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Oak Grove developers ask appellate court to reconsider

Court overruled lower court decision to quash protest petitions

Attorneys for developers Jennifer Lin and her brother Frederic have asked the state Court of Appeal to rehear the arguments made with regard to the court's decision July 16 that in effect could force a voter referendum on the Lin's plans to build at 51-luxury home community in Pleasanton's southeast hills.

The court ruled against the Lins and granted the appeal of former Councilwoman Kay Ayala and a citizens group she organized to reverse an earlier Superior Court ruling that favored the Lins. The Lins had argued the Ayala's group failed to follow proper procedures in circulating petitions in late 2007 seeking to block the development, called Oak Grove. More than 3,700 registered Pleasanton voters signed the petitions, enough to qualify the measure for a referendum to overturn the City Council's approval of the Oak Grove project.

In the Lins' petition for a rehearing, Atty. Andrew Sabey of the San Francisco law firm of Cox, Castle & Nicholson questions the ruling by the three appellate court justices who heard the appeal "that a referendum petition against a city zoning ordinance that expressly adopts a development plan need not attach that plan."

The main argument by the Lins in their successful challenge of the petitions in the lower court, which was accepted by Superior Court Judge Frank Roesch, had been that Ayala and the citizens group had failed to carry the documents deemed necessary in soliciting prospective signers.

"The Lins ask this court to grant a rehearing with respect to the issue of whether the development plan was incorporated by reference" which would mean that the citizens group did not need to carry the actual development plan nor, for that matter, some of the other voluminous documents that the Lins said they should have made available to signers.

The petition for a rehearing by the same three justices who just 15 days earlier had ruled against the Lins will now await a decision by the court if it wants to go through another hearing by Sabey and the attorney representing Ayala and her organization, Atty. Benjamin G. Shatz of Manatt, Phelps & Phillips of Los Angeles and Palo Alto.

If the Lins petition is turned down by the Court of Appeal, they will still have only 40 days to seek a review by the California Supreme Court, with that deadline Aug. 26. The high court can then take a number of actions: summarily turn down the review request, a decision that could come almost immediately or up to 90 days after the Lins' request is submitted, or it could decide to review the case. That could take another year of briefings and court dates before a final decision is rendered.

Most likely, given the statistics in which the Court of Appeal seldom rehears its own decisions and the Supreme Court also rarely reviews a state Court of Appeal decision, the Ayala group's petition will be certified by the Alameda County Registrar and go back to the Pleasanton council for handling.

Since the City Council voted 4-1 to approve the Oak Grove development, which includes a grant free of charge by the Lins of 500 acres of open space adjacent to their hilltop development, it's likely that the council will decide asgainst reversing its own decision and will, insteaad, schedule a vote on the measure.

The referendum on Oak Grove would likely be placed on the ballot at the time of the California primary next spring.

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