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485 Councilmember Mohr stated the City Attorney has cited the Pettit case to support his decision, which states the building permit was in violation to the zoning ordinance. Mr. Roush stated the facts of that particular case did involve a building permit which had been issued erroneously and in violation of the City's zoning ordinance. The part of the case however, in his opinion, which is applicable here, has to do with the fact that the Court made mention of the fact that estoppal will not lie when there is a policy to protect the rights of citizens. In that particular case it had to do with a violation to the zoning ordinance, but a similar argument could be made here. That is, if a certain height limitation were allowed to remain, the City of Pleasanton, as the City, would not be hurt or impacted by it, but that the public would be. Councilmember Mohr stated that if the litigation process is pursued, since the neighbors are involved would that mean they are third parties to such litigation. Mr. Roush advised yes and no; there is no question that if the Council takes no action or if the Council does take action that does not make the adjacent property owners happy, they have the legal right and ability to go to court to enforce the restriction under the CC&R's. They have an independent right no matter what action Council takes tonight. Councilmember Tarver asked if the arguments proposed in the letter delivered to Council today from Amador Valley Savings and Loan's attorney would require additional time for Mr. Roush to study their points. Mr. Roush stated he is not uncomfotable with his original position. He does not believe that an intrepertation of the condition by this Council would be imposing a new condition. He agrees the law says a city cannot impose a new condition, but in this particular case he does not believe the Council would be imposing a new condition. Secondly, he feels there is an ambiguity in the phrase "single-story in height". The Attorney's letter, representing the developer, indicates it is their position that there is not an ambiguity in that phase; Mr. Roush feels there is. If Council feels that the phrase is clear then the matter can stand and Council need not take action, but if Council concludes there is ambiguity, then it is within its purview to clarify what single-story in height means, and have it apply to the lots in question. Councilmember Tarver stated that in hearing this issue, both in Planning Commission and at City Council, about the grading issue and the visibility, every representation that he can recall to get the project approved originally was trying to make the owners that were coming up against the project satisfied with the proposal. He was not involved in the discussions concerning a typical one-story but he can see where that phrase could lead to some confusion on the homeowners part who live in one-story buildings that are 14-16 feet high, believing that to be typical, and not seeing something that is 28 feet tall as a single-story house. If taller one-story houses were being contemplated the - 25 - 1-17-89