Lin family wins court order to block Oak Grove petition

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.”