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The legal fight over Oak Grove may be coming to an end.
Opponents and supporters of a plan to build 51 estate homes in the hills above Kottinger Ranch and Vintage Hills along with giving 496 acres of the hilltop land to the city of Pleasanton as public open space will meet next Friday in Oakland Superior Court to resolve their disputes.
Superior Court Judge Frank Roesch has agreed to hear legal actions filed by Jennifer and Frederic Lin, who own the land, and by a group called Save Pleasanton’s Hills and its chief organizer, former City Councilwoman Kay Ayala, who want the project denied.
Ayala and her group obtained signatures from more than 4,000 registered voters in Pleasanton late last year to force a referendum asking voters to overturn the City Council’s earlier decision that approved the Lins’ project. The 51 homes would be built on 77 acres of the nearly 600 acres of wooded hilltop land the Lins own. As part of its approval, the council also approved a development agreement with the Lins that would turn the rest of their property over to the city at no charge. Pleasanton intends to use the acreage for trails, picnic grounds and equestrian paths. The council also will seek similar agreements with other adjacent landowners to create a 2,000-acre swatch of open space along the southeast hills of Pleasanton.
But Ayala’s group claims the homes and development agreement violate the 1996 General Plan and would be eyesores on the city’s southeast hills. The signatures collected exceed the requirement for 10 percent of the registered voters who cast ballots in the last municipal election–or 3,672 signatures-to force a referendum.
However, Judge Ken Burr, sitting in for Roesch, granted a temporary restraining order at the request of the Lins. 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.
Ayala countered with a motion also filed in Superior Court by Palo Alto Attorney Ron Katz seeking the dismissal of the Lins’ suit on grounds that it violates a state statute that protects individuals from “Strategic Lawsuits Against Public Participation, known as SLAPP.
Besides the two legal teams next Friday, City Attorney Michael Roush will also be at the hearing.
“Although the city is not a party to either of these suits, I will have to advise the City Council on how to proceed once Judge Roesch decides this issue,” Roush said. “Whichever legal action is taken up first, the other side will have an opportunity to argue against it. We expect that Judge Roesch will try to resolve all of the issues on Friday.”
If Roesch grants the Lins’ request for a permanent injunction that would prevent the petitions from being considered by the council, the Lins can proceed with their project and the land transfer. However, if he denies that motion and allows Ayala’s group to pursue the referendum, the council will have to reconsider its action, either rescinding its approval of the Oak Grove project or calling for the referendum to be placed on the June 3 state primary ballot.
In the meantime, Jerry Pentin, chairman of the Keep our Park Committee that opposed Ayala’s group when it was seeking signatures on its petitions, complained the her organization has not filed its campaign expense report as required by the Fair Political Practices Commission. His group has, showing it has spent $61,000 on its efforts to support the Oak Grove project.
“We feel that Oak Grove is a good project and good for the city,” Pentin said. “Kay Ayala and her group have every right to oppose it, but they should also abide by campaign finance laws and report what they have spent on their drive to gather signatures for a referendum and who has contributed.”
Ayala said she is reviewing the claim and will file with the FPPC as soon as the group’s measure is qualified.
“Right now, there is no measure because the courts have stopped it from being processed through the City Council,” she said. The court hearing is scheduled for 9 a.m. on Feb. 22 at the downtown Oakland courthouse, 1201 Thirteenth St., Dept. 31.
The briefs being filed during the last three days have set a record somewhat. You will see this if you are following the Register of Actions for case RG07361370 at the Alameda Superior Court website. Another should appear by tomorrow or next business day (Tuesday?)
The Lin’s Petition for Writ of Mandate and Ayala’s two part Demurrer and Motion to Strike (the anti-SLAPP counter lawsuit) have been joined to a single hearing date of February 22.
To simplify matters, the most relevant and central issue is whether the referendum petition needed to include the entire Development Plan documents in order to be legal under Election Code when it went out for signatures. The other complaints of a poison pill and false statements are secondary. Ayala’s lawyers say that the petition contained everything required. Lin’s lawyers say it did not. Both cite case law to support their claims.
My earlier research into the case law cited by each side suggested to me that the Lin’s have a stronger case. However, the most recent filings by Ayala’s lawyers seem to be more focussed upon the issue of “ripeness”. They are not being so assertive on the central issue, but rather arguing vigorously that the Lin’s complaint, when filed, was not “ripe”.
“Ripeness” is a technicality and does not address really whether Ayala and her troops did bad to Lin. On December 14 when the Lin’s filed their lawsuit, the City Clerk had already sent the petition and its signatures off to the county to validate signatures. The Clerk did NOT deny the petition at that time because of insufficiencies such as claimed in the lawsuit. Lin’s lawsuit says she should have.
Ayala’s lawyers claim that this was too early. The Lin’s should have waited until the Clerk officially certified the petition which she would have done once the county notified her that there were sufficient, valid signatures. Therefore, Ayala’s lawyer say the lawsuit is not “ripe”. The Lin’s lawyers say the lawsuit became “ripe” at the moment she sent the petition off to the county and did not at the first moment she had the opportunity deny the petition because it lacked sufficiency under Election Code.
Get it?
Both sides cite case law regarding tests for “ripeness”.
