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a Planning Commission Minutes DRAFT April 8, 2004 Page 2 unclear whether the school has the authority to provide such a license without prior approval by the landlord (Palo Alto Unified School District). Pinewood was asked to provide the Town with something in writing from the School District indicating the issuance of the license would not be a violation of their lease. This afternoon, Pinewood was able to obtain a letter from the School District indicating the issuance of the license would not breach the terms of their lease agreement. A copy of the letter was provided to the Commissioners. This means that Pinewood is able to meet the conditions of the Pathway Committee and the Committee would recommend approval of the propose License Agreement. Commissioner Mordo asked what would happen when the lease expires and/or terminated and would Pinewood get to keep the synthetic turf field? David Warner, Assistant City Attorney responded stating you have an applicant who came to the Commission with the consent of the owner of the property for the right to put the field in. The condition originally was the granting of an easement which would have been permanent. Instead, because Pinewood cannot secure the easement, they have only the ability to offer a license across the property which, at least while they will be in this location, it will serve the purpose which is public access. When the lease expires, the field would have a right to remain as long as the conditions of this permit are in place (access continues). The field would still be conditioned on access of the pathway. The License Agreement is only with Pinewood School. If Pinewood School were to leave and someone else was not willing to enter into a License Agreement then the condition would fail and the Town would have to pursue it in some degree. Chairman Clow asked, assuming the lease is renewed, will the license renew along with it? Mr. Warner stated, according to the recent letter from the School District, they refer to the Lease Agreement between Creative Center and the School District. They do not refer to renewals of that Lease Agreement. Commissioner Vitu questioned a prescriptive easement since this has been used as a pathway. Mr. Warner stated you cannot have a prescriptive easement over public property. He further discussed nexus which is an issue which is litigated all over the country and different courts have different interpretations. It use to be very easy for Towns to make the argument that all sorts of things had nexus. The Supreme Court started narrowing that interpretation. The School District is making an argument that an easement over this pathway has nothing to do with the new Astroturf field. To counter this thought, he noted that the staff has made significant findings that indeed the use of that pathway is necessary for that field, and has been necessary for a number of years. The idea and understanding is that the field is being changed to Astroturf so it can get even more use which means there will be even more use of that pathway which is a definite connector. It makes an argument that nexus prevails. Commissioner Cottrell stated that the pathway has been in use for more than 25 years which runs along a creek bank, and a utility easement noting nothing would ever happen to the pathway. Ms. Pedro stated there is also a storm drain easement, plus a public utility easement and the restriction of no construction within 25 feet from top of creek bank.