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

Original post made on Sep 14, 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 Friday, September 10, 2010, 12:00 AM

Comments (42)

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Posted by Sean Lemoine
a resident of Lemoine Ranch
on Sep 14, 2010 at 9:27 am

This is ridiculous. We are laying off teachers, slashing educational programs and still throwing away millions of dollars in legal fees on lawsuits the City of Pleasanton knows it will lose. The Pleasanton teachers association and parents should be furious! We are also losing park space, and millions of dollars in fees/taxes etc. by blocking this project. It absolutely amazes me that people waste their time, money and effort on a 51 home project when there are so many worthwhile and needy causes to pursue. Excellent job Pleasanton...we've thrown away $2.5 million on the first lawsuit, what is the prediction for the 2nd? I'm taking the over.


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Posted by voter
a resident of Another Pleasanton neighborhood
on Sep 14, 2010 at 9:51 am

Can someone who knows about this please list the candidates in Pleasanton who will stop this lawsuit. We can't afford it and I am willing to vote for people who stop this madness to we can move forward and spend money on things we need - not lawsuits.


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Posted by Marie
a resident of Castlewood
on Sep 14, 2010 at 12:32 pm

Sean, I recognize your name as a long time Pleasanton Family. When will the families that built this town rise up and show the newcomers how this city was built? If some of these heritage families were against growth back in the 1970's '80's and '90's, the Karla Browns of this town would be living somewhere else...and that would be a good thing. We could have had 500 acres of parkland for 51 homes that would generate property taxes for our city. No, now we're defending a lawsuit. Thanks a lot, Karla, Kay and all the people you duped into your way of thinking.


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Posted by Rights advocate
a resident of Another Pleasanton neighborhood
on Sep 14, 2010 at 4:26 pm

Well, the selfish should not have been so deceitful. May the Founders concept of personal private property rights prevail ! Don't the 'busy bodies' ever give up and let common sense rule ....now THAT would save us wasted dollars.


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Posted by Arroyo
a resident of Another Pleasanton neighborhood
on Sep 14, 2010 at 4:46 pm

I met a man the other day who admitted that he had opposed the Oak Grove development. I asked him why and his response was "We already have enough traffic on Foothill, and I don't want anymore homes built along that street." I explained where Oak Grove is located and the acreage that the city would have received, and he said "Oh, um, I guess I made a mistake."

My point is that I believe he is one of many voters who did not understand Measure D.


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Posted by Jacob/ Alma
a resident of Carlton Oaks
on Sep 14, 2010 at 5:26 pm

How come we never see a post from Karla, Kay or "Minnie Kay"? I would realy like to see their comment on the mess they created. 2.5 million, no big deal???? I say we go after K and Karla for the fees. Why should we be on the hook for this? Thats alot of money for an angry loser. BS, we need to go after them or the City fricking manager who let this go on. Why isn't Nelson commenting on this?


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Posted by John P.
a resident of Country Fair
on Sep 14, 2010 at 7:02 pm

Dear Marie,

"Duped" is right! Maybe if we support and believe in our current council, we'll get a good result with no more stupid lawsuits.


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Posted by frank
a resident of Pleasanton Heights
on Sep 14, 2010 at 9:57 pm

The initial case management hearing will be held November 3, 2010 in the courtroom of Judge Patick Zika of the Alameda County Superior Court. At that hearing will come the first information regarding the advice newly hired council for the City of Pleasanton will have given to it. Will the city indicate a willingness to settle (allow the DA to stand and agree to a court ruling against the validity of the poison pill language), or will it fight and put at risk the possibility of huge damages ultimately paid to the Lin's for this debacle caused by Ayala, Brown, McGovern, and others?

In the former case, Pleasanton gets a 500 acre park and a high end development that will pay significant taxes that flow to the city and the schools. In the latter case a few NIMBY's may get their way at the expense of the city treasury.


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 15, 2010 at 12:09 am

Matt Morrison is a registered user.

Why did the editor re-post this story, eliminating all the comment between last Friday and today?

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).

The key language quoted and attributed to the Lins is, should the PUD be set aside through referendum, "We will claim no vested rights." That language is proof of an affirmative agreement not to engage in precisely the litigious behavior the Lins are acting out in their lawsuit against the City.

Since the Lins are suing for breach of warranty, this agreement under contract law makes passing the PUD referendum a condition subsequent that invalidated the Developer Agreement contract, and also 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).

Now, the Lins attorneys do not mention the Latter Agreement in their filing with the court. That leads me to believe the attorneys are going to rely on the parol evidence rule to exclude the Letter Agreement as evidence. I don't think this technicality will fly because there is a significant amount of other evidence that both parties (the Lins and the City) considered the Lins' agreement, "We will claim no vested rights" if the PUD is set aside through referendum, to be part of the contract – part of the parties intentions to be bound.

Typically, the government doesn't get back money they spend on attorney fees if they win a case unless the plaintiff's complaint is found to be frivolous and/or malicious. If the Lins' lawsuit is a result of their own bad faith agreement, this could be a case where Pleasanton recoups their attorney fees.

