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privacy and separation can be achieved between tYie two properties with a 25 foot restriction, as opposed to 35 feet. Councilmember Thorne confirmed that the property line level at the top of the 4 foot berm was at 6-8 feet. Councilmember Thorne questioned if the CC&R's had any height requirements, and Mr. Dolan said there are no restrictions on fencing that is 6 feet in height. Councilmember McGovern said she visited the Johnston's home and viewed the impact, referred to the conceptual plan showing the location of the retaining wall and said it is obvious that the retaining wall was not built on ground level, but built up the side of the hill because of the 15 foot easement. She said it is built on land that went from where it was built to the bottom of the V-ditch. She confirmed that the retaining wall is not consistent in height and gets up to 4'6" in some areas. Councilmember McGovern said this creates a flat piece of property from the backyard steps to the new retaining wall which increases flat yard space. Mr. Dolan agreed, but was not sure to what level it was sloped previously. Councilmember McGovern confirmed that this flat area would remain as is and Mr. Dolan said both the Planning Commission and Zoning Administrator supported the retaining wall in its current location and there is no restriction of the retaining wall in the original approval. Councilmember McGovern believed the Planning Commission agonized over the decision of what to do and whether to remove the retaining wall and put the property back to its current state. Mr. Dolan agreed, but the final decision included keeping it. Councilmember McGovern voiced concern over drainage problems and slipping of the land. Councilmember Sullivan disclosed he visited the ,Johnston's home and he confirmed that the drawing submitted was used to approve the project. He said the actual construction does not match, noting that the wall is 4 feet higher than in the drawing. Mr. Dolan agreed, but the drawing states it is not to scale. When inspectors reviewed the drawing, the retaining wall needed to be kept out of the 15 foot drainage ditch, so it had to be moved back away from the rear yard. Therefore, it slightly moved up the slope .and got as high as 2 feet. Councilmember Sullivan said the top of the retaining wall is equal to the top of the Johnston's fence, and the slope does not exist. Mr. Dolan said there would; however, be no prohibition of allowing the wall to be built up to 6 feet in lieu of a fiance. Councilmember Cook-Kallio said the prohibition would be for the infill behind it; there would be no reason for the retaining wall if they had not put the infill there, and she said she understands the fence issue. Councilmember Sullivan believed that the Council could require that the retaining wall be changed so the yard is sloped and not flat. Mr. Dolan said staff approved it because of the concern over restoring privacy, and this was the: decision of the Zoning Administrator and confirmed by the Planning Commission. City Attorney Roush referred to the CC&R and fencing, he said the CC&R's do provide that no fence exceed 6 feet in height. Fence designs are approved by the Architectural Control Committee, and the fence shall be located outside of the setback restrictions. Mayor Hosterman opened the public hearing. Steve Jeffrey, Appellant, said his appeal was directed to conditions 3 and 4 -- the 4 foot berm and the setback. He acknowledged the situation was difficult for everyone and said that last City Council Minutes 6 December 2, 2008