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Councilmember McGovern requested that the City's legal representative in that litigation attempt to clarify the situation. Tom Brown, Hanson Bridgett, said he does not know to what extent this rezoning is being driven by the litigation. In the litigation against the City, the City's failure to comply with Program 19.1 is a central issue that is being asserted as a violation of state law and as a basis for asking the court to invalidate the City's Housing Cap and Growth Management Ordinance. Councilmember Sullivan questioned whether the staff recommendation is the only course of action to address this. Mr. Brown declined to comment on relative chances in terms of action. Mr. Fialho said that there are other sites that could be suitable, but could not be rezoned in the time that is available. He noted that the Council could consider these other sites as an alternative on a going forward basis. Mr. Brown said one of the theories being asserted against the City is that it was required to accomplish some rezoning by 2004 or June of 2009, at the very latest. The City has consistently asserted that these programs are not considered mandatory, but there are arguments that it undertook these programs only in order to create a legally valid Housing Element. He noted that there have been alternative locations all along and that it is being asserted that the City needs to have acted before now; it is reaching the point where the petitioners and attorney general believe that the time for acting has already lapsed. Mayor Hosterman said that one of her greatest issues with this is the Council's ability to protect the community's right to maintain local control over how this town is developed. Mr. Brown said that one of the concerns with the litigation is that, under the state planning laws, the judge could take actions which would be extreme in terms of stripping local control over land use. He acknowledged that there are arguments as to why that would be inappropriate but said that, to the extent that the Council has not acted, the judge may take it upon himself to do so. Councilmember McGovern referred to the negative declaration and staff report which mentions 6 -story developments in Hacienda Business Park. She always understood it to be limited to 5 stories and asked which is correct. Mr. Dolan explained that there are different height limits throughout the park; much of what has been built is six stories, with the 6th floor being small penthouses. Councilmember McGovern said she has never heard such a thing and requested that staff look into it. She is concerned by the lack of discussion on the approved commercial capacity for the park and how this proposal would change that. She stated that, for the record, she has no wish to increase that capacity. Mr. Dolan said it would be explored through the planning process. Councilmember McGovern noted for the record she has not approved any additional capacity for Hacienda Business Park and that she would prefer to consider that capacity in terms of no further expansion. Mayor Hosterman opened the public hearing. City Council Minutes Page 9 of 25 October 20, 2009