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Michael Roush, City Attomey, said that unlike many of the controversial land use applications that Council deals with, such as General Plan amendments, Specific Plans, PUD plans, etc., that are legislative in nature, this particular application is a conditional use permit. A conditional use p~lmit is considered quasi judicial in nature and certain notions of fairness are attached to these types of applications. Therefore, once the public hearing was closed, it was prudent for the Council not to take any further input or information either from the applicant, the appellant or the public in general in order that Council's decision be based solely on the information it received prior to the close of the public hearing. He believed this was the most prudent course of action so that no one could say that additional information came to Council that the public or the appellant did not have a chance to hear or rebut. Ms. Ayala wanted the zoning changes that were approved by the Council previously clarified. She did not request, nor was she aware that any other Council member requested, that the zoning changes be sent to Council ahead of the conditionai use permit. She asked staffwhy this happened. Bran Swift, Director of Planning and Community Development, recalled that the matter was originally together as one because the rezoning of the 11-acre site was a part of the Master Plan modification that EBRPD was pursuing. The EBRPD adopted its Master Plan at the same time it incorporated the 11-acre site into its Master Plan. Therefore, EBRPD approved the expansion of the water slide park at the same time and with the same environmental document as it did for incorporating that 11-are site into its overall Master Plan. Staff began to process the conditional use p~mdt, the design review for the project itself, and a rezoning from the commercial zone to Public and Institutional for the 11-acre portion of the project. When the Planning Commission raised a number of concerns and questions about the water slide park expansion, that caused the applicant to delay the project. Staff, however, already had the application for the zoning portion ready to go. The discussion of moving forward the BMX Park, which required that same zoning change, was also in front of staffat that time. Staffasked the Planning Commission and the Council to take action on the zoning so that the discussion of the BMX Park could move forward. Ms. Ayala wanted the public to know that this is the way this played out. The zoning was changed from Office and Commercial to Public and Institutional in order to move forward with the BMX Park and the additional parking. Mr. Brozosky asked legal counsel to discuss whether this project was subject to the referendum process. Mr. Roush noted that a number of speakers, as well as members of the Council, have asked whether or not it would be legally permissible to place the project itself before the voters. He has provided a confidential written opinion to Council outlining the pros and cons of this action. He believed Council understood his opinion in the matter, which would guide the Council in terms of what it decides to do. Pleasanton City Council 2 03/30/04 Minutes