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strategies. She reported she received several emails from citizens which urged the Council to appeal the ruling and asked Mr. Brown to speak to that, as well. Mr. Brown said that while he is reluctant to discuss the merits of the City's position, the outstanding discrimination claims leave substantial doubt as to whether the City has an immediate right to appeal. He explained that in California, there is not right to appeal but for the issuance of one final judgment and that there is only one judgment in any case. He acknowledged there are exceptions to that and he would not wish to preclude the ability to argue these points if that is the chosen course, but said he believes there to be substantial limitation that right to appeal. He also cautioned that appeal is a very long and very expensive process. Councilmember McGovern asked how many laws remove local control, i.e. the Density Bonus and Least Cost Laws, which were put into effect after the City's housing cap passed in 1996. Mr. Brown said literally dozens have been enacted an amended since then, including the Housing Element Law, which is almost unrecognizable from what it was then and that it is largely fair to say that all of those changes have restricted local control. Councilmember McGovern asked him to explain what is meant by "no discretion" and "by rights." Mr. Brown explained that "by rights" is in the Housing Element law itself and, while the definition has evolved, it essentially envisions a process by which the local exercise of discretion over development review is severely limited or prohibited. The State legislature has directed that cities wishing to control these developments and their attributes to impose objective requirements known as appropriate or development standards. The City has near full discretion in the attributes it chooses and how those development standards are imposed, but the concept of "by right" zoning envisions a process whereby developers can know those requirements at the front of a project and, if satisfied, can get a project through. He said that the concept of discretion and process is one that the state legislature has deemed to be inhibiting to the development of housing Mr. Fialho said it is important to acknowledge that the by right zoning enabled in the law only applies to certain kinds of housing, those being primarily low and very low affordable housing rather than moderate or above moderate. Mr. Brown confirmed. Councilmember McGovern said this issue is complex and is difficult for the community to grasp, as it was for her. She questioned and confirmed with Mr. Brown that if the City chooses to seek a negotiated settlement, it would maintain the rights to litigate while those conversations occur. Mr. Brown said he has been scrupulously reserving that right for the City since the ruling came down and that the intention would be to reserve that right up to the point that an agreement has been reached which both sides find acceptable, such that it would be deemed that the litigation would be replaced by an obligation that both sides found acceptable. Councilmember McGovern asked if there would be a public hearing on potential settlement agreements before they are agreed upon by the Council. Mr. Fialho confirmed and said that if there is an opportunity to reach global settlement to the benefit of both the City and the petitioners, agreement would back to the Council in closed session and public session, with an opportunity for public comment. City Council Minutes Page 5 of 9 April 20, 2010