During a meeting on June 23, the commissioners voted unanimously to accept a copy of a resolution submitted by attorney Jay Ross instead of a resolution written by staff. Ross is representing Bertram Berns, who owns several buildings and 70 percent of the rear parking lot on the corner of The Alameda and W. Julian Street, including all of the lot's entrances.

The resolution described what was said at a June 9 meeting of the planning commission regarding the wrought iron fence. Except for seven minor changes made by commissioners, they approved Ross' version.

Berns sought a permit to fence off his portion of the parking lot, which would effectively block customer and vendor access to Cafe Rosalena and Greenlee's Bakery—two businesses sandwiched between Berns' properties—through the cafe's and bakery's rear doors.

Ross, who according to city records is registered as a lobbyist, served as a planning commissioner from 1998 to 2002.

Commissioner Christopher Platten made the motion to accept Ross' version with the few changes. "He was consistent with what the decision had been two weeks ago," Platten said. "Staff's resolution was not."

Deputy city attorney Brian Doyle reviewed some of the differences between the resolutions, and the commissioners said they didn't have time to completely read Ross' eight-page document, which had been emailed to them earlier that day, and only had time to glance at it.

Planning Commissioner Jay James told the Rose Garden Resident that the panel had time to read over his resolution while Ross was speaking during the meeting. "I got the feeling from the commissioners that we didn't feel at all satisfied with staff's resolution. It didn't capture at all our actual words," he said. "We received their packet before the meeting. They sent out the actual audiotapes of the hearing so we could listen and make sure the resolution captured our true intention. I heard the tape and knew it didn't."

This was the first time the staff has revamped an entire commission resolution during his four years on the panel, James said.

The planning commission had voted unanimously on June 9 to allow Berns to erect the fence. The commission's vote overturned Planning Director Stephen Haase's denial of the permit on April 7.

The staff's resolution reflected the position of the planning department's project managers. During the original hearing, they told the commissioners repeatedly that there were alternatives to erecting the fence.

Erin Morris, project manager, said Berns hadn't provided enough evidence that other methods of protecting his property, such as security guards, had failed. She added that the court ruling did not block the public from being able to cross the parking lot. According to the court ruling, it does allow him to block their access.

Finally, staff said it believed the fence would disrupt the character of the neighborhood and hinder its economic development.

Berns has battled with the owner of Cafe Rosalena, Bryan Garrett, for almost a year over access to the lot.

The owners of the cafe and bakery own the remaining 30 percent of the lot. But their customers, catering trucks and garbage service will no longer be able to reach the back doors or dumpsters of the businesses once the fence goes up.

The only way to stop the fence now, Garrett said, is to go back to court. He said the fight started after Berns offered to buy the cafe and bakery properties. The owners refused to sell.

Berns told the Rose Garden Resident that "an offer has to be in writing" and added that the owner of Greenlee's had actually written to him about a sale.

Ross, Berns' attorney, reminded the commission that a court ruling last fall prohibited the owners and tenants of the cafe and the bakery next door, as well as any vendors doing business with the cafe and bakery, from accessing those properties by crossing Berns' portion of the lot.

Berns also owns the building at 1095 The Alameda that houses Silicon Valley Community Newspapers, the Rose Garden Resident's parent company.