The voters of Pleasanton passed not one, but two hillside protection ordinances between the City council's approval of Oak Grove and the subsequent referendum. Far from being "duped," Pleasanton voters want to see the surrounding hillsides developed in the visually sensitive manner described by our municipal law.

If the Lins want to develop Oak Grove in Pleasanton they should propose a plan that adheres to Pleasanton's hillside protection ordinance, just like any other hillside landowner must do.


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 15, 2010 at 12:25 am

Matt Morrison is a registered user.

P.S. Hey Sean Lemoine, I saw you're a fan of Field Trip. I graduated from Foothill with Pete LaBorde, Stephen's older brother. Good times!


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 15, 2010 at 9:03 am

Matt Morrison is a registered user.

Well, it looks like at the City Council meeting approving the "poison pill" language, the Lins representative, Marty Inderbidson, possibly was arguing for both the PUD and Development Agreement to be circulated.

(From 11/06/07 minutes) "Marty Inderbidson Project/Owner representative said the right of referendum is part of the process; it is an exceptional part of the process and not to be taken lightly and not used on a regular basis. Property owners have rights also and the process set up helps to protect both sides of a transaction. One thing required to referendum a project is to make sure the entire ordinance is presented to the citizens so they can judge whether or not it is appropriate to sign and vote on the referendum. The ordinances for the PUD and development agreement go hand in hand with the project. He felt it was important for citizens when looking at the ordinance to understand the obligations they have committed to by contract in order to implement that ordinance in determining whether or not they should sign the referendum and vote on it."

The "Letter Agreement" and "We will claim no vested rights" by the Lins is the only evidence so far that the Lins agreed to the "poison pill" language in the Developer Agreement Ordinance 1961, "This ordinance shall be effective thirty 30 days after its passage and adoption provided however that if Ordinance No 1962 is set aside by referendum this ordinance shall be of no effect."

Whether the 30 day requirement for Ordinance 1961 to take effect is tolled because the Lins sued the City over the referendum of Ordinance 1962 (and lost their case) is an important question.

Both the lawsuit over Ordinance 1962 and the reason for included "poison pill" language in Ordinance 1961 were a result of dealing with the amount of paper that must be attached to a referendum.

The lawsuit settled that petitioners for a referendum only need to attach copies of the ordinance. Unfortunately, there is a much larger amount of paper involved with a development agreement ordinance, so the problem the "poison pill" was trying to solve was not to avoid referending two ordinances. Rather it was whether Pleasanton voters' right to referend a project is defeated if an ordinance is so voluminous that it logistically impossible or prohibitively expensive to circulate the referendum petition.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Sep 15, 2010 at 9:48 am

Stacey is a registered user.

The "poison pill" was not a solution to a problem, only a means by which one group tried to circumvent the State's referendum law. The intent of the law is that citizens have a right to be fully informed about an issue. That right overrides the petitioners' burden of paperwork. The previous lawsuit on the referendum was not over the amount of paperwork, but in regards to what constituted the "full text" of Ordinance 1961.


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 15, 2010 at 10:57 am

Matt Morrison is a registered user.

Mademoiselle Stacey, au contrare (and a very fine morning to you!).

The previous lawsuit was about whether documents incorporated by reference were required to be circulated with the text of the ordinance - although maybe it ("full text" v. "text") is a semantic distinction we're talking about. :~)

Looking at the meeting minutes, one problem talked about at the 11/06/07 City Council meeting was the volume of documents in the actual ordinance of #1962.


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 15, 2010 at 10:57 am

Matt Morrison is a registered user.

Here, for everyone's reference, is what I find from the 11/06/07 minutes (abridged to remove non-referendum stuff):

Kay Ayala said the developer agreement has been engineered so that if the PUD is subject to referendum then the agreement still stands. If the development agreement is subject to referendum then the open space would not be in place. She asked Council to not approve the ordinances without putting in language in both the development agreement and PUD that negate each other if one is subject to a referendum. She said they plan a referendum on the PUD.

Mayor Hosterman - Regarding the wording of the development agreement and PUD, she thinks the initiative has been addressed regarding staff to come back to Council to consider. She felt the referendum is misguided but those interested could move forward with this.

City Manager Fialho said staff has copies of suggested language to present on the overhead projector as well as hard copies for the audience. He said the City Attorney can walk through this language with the Council and if considered it could be added to Section 5 of each of both ordinances.

City Attorney Roush said the proposal would be to have self termination language as part of the ordinance in terms of the effective date. This language could be in either or
both ordinances. What is shown now is the language in the ordinance that would approve the development agreement. It provides that the ordinance adopting the development agreement would be effective 30days after its passage and adoption, but they added a provision that states that if Ordinance No 1961, which is the PUD development plan ordinance, is set aside for referendum, then the development agreement ordinance would be of no further force and effect. If this language was adopted and then the development agreement ordinance was set aside, the PUD development plan would also go away. The Council could add that same language to the PUD development plan ordinance.

He said when a referendum petition is circulated one needs to attach to the petition the document that is being set aside. So with respect to the PUD development plan ordinance, there is a statement of overriding considerations and PUD conditions. There is a much larger amount of paper involved with the development agreement ordinance than just with the PUD.

