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Councilmember Thorne said his feelings had not changed since the previous meeting and restated his position that this is simply a matter of determining whether or not the project is consistent with PUD regulations, the Zoning Ordinance, and the General Plan. He could find no conflict with these documents and no errors in the actions of the Zoning Administrator or Planning Commission. While the concerns raised by Councilmember Sullivan and the public are certainly reason for pause, they are not relevant in terms of whether Walmart has the right to occupy the location in question. He moved to deny the appeal and uphold the staff recommendation. Councilmember McGovern seconded the motion. She disagreed with the claim that Pleasanton is oversaturated with grocery stores. She referred to a recent study by the Economic Vitality Committee, which demonstrated revenue leakage in the areas of grocery and gasoline sales. She also noted that the site in question has been vacant for several years, depriving neighbors of the ability to walk to needed services and undermining one of the City's major planning goals. She said it is clear that the applicant has the legal right to operate at this location and that she believes strongly in free enterprise. Mayor Hosterman acknowledged the extensive comments that the public provided at the last meeting, which was not televised. She said she has never been a personal Walmart supporter but, while this has the Walmart corporate name attached to it, it is really a 33,000 square foot neighborhood store. The reality is that it is a permitted use and the Council does not have the luxury of fighting it simply based on the corporate name. She said she did not appreciate the manner in which Walmart deals with its employees or communities and that it is undoubtedly responsible for sucking the lifeblood out of small communities across the nation. However, the Council needs to be very careful about the types of litigation that it invites into the community on the taxpayers' dollar. Had the Council entered into this discussion several years ago rather than on the heels of an application for a permitted use, the outcome might have been different. Councilmember Sullivan rebutted a number of the comments provided by the Council and public, noting that the City already regulates and has outright banned certain business operations in Pleasanton. He asked the City Attorney to comment on the Council's ability to prohibit this project, while still keeping with the rule of the law. Ms. Seto explained that California Government Code allows cities to adopt moratoriums on different types of land uses provided the Council can make the findings, supported by substantial evidence, that there is an immediate threat to the public health, safety and welfare. In terms of the additional proposal to proceed with an ordinance requiring a CUP or economic analysis for all new grocery stores, the Council could do so as a regular or urgency ordinance, with similar findings. She noted that a decision on this appeal is required within 40 days from the date of appeal; if the Council wished to proceed in this manner, the only way to do so would be with an urgency ordinance. Mayor Hosterman asked and Ms. Seto confirmed that such action, regardless of findings and evidence, would not necessarily prevent a retaliatory lawsuit. Councilmember Cook-Kallio asked if the California Government Code provides any guidance in terms of what constitutes "evidence." Ms. Seto said she was only able to find one unrelated case regarding development agreements that were later rescinded by a subsequent ordinance adopted by a subsequent elected body. Ultimately, she could not say what a judge would support as substantial evidence. Councilmember Sullivan reiterated his point that there is legal way to proceed as he requested and that he has laid out the evidence to support such findings. He noted that he raised the issue of just this type of ordinance several months prior to this process. It was not until the Planning Department discovered the involvement of Walmart, who used a third party to submit the initial project documents, that the discussion became specific to this project. He disagreed with Councilmember McGovern's interpretation of the Economic Vitality Committee's study, which actually reported that the addition of a City Council Minutes Page 5 of 12 May 15,2012