>> kate stacey in the city attorney's office. that recommendation on a gift isn't on your agenda and it's -- it's a different kind of decision. what the commission could certainly do is note that the project sponsor has made this offer of the gift and that it needs to go through whatever appropriate city channels they are. >> that's my only point, that they've made the offer. i'm saying that can be in our findings. it doesn't mean that we're accepting anything. >> commissioner moore. >> i'm afraid that the discussion about this $250,000 shifts the emphasis of our discussion. i believe we have spent a lot of soul searching on the issue of densification, where and how. since this project also still requires their answers, which is another reward for the project, my basic position of july is reinforced. i've got to stick to my guns and do what we do with everybody else as well. it's actually more complicated by this offer. i don't even want to talk about it because it's not in front of us, and i think it clouds the picture. >> so th

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. >> president, kate stacey in the city attorney's office. a finding that the project sponsor intends to make the employee cafeteria on a regular basis to non-profit organizations for meetings and events. it raises a couple of legal issues as a condition of approval, both as to takings and i'm not really sure what the intent of that condition is, if it's meant to be free space to non-profit organizations or reduced rent, but there may also be some commercial rent conditions raised. so i think the commission could certainly note it as an important part of the project, that the project sponsor has indicated this intent. but i think for the city to enforce it, we would have to take a pause and make sure we can defend it as a regulatory requirement. >> may i ask a follow-up question, which is, so if they don't rent the space, if we do it as a finding and then they don't allow non-profits to use the space or if successors don't allow non-profits to use the space, is there anything the city can do to enforce that if it's not a condition of approval

>> kate stacey in the city attorney's office. the planning code carefully crafted what types of changes to a formula retail would require a new conditional use permit. the commission needs to make a decision based on the use and not the user. and courts have been very careful to examine how a particular approval happens. so for formula retail, i can't remember all of the criteria, but if there's an intensification or an expansion of the use or another way that the change of use is defined is if it sort of is a bigger formula retail, so if there were substantially more out lets of the particular formula retail. so there are very specific criteria within the planning code. but the courts have been clear in instructing cities and counties that the land use decision really needs to be about the use and not the user. >> understood. so if the c.u. is denied, then she will have to move or discontinue that particular product that made it formula retail? >> i'll let staff comment on that. but if the conditional use permit is required for