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Lin family wins court order to block Oak Grove petition

Dual legal actions put referendum on hold

An Alameda County Superior Court judge Tuesday blocked the Pleasanton City Council from hearing the results of a petition aimed at forcing a public vote to overturn the council's decision that approved the Oak Grove housing and open space project.

Judge Ken Burr granted a temporary restraining order at the request of Oak Grove developers Jennifer Lin and her brother Frederic Lin. The order prevented City Clerk Karen Diaz from reporting the official results of a citizens' group's effort to gain enough signatures from registered voters to qualify their measure for the June 5 ballot.

The Registrar advised Diaz last week and also sent a letter to Kay Ayala, who heads the citizens' group called Save Pleasanton Hills, reporting certification of 5,225 signatures collected by the group. A total of 3,700 signatures were required--representing 10 percent of the number who voted in the city's last election on November 2006, to place the anti-Oak Grove measure on the ballot.

Tuesday's restraining order, issued at the request of the Lins' San Francisco attorney Clark Morrison, is temporary. Burr, who was filling in for Superior Court Judge Frank Roesch, gave no indication when the restraining order might be lifted so that the Pleasanton council could proceed with accepting the Registrar's report and deciding whether to place the measure on the ballot or to rescind its action that approved the project.

There are also two other legal actions pending before Roesch: a suit by the Lins to toss out the Save Pleasanton Hills petition because of irregularities in the way the group obtained its signatures and a claim that it misrepresented the Lins' project plans in brochures and newspaper ads it placed.

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An enraged Kay Ayala, who spearheaded the 30-day signature gathering process through the Thanksgiving holidays, filed a legal brief in responses with Roesch's court ruling asking that he set aside the Lins' suit as a violation of its supporters' free speech rights. The plea was filed under California's "Strategic Lawsuits Against Public Participation"--or SLAPP--which seeks to block efforts to curb voter referendum efforts.

Roesch has set Feb. 22 as the date to hear both complaints.

City Attorney Michael Roush said it's unclear if Burr, Roesch or another Superior Court judge will handle the opposing legal briefs. If the restraining order against City Clerk Diaz is lifted, the council could proceed at its meeting on Feb. 5 to accept the Ayala petition and signatures.

But the council's next action--deciding whether to place the Ayala measure on the June 5 ballot or to rescind its vote approving the Oak Grove project--can't proceed until the court decided the Lins' and Ayala legal matters. If a judge would rule in favor of the Lins, agreeing with the Hong Kong-based developers that the Ayala group's effort should be invalidated, the issue is over and the Lins can start building.

At stake is the plan approved by the council to allow the Lins to developed 51 large-size custom home lots on 77 acres of property they own atop Kottinger Ranch, a community they also developed. As part of that development agreement, the Lins also agreed to give to the city of Pleasanton 496 wooded hilltop acres that they own adjacent to the housing project, which the city plans to use for trails, picnic areas and as open space.

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The land grant, the largest Pleasanton has ever been offered, is part of a plan by Mayor Jennifer Hosterman and Councilman Matt Sullivan to acquire 2,000 acres or more across the southeast hills of the city as open space, similar to the acreage to the west now under the control of the East Bay Regional Park District and Pleasanton.

The Lins have faced public adversity before. In the 1990s, a City Council approved their plan for 98 homes alongside an 18-hole championship public golf course. Some homeowners, including those who had just moved into Kottinger Ranch, moved quickly to overturn that council's decision. They were successful and some, even last Tuesday, said they thought that decision locked up the land forever.

However, the Lins who own the property have pointed out that the city's 1996 General Plan, which is still in force, allows them to build 98 homes on the land, although the city must still issue permits. When they returned three years ago to bid for the housing project, but without the golf course, nearby homeowners again objected.

Over the last three years, the Lins, through their representative Attorney Marty Inderbitzen and Pleasanton businessman James Tong, met with community leaders and eventually reached a compromise for the 51 custom lots and land grant.

Although the council approval of the Oak Grove project did not authorize the construction of any homes, preliminary plans show most would be in the 8,500- to 12,500-square-foot range.

It was the size, visual impact and location of the homes on steep hillside lots that caught Ayala's attention. She has championed a revised city zoning ordinance that would prohibit hillside development in the southeast hills just as an earlier ruling prohibits them on what is now the Easy Bay Regional Park property. Along with her petition to overturn the Oak Grove development approval, she has also collected enough signatures to force a measure to be placed on next November's ballot to impose the hillside building ban on property with 25 degree slopes or greater, which would include many of the custom lots in the Lins' development plan

Since the Oak Grove issue was not on Tuesday night's council agenda, the lawmakers could only listen as 22 speakers spoke against the Oak Grove project and more specifically, against the Lins. The offshore developers were accused of trampling free speech rights and ignoring the long tradition of ballot box referendums in Pleasanton when citizens don't like a specific project.