Councilmember McGovern said she supports putting the language in both ordinances under Section 5 because it makes it fairer to those who are trying to referendum the project.

Councilmember Sullivan supported moving forward with placing the additional language in the ordinance and said he supports the citizens right to pursue a referendum. He felt the Council should not add additional barriers to the citizens in doing this and he was also supportive of the additional language proposed.

Councilmember McGovern felt what needed to be voted on prior to the PUD and development agreement is the additional language.

Councilmember Sullivan said he would support adding additional language that would allow the citizens to pursue a referendum either the PUD or development agreement.

Councilmember Thorne said he was comfortable in relying on the answers from staff on issues raised, echoed what Councilmember Sullivan has asked the community to do, knows things can be battled out, said it is hard to understand how this project can be looked at from an impact or benefit point of view without supporting it, and could support the additional self terminating language.

Councilmember Cook-Kallio does not agree with the verbiage to combine the PUD with development agreement and thinks the complaints heard have been about the PUD. She said there has been a lot of hard work that went into the development agreement, and that it would be unlikely for the developer to continue if the PUD referendum was successful, but in the event they chose to, she wanted to preserve the development agreement because it is the crown of the entire ordinance, so she would not support the self terminating language for that reason.

Councilmember Sullivan questioned the downside legally if the PUD is subject to a referendum and the development agreement is still in effect.

City Attorney Roush said there may be a difference in the practical effect and the legal effect. The legal effect would be that you could still have a development agreement in place which it currently provides such as benefits and burdens, but the PUD plan that is specifically referenced in the development agreement would be set aside. So the option open to the developer would be to come back with a new or different PUD plan to see if that plan could be approved by the City Council. Because that plan may look different, this might bear on changes to the development agreement.

Marty Inderbidson Project/Owner representative said the right of referendum is part of the process; it is an exceptional part of the process and not to be taken lightly and not used on a regular basis. Property owners have rights also and the process set up helps to protect both sides of a transaction. One thing required to referendum a project is to make sure the entire ordinance is presented to the citizens so they can judge whether or not it is appropriate to sign and vote on the referendum. The ordinances for the PUD and development agreement go hand in hand with the project. He felt it was important for citizens when looking at the ordinance to understand the obligations they have committed to by contract in order to implement that ordinance in determining whether or not they should sign the referendum and vote on it.

MOTION – It was m/s McGovern/Sullivan that the self-termination language be placed in both ordinances. Motion passed by the following vote:
Ayes: Councilmembers McGovern, Sullivan, Thorne, MayorHosterman
Noes Councilmember Cook Kallio

MOTION – It was m/s Sullivan/Cook-Kallio to waive second reading and adopt Ordinance No 1961 approving the application of James Tong, Charter Properties (OakGrove Development), for PUD Development Plan approval, as filed under Case PUD 33 and waive second reading and adopt Ordinance No. 1962 approving a Development Agreement between the City Of Pleasanton and Jennifer Lin and Frederic Lin regarding the Oak Grove Development. Motion passed by the following vote:
Ayes: Councilmembers Cook-Kallio, Sullivan, Thorne, Mayor Hosterman
Noes: Councilmember McGovern


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Posted by Liz
a resident of Another Pleasanton neighborhood
on Sep 15, 2010 at 11:58 am

Too bad they didn't hire a local lawyer.


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Posted by Meghan
a resident of Vintage Hills Elementary School
on Sep 15, 2010 at 12:28 pm

For all the people who have mentioned throughout these forums that the voters were "duped" by Karla and Kay and their tactics in their "No on D" campaign (for the record, I voted for D), I'm wondering if anyone has noticed the large number of signs already posted around town in support of Karla and Cindy... I've seen only a couple for Jerry, Cheryl and Jennifer. I'm wondering where the support is for these three and where the general population is going to see "No on Brown" or "No on McGovern". It feels like we're heading for a repeat of June's election...


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Posted by annonymous
a resident of Another Pleasanton neighborhood
on Sep 15, 2010 at 1:21 pm

Travel outside your neighborhood. There are a lot of Cook-Kallio and Thorne signs elsewhere.

Signs are not votes and should not be confused for them. Take a look at what's at stake and please be an informed voter.


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 15, 2010 at 2:09 pm

Matt Morrison is a registered user.

I repeat, the voters of Pleasanton passed two hillside protection ordinances by generous margins between the time of the City council's approval of Oak Grove and the subsequent referendum of the Oak Grove PUD.

Far from being "duped," Pleasanton voters are clear about their goal that development of the surrounding hillsides occur in a visually sensitive manner as described by our municipal law in our hillside protection ordinances.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Sep 15, 2010 at 2:25 pm

Stacey is a registered user.

Matt,

Regarding this statement: "We will claim no vested rights"...

You see that statement (and that letter) as supporting the defense. Possibly. I see the statement as a much stronger argument supporting the Lins. In more plain language it says, "We're getting screwed by this. You promised that we wouldn't get screwed, but you didn't fix it when you had the chance. So now that we're screwed, you owe us."

