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City Attorney Lowell stated that applicant's counsel is correct when he stated that the city cannot force the applicant to try to acquire the property unless the council is going to agree to condemn it. Mr. Lowell feels that there will be some difficulty in doing that, as there are alternative routes that can be utilized. While the city can encourage the applicant to talk to the HOA to come to some kind of an agreement, requiring it can be problematic. The option in place for the councilmembers would be to either deny the project at this meeting or send it back to the planning commission. Mr. Lowell also advised Councilmember Olson with regard to interpretation of Measure PP; it is his opinion that the city council does have the ability to interpret Measure PP. Initially, when Measure PP was being voted on, the city attorney at the time indicated that there are terms within Measure PP that are not defined are now ambiguous and unclear, and that those terms would need to be revisited at a future date. The decision to interpret the terms of the Measure PP that are not clearly defined is up to the council. The end result is that if Councilmember Olson feels that the terms in place regarding road structure are unclear, he does have a little leeway on how he interprets roads as structures. Councilmember Brown asked Mr. Lowell if the property has legal vested rights to develop a 50 unit plan. Mr. Lowell said no and that the Council can decide how to use the land as long as most economic value is not being taken from it. Motion: Councilmember Brown moved to approve a 30 unit split 50/50 with an access down Lund Ranch Road and one down Sunset Creek or through the HOA land. Motion died to the lack of a second. Prior to voting, applicant's counsel stated that besides the talk of takings, there are other legal issues to be considered if the number of units are dropped considerably, such as the Housing Accountability Act, that states housing units cannot be reduced for no reason. There's also a spot zoning issue. He reiterated the project design aligns with Measure PP. Mr. Lowell responded that as far as the Housing Accountability Act is a concern, it is his opinion the issues being discussed tonight are legislative decisions that do not require findings. The spot zoning is a concern, however, the Council is trying to come up with a project that will blend in with the rest of the neighborhood and is unsure if a court would treat any proposal like in the motion made the same as what occurred in the Avenida decision, where zoning was reduced significantly. Zoning for this project allow for a bit more leeway than the Avenida zoning case. Councilmember Narum asked what the consequences would be if the Council asked the applicant to revisit the project based on 40 units with 50/50 split between the two neighborhoods. The point being half would use Lund Ranch Road and the other half on the other side. Councilmember Brown made the request of putting the Sunset Creek Road on the ballot and let the voters make the decision. Councilmember Narum is hesitant to do that as she doesn't believe that it will be in the best interest of the community to do so. The concern is it would also create more chaos among the residents than anything else. Councilmember Thome stated that doing so would also send the message to the residents that Council is unable to do their job. Councilmember Narum moved to ask the developer to revisit the plan and reconfigure with 40 units split in two directions. Councilmember Brown said she would second the motion if traffic calming measures could be address by the City's Traffic Engineer. Mayor Thorne said he could not support the motion. City Council Minutes Page 13 of 15 November 17,2015