I Petitioners repeat their argument that the only purpose of the 75-foot buffer requirement is <br />2 to ensure compatibility between cemetery uses in Zone 6 and existing residential uses adjoining the <br />3 southern property line. The proposed modification is consistent with that purpose, petitioners argue, <br />4 because all of Zone 6 would buffer residential uses along the southern property line from cemetery <br />5 uses elsewhere on the subject property. Petitioners also dispute the hearings officer's conclusion <br />6 that the required buffer must be "vegetative." ' Finally, petitioners argue that the hearings officer <br />7 erred in finding that petitioners had already removed most of the vegetation along what would <br />8 become the southern periphery of the CUP site, if the proposed modification were approved. <br />9 According to petitioners, although petitioners did obtain tree cutting permits for that area, the <br />10 permits expired, and no tree-cutting in that area has in fact occurred. See Rest Haven Memorial <br />11 Park v. City of Eugene, 44 Or LUBA 231, aff'd 189 Or App 90, 74 P3d 1107 (2003) <br />12 (dismissing petitioners' appeal of tree-cutting permits as moot). <br />with EC 9.702(a). In order to be compatible, Condition 17 requires that the buffer along the <br />southern periphery must be at least 75 feet wide. The applicant has not established how it will <br />continue to comply with that condition after the Zone 6 property is removed from the CUP. In <br />tact, in reliance on the approved Master Plan, the applicant has removed most of the <br />vegetative buffer along what it now proposes to be the southern periphery of the CUP site. <br />"The applicant argues that there is no requirement that the 75-foot buffer between the <br />cemetery and adjacent properties be vegetative. However, [Condition 7 of the 1995 CUP] <br />approval, quoted above, clearly establishes that the compatibility was dependent upon a <br />vegetative buffer. Moreover, regardless of whether it is vegetative, in this modification <br />application, applicant has not established how it proposes to provide a 75 foot buffer of any <br />kind along the CUP's southern periphery. The applicant argues that the land it proposes to <br />remove from the CUP will be a buffer between the cemetery and the existing adjacent <br />residential neighborhood. However, if the Zone 6 property is removed from the CUP, it cannot <br />be relied upon as the buffer required by the CUP. Condition 17 requires that the buffer along <br />the cemetery's southern boundary be 75 feet. That condition cannot be satisfied by a `buffer' <br />outside the property subject to the CUP. <br />"*6~fiO~R <br />"The applicant has not established how removal of the Zone 6 property can be achieved while <br />continuing to comply with Condition 17 of the 1995 CUP approval. Removal of that property <br />without compensating with a comparable buffer along the CUP's southern periphery results in <br />a CUP that is materially inconsistent with Condition 17 of the original approval." Record 11-12. <br />Page 10 <br />