"I want to congratulate all 5,263 people who signed these petitions," Ayala said. "Without question, Jennifer and Frederic Lin of Taiwan and (Pleasanton businessman) James Tong of Fremont are suing me with their frivolous lawsuit to intimate me. If we don't challenge these developers now, other citizens' groups that follow may be reluctant to voice their opinions fearing a lawsuit."

Ayala reminded the audience that she sat on the council several years ago when Ponderosa Homes was seeking approvals to build in what is now that developer's Ironwood community.

"I had supported that proposal and was one of the votes that gave them their approval" she said. "But when a citizens' group was trying to gather signatures to reverse the council's action at the ballot box and thugs came in and destroyed their signs, I was among the first to call to rescind that council vote, which we did."

Ayala and other speakers urged the council to do it again--to rescind their vote approving Oak Grove.

"Our City Council was offended by the tactics of the Ponderosa people, and here we go again with a developer working against the will of the people," she said. "We need to stop them."

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Lin family wins court order to block Oak Grove petition

Dual legal actions put referendum on hold

by / Pleasanton Weekly

Uploaded: Fri, Jan 18, 2008, 12:42 pm

An Alameda County Superior Court judge Tuesday blocked the Pleasanton City Council from hearing the results of a petition aimed at forcing a public vote to overturn the council's decision that approved the Oak Grove housing and open space project.

Judge Ken Burr granted a temporary restraining order at the request of Oak Grove developers Jennifer Lin and her brother Frederic Lin. The order prevented City Clerk Karen Diaz from reporting the official results of a citizens' group's effort to gain enough signatures from registered voters to qualify their measure for the June 5 ballot.

The Registrar advised Diaz last week and also sent a letter to Kay Ayala, who heads the citizens' group called Save Pleasanton Hills, reporting certification of 5,225 signatures collected by the group. A total of 3,700 signatures were required--representing 10 percent of the number who voted in the city's last election on November 2006, to place the anti-Oak Grove measure on the ballot.

Tuesday's restraining order, issued at the request of the Lins' San Francisco attorney Clark Morrison, is temporary. Burr, who was filling in for Superior Court Judge Frank Roesch, gave no indication when the restraining order might be lifted so that the Pleasanton council could proceed with accepting the Registrar's report and deciding whether to place the measure on the ballot or to rescind its action that approved the project.

There are also two other legal actions pending before Roesch: a suit by the Lins to toss out the Save Pleasanton Hills petition because of irregularities in the way the group obtained its signatures and a claim that it misrepresented the Lins' project plans in brochures and newspaper ads it placed.

An enraged Kay Ayala, who spearheaded the 30-day signature gathering process through the Thanksgiving holidays, filed a legal brief in responses with Roesch's court ruling asking that he set aside the Lins' suit as a violation of its supporters' free speech rights. The plea was filed under California's "Strategic Lawsuits Against Public Participation"--or SLAPP--which seeks to block efforts to curb voter referendum efforts.

Roesch has set Feb. 22 as the date to hear both complaints.

City Attorney Michael Roush said it's unclear if Burr, Roesch or another Superior Court judge will handle the opposing legal briefs. If the restraining order against City Clerk Diaz is lifted, the council could proceed at its meeting on Feb. 5 to accept the Ayala petition and signatures.

But the council's next action--deciding whether to place the Ayala measure on the June 5 ballot or to rescind its vote approving the Oak Grove project--can't proceed until the court decided the Lins' and Ayala legal matters. If a judge would rule in favor of the Lins, agreeing with the Hong Kong-based developers that the Ayala group's effort should be invalidated, the issue is over and the Lins can start building.

At stake is the plan approved by the council to allow the Lins to developed 51 large-size custom home lots on 77 acres of property they own atop Kottinger Ranch, a community they also developed. As part of that development agreement, the Lins also agreed to give to the city of Pleasanton 496 wooded hilltop acres that they own adjacent to the housing project, which the city plans to use for trails, picnic areas and as open space.

The land grant, the largest Pleasanton has ever been offered, is part of a plan by Mayor Jennifer Hosterman and Councilman Matt Sullivan to acquire 2,000 acres or more across the southeast hills of the city as open space, similar to the acreage to the west now under the control of the East Bay Regional Park District and Pleasanton.

The Lins have faced public adversity before. In the 1990s, a City Council approved their plan for 98 homes alongside an 18-hole championship public golf course. Some homeowners, including those who had just moved into Kottinger Ranch, moved quickly to overturn that council's decision. They were successful and some, even last Tuesday, said they thought that decision locked up the land forever.

