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place to comply with the former sets of conditions. She did not believe the Planning Commission could force an easement on a property owner if the owner did not want it. Chair Blank noted that this wall was not built in a collegial manner and that it went up on a Saturday; he also questioned some of the motives on both sides in this matter. Commissioner Pearce noted that she viewed this matter as if the wall had not been built. While she saw benefits to Mr. Pereira, there were also detriments to Hap's. She believed the parties could be made whole by applying a couple of easements to the wall through the gate. She believed that Mr. Pereira and his partners will not grant an easement and noted that the City cannot compel an easement. She asked Mr. Iserson whether it was the applicant's preference that the Planning Commission deny the major modification, thereby denying the wall, or that the Planning Commission approve the major modification, knowing that Mr. Pereira would not grant the necessary easements. Commissioner Fox suggested that the application be approved with only Conditions of Approval Nos. 1, 2, and 4. Mr. Iserson stated that staff's recommendation was that the conditions were reasonable and enforceable. If the application were to be approved with the conditions for the easements, the City would be able to pursue enforcement to compel the granting of those easements. Commissioner Olson inquired whether the City would have to sue the partnership in that case. Mr. Roush replied that there would be an administrative process, but if there were no compliance with the conditions, the City would have to file a lawsuit asking the court to either compel the property owner to grant the easements or to take down the wall. Chair Blank noted that the Pereiras stated that they would rather remove the wall than have an easement. The Planning Commission could vote to deny the application or approve it with the conditions detailed in the staff report; one of the parties could appeal to City Council. He believed it was possible that the matter would end up in court. He agreed with Commissioner Pearce's assessment that if something were built without a permit, then the Commission would look at the item as if the wall did not exist and assess whether it would be approved. Mr. Iserson noted that from staff s perspective, an approval with reasonable conditions was the preferable outcome rather than a denial that required tearing the wall down. Commissioner O'Connor inquired whether the court could not force easements and whether the approval would still stand without Conditions Nos. 3 and 4. Mr. Roush replied that if the court decided that Conditions Nos. 3 and 4 should not be imposed, the City would request that the matter be returned to the Planning Commission to consider the application in light of those conditions being removed. PLANNING COMMISSION MINUTES, February 13, 2008 Page 12 of 42