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