I. INTRODUCTION: THE CONFLICT BETWEEN THE CIR-CUP <br />APPLICATION AND THE 1995 CUP AND THE 1998 CONDITIONAL USE <br />AGREEMENT <br />This case involves a CIR-CUP application that was filed in 2002 to develop controlled <br />income and rent housing on 15.8 acres of Rest Haven Cemetery. The 15.8 acres is part of <br />the masterplan for the cemetery and is governed by a 1995 CUP and 1998 Conditional Use <br />Agreement which restrict the use of the 15.8 acres to cemetery use In addition, the 1995 <br />CUP and the 1998 Agreement impose a 75 foot buffer zone in the 15.8 acres which would <br />be violated by the proposed development. <br />When the application was Filed, the city rejected it on the ground that the application <br />conflicted with the 1995 CUP. The applicant appealed and LUBA remanded the case on the <br />ground that the planning department could not reject the application without giving the <br />applicant the right to argue whether the CIR-CUP application conflicted with the 1995 CUP, <br />and that the hearings official, not the planning director, is the person to resolve the conflict <br />between the application and the 1995 CUP. OYiper v. City of Eugene, LUBA Nos. 2002- <br />131 and 2002-132, March 3, 2003. <br />Subsequent to the remand the applicant, at the city's suggestion, filed an application to <br />modify the 1995 CUP to excise the 15.8 acres from the footprint of the CUP, to allow uses <br />in the 15.8 acres to access roads and utilities in other parts of the cemetery, and to allow the <br />15.8 acres to be developed with uses otherwise allowed in the R-1 zone, such as residential <br />uses. <br />The hearings official denied all of the applicant's requests. On appeal, LUBA upheld the <br />hearings official's findings. LUBA noted that "[the 1995 CUP applicant proposed, and the <br />city conceptually approved, cemetery uses in Zone 6 [the 15.8 acres]. The conditions and <br />uses approved under the 1995 CUP were predicated on an assumption that Zone 6 would be <br />developed with cemetery uses". LUBA in Wiper v. City of Eugene, LUBA No. 2004-016 <br />Final Opinion and Order, May 10, 2004 (slip opinion attached) p.8. <br />In sum, under the CUP and the Agreement, there can be no housing development or any <br />non-cemetery uses on the site, and uses on the site cannot access roads and utilities in other <br />areas of the cemetery governed by the CUP. The 1995 CUP and the 1998 Conditional Use <br />Agreement as interpreted by the LUBA governed the use of the proposed site at the time the <br />CIR-CUP application was filed and continue to govern the site. <br />As discussed below, the conflict between the CIR-CUP application on the one hand and the <br />1995 CUP and 1998 Conditional Use Agreement on the other is important because it affects <br />the applicant's ability to meet die approval criteria in EC 9.724(2) (a). <br />2 <br />