However, the Lins who own the property have pointed out that the city's 1996 General Plan, which is still in force, allows them to build 98 homes on the land, although the city must still issue permits. When they returned three years ago to bid for the housing project, but without the golf course, nearby homeowners again objected.

Over the last three years, the Lins, through their representative Attorney Marty Inderbitzen and Pleasanton businessman James Tong, met with community leaders and eventually reached a compromise for the 51 custom lots and land grant.

Although the council approval of the Oak Grove project did not authorize the construction of any homes, preliminary plans show most would be in the 8,500- to 12,500-square-foot range.

It was the size, visual impact and location of the homes on steep hillside lots that caught Ayala's attention. She has championed a revised city zoning ordinance that would prohibit hillside development in the southeast hills just as an earlier ruling prohibits them on what is now the Easy Bay Regional Park property. Along with her petition to overturn the Oak Grove development approval, she has also collected enough signatures to force a measure to be placed on next November's ballot to impose the hillside building ban on property with 25 degree slopes or greater, which would include many of the custom lots in the Lins' development plan

Since the Oak Grove issue was not on Tuesday night's council agenda, the lawmakers could only listen as 22 speakers spoke against the Oak Grove project and more specifically, against the Lins. The offshore developers were accused of trampling free speech rights and ignoring the long tradition of ballot box referendums in Pleasanton when citizens don't like a specific project.

"I want to congratulate all 5,263 people who signed these petitions," Ayala said. "Without question, Jennifer and Frederic Lin of Taiwan and (Pleasanton businessman) James Tong of Fremont are suing me with their frivolous lawsuit to intimate me. If we don't challenge these developers now, other citizens' groups that follow may be reluctant to voice their opinions fearing a lawsuit."

Ayala reminded the audience that she sat on the council several years ago when Ponderosa Homes was seeking approvals to build in what is now that developer's Ironwood community.

"I had supported that proposal and was one of the votes that gave them their approval" she said. "But when a citizens' group was trying to gather signatures to reverse the council's action at the ballot box and thugs came in and destroyed their signs, I was among the first to call to rescind that council vote, which we did."

Ayala and other speakers urged the council to do it again--to rescind their vote approving Oak Grove.

"Our City Council was offended by the tactics of the Ponderosa people, and here we go again with a developer working against the will of the people," she said. "We need to stop them."

Comments

frank
Pleasanton Heights
on Jan 18, 2008 at 2:13 pm
frank, Pleasanton Heights
on Jan 18, 2008 at 2:13 pm

I believe there is some error in the Weekly's article regarding court dates. Here is my understanding of the dates based upon the Calendar Information and filings found at the website for Alameda County Superior Court.

February 5. A hearing based upon an order to show cause why the preliminary injunction restraining council from taking action regarding certifying the petition should or should not continue.

February 22. To hear the Lin's lawsuit.

March 11. To hear Ayala's lawsuit(s), which has two components to it.

I believe it is incorrect to say that both lawsuits are being heard on February 22 by Roesch. If this is true, I can't find it anywhere on the official web site.

By the way, the Lin's brief has been filed and it appeared today on the web site. All of you budding lawyers out there can go read it for yourself.


frank
Pleasanton Heights
on Jan 18, 2008 at 6:35 pm
frank, Pleasanton Heights
on Jan 18, 2008 at 6:35 pm

The title of this headline is a little misleading. The court order is a temporary restraining order. The lawsuit has yet to be heard in Superior Court. So, nothing is final.

Yesterday, the Lin's filed their brief which presents their evidence and articulates their arguments why the petition is defective under California Election Code. The Election Code is written so as to prevent factions from abusing the rights of direct democracy, in this case to mis-lead voters in signing petitions.

To get a copy of this brief to read go to:

Web Link

Getting it from the Superior Court web site is a bit burdensome.

The brief is not all that long to read and if you do read it you will be infinitely wiser regarding this issue than simply listening to the emotional rhetoric of Oak Grove opponents who wrap themselves in "right to vote" on everything concepts as their principal argument.

The defendents will respond with their respondent brief which is be filed February 7. I will try to post it for your easy reading when it happens.


Better Informed
Another Pleasanton neighborhood
on Jan 18, 2008 at 8:00 pm
Better Informed, Another Pleasanton neighborhood
on Jan 18, 2008 at 8:00 pm

Thanks Frank for creating a pdf file of the brief filed by the Lin's making it easier to read. After reading it, I certainly have gained a better understanding of the substance of the complaint. I will be interested to see how the defendants respond to some of the charges raised by the Lin's. Seems like the defendants do have a couple of issues to deal with.


hmmmm, trying to read the facts. . .
Country Fair
on Jan 18, 2008 at 9:00 pm
hmmmm, trying to read the facts. . ., Country Fair
on Jan 18, 2008 at 9:00 pm

Im impressed by the brief. I'm not a lawyer, but I think they make some good arguments.


