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most impacted. She stated that she believes a lot of these issues could be solved If we a screen could be provided more quickly. Commissioner Olson stated that he was inclined to go with Commissioner Fox's earlier question of finding for the appellant and then placing conditions. He indicated that as a matter of principle, he felt strongly that the Commission should find for the appellant based upon everything that has happened. He stated that he agreed with Commissioner O'Connor that a berm is needed and noted that he did not see one at the site. He also agreed with Commissioner Narum that it is critical to fill in the corner. He also agreed with both Commissioners that it is both a noise and a privacy issue and while he is not inclined to put restrictions on the applicant's property, he thinks some conditions should be put in place that would prevent the use of that corner of the property right up to that wall, which in his opinion is greater than four feet high. Chair Blank indicated that he was in agreement with Commissioner Olson. He stated that he did not think this was handled properly and that finding for the applicant is the right, moral decision. He stated that he was at the site this morning and did not see a berm, that he was not happy with the vegetation removal as shown in the before and after picture, and that the testimony about not knowing about CC&R's was hard to believe. He noted that he would understand if this was the applicant's first home, but he had mentioned that he had purchased three homes in the past. He stated that ignorance of CC&R's is not an excuse for not being able to follow them. He agreed that there should be a berm and that there should be a restriction for the corner on Mr. Jeffrey's lot to prohibit above-ground structures and that if Mr. Jeffrey does not want to accept that restriction, the grade should be lowered, with the cost of lowering that grade borne by Mr. Jeffrey because he did not put the grade in in accordance with the laws of the City of Pleasanton. Commissioner Pearce stated that like Commissioner Narum, she struggles with neighborhood disputes. She added that generally when she sees unpermitted work, she views the application as not having had the work done. She noted, however, that in this instance, she viewed the pool as being permitted and the retaining wall permitted only up to four feet high. She expressed concern about Condition No. 16 of the January 19, 1988 Conditions of Approval wherein there was very strong language prohibiting re- grading, and that based upon her conversation with the City Attorney that when this was written, the Council tried to put in the strongest language possible that the homeowner was sure to see in his CC&R's that prevented re-grading or strongly admonished against it. She noted that in general, ignorance of the law is no defense. She stated that she would like to make the parties whole but that her initial inclination is to allow the wall up to four feet high and return the grading on the western edge of the property to the pre-December 2007 grade. She added that she thinks there are other ways to achieve the privacy and view shed that the Commission would have considered had this come to them without the work already being done. She agreed with Chair Blank's suggestion that the berm be placed so as to afford sufficient privacy, that the landscaping issue be dense and addressed specifically, and that a sufficient portion of the lot near both back neighbors' homes be severely restricted, with the alternative that EXCERPTS: PLANNING COMMISSION MINUTES, September 10, 2008 Page 21 of 25