About the meeting minutes...

"City Manager Fialho said staff has copies of suggested language to present on the overhead projector as well as hard copies for the audience."

Kind of funny that staff just happens to have poison pill language on hand, don't you think? Sounds like a little more went on behind the scenes.

About full text...
We agree on what that other lawsuit was about. The phrase "full text" was used extensively to refer to the language of the ordinance and language incorporated by reference. The appeals court said only that petitioners cannot be held responsible for defective language in ordinances in a referendum because petitioners did not write the ordinance (as opposed to the language of an initiative).

The bottom line was that the opposition did not want to have to collect two signatures and carry around the necessary documentation to fully inform voters in order to referend the project. The City was quite helpful in helping the opposition by providing poison pill language and adding it to the ordinances.


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Posted by Enough!
a resident of Another Pleasanton neighborhood
on Sep 15, 2010 at 4:39 pm

Don't forget that it was Karla Brown and Kay Ayala who organized against the Oak Grove development, it is because of them that the measure went on the ballot, and now Pleasanton will spend tons of money because of them.

I saw signs for Karla Brown (running for city council) - make sure you DO NOT vote for this idiot.

Also do NOT vote for her partner McGovern.


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Posted by To Matt
a resident of Another Pleasanton neighborhood
on Sep 15, 2010 at 4:42 pm

Only 10,000 voters blindly followed Brown and Ayala. The rest either didn't vote or voted against it. It was a close election, with 54% voting against Oak Grove. If that measure were put in the ballot again this november, I guarantee that it would pass and Oak Grove would move forward, since a lot more voters will make it to the polls.

Do NOT vote for Karla Brown.

Do NOT vote for McGovern.

They will destroy Pleasanton but keep Karla's neighborhood "the way she likes it"


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Posted by frank
a resident of Pleasanton Heights
on Sep 15, 2010 at 9:44 pm

The purpose of Development Agreements that are codified in California State Law is exactly exemplified by comments above regarding hillside ordinances voted in AFTER Oak Grove approval. The comments suggest that political activity downstream in time can justifiably upset rights acquired by property owners earned after arduous and expensive submissions for development.

"65866. Unless otherwise provided by the development agreement,
rules, regulations, and official policies governing permitted uses of
the land, governing density, and governing design, improvement, and
construction standards and specifications, applicable to development
of the property subject to a development agreement, shall be those
rules, regulations, and official policies in force at the time of
execution of the agreement."

The DA in question was at the very least in effect from November, 2007 to June 8, 2010. If the poison pill language is judged to be valid, then during the time it was in effect the city did not protect those rights and therefore breached its warranty to do as agreed within that agreement.... The above poster can therefore take joy in being right about poison pills in ordnances at the expense of you and I, the taxpayer.

This outcome, liability for breach of warranty, can be attributed to Ayala, Brown, and McGovern who initiated this whole debacle because they judged obtaining two signature instead of one was too burdensome.


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Posted by the truth
a resident of Bordeaux Estates
on Sep 15, 2010 at 11:28 pm

10,000 Pleasanton voters said NO to Oak Grove's ridgeline mega-mansions - even with the biased reporting of Jeb Bing.

Cheryl, Jerry and Jennifer *The pro-Oak Grove majority* wasted $95,000 of the tax payer's money to put Measure D on the ballot in June, instead only $10,000 for November Election, so *they* would not have to campaign in favor of cutting off the south east ridges, in favor of 12,500 sq. ft. mega mansions on the ridges and fess-up to heavy campaign donations to their own war chests against Fred, Karla and Cindy.

Perhaps Angela Ramirez coached the Council Majority that June was better for a re-election campaign... but she was wrong.

Now the incumbents are foreced to run a campaign that is transparent showing large donations from the land owner Lin/Tong/Charter. They are on record of voting over and over AGAINST their own constituent's goals.


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Posted by Fred
a resident of Civic Square
on Sep 15, 2010 at 11:35 pm

I used to be a supporter of Jerry Thorne until I read all of these skanky posts attaching people. Does Jerry know how foolish he looks telling the chamber that he is against negative campaigning when all along his own campagin manager is the WORST blogger in the group? Wasn't he a manager before? Kathy Narum, shall I tell him or are you going to tell the truth? I noticed there was a break in mean postings while you were at the Planning comm. meeting. You are an embarrasement to his campaign.


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Posted by Gloria
a resident of Lydiksen Elementary School
on Sep 15, 2010 at 11:52 pm

The cohorts of the current city council majority desperately running for re-election (Hosterman, Cook-Kallio, and Thorne) seem to spend a majority of their time name-calling on the Town Square Forum.

Pathetic, really. Seems like a scene out of middle school. I voted for all of three of them in previous elections, but there is no way any of them are getting my vote.

No wonder they are so out of touch with the actual public. I now know why there is so little leadership of the elected officials (the 3) in this town.



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Posted by Sharon
a resident of Kolb Ranch Estates
on Sep 16, 2010 at 12:07 am

Gloria;

Sorry to hear that you voted for these folks in the past. But I hear their campaign team is the one with all of the looser people. They are going to loose this election for him. Does anyone know how to get hold of Jerry so I can sent him these posts from his own people? An email address? I would hate to send it to all of the council members at the same time. My brother is an attorney. Maybe I should have him subpeona the records at the weekly?