Anonymous
another community
on Jan 23, 2008 at 11:51 am
Anonymous, another community
on Jan 23, 2008 at 11:51 am

I was neutral on the issue (neither supported nor was against the Oak Grove deal). But after these people (Lin) sued, I am definitely against it, just on principle. The Council should rescing their consent of the Lin's project..... not doing so, I'm afraid, would intimidate people from exercising their freedom of speech rights. The Lins may not understand the way democracy works, but this is the USA, and the little people should NOT be intimidated by those with bigger pockets!!!


Stacey
Amberwood/Wood Meadows
on Jan 23, 2008 at 12:39 pm
Stacey, Amberwood/Wood Meadows
on Jan 23, 2008 at 12:39 pm

I think someone else has trouble understanding the way democracy in the USA works...


Stacey
Amberwood/Wood Meadows
on Jan 23, 2008 at 12:40 pm
Stacey, Amberwood/Wood Meadows
on Jan 23, 2008 at 12:40 pm

BTW, I thought Steve Brozosky's idea of democracy he expressed during the most recent council meeting was gross. I'm now glad he didn't win the last mayoral election.


frank
Pleasanton Heights
on Jan 23, 2008 at 9:44 pm
frank, Pleasanton Heights
on Jan 23, 2008 at 9:44 pm

In my original post above I stated that it may be incorrect to state in the Weekly article that the two lawsuits were joined to be heard on the same date, February 22. On Tuesday (yesterday) of this week all parties to these suits jointly filed a motion join the suits in a single hearing and the judge signed it. So, the Weekly scooped this event by stating something that was not true at the time but became true later. They lied (maybe not knowingly), but were saved by future events playing out in their favor. Bush was not so lucky with is WMDs claim. Now you know that some things printed in the Weekly are projections, not fact at the time they are stated.

On freedom of speech rights and Lin's not understanding democracy: I quote from the Lin's complaint....

"The provisions of the Elections Code at issue are intended to protect the integrity of the referendum process by ensuring that voters are provided the necessary and accurate information required to make an informed decision whether to sign the Referendum Petition. (See, e.g., Assembly v. Deukmejian, 30 Cal.3d 638,652-53 (1982) (stating that the Elections Code requires certain information to be provided to voters asked to sign the petition); Clark v. Jordan, 7 Cal.2d 248, 252 (1936), superseded by statute, (holding that prospective signers of a petition must be protected from misleading statements). "

So, the Lin's and their lawyers have perhaps a very good understanding of democracy, which may exceed that of average citizens. Of course, a judge will decide if they are right. They could be wrong. Remember, the judiciary is the third part of our democratic form of government. Everyone, though, has a right to their opinion, whether it is equally right or wrong!





Susan
Pleasanton Meadows
on Jan 24, 2008 at 1:38 pm
Susan, Pleasanton Meadows
on Jan 24, 2008 at 1:38 pm

Why do people always have trouble with that pesky third branch of our democracy, the judiciary??

The Court will look over the relevant issues and decide if the petition should go forward. What is the big deal? It is not delaying anything. The Council has until March 7 to get this issue on the June ballot. The Court issues will all be resolved on Feb 22. If the Court says, the petition is good to go then we are all set to have an election.

By the way, is it democratic to be xenophobic? Why is the fact that the Lins hail from Taiwan a relevant fact? One of the property owners IS an American citizen.


Confused
Amador Valley High School
on Jan 26, 2008 at 12:29 pm
Confused, Amador Valley High School
on Jan 26, 2008 at 12:29 pm

For as "progressive" a society that we claim to be in our great city/state, it boggles my mind given the world economy that we live in that these same folks who are likely surviving our current economic problems in our own country likely have some componenent of international flavor in any investments they might own (some not even realizing it)! God forbid _anyone_ in Pleasanton is making money from foriegn investments?.... Food for thought.


Confused
Amador Valley High School
on Jan 26, 2008 at 12:29 pm
Confused, Amador Valley High School
on Jan 26, 2008 at 12:29 pm

For as "progressive" a society that we claim to be in our great city/state, it boggles my mind given the world economy that we live in that these same folks who are likely surviving our current economic problems in our own country likely have some componenent of international flavor in any investments they might own (some not even realizing it)! God forbid _anyone_ in Pleasanton is making money from foriegn investments?.... Food for thought.


H. Guo
Del Prado
on Jan 30, 2008 at 2:12 pm
H. Guo, Del Prado
on Jan 30, 2008 at 2:12 pm


What does the fact that the Lin's come from Taiwan has to do with this issue. Can Ayala please answer this race based topic. As far as Steve Brozosky is concerned he just want to take revenge on his election loss against Hosterman plain and simple.


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