08 ATTACHMENTS 9 -16 - Laserfiche WebLink

-4- "structure," including "sidewalks." The strong implication of such an exception is that sidewalks would have otherwise been included in the definition absent the exclusion. If sidewalks are included in"structure" (absent exception), so are roads. • Fremont. like Measure PP, Fremont Municipal Code § 18.130.050 prohibits the construction of "structures" on "hilltops" or "ridgelines." Fremont defines "structures" to include"any ... road." (§ 18.25.800.) • Orinda. Orinda Municipal Code § 17.30.7 subjects any "structure" developed on a "severely sloped" hillside to special design review. Like the Pleasanton Municipal Code, Orinda further defines "structure" to mean anything "constructed ... on the ground." (§ 17.2.3.) • Lafayette. The city code prohibits "development" within certain distances of ridgelines. (§ 6-2023.) Lafayette defines "development" to include "structures," then defines "structure" to include "anything constructed or erected," and provides as an example"a road." (§ 6-2003.) • Walnut Creek. Again like Measure PP, Walnut Creek Municipal Code §10- 2.3.407(D) prohibits "buildings or structures" near ridgelines or on slopes. And, like the Pleasanton Municipal Code, Walnut Creek further defines "structure" to mean anything"constructed ... on the ground." (§ 10-2.1.303.) Mr. David Nagler: Is there a precedent for respecting precedent? Mr. Nagler asked whether the Commission has had to grapple with the relevance of non- binding precedent before. Rephrased, what Mr. Nagler might be asking is "Does the Commission change its mind?" I cannot pretend to have anything like the experience the current Commissioners do, but I would think the answer to that is most certainly "Yes." Mr. Dolan himself talked through changes in position the Commission has made on issues essential to Measure PP interpretation, like the road/structure debate and the definition of slope. At bottom, there is nothing inherently wrong with taking a fresh look at an issue and coming to a reasoned evaluation of it. All the more so if there are significant intervening events, like the passage of Measure PP. EIR on Road/Structure in Measure PP Though not raised at the Workshop, the EIR does offer a potential textual defense for the proposition that a road is not a structure: In the first sentence [of Measure PP], no modifier precedes the term "structures." In the second sentence, the term "structures" is modified by the phrase "residential or commercial." The City could reasonably interpret this modifying phrase also to apply to the term "structures" in the first sentence, because Measure PP neither identifies nor addresses any other structures.