Former City Councilwoman Kay Ayala and the citizens group she organized have won their petition in the State Court of Appeal that in effect gives them the right to seek a reversal of a City Council decision that approved the controversial Oak Grove 51-home development planned for Pleasanton's southeast hills.
The unanimous ruling by a three-judge panel reversed a lower court ruling that favored the Oak Grove developers, Jennifer Lin and her brother Frederic, by blocking the petitions Ayala and the citizens group had filed. The petitions, signed by more than the 3,700 registered voter required, were blocked by Superior Court Judge Frank Roesch. He agreed with attorneys for the Lins that the citizens group had failed to carry sufficient documents when they asked registered voters to sign their petition.
Although Thursday's ruling is not the final word on Ayala's effort to stop the hillside development, it does appear likely to force a public referendum on the Lins' plan, which also includes donating nearly 500 acres of open space of land they own atop Kottinger Ranch to the city of Pleasanton free of charge for public parks and open space.
For Ayala and her colleagues, the ruling is a major victory in a long effort to stop the Oak Grove project. The City Council voted 4-1 in 2007 to approve Oak Grove and then last year voted 3-2 not to join her in appealing the Superior Court decision.
It was also a victory for her legal firm, Manatt, Phelps & Phillips of Palo Alto, and its appellate attorney Benjamin G. Shatz who researched and prepared the arguments to overturn the Roesch ruling.
The Court of Appeal also ruled against Roesch who said Ayala and her group could not recover legal fees, with Thursday's ruling possibly requiring the Lins to pay the full fees of all litigation involving the Oak Grove case.
The Lins next procedural step could be to ask the Court of Appeal and the same three justices who issued Thursday's ruling to rehear the appeal. This requires the Lins to file a Petition for Rehearing with 15 days of Thursday's decision. That decision would be made during discussions with their attorney Andrew Sabey of the San Francisco law firm of Cox, Castle & Nicholson, who represented the Lins in the Court of Appeal.
Next, the Lins' lawyers also could ask the California Supreme Court to review the Court of Appeal's decision, which would require them to file a Petition for Review with 40 days of the appellate court's decision. Unlike lower courts, the Supreme Court has the discretion of deciding if it will hear the request.
If the Lins do nothing, it is expected that Roesch or another Superior Court judge will direct the Alameda County Registrar to proceed with certifying the Ayala group's petitions and send them to Pleasanton city clerk Karen Diaz for action by the City Council.
At that time the council can decide to reverse its vote to approve Oak Grove or to send the question to voters in a referendum. With built-in delays for these various actions to be considered and take place, it's likely that a public vote on an Oak Grove referendum would come in 2010 at the earliest and possibly not until the state primary elections in June.
Even if voters eventually defeat an anti-Oak Grove referendum, there's now the question as to how Pleasanton's recently-approved Measures PP and QQ would apply to the project. Those measures, especially PP which was also advanced by Ayala and a citizens' group and received a majority of the votes cast, place severe limits on hillside developments, such as Oak Grove.
Whether Oak Grove, which was proposed and approved by the council before Measures PP and QQ were passed, skirts the new rules by being "grandfathered" in as a project allowed beforehand hasn't been decided. Indeed, it could require more court litigation to decide that argument.
The Lin family has owned the Oak Grove property since 1977. The site was zoned for residential development of up to 98 homes in 1991, and designated again for residential development when the City Council approved the city's Urban Growth Boundary ordinance in 1996. The city's 1996 General Plan, which is still in effect, and its voter-approved 29,000-unit housing cap also allow for up to 98 homes on the property.
The council is expected to approve a new 2005-2025 General Plan on Tuesday, July 21, which contains the Measure PP and QQ land restrictions. The new new policy document will supersede the 1996 General Plan.
The 51 lots planned for Oak Grove would occupy 62 acres and another 4 acres would be developed with roads and services to support the properties, so 66 acres--or 12 percent--of the property the Lins now own would be dedicated to residential development and 496 acres--or 88 percent--would be given to the city at no cost.
Atty. Marty Inderbitzen, who has represented the Lins on their Oak Grove request, said, in a statement earlier:
"The construction of this project will fulfill the General Plan goals and objectives by clustering large-lot, custom homes, preserving large open space acreage and acquiring a public park system and trail rights-of-way through developer dedications."
"(If this project is denied), the property owner will continue to propose projects for this property until one is finally approved and built, with or without a park," he added.