Common sense suggests that once the City Clerk received the petition and did not at that time find any insufficiency, then to maintain their rights in the situation the Lin’s had to file their suit. To wait is simply damaging to their position. This is a technicality. Can it be that Ayala’s lawyers really know that their case is weak and are hinging their fortunes on a technicality?
The judge will decide. If it goes against the Lin’s, my bet is it will be immediately appealed because the details of this case suggest to me that the appellate court will be friendly to resolving the central issues, not the technicalities.
Frank, thanks for the highly technically discussion. I checked my trusty on-line legal dictionary and found this definition, “ripe: The mandate contained in Article III of the Constitution that requires an appellate court to consider whether a case has matured into a controversy worthy of adjudication before it can hear the case.”
It sounds like the Lin’s are trying to state this case is a new situation that has never occurred before and may require special judicial review. What is new about collecting signatures to put an issue on the ballot? Wouldn’t Ayala and group have precedents for the previous developments here in town that went to a vote by referendum, without signature gathers having to haul around the development agreement and PUD, EIR and all the rest of the stack? Didn’t the city attorney take into consideration the ridiculousness of hauling a huge stack of documents around to collect signatures?
To go one step further, when an item is approved to go to a vote of the people, there is summary information in the voter’s pamphlet regarding the subject manner and pro/con discussions. The amount of material is a few pages, not stacks. If the voter’s pamphlet can boil an issue down to a few pages, so can the signature collectors, and “don’t sign” folks.
Yes, Karen, highly technical arguments. And it gets tougher. Here’s even more…
On the issue of “ripe”. Quotes from Lin’s briefs.
“A two-pronged test is used to determine the ripeness of a controversy: (1) whether the dispute is sufficiently concrete so that declaratory relief is appropriate, and (2) whether the parties will suffer hardship if judicial consideration is withheld. (See Farm Sanctuary, Inc. v. Department of Food & Agriculture, 63 Cal.App.4th 495,501-02 (1998). The case law is clear that the City Clerk has a ministerial duty to reject for filing all referendum petitions that, on their face, do not comply with the full-text requirements of Elections Code § 9238(b). (See Billig v. Voges, 223 Cal.App.3d 962,970 (1990).) Petitioners’ claims ripened the moment that the City Clerk failed to discharge her ministerial duty to reject the facially deficient Referendum Petition. Once the Clerk commenced processing, the facts were sufficiently formed to permit an intelligent judicial determination as to whether (i) the Referendum Petition conforms to the requirements of the Elections Code, and (ii) whether the City Clerk had a ministerial duty to reject the Referendum Petition. Accordingly, Petitioners’ claims satisfy the first prong of the ripeness test.”
“Real Parties contend that Petitioners’ claims will not ripen unless and until the Referendum Petition is successful, which is contrary to the well-established requirements for a preelection challenge.”
There is more to the argument if you bother to read it. To decide for yourself if the writers of the brief are correct, you have to read counter arguments in Ayala’s briefs as well as read all the respective case law citations found in both.
Regarding the central complaint of Lin and the size of the plan. I quote from Nelson v. Carlson (1993) 17 Cal.App.4th 732. This case law is prominently cited in the Lin’s complaint. The case was very similar to ours but occurred in Dana Point in 1993.
“[4b] The failure to attach to the referendum petition the exhibit containing the plan presents a fatal defect in this case. The resolution’s focus was on the adoption of the plan and that document was incorporated into it. Without the plan individuals reviewing the petition had no way of informatively evaluating whether to sign it.
In Billig, the ordinance was 22 pages long. In Chase, the exhibit in question was a lengthy legal description of real property. In the present case, the general plan is several hundred pages long and roughly two and one-half inches thick. Given the size of a general plan, the question arises whether [17 Cal.App.4th 740] attaching it to a referendum petition would realistically assist someone considering whether to sign the petition.
No case has considered a document as voluminous as the plan considered here. We conclude plaintiffs were required to attach the plan to their referendum petition. This conclusion enforces the express requirements of section 4052. As Billig noted, the meaning of the term “text” in section 4052 is clear. By it “the Legislature intended referendum petitions must contain the exact wording of the challenged measure.” (Billig v. Voges, supra, 223 Cal.App.3d at p. 967.) Here, the plan was the resolution’s focal point and was expressly made a part of it. Section 4052 delineates no exception to the requirement that the petition contain the text of the challenged legislation. If the Legislature had wanted to allow an exception for bulky ordinances or resolutions it could have provided for that situation. So far the Legislature has not done so.”
So, it’s too bad if the document was thick as far as the appellate court judges were concerned. If you want a referendum to obey Election Code, you deal with it, no short cuts. The main difference with the present case vs. the Dana Point case is our Pleasanton city attorney did not in the ordnance draft explicit language saying that the plan was attached. Maybe he was lazy, like the petitioners. However, it is unlikely that the perceived deficiencies of our city attorney in drafting ordnances will save Ayala’s case, since it is the duty of the petitioner of the referendum to obey Election Code, not the city attorney by virtue of how he drafts ordnances. There are separate case law citations in this regard.
All of the above is not me opinionating, but the writings of attorneys and judges.
Who knows, though, how this judge will rule…..