If it is true, can you belive a planning commissioner would stoop so low? I bet he wishes he never met her. I need to get hold of Jerry, but how?


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 16, 2010 at 1:51 am

Matt Morrison is a registered user.

Hi again Stacey!

At the 11/06/10 City Council meeting where the "poison pill" self-termination language was discussed I would've expected the Lins' rep, Marty Inderbidson, to have made a clearer comment one way or another on the Lins' position.

I too caught from the minutes that Nelson Fialho seemed to be prepared for the self-termination idea. If so, we can be 99% sure that the idea was discussed ahead of time with representatives for the Lins. Any discussions are likely where this "Letter Agreement" came from.

The intent of the letter agreement could have been to add a new term, that if the PUD is referended the Lins "will claim no vested rights," without having to draft a new developer agreement.

This letter agreement must be public record if Allen Roberts' attorney has a copy. It would clarify things a if we knew what the letter agreement actually says and when it was signed.

I am going to ask around, but if someone else can post a link to the letter agreement that would be helpful.

Frank, you left out a bit of Government Code 65866…

65866 goes on to say… A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies.

An argument may be made that the new hillside protection ordinance doesn't conflict with the prior official policies governing permitted uses of the land (Oak Grove is still available for housing development, the zoning designation would be the same), governing density (density is not altered due to the hillside protection ordinance, merely available locations), and governing design, improvement, and construction standards and specifications (these all apply to each home individually).

Anyhow, the point is that even if the developer agreement is found to be in force it is not crystal clear that the City Council could approve the same PUD that was referended, the City may be required to enforce the hillside protection ordinance on a new PUD.


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Posted by Joanne
a resident of Val Vista
on Sep 16, 2010 at 7:11 am

Looks like the Karla/Cindy campaign will need to find someone else to slander today. Kathy has been on the east coast taking care of critical family business all week. She did not attend the Chamber Forum and was unable to attend the Planning Commission meeting that is reported to have created a lull in the blogging. Given the nature of her business back east, I doubt that she has any interest in the Weekly blogs at this point.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Sep 16, 2010 at 7:58 am

Stacey is a registered user.

Gloria wrote: "Seems like a scene out of middle school."
Boy, you sure said a mouthful!

Matt,
I'm not sure that was discussed with the Lins. More likely it was discussed with the opposition. Notice that the idea of the self-termination language came from Ayala at the meeting. Maybe it was also discussed with the Lins. *shrug* Notice that she also asked that the second reading be waived.

"Kay Ayala asked the Council to deny the second reading of the project because the citizens who spoke did their own research met with staff and presented new information tonight on the environment which is of major importance regarding the native plant habitat that was overlooked She hoped the scientific community and the public will have the opportunity to further review and work with the developer and city to reduce the grading impacts on native plant species as the planning process continues which she felt needed to be done first prior to approving the project Secondly the process set up left out the communities of Vintage Hills Grey Eagle and Ruby Hill She felt story poles should have been put up She said the developer agreement has been engineered so that if the PUD is subject to referendum then the agreement still stands If the development agreement is subject to referendum then the open space would not be in place She asked Council to not approve the ordinances without putting in language in both the development agreement and PUD that negate each other if one is subject to a referendum She said they plan a referendum on the PUD"

I'll try to find out more about this Agreement Letter later.

About the effect of having a Development Agreement in place with no PUD, that's talked about somewhat in the minutes. The Council probably can't approve a new PUD that conflicts with current law. That may play into any damages awarded by the court.


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Posted by frank
a resident of Pleasanton Heights
on Sep 16, 2010 at 9:43 pm

Matt, don't blow smoke with your additional language of Government Code 65866, because if you read it carefully it says city is not prevented "from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein (the Development Agreement)," Please admit that the subsequent hillside propositions cannot upset the vested rights the Lin's acquired in November, 2007 under this Government Code. Don't obfuscate the obvious.

New item: The trial judge has been changed as of today from Patrick Zika to Yvonne Gonzalez Rogers (never was Roesch).

The elusive Letter of Agreement that Mr. Matt alludes to is still elusive...... However, if he were to actually read case history (required in his law school classes), he would find that:

"In July, 2008 City Attorney and Petitioner's counsel reached an agreement whereby the City Manager agreed to sign the Development Agreement and Petitioners agreed that if the PUD Ordinance were ever set aside via referendum, the Development Agreement would not be of force or effect and petitioners would not claim that they had vested rights in the Development Agreement…… Petitioners thereafter signed an acknowledgment of this agreement…. The City Attorney and City Manager refused to honor this agreement to execute the Development Agreement."

OK. So now we know that Mr. Matt's "letter of agreement" never came to be since Roush refused to sign the DA. So, why keep blowing this smoke?



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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Sep 16, 2010 at 11:27 pm

Stacey is a registered user.

We seem to have already tossed our copy of the Independent from Sept. 9th and that newspaper hasn't updated their website with the e-copy yet...

