Court of Appeal considers merits of Oak Grove housing plan case

After oral arguments, court has 90 days to make decision

Justices on the state Court of Appeal are considering whether petitioners who called for a public vote on a City Council decision to allow the 51-home Oak Grove housing development can proceed in their efforts.

The court heard 40 minutes of discussion last week with attorneys Benjamin Shatz and Andrew B. Sabey debating the ruling by Superior Court Judge Frank Roesch who ruled that the petition by a citizens' group was invalid. The group, Save Pleasanton's Hills, first organized by former Councilwoman Kay Ayala, gathered the signatures in less than 30 days as required by law, submitted them to the county registrar for certification, but then was blocked from proceeding by Roesch's decision that supported a suit by Oak Grove's developers that called the group's tactics improper.

At last week's hearing, attorney Benjamin Shatz of the Los Angeles law firm of Manatt, Phelps & Phillips, who represents the citizens' coalition, asked the appellate court to reverse Roesch's decision and allow the petitions to be certified. He said the developers, Jennifer Lin and her brother Frederic were wrong in their claim that the coalition failed to have all of the documents needed to show those who signed the petitions that specifically related to the Oak Grove development agreement approved by the council.

But Sabey, of the San Francisco law firm Cox, Castle & Nicholson, who represents the Lins, argued that the decision by Roesch was made after extensive reviews of case law and California statutes and should be allowed to stand. He said the Save Pleasanton's Hills coalition had no basis for challenging the decision by Roesch who ruled that its petition failed to comply with state law that requires all relevant materials related to the petition to be carried by those seeking signatures. He said representatives of the coalition failed to have a number of documents Roesch said were vital to offer to those interested in signing the petition.

Among the group's many omissions of text, Sabey argued, was a copy of the Development Plan, the focal point of and actual legislation adopted by the PUD (Planned United Development) ordinance Ayala and the Save Pleasanton's Hills coalition was seeking to referend.

But Shatz disagreed.

"The way the law is written is that the state election code says that you have to supply the text of the ordinance, which the petitioners did," he said. "That means the words that are written in the ordinance. It also means that the exhibits to the ordinance. It also means things that are attached to the ordinance and things that are incorporated by reference."

"But here what is called the development plan doesn't have any of those things," he added. "It wasn't copied word for word into the ordinance. It wasn't attached. It wasn't part of the council's ordinance. If everything the Lins had wanted were attached, then the referendum petition would be three feet tall. And nobody would be able to flip through all of that and understand it and read it and sign off on it."

He continued: "The election code statute calls for the text of the ordinance to be available. It doesn't say the text of the legislation. It's no different than the words written in a book. If the book refers to other things well that's not part of the text of the book. So that's really what this is about."

In their questions, two of the justices— Henry E. Needham and Mark B. Simons—appeared to have a full understanding of what the Pleasanton case is all about. Needham, especially, grilled Sabey on why the petitioners should not have the right to take their issue to the voters. The third justice, Terence L. Bruiniers, asked no questions.

The justices have 90 days in which to decide on the appeal.

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Posted by Naysayer
a resident of Kottinger Ranch
on Jun 18, 2009 at 11:38 am

Finally! Another polarizing issue to split this town once again. My .02 is simply this. I live in a lower region of K.R. just off Bernal & the proposed location for this development is above the ridge just beyond the property line of the KR neighborhood. Here is where I have a problem, as you drive, walk or look up out of your backyard almost anywhere in Pleasanton you simply cannot see this ridge line except for a few areas on either Bernal, Stanley, some Vintage Hills neighborhoods & the upper trail in Kottinger Park. It's just the case that at street level there is so much tree growth that this area is simply obscured from most everybody's view. That aside, this was the opponents key issue to this development & after my informal survey, it doesn't ring true.

