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Ms. Hosterman believed the distinction between the height variance of this particular property and another property in the neighborhood is that the height variance for the other property was granted for a structure that was not in existence. This application is for a variance on a building that already exists. Mr. Swift said that Ms. Hostarman was factually correct, but it was not a reason for making a finding, Ms. Hosterman asked if it would be possible to preserve the language in the second unit ordinance to allow whatever family occupies the house at 4432 First Street to utilize the space in any way they see fit to meet the needs of their family, but preclude it from being described as a second unit which would be a rentable property? Mr. Swift said the normal definition of a second unit is a unit that meets the Building Code definition for a dwelling, which includes a kitchen, sleeping area and bathrooms. He noted that there are accessory structures throughout the City that have two out of the three. It is the kitchen that technically makes this structure a second unit. He believed Council could find a way to structure an approval that would allow a kitchen to remain but not make the second unit a rentable property. This would require a recorded restriction, but it will be difficult to know if the second unit is being used as a guest cottage as opposed to rented space. It was moved by Mr. Campbell, seconded by Ms. Ayala to uphold the Planning Commission's decision to approve Case Nos. PV-98/PADR-932, and to adopt Resolution No. 04066 subject to Conditions of Approval as revised by the Planning Commission, allowing the retention of the existing two-story accessory building conditioned to meet code requirements and allowing the second floor to be used as a second unit. Ms. Hosterman believed Ms. Donald made some valid points however, given the nature and character of this particular neighborhood, she believed variances are appropriate. Mr. Brozosky believes Council needs to review this particular district and review the second unit ordinance for the downtown district. Ms. Hosterman asked that in the future, the Chatelain family and the prospective buyers discuss with Ms. Donald her privacy issues. Ms. Ayala understood the concerns of staff and believed that staff should look at rezoning the downtown areas so that these types of issues do not need to be addressed on an individual basis. Mayor Pice was concerned about the process of people illegally building structures without permits and then getting these structures grandfathered in after the fact without meeting building cedes and requirements. He understood that part of this issue and decision revolves around bringing the structure up to code, which may not be economically feasible. He believed Council could approve the structure subject to staff and Planning Commission recommendations. He believed Council needed to revisit the second unit ordinance, particularly with respect to the structures in the downtown. The proper way to approach this application would be for Council to approve the structure if it Pleasanton City Council 15 09/07/04 Minutes