So I'm looking at the new lawsuit complaint. On page 5 item 22 (Item 20 is also interesting!):
"22. In July 2008, the City Attorney and Lins' counsel proposed a resolution in the dispute to facilitate the City Manager's execution of the Development Agreement. The Lins submitted a written offer to resolve the matter, but the City rejected the offer."

And, after finally finding the correct case number (VG08416511), I'm looking at the lawsuit over signing the Development Agreement. This case mentions the July 2008 letter in section 27. It is some agreement that was signed by the Lins but not honored by the City. Copies of the letter were apparently submitted to the court. Since the City did not honor the agreement, it seems that the Lins' part of the agreement hold no water. Their offer was probably contingent upon the City holding up their end of the agreement.

"27. Petitioners have since had multiple discussions with the City Attorney, and have repeatedly requested that the City Manager perform his ministerial duty to execute the Development Agreement. City Manager has refused Petitioners' requests. (See, e.g., AR 00082 - AR00099.) In July 2008, the City Attorney and Petitioners' counsel reached an agreement whereby the City Manager agreed to sign the Development Agreement and Petitioners agreed that if the PUD Ordinance were ever set aside via referendum, the Development Agreement would not be of force or effect and Petitioners would not claim that they had vested rights in the Development Agreement (See AR 00083 - 00085.) Petitioners thereafter signed an acknowledgment of this agreement. (AR 00086 - 00087.)
28. The City Attorney and City Manager refused to honor the agreement to execute the Development Agreement."


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Sep 16, 2010 at 11:57 pm

Stacey is a registered user.

I think we need to see the actual letter in order to proceed. The City eventually signed the DA only under court order. That may or may not hold the Lins accountable to what's in the letter of agreement. I still think that such an agreement supports the Lins' side of the story more than the City's version. The DA was in full force and effect for over a year before Ord. 1961 was referended. The City appears to have failed to fulfill its obligations under the DA.


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 17, 2010 at 12:19 am

Matt Morrison is a registered user.

Damn, Frank, it's not like I'm clerking for anyone – this is for fun and for free! :~)

The hillside protection ordinance certainly causes a conflict with the resulting original PUD, but the test is whether the hillside protection ordinance conflicts with the prior rules, regulations, and policies themselves.

For instance, say an ordinance limits zoned residential density to 4 homes per acres, but is silent about restrictions building on slopes of certain degrees. Later a new ordinance is passed which restricts building homes on certain slopes. Even though the result on a particular piece of property is that now only 1 home per acre may be built, can the ordinances themselves be said to be in conflict? I would say not when the original regulations are silent and the new rules overlay the original without conflict.

The Oak Grove property could still be zoned residential at the same density overall, but the new PUD would have to conform to the slope and ridge protections of which the prior rules, regulations and policies were silent (and thus, not in conflict).

Anyhow, I'm sure folks with more experience than me and holding a State Bar card will spend time looking at the old and new rules.

I have a couple lines on a copy of the elusive Letter Agreement. Once I have a copy I'll get it on our website and post a link here.

Remember that the complaint by a plaintiff is only one side (or version) of the story…


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Sep 17, 2010 at 10:31 am

Stacey is a registered user.

Matt,

The courts sided with the plaintiff's side of the story in VG08416511. Found this while looking more at it:

"Third parties might assert that the Development Agreement can be supplanted by later adopted ordinances - precisely the risk that a Development Agreement is designed to avoid. While the Lins believe such claims would be baseless, any challenge to the Lins' vested rights presents an unnecessary risk. The Lins readily acknowledge that in the unlikely future scenario where the referendum petition is revived by the Court of Appeal, put to a vote, and the PUD Ordinance is actually set aside by referendum, then the DA Ordinance would be ineffective. That has not happened. All the Lins seek is the basic security they are legally entitled to that the Development Agreement approved by the City Council is in full effect now, subject only to the risk that the referendum will set aside the PUD Ordinance."

The Lins acknowledged there that the DA gets set aside by the PUD referendum. What they wanted was to ensure that the DA is in effect, as the law requires, because that contract obligates the City to protect the Lins' vested rights provided by the DA. Seems like they're also saying there that the DA cannot be supplanted by later adopted ordinances (i.e., PP).


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 17, 2010 at 11:45 am

Matt Morrison is a registered user.

Hi Stacey!

Yes, I understand there is a distinct possibility that the hillside protection ordinance may conflict with the rules, regulations and policies that resulted in the original Oak Grove PUD (take grading regulations, for instance).

It's just that a conflict is not necessarily the case - one would have to overlay the original rules, regulations and policies with the hillside protection ordinance to see where there was conflict.

According to State Government Code 65866 "A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein..."


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Posted by frank
a resident of Pleasanton Heights
on Sep 17, 2010 at 8:32 pm

The so-called Letter of Agreement never came into being. The City Manager refused to sign it. Time is of the essence. A court ruling was necessary to force the City Manager to sign the DA many months later. Why keep talking about a Letter of Agreement that never was! Anyways, why can't anybody see clearly that the Lin's attorneys WANTED the Letter of Agreement since it then puts the city where it happens to now be.... in breach of warranty! Simply, the court had to force the city to sign the DA under its obligations under state law.