On the positive side of this was the proposed park land that will be created as a result of the homes being built. As a loooong time P-Town resident I've been known to "pirate" a bike ride or hike through this area & always wondered to myself why this was never developed into something in the first place? For those who have never hiked/biked this area it is a gorgeous area. Not quite as stirring as the Ridge Trail but the little valley just past the initial ridge & the rolling hills that surround it are particularly beautiful in the fall through spring & would be a much easier route for older (& younger) folks that don't want to tackle the harder trails in the area.

As to the opponents reasons for restricting ridge line property & new developments I just have one comment. Steve Brozosky was one of the key opponents to this development. Steve also just happens to live on Brozosky Lane in a very nice ridge line situated home. He voted against a large home that was to be built near his & has a history of opposing like-developments. Not to be taking stabs at Steve but I'd say there's a slight conflict of interest where his personal property value (er..rights) & his position on future development is concerned. No as far as I'm concerned I have NO problem if somebody has the means to afford a nice, ridge line located, gorgeous view equipped home. More power to you Steve. Just be a little fair when others want to "join the club" so to speak.

Like I said, just my .02 but something to keep in mind.

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Posted by Amazing
a resident of Amador Estates
on Jun 18, 2009 at 4:12 pm

How much longer are we going to blame Steve for everything that we don't like? Let's not forget world hunger, global warming and he probably was involved in fixing the election in Iran!

Respectfully, however, I do disagree with your visual analysis. If you carefully studied the EIR, you would know that these hills are visible from a lot of spots around Pleasanton.

The real issue here is not whether you are for or against Oak Grove development but the value or impact of the intiative process. Mike Rousch, City Attorney said (yes, I know, it isn't binding) that what the petitioners carried met the requirements of the law. The judge said it didn't. Even if the petitioners win the day in court, there still has to be a referendum.

Frankly, I would have preferred a referendum. I didn't like the fact that the City council decided to ignore the signatures and I didn't like the fact that they believe that they are smarter than us. They did the same thing with PP and QQ. Oh, they didn't like the PP measure so let's come up with QQ. Remember, we are smarter!

Anyway, this is about a referendum and how intiatives may be viewed and conducted in the future. Not about whether Oak Grove goes forward or least not yet.

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Posted by Stacey
a resident of Amberwood/Wood Meadows
on Jun 18, 2009 at 4:39 pm

Stacey is a registered user.

It _is_ about whether Oak Grove goes forward or not because if a referendum is successful, then it means planning for Oak Grove has to go back to the drawing board. Then it would be subject to PP and QQ and PP was designed to target a development like Oak Grove.

I agree that the main issue being looked at by the court is with regards to the initiative process and I don't think this case has a chance of winning.

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Posted by javadoc
a resident of Dublin
on Jun 18, 2009 at 4:53 pm

javadoc is a registered user.

What is the estimated total assessed value of the homes that would be built? How much property tax revenue - and school funding - would this development provide?

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Posted by June
a resident of Alisal Elementary School
on Jun 18, 2009 at 4:59 pm

I agree, another polarizing issue for Pleasanton. The fact is that the Oak Grove property owners have acted patiently and in good faith with the residents of our town for over a decade in deciding what is to be done with their land. What a wonderful gift of 500 acres of open space! The public input process was exhaustive and the City Council members should be commended for their long hours of reviewing documents, reports, analyses, and public hearings. Im afraid to say that it appears to me that the opposers are a small group of people who already live in big houses on the hills who dont want to look at anyone else. Or they are the political wannabes who want to make a name for themselves, or make themselves feel important by convincing people they are here to save the city. This is not about protecting the integrity of the intiative process. Cmon, most people wont look at or know the real details of a petition before signing. They just want to finish shopping at Safeway or where ever the petition gathers set up, feel good about themselves that they are saving something (because after all that's what the title on the clipboard says), and basically just help the petition gathers out by signing and qualifying the election to occur. Will all of those same petition signers turn out and actually vote on the matter when it comes time. I doubt it but then again, all the opposers need to do is get a simple majority vote after $35K in special election costs are paid by the taxpayers to get their way. Unfortunately, the ballot box planning approach to making important decisions is faulty and reforms should have been made years ago.

