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. . . . I . facilitator to address the measures we think are appropriate and how those would be funded... All that takes a few weeks time to see if we can come back to you with an overall proposal that saves everybody the agony oflitigation." - In answer to Council Member Leipzig's questions regarding a BCDC permit, Mr. Fitzgerald said, "there is a real division of thought on that. I have talked with many people on the matter. I went to BCDC. They seem to think they have jurisdiction. The most eminent attorney in this field in the state of California, Mr. Washburn, advised me that they do not have jurisdiction. There was a settlement in the Pete's Harbor case in 1982 that, I am advised, established they did not have jurisdiction. Assuming they do have jurisdiction, I asked BCDC when I met with the gentleman last Thursday or Friday, is there a reasonable probability that we would be able to obtain a permit for the road. He said 'yes, there is.' How long would it take? If on the Consent Calendar, 4-6 weeks, otherwise, 2 to 3 months. We as the City cannot make an application for a permit from BCDC unless we have control over the property. That is why we have to file the action to obtain an order for immediate possession. We did ask POST if they would grant us a right of entry. We'd be happy then to postpone doing anything. They rejected that. So what can we do? We have to proceed forward." Further to Council Member Leipzig's questions regarding how long negotiations with POST have gone on, Mr. Fitzgerald said he had seen correspondence that went back to May of 1997. He said that he had given POST an appraisal summary the first part of March, by letter, and "in that letter we advised them that we would be happy to continue negotiations and asked them to give us a call... I think we initiated negotiations, and we did meet with them on one occasion, and quite frankly, I think we have reached a stalemate. This is going well beyond what the law - allows under this hearing... but I think we have reached a point where we are at a stalemate.... We indicated to them in writing, and at the time we met, that we would be happy to continue the negotiations. It is my experience from my eminent domain cases for some 35, 36 years, that ... the court has a number of different methods, arbitration, mediation, court supervised settlement conferences, which has a way of settling cases. And we think that is the best way to do it on this case, because Mr. Matteoni has raised some legal issues.... which can only be determined by a court... (Mr. Matteoni) mentioned the provision on the 'most necessary use.' When I read the Code, all that is.... is a presumption, and it only goes to the burden of proof. It is a procedural matter. It doesn't reach the substance of invalidating your resolution here, or the right to take the property." In response to Council Member Leipzig's comments that the proposed resolution could actually speed up the process, Mr. Fitzgerald said, "yes, I absolutely think so, and I told that to POST." In response to Mayor Howard's comments regarding the Planning Commission's consideration of the City's obligation to provide public access for the Riab Development, City Attorney Schricker said, "The Tentative Map was approved by the Planning Commission with a condition that off-site improvements be provided by Riab. Under the law as mentioned by Mr. Matteoni, if the property is unable to acquire the necessary property interests for off-site imprpY\;ments, tben it is incumbent upon the City to acquire - those interests for the developer in order so those off-site improvements can be made. And REGULAR COUNCIL MEETING MINUTE BOOK NO. S6 APRIL 6, 1998 MINUTES Page No. 377 PAGE 17