Also, what is this on-going argument about the later hillside protection propositions? Who cares? This is not the subject of the law suit. If the DA is ruled to continue in effect as a result of a settlement of the present law suit that dis-arms the poison pill, then this might become an issue. If the DA is ruled to be indeed dead after June 8, 2010, the next law suit seeking damages from Pleasanton will become the next subject for these threads. Lots of money at stake in this one....


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 17, 2010 at 10:27 pm

Matt Morrison is a registered user.

Hi all.

Well, for whatever its worth, here is a link to the letter and “Acknowledgment" signed by a representative and an attorney for the Lins and sent to the City of Pleasanton back on August 5th, 2008.

Web Link

There is indeed a requirement stipulated by the Lins that the Development Agreement be signed and delivered by the City Manager, which of course didn't happen until after Judge Roesch's order on November 13th, 2008.

According to the letter, the delivery requirement and some additional language is indicated to have been added as a modification to an original request by the City Attorney. Whether the City Manager's power of acceptance has terminated due to a lapse of time when no time is specified is based on reasonableness.

§41. LAPSE OF TIME
(1) An offeree's power of acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.
(2) What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made
Comment:
b. Reasonable time. In the absence of a contrary indication, just as acceptance may be madein any manner and by any medium which is reasonable in the circumstances (§30), so it may be made at any time which is reasonable in the circumstances. The circumstances to be considered have a wide range: they include the nature of the proposed contract, the purposes of the parties, the course of dealing between them, and any relevant usages of trade....


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 17, 2010 at 10:46 pm

Matt Morrison is a registered user.

It would be interesting to see Michael Roush's letter of July 30, plus any post-August 5 communications.

Frank, you bring an interesting question of damages. Looking at the behavior of misters Fialho and Roush the intent, prior to the Judge's order, seems to be to avoid signing the Development Agreement i.e. to prevent it being in effect at all.

So, are you saying that with a Developer Agreement in effect and due to referendum be self-terminated, that the Lins are due damages in the amount of the difference of profits between what they could have developed under the Developer Agreement and what they can now develop under current law i.e. with the hillside protection ordinance?

On the other hand, were the Development agreement found to be in force regardless of the referendum the Lins would have an opportunity to submit a new PUD under the prior rules PLUS under whatever rules are in the new hillside protection ordinance that do not conflict with the prior rules - does that seem correct?


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Posted by frank
a resident of Pleasanton Heights
on Sep 18, 2010 at 8:50 pm

What the damages will be is to be determined in the next law suit. I personally would not conclude they would simply be based upon differential rights since the Lin's have invested 18 years pursuing the rights they acquired during the time the DA was in force. I would guess they would pursue damages in the absolute sense, which would be enormous. You can't keep stiffing a land owner and not ultimately suffer consequences when you lose. Witness the Half Moon Bay debacle ($18MM which is bankrupting that small city). Here is what the Lin's want in this law suit:

"FIRST CAUSE OF ACTION

(Specific Performance of Contract Breached by Anticipatory Repudiation)
The Lins incorporate by reference paragraphs 1 through 33 above as if fully set forth
herein.

The Development Agreement between the City and the Lins is a contract subject to the
same rules of interpretation and the same rights of enforcement as any other contract.

The City's expressed refusal to comply with the clear terms of the Development
Agreement constitutes a present breach of the Development Agreement by anticipatory repudiation.
Wherefore, the Lins pray for relief as set forth below.

SECOND CAUSE OF ACTION

(Breach of the Covenant of Good Faith and Fair Dealing)

The Lins incorporate paragraphs 1 through 33 above as if fully set forth herein.

In every contract in California, there is an implied covenant of good faith and fair
dealing that neither party will take actions to deny the other party the benefits bargained for under the contract.

On information and belief, City knew or should have known that its refusal to
acknowledge and protect the Lins' vested rights pursuant to the express terms of the Development Agreement, would give rise to a claim by the PUD Referendum Petition proponents, and possibly
others, that the Development Agreement will be nullified if the PUD Ordinance is set aside by
Exposing the Lins to this risk denies the Lins the very security that they bargained for
through the Development Agreement. The Lins should not be exposed to this risk.

The City's refusal to take steps to preserve the benefit of the Lins' bargain breaches
the covenant of good faith and fair dealing.

Wherefore, the Lins pray for relief as set forth in below.

THIRD CAUSE OF ACTION (Declaratory and Injunctive Relief)

The Lins incorporate paragraphs 1 through 33 above as if fully set forth herein.

An actual controversy has arisen and now exists between the Lins and City concerning
their respective rights and duties under the Development Agreement. The Lins contend and the City disputes that:

a.The City has a contractual duty to protect the Lins' vested rights pursuant to the express terms of the Development Agreement, whereas City disputes these contentions.
referendum.

b.The Development Agreement is a binding contract that became effective 30-days after
the DA Ordinance was adopted when no referendum against the DA Ordinance was
filed.

c.The PUD Referendum Petition cannot reach the Development Agreement.

d.Even if the PUD Ordinance were set aside by referendum, and even if the DA Ordinance were set aside due to the "poison pill," the Development Agreement itself
will remain in full force and effect.

