pT-3 ~ <br />TAYLOR Becky G <br />From: Paul Conte <pconte@picante-soft.com> <br />Sent: Friday, October 04, 2013 3:21 PM <br />To: TAYLOR Becky G <br />Subject: Testimony re Oakleigh Cohousing PDT <br />Attachments: MDA 05-2 Appeal Decision.pdf <br />Follow Up Flag: Follow up <br />Flag Status: Flagged <br />For the record in PDT 13-1 <br />In those cases where the approval criteria set standards of "minimal" or "insignificant" impacts (or apply any of <br />the cognates or complements, e.g., "significant"), the Hearings Official must apply the customary usage of these <br />adjectives in technical and/or legal contexts, which are: <br />minimal derived from the Latin adjective minimus, "least, smallest" <br />Smallest in amount or degree <br />insignificant <br />Having little or no importance <br />While a common usage has arisen in some contexts to use "minimal" as synonymous with "small amount," <br />when used in a legal criterion, such as in <br />EC 9.8320(12): The proposed development shall have minimal off-site impacts, including impacts such as <br />traffic, noise, stormwater runoff and environmental quality. <br />it would be meaningless to require, and impossible to evaluate, whether the proposed development would have <br />a "small amount" of off-site impacts. <br />Instead, this (and comparable criteria) must require the smallest (feasible) degree of impacts. <br />This interpretation is fiirther bolstered by the unchallenged appeal finding in NMA 05-2 ("Summer Oaks"), in <br />which the Hearings Official determined: <br />"The crucial word in EC 9.83 70(2) and EC 9.8455(2) is "insignificant. " The EC does not define "significant. " <br />The dictionary defines "insignificant" as "not large enough to consider or notice, " "not worthy of notice, " and <br />"of little importance, or influence orpower. " www. hyperdictionary. com. The proposed building, which will <br />increase the opportunity for office. space by up to 21,440 square feet (See applicant submittal page 2 of 14) and <br />will be physically very different than the restaurant/bar use and lot configuration proposed in the original <br />approval are greater than what inay be allowed under these standards. As appellants note, the uses on their <br />adjoining lots are based in part on complimentary uses and structures in the P UD that will support their uses. <br />The proposed use at the proposed scale competes with the uses anticipated for those adjoining properties and . <br />thus will have more than an insignificant impact on surroundingproperties. While the proposal may be <br />ultimately better for the P UD and surrounding community, it must be evaluated as a new application rather <br />than a modification ofthe 2001 decision. <br />The Hearings Official recognizes that the applicant has notproposed any changes to design features, or <br />requested changes that will result in additional transportation-related demand. However, those are only aspects <br />of the factors to be considered under EC 9.8370(2) and EC 9.8455(2). While consistency in design and <br />968 <br />