could have understood this detail. City Attorney Roush failed to understand this also. He along with staff fell over themselves creating poison pill language in each of the two ordinances, the language of which appeared to me to politically satisfy Ayala's request to carry papers to only referend one of the two ordinances. Ayala initiated the whole idea to carry only one set of papers and to try to kill two pieces of legislation with the effort of one. Check out the minutes of that meeting. Cook-Kallio was the only one to vote against this idea.

Posted by Stacey, a resident of Amberwood/Wood Meadows
on Aug 26, 2010 at 10:45 pm

Stacey is a registered user.

Ah, thanks for reminding me what was on my mind regarding development agreements. Some poster above believes that such language about protecting the development agreement from changes in law should not have been in the development agreement to begin with. I really question that. What is normal for development agreements? Why would a party sign to such a development agreement that was not protected from changes in law? Would _you_ sign such an agreement?

Posted by Brenda P., a resident of Avignon
on Aug 26, 2010 at 11:03 pm

The people I talk to at the grocery store and at my kids' schools can't believe Measure D failed. But, they didn't vote! That's the problem - people think their vote doesn't count, or that the issue is so clear that they don't need to vote. Too bad the Council didn't decide to put this on the November ballot - the yes on "D" vote would have won - but I do understand the political reality.

Karla Brown and Kay Ayala have to move on. Every time I see them at a council meeting on tv, they sound like poison.

Posted by frank, a resident of Pleasanton Heights
on Aug 26, 2010 at 11:07 pm

There is even a manual on Development Agreements.

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