Taiwan-based property owners Jennifer and Frederic Lin have filed a law suit in Alameda County Superior Court against opponents of their plan to build 51 estate homes in the Kottinger Hills.
The suit asks the court to block the efforts of a group called Save Pleasanton's Hills and its chief organizer, former City Councilwoman Kay Ayala, from proceeding with plans to stop the development.
Ayala and her group obtained signatures from 5,225 residents over the past 30 days to force a referendum asking voters to overturn the City Council's decision last month that approved the Lins' project.
The 51 homes would be built on 77 acres of the nearly 600 acres of wooded hilltop land the Lins own above Kottinger Ranch and Vintage Hills.
Along with being assured by the council of obtaining permits to develop the 51 homesites, the Lins also agreed to give 496 acres of their land at no charge to the city of Pleasanton as open space, trails and equestrian paths. No actual homes would be built as part of the approval. The custom lots would be sold with the individual buyers contracting to build their homes, which would also have to gain city Planning Department and Planning Commission approvals.
Ayala's group claims the homes and development agreement violate the 1996 General Plan and would be eyesores on the city's southeast hills.
The Save Pleasanton's Hills group submitted the petitions earlier this month to City Clerk Karen Diaz, who sent them to the Alameda County Registrar's office for counting and certification. If 3,672 of those signatures--10 percent of those who voted in the last municipal election in November 2006--are determined to be from registered voters in Pleasanton, then the Registrar is expected to notify the City Council that the call for a referendum is valid.
The council could then rescind its approval or call for a vote on the referendum, which would likely take place at the time of the General Election next November.
The suit, filed by Atty. Clark Morrison, a land use attorney with the firm of Cox, Castle & Nicholson in San Francisco, asks the Alameda County Superior Court to act now to "to prevent the invalid referendum petition from being presented to the City Council or voters."
The suit follows a letter Morrison sent to Diaz Dec. 6 on behalf of Pleasanton businessman James Tong and his investment firm, Charter Properties, asking her to refuse to forward the petitions. But in a reply later that day, City Attorney Michael R. Roush refused, saying the petitions met the requirements imposed for seeking a referendum and ordering Diaz to send them to the County Registrar.
Morrison said that Ayala and her committee violated fundamental principles of the California Election Law by circulating their referendum petitions without attaching the full text of agreements that were part of the council's approval of the Oak Grove project. These would include: The full text of the Planned Unit Development (PUD) ordinance including CEQA findings, conditions of approving the development agreement and development plan and the Tree Report of the Kottinger Hills subdivision.
Morrison said those seeking signatures on their petitions should have made these documents and many more available, but that the materials were not part of their signature requests.
The Lins' suit also accuses Ayala and her group with making false and misleading statements about their project.
Among other false and misleading statements included, Morrison said, were claims that the Development Plan would permit the construction of homes that are "three stories tall for a height of 44 feet," that development of the Oak Grove project would eliminate "nearly a thousand trees" and that a "majority' of the Oak Grove project homes would be "visible throughout our community."
Added the Lins in their suit: "(They) should have known these statements were false."
The 21-page complaint was filed Friday. A copy was obtained by the Pleasanton Weekly.
"There were very significant problems with this referendum petition that was circulated," Morrison said. "It didn't do what the law requires at a very fundamental level. It did not include the PUD development plan that was approved by the City Council which is the very heart of what the Lins were asking. This was an absolutely fatal flaw."
He said the council approved two measures at the same time: the PUD plan and then the development agreement between the City of Pleasanton and the property owners.
It's more than just the land grant turning the property over to the city, Morrison explained. It includes a number of amenities, including $1 million in cash for the city to use as traffic mitigation as deemed necessary and an agreement by the Lins to build and maintain all of the trails, pathways and rest areas in the open space area. The agreement also stipulates that the trails and other open space amenities must be built once the fifth of the 51 home sites is sold.
"So you put those basic things together with the fact that on their Web site and in materials circulated with the petition there were many misrepresentations about the nature of the project, about how high the buildings could be built, how many trees were going to be removed, and more," Morrison added. "It was also done to try to encourage people to sign their petition."
But Kay Ayala disagreed. In fact she was outraged.
"This (the Oak Grove) project has been fast-tracked through the staff and City Council from Day One," she said. "Of all the projects, this is the worst I have ever seen. You have to ask why these people are so concerned about this council approval going to the ballot."
"If they insist that this is the right project for this town, why are they worried about the ballot?" she asked. "And why are they putting stumbling blocks in our way? This council is putting obstacles in the way of a citizens' group that is trying to do its job."
"These people went into a room and made a deal," she added. "That's not the public process. News stories after news stories, including those in the Pleasanton Weekly, talk about Kottinger Ranch approving this deal. It never happened."
Ayala also criticzed a Pleasanton Weekly editorial Dec. 14 that suggested that she and the Save Pleasanton's Hills group meet with Oak Grove project supporters Mayor Jennifer Hosterman and the Keep our Park group to seek a compromise over their differences instead of relying on the ballot box for land use decisions.
"Why would I want to do that?" she asked. "That would just be another secret meeting that we have been complaining about. We went to the council many times to talk against this project, but they didn't listen."
Meanwhile, the Lins' attorney, Clark Morrison, has asked the Superior Court for an expedited hearing, which could take place early in 2008.
Although City Clerk Diaz is named as a defendant in the law suit, Roush said that is a technicality because it was her office that processed the Ayala and Save Pleasanton's Hills petitions. The actual defendants are Kay Ayala and key members of her committee, who will now have to defend their actions in court.