The Lins desire a judicial determination of the parties' rights and duties under the
Development Agreement and a declaration that the Lins' contentions are correct.

A judicial determination is necessary and appropriate at this time so that the Lins and
City may determine their rights and obligations under the Development Agreement because a declaration by this Court will reduce or prevent any liability associated with City's refusal to amend the DA Ordinance to eliminate the "poison pill" set forth in section 5 thereof. Indeed, prompt resolution of this cause of action could permit the City to comply with its obligations under the Development Agreement while it still has the ability to do so, and thereby avoid the enormous damage claims that could flow from the City's failure to act.

The Lins also request an injunction commanding the City to specifically perform and
fulfill its obligations arising under the Development Agreement by amending the DA Ordinance to eliminate the "poison pill" set forth in section 5 thereof or take other action of comparable effect to protect the Lins' vested rights pursuant to the express terms of the Development Agreement."


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Posted by frank
a resident of Pleasanton Heights
on Sep 18, 2010 at 9:00 pm

One point I must call you on... You are being disingenous when you write things like "the Lins would have an opportunity to submit a new PUD under the prior rules PLUS under whatever rules are in the new hillside protection ordinance that do not conflict with the prior rules". You would have to be at least partially brain dead to imagine that the new hillside rules are not in major conflict with prior rules. Give us a break here and quit treating us like dummies. What's your game?


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Posted by Matt Morrison
a resident of Pleasanton Meadows
on Sep 19, 2010 at 3:37 am

Matt Morrison is a registered user.

Hmmmm, I don't think it's possible to be "partially" brain dead.

The original General Plan Policy is as follows…

Policy 12: Preserve scenic hillside and ridge views of the Pleasanton, Main, and Southeast
Hills ridges.

Program 12.1 : Implement the land use and development standards of the Pleasanton
Ridgelands Initiative of 1993 (Measure F).

Program 12.2: Study the feasibility of preserving large open space acreage in the
Southeast Hills by a combination of private open space and a public park system.

Measure PP, enacted by Pleasanton voters, added Policy 12.3:

Policy 12.3: Ridgelines and hillsides shall be protected. Housing units and structures shall not be placed on slopes of 25 percent or greater, or within 100 vertical feet of a ridgeline. No grading to construct residential or commercial structures shall occur on hillside slopes 25% or greater, or within 100 vertical feet of a ridgeline. Exempt from this policy are housing developments of 10 or fewer housing units on a single property that was, as of January 1, 2007, "legal parcel" pursuant to the California Subdivision Map law. Splitting, dividing, or sub-dividing a "legal parcel" of January 1, 2007 to approve more than 10 housing units is not allowed.

It was even spelled out in the measure that the new hillside policy was an amendment to be "added" to Pleasanton's General Plan…

"I. Pleasanton General Plan Amendments Policy 12 Program 12.3 on Page 11-17 of the City of Pleasanton August 6, 1996 General Plan is added as shown:"

As I stated, the hillside protection ordinance certainly conflicted with before and after results under the different rules, regulations, and policies; but the test is whether the new policy conflicts with the old rules, regulations, and policies themselves.

"A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies."

Certainly my "game" is to understand the different permutations of the Lins' case against the City and how Pleasanton might fair under various arguments.

So the Lins have spent 18 years trying to acquire development rights for Oak Grove. The two PUD plans they've petitioned Pleasanton to approve have been legally referended by the voters of Pleasanton. That is completely different from Half Moon Bay where that City created wetlands on the owner's property that prevents the property from being developed at all.

In any event the Lins are free to propose another PUD plan or perhaps to find a way to develop in the County.

All the Lins are due is an economic use. The Development Agreement may be moot if the hillside protection policy doesn't conflict with the prior rules, regulations, and policies because then the Lins haven't been damaged by whether the Development Agreement was in force or not. Their "loss" occurred because they submitted a PUD that was legally referended by Pleasanton voters and now they must adhere to Pleasanton's new hillside protection policy.

If you really want to move this discussion beyond hyperbole, let's see if we can find examples where the hillside amendment from Measure PP resulted in a rule, regulation, or policy that conflicted with a rule, regulation, or policy in effect at the time the original Oak Grove PUD was approved.


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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Sep 19, 2010 at 9:14 am

Stacey is a registered user.

Just for the sake of completion for those still following this thread, the old General Plan also said this:

"Consideration should be given to preserving large open space acreage in South Pleasanton by a combination of private open space and a public park system. Trail rights-of-way and land should be acquired by way of developer dedications, as well as by bond measures, corporate and personal donations, regional State and Federal funding programs, etc. Attempts to achieve public access to open space areas and trails should not create onerous impositions on property owners. In addition to open space and trails, an equestrian center is also encouraged in South Pleasanton."

"Program 10.1: Preserve open space by way of fee purchase, conservation and scenic easements, transfer of development rights, Williamson Act contracts, open space zoning categories, etc."


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