Pleasanton Council Votes Not to Have City Join Appeal

The City of Pleasanton won’t be joining an appeal of a court decision nullifying the Oak Grove referendum.

The city council voted 3 to 2 in closed session last week not to pursue an appeal. The council also rejected the idea of hiring outside counsel to assist them in making a decision on whether or not to join the appeal. The majority was comprised of Mayor Jennifer Hosterman, and councilmembers Jerry Thorne and Cheryl Cook-Kallio. Cindy McGovern and Matt Sullivan voted in the minority.

Superior Court Judge Frank Roesch ruled in March that the petition gatherers had not carried the proper information. In particular, the judge felt that portions of the development plan should have been part of the petitions.

The referendum supporters have filed an appeal. They asked the city to join and lead the appeal, since the city and city clerk were named in the original lawsuit filed by property owners, Jennifer and Frederic Lin.

Referendum leader Kay Ayala and Councilmember Cindy McGovern noted that the judge said the petitioners did not carry the development plan, which was referenced in the ordinance. Both pointed out that while a development plan was referenced in the conditions of approval, there is no development plan. It is to come later. There is an EIR and there are design guidelines.

Ayala pointed out that the judge dismissed other portions of lawsuit, leaving only the issue of the paperwork to be carried as part of the petitions. She believes they carried the proper paperwork.

“Election law tells us exactly what we have to carry - the ordinance and nothing more, nothing less.” In launching the appeal, she said the hope was that three judges would take a look at the ruling. “I’m 100 percent confident it will be overturned. All we want is the right to vote on this project,” stated Ayala.

Cook-Kallio recommended that the city ask members of the state legislature to craft wording that made the statute with regard to paperwork required for referendums “crystal clear.”

The council did vote unanimously to waive the right of privilege with regard to the conversation held in closed session on the matter. All five then made statements on the reasoning behind their votes.

The closed session followed a public hearing where advocates spoke both for and against the city’s participation in further legal action.

Those speaking in favor of the appeal declared that the court’s decision would impact future efforts to referend government decisions, because petitioners would not know what they would be required to carry. This could discourage them from attempting a referendum or initiative. They also said that the city should support the over 5000 residents who signed the petition, to make sure that they have a right to vote on the referendum.

Mary Roberts declared, “This is not about Oak Grove. It’s about the right of citizens to petition their government. The city told Kay Ayala she had everything she possibly needed to carry.”

Speakers who opposed having the city join the appeal felt it would look like the council was advocating overturning its own decision. They said the city should not waste taxpayer money in pursing an appeal.
Scott Raty, Pleasanton Chamber of Commerce CEO, said the council should take the opportunity to celebrate and talk about a very healthy decision it had made. “It is the responsibility of those who conducted the referendum to follow the law. They didn’t. It is their right to appeal and it should be at their cost.”

Jon Harvey, one of the three residents of Kottinger Ranch (the adjacent development to Oak Grove) who negotiated the development agreement for Oak Grove, felt the judge’s decision would strengthen the referendum process. “In the future, petitioners would make sure they have a good package put together. There have been a lot of successful campaigns. Measure D was challenged vigorously in the courts. It stands today as one of the strongest open space initiatives in Alameda County. The organizers spent a lot of time and money to get it right.”

COUNCIL COMMENTS
Jerry Thorne stated, “In its zealous pursuit of a compromise and yes some placation of a certain political faction, the council has lost sight of the bigger picture.” He said the goal was to eventually have 2000 acres of protected open space in the southeast hills, using Oak Grove as a model. This project would provide 496 acres.

Thorne also objected to statements made by petition gatherers, in particular characterization of the Lin family as foreign developers who don’t care anything about Pleasanton. “Mr. Lin is a citizen of the United States who deserves to be treated with respect and not to be discussed in a racist way in a public forum.”

Thorne questioned the legality of the referendum campaign, saying they failed to report money spent on it, something required by the Fair Political Practices Commission. “It doesn’t matter where the money comes from. There is a responsibly to report any funding that exceeds $1000.”

Thorne concluded, “I won’t support the use of additional tax dollars to hire yet another consultant and will not support a mechanism designed to overturn a decision made by this council in a four year public process.”

Cheryl Cook-Kallio said the judge’s decision is not prohibitive. She saw it as protective of the referendum process. She explained that it forces citizens working to repeal a decision to wade through all of the material the council has read before and then having pages explaining that decision as part of the petition.

“The decision is not precedent setting. The appeal may be if it were to be published,” said Cook-Kallio.
In response to those who said the council should support the right of those who signed the petition to vote, Cook-Kallio pointed out that 89.3 percent of registered voters in Pleasanton did not sign. “I represent all of Pleasanton. It is not a cost we should bear financially. I think the greater cost is not doing it right. I think we did it right. At the end of the day, some agreed with us and some didn’t,” declared Cook-Kallio.

Cindy McGovern, who voted in the minority, said that she felt that the decision was precedent setting. She wanted to have a lawyer who specialized in the referendum/initiative process look at what it might mean to cities in the future. She said that the city attorney (Michael Roush) had told her he thought the decision was wrong. “If that’s true, we should appeal,” argued McGovern.

“Most important is to have this appeal to clarify the evolution of election code,” added McGovern.

Matt Sullivan, the other minority vote, pointed out that he had voted for Oak Grove. “I supported the process and the project. Now I have come to another conclusion.” The goal was to empower citizens to participate in the project planning and hopefully come to a compromise that everyone could live with and end up with open space. Having a referendum “sent me a strong message that maybe we didn’t do our job all of the way.” He added, “The project is completely wrapped up in politics on both sides of the issue.”

Sullivan felt that the court’s decision sets up a “fuzzy” definition that future referendums would need to follow. It sets up a paradigm where the developers will turn around and sue to see if they will have the same luck.

“I feel disappointment most of all. Four years ago we started with a very good goal. We need to pay attention to the message sent by a referendum at our own peril,” concluded Sullivan.

Mayor Hosterman called the process used to create Oak Grove “a marvelous one that included all segments of the community. We can go to other property owners and use the plan as a model. I envision securing 2000 acres of open space and shrinking our urban growth boundary inward.”
She said she believes the referendum was filed for political reasons.

Hosterman said the correct course is to ask the state legislature to write language that more adequately covers what signature gatherers must have on hand. In addition, there should be safeguards for the referendum process by providing guidelines that protect signers from false and misleading statements.

Hosterman noted “I am hoping to motivate the state into providing more teeth for the Fair Political Practices Commission. There should be fines for those who don’t follow campaign regulations. Receipts and expenditures should be fully and truthfully disclosed. That applies to ballot measures. Not one citizen has been given the opportunity to follow the money in the campaign to set aside Oak Grove.

“It is the unlawful nature of this particular process that makes this referendum different from any other. I believe the referendum process is alive and well,” Hosterman stated.