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Mr. Roush noted that staff has also looked extensively to find the reference to the City Council directive and has not been able to find it. He stated that the CC&R's do not specifically state this but the grading must be reviewed by the Building Official in conjunction with the Planning Department. He indicated that his sense is that the former Planning Director, Mr. Jerry Iserson, was not aware of the condition and proceeded on the basis of looking at the Tract conditions, which does not indicate that the City Council would need to be involved in it. He stated that essentially, there is a re- grading application that the City is looking at and the issue is now in the Planning Commission's arena. Chair Blank referred to the resolution and said that from in his experience, the "Whereas"' clauses normally provide statements of conditions that are currently in existence. He noted that even though the resolution relates to the re-grade of Lot 48, the "Whereas" states fairly clearly the City Council directive that all re-grading applications for Tract 5835 must have City Council approval. He indicated that while staff may have a problem determining the correct date of the meeting and finding the original minutes where this was discussed, the resolution's intent is that the City Council, regardless of the CC&R's, would approve all re-grading in the neighborhood. Mr. Roush agreed with Chair Blank but noted that the difficulty is that the Minutes of the April 18, 1989 meeting do not contain anything that would even touch on Tract 5835. He added that staff has looked at the Minutes for 1988, 1989, and 1990 to try and find the source and has drawn a blank. Commissioner Narum referred to Condition No. 1 of Exhibit B of the staff report and said that it talks about the final landscaping, retaining wall, and grading conforming substantially to Exhibit A. She inquired whether or not what is actually there conforms substantially to Exhibit A. Ms. Amos said staff has not made a recent visit to the site to see what actual exists to date or what the actual grade is. She noted, however, that based on the cross-sections provided in attachments, they appear to be similar. Commissioner Narum inquired if the berm referred to in Condition No. 4 of Exhibit B was actually one foot in height. Ms. Amos replied that staff has not visited the site recently and that it is unclear whether or not there is a berm. Commissioner Fox inquired whether staff was comfortable with the directive that all re-grading applications for Tract 5835 must have City Council approval or if staff needed to further search the archives to find the actual requirement. Mr. Dolan replied that staff would like the Commission to consider the application independent of that directive and see if the issue can be resolved. He noted that there is a possibility that the item will end up with the City Council regardless of what happens at the Commission level. He stated that staff brought the application before the Commission because staffs decision was appealed. He added that the Commission could take the position that it believes the application should have gone directly to City EXCERPTS: PLANNING COMMISSION MINUTES, September 10, 2008 Page 2 of 25