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Posted by Mike B.
a resident of Del Prado
on Jun 18, 2009 at 7:02 pm

@ Javadoc (great tag line btw:) Figure 51-55 homes, all well over 4000 sq. ft. & probably, post-recession pricing around $1.7-2.5+(ish) million. Average property tax would be around $19-22K/year ea. so really no more than a little over 1.2 million TOTAL a year in property taxes & out of that usually only 17-22% finally filters down from the county so in reality we're looking at what, maybe an additional $250K in tax revenue? (don't make me do math during wine hour)

What is really the issue is what the building of those 55 homes would do to help the local construction, landscaping, decorating, etc. industries & what those 55 families could contribute to the local economy as well. I have no problem with families with large amounts of disposable income moving to within spitting distance of downtown. Hell, I'll buy each one a drink at Hap's when they come move in!

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Posted by anonymous
a resident of Another Pleasanton neighborhood
on Jun 18, 2009 at 8:29 pm

Many of the people were misled when asked to sign the referendum. One person collecting signatures pointed toward the West when describing the hillside referendum. (Oak Grove is in the East). Just one example of misleding information I witnessed myself.

But let's say that all the signatures were valid. (Not a chance, the registrar only verifies 10%) that leaves over 35,000 registered voters who said NO to the referendum.

The issue heard by the court was whether the proponent carried all the necessary information. The court said no they hadn't. The proponents say that is what the city attorney told them but the written law is clear. It says that it is the signature gatherers responsibility to carry all the necessary information. The proponents said at a council meeting they had consulted four different attorneys.

The referendum process is not at risk. The ruling only indicates that the signature gatherers must present all pertinent information. The four attorneys the proponents consulted should have advised their clients better. The stack of paper carried into council meetings and into court means nothing if it did not accurately represent the development. many of the people I saw collecting only had a small clipboard with info. The development that was approved 4-1 by the council after NINE public meetings.

All this ruling meant was that people who sign should have the opportunity to be as informed as a council member when they affix their signature. As good citizens that is the least we should demand.

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Posted by West Side Observer
a resident of Oak Hill
on Jun 19, 2009 at 8:55 am

Let the Lins get on with their development. It really is a win-win for Pleasanton.
Kay Ayala, my signature gatherer at Lucky, did not have anything but the petition itself when she approached me. She was also at a loss as to why I would ask if her little group had included a monetary provision in the petition/ballot language. Typical of a bureaucrat, Ms. Ayala thought I was speaking of costs to the city for the election and did not have a clue that I was suggesting that her group (and/or the city) could buy the Lins out of their property. Oh, that would be capitalism however. That would be observing the takings clause of the United States constitution. So no, no consideration of making the Lins whole on their Oak Grove property. Fancy that.
Typical of “I got mine. Sorry, you can’t have yours. Now, get lost. Oh, and whisper, whisper, the Lins are really outsiders from Hong Kong.”

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Posted by frank
a resident of Pleasanton Heights
on Jun 19, 2009 at 7:28 pm

I have followed most of the detail in this litigation, reading all of the briefs filed in Superior Courts and all but the last briefed filed in the appeal. My past postings in the PW reveal my personal position in this matter.

The oral hearing that was held on June 18 was not the significant event that you might imagine. The appeals court in coming to a judgement relies mostly upon what is presented in the written briefs together with the case file from the lower court. The oral hearing occurs only if either the appellant or respondent requests one, or less frequently, the justices may call for an oral hearing because of the unique nature of the case and they actually want to hear the input from the arguing parties.

In this instance, the appellant, Ayala, requested the oral hearing.

The case is reviewed well prior to the oral hearing and usually a tentative decision has been reached by the justices prior to the oral hearing. (In this situation the record went to the court for review on March 12.)

What takes place at the oral hearing could change the tentative decision. The justices are mum regarding what their tentative decision is. More likely the hearing may modify some aspects of their decision, but is not likely to change the basic decision whether to affirm or reject the lower court's decision.

