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ALAMEDA: Commissioner Watanabe, what’s your take?
<br />WATANABE: I feel fairly confident that the remaining intervenor is going to
<br />basically continue the arguments about whether the contested case hearing was fair or not and I
<br />think, realistically, if we look at this, you know, you are looking at a 70 million dollar project
<br />and you are also looking at concerned private citizens. If we take the intervenors word at this,
<br />they are going to appeal. I can almost guarantee you that if we decide against it, the developer is
<br />going to appeal. This thing is going to be appealed no matter what we do. So, I would suggest
<br />we move ahead because I’m not convinced that the process was all that flawed. And I think that
<br />we should, you know, give the hearings officer some credit, give the process some credit, you
<br />know, and move on and decide. And, like I said, I fully believe that it’s one way or the other, no
<br />matter what we decide, it’s going to be appealed.
<br />ALAMEDA: Mr. Torigoe, your comments to that?
<br />TORIGOE: Well, one thing you can do, too, though, and I wouldn’t want to see,
<br />you know, you all basically punt the issue, if you feel it really should be taken up. One thing you
<br />could do today is in a course of arguments, allow the intervenor to make his argument regarding
<br />why you should not make a decision at this point because he feels there have been procedural
<br />irregularities. You could allow him to make his argument and try to point out to you the
<br />specifics, and you can look at the record and consider that. And at the end of the final arguments
<br />you can, then you’ll be better informed to make a decision as to whether you can go ahead and
<br />make, you know, the final decision on the merits today, or whether you feel like you need to take
<br />some time yourselves to look at the record and/or wait for the court to make some kind of
<br />decision.
<br />ALAMEDA: Other thoughts, Commissioners, other Commissioners? Mr. Graham?
<br />GRAHAM: Maybe procedurally given all the things we are looking at it’s
<br />appropriate to follow Mr. Torigoe’s lead right now, and listen to the intervenor and see if we
<br />want to choose to defer because of the intervenor’s concerns that are expressed in his action
<br />before the court and his actions with regard to the hearings officer. And then once we’ve made
<br />the decision, then we can go forward with the other issues, if in fact we keep going.
<br />ALAMEDA: Okay. Cause isn’t that hearings officer’s report simply, I mean it’s not
<br />simply, but it’s basically, we still have the final decision and that’s just added information, if you
<br />will, and we can disregard it if we don’t agree with it. So, it still comes back to us, as fellow
<br />Commissioners. Commissioner Siracusa first and then back to you.
<br />SIRACUSA: Yeah, it seems to me that we are getting bogged down in whether or
<br />not the hearings officer conducted a fair, impartial, even handed hearing. And I think that, well,
<br />we all have the record in front of us, and some of us may think that she did and some of us may
<br />think that she didn’t. But no matter what we think, we are still not judging the case on its
<br />specific merits. And so I think one of the ways we can get to move on at this point is to just
<br />move to disregard the hearing officer’s report, and that the Commission shall judge the matter on
<br />its own merits based on the record.
<br /> EXHIBIT B
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