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the State did not provide a lot of direct feedback on the sites but they could respond again with some concern. Because the numbers are cut close and if they believe one is not appropriate, others may need to be considered. Commissioner Olson questioned why staff would want to cut the numbers so tightly, noting that 6 of the sites were eliminated from Table I. He agrees with the rationale on some of the sites, particularly the small ones but he does not understand why these would be eliminated at this juncture. Mr. Dolan said one of the things to do is rezone the sites prior to adopting the Housing Element. They will be rezoned and if the City ends up not needing them, the land will be rezoned with theoretically a more generous opportunity for development. Concerning extra units, he said this is a policy discussion and decision the City needs to make. City Manager Fialho stated that under the current example, more land must be rezoned than the minimum before adoption of the Housing Element, and he thinks it would be difficult to unwind this after the properties are rezoned. Commissioner Olson clarified that staff's view is it is easy to come along later and rezone additional properties if the State has indicated some of what is submitted is unacceptable. Mr. Dolan added that staff also has a high level of confidence that the State will not have problems with those included on the final recommendation. Mr. Fialho noted that staff has consistently heard from the State and other parties that sites must have walkability, be transit oriented, include tax allocation criteria which have been met with properties identified in Table II-B. Commissioner Blank stated that in listening to the presentation it sounds as if the City is going to do the absolute minimum as opposed to cutting it close or as opposed to doing more than a minimum which might be the right thing to do in terms of having more affordable housing in the City. He asked whether staff could address issues brought up in the letter received today regarding the Kiewit site (11) or asked if it would be better taken up by the Planning Commission meeting. Mr. Dolan said he did not meet with representatives of Kiewit to discuss their letter. They have been working in the process all along and he completely understands why they might be disappointed in not being on the final recommended list. But, the theme was a concentration of properties in that general area and only one was selected for the final recommendation. Unique about the site that was selected is that it was not in the East Pleasanton Specific Plan area. Commissioner Pentin questioned the process if the State rejects 73 acres. He asked if there was a 30- 60- or 90-day window to revised the plan and to bring it back. Mr. Dolan said the City will have fulfilled its obligation once they submit it under the settlement agreement. The State could not certify which puts the City in a vulnerable position for other lawsuits. The City would have the opportunity to consider other properties for rezonings if this is what is decided, but ultimately, there are decisions to be made in the future if the State does not certify. Mayor Hosterman noted that the City is still in litigation, a lot of this discussion has occurred in Closed Session and she cautioned discussion regarding litigation strategy. Mr. Fialho indicated there are actually two deadlines—one is the settlement agreement deadline which requires the City to rezone land by a date certain and submit the Housing Element to the State. Regarding the procedure that follows that, the City wants to get out of the settlement agreement, meet the timelines and move forward with the Housing Element. If there is disagreement on the document, there is a protest procedure, negotiations procedure which may result in it returning to the Commission and Council, and there is litigation strategy that the City is not pursuing but is an option. Mr. Dolan said important to note is that the next Housing Element is due in 2014 and in terms of the addressing the need, staff will be back at it quickly. Commissioner Pentin voiced concern with needing to rush through the process, and asked whether staff was confident with the State's process. Mr. Dolan said the City will not have similar settlement deadlines after the plan is submitted, but there will always be the threat of litigation if the City does not have a certified Housing Element. They have also made City Council Minutes Page 6 of 18 December 6, 2011