I wished I were able to have attended the oral hearing because sometimes you can infer what the court may have already decided by the nature of any questions that the justices ask the arguing attorneys. Since there is not a report of what occurred, we simply don't know anything more than we already knew before the oral hearing occurred.

It seems that a final ruling is usually issued about one to two months after the oral hearing. So, we must wait.

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Posted by Resident
a resident of Another Pleasanton neighborhood
on Jun 20, 2009 at 5:56 am

I am surprised some people still listen to the opponents of Oak Grove. Didn't they also oppose measure G?

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Posted by resident
a resident of Vineyard Avenue
on Jun 21, 2009 at 10:34 pm

who are the peeps in the pics above (with all smiles, i might add)??? I recognize k.a. but who are the others??? this is a total waste and I hope they lose big time and will take a hike with the rest of us when this is resolved. brozosky must have had better things to do than be present for a photo op!

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Posted by Really?
a resident of Another Pleasanton neighborhood
on Jun 22, 2009 at 5:20 pm

How much is this costing us? And Kay can post on these blogs against funding the schools in this town? Hmmmmm....

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Posted by Parent
a resident of Foothill High School
on Jun 23, 2009 at 2:02 pm

If I were the Lin's, I'd take the donation of all their Land off the table and build more homes! Then gate the entire property and let none of us enjoy it. That's already happened in a number of subdivisions in this town. It's not like they'd be the 1st. Ungreatful Nimby's! Hard to imagine this group of Nimby's holding such a HUGE donation up with their personal Agenda(s). As for the Council Members, if you don't let them do their jobs, what good are they to us? I'd say 500+ Acres of Land and some $250K in taxes is a great job! We just need to do what's right, just thank the Lin's for 500+ Acres of FREE land and welcome our new neighbors with open arms!

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Posted by AL
a resident of Mohr Park
on Jun 24, 2009 at 10:25 am

Kay needs to get on her broomstick and fly off to another community so she can undermine some other city council. Maybe fellow election loser Steve Brozosky can fly off with her.

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Posted by what a divisive bunch
a resident of Vineyard Avenue
on Jun 24, 2009 at 4:56 pm

Kay and her cronies always have been dividers looking for ways to make a name for themselves (er, screw things up). Words that best describe their efforts include conniving, manipulative, hostile, rude, insensitive, divisive ... shall I go on. She/they are not acting in the best interest of this community as a whole, and I can’t wait to see them lose in court.

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Posted by frank
a resident of Pleasanton Heights
on Jun 24, 2009 at 8:12 pm

This update reports on the hearing itself. However, the report says little. For example:

"In their questions, two of the justices— Henry E. Needham and Mark B. Simons—appeared to have a full understanding of what the Pleasanton case is all about. Needham, especially, grilled Sabey on why the petitioners should not have the right to take their issue to the voters. The third justice, Terence L. Bruiniers, asked no questions."

What is written here could be taken both ways. After all, whether the petitioners should not have the right to take their issue to the voters is PRECISELY WHAT THE WHOLE CASE HAS BEEN ABOUT, FROM THE BEGINNING, so what is new about that question?

When justices ask questions at oral hearings, they might ask questions of an arguing attorney that seem to oppose his position, but may simply be designed to allow him to broadcast an answer that the judge already has decided himself. Sort of getting him to preach to the choir. Recall that the justices have already reviewed the case and have come to a tentative decision prior to the oral hearing. If the nature of a judge's question are of a truly challenging nature that attempts to upset the arguing attorney's position, then one might infer that judge is already an opponent of that attorney's position.

The PW report gives us no clue because it reports nothing of what these questions really were about nor their context.

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Posted by frank
a resident of Pleasanton Heights
on Jun 24, 2009 at 8:29 pm

Oh, one more important point. The PW front page picture of the Ayala contingent clearly shows the PW bias in this situation.

Really glaring....

Sorry, but further commenting on this topic has been closed.

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