Despite the ruling in LLBA H that housing development is prohibited under the 1995 CUP <br />and that the 1995 CUP still governs the site, the hearings official in the instant case did not <br />require the applicant to start over with a new CIR application and a new cemetery CUP. <br />Rather, he approved the application provided the applicant obtains a future cemetery CUP <br />that allows Zone 6 to be removed from the cemetery masterplan. Hearings Official's <br />Decision, CU 02-4, p. 11 (hereafter Decision) and his Condition of Approval 4, p.13. <br />The hearings official, in granting approval, erroneously concluded that the opponents' <br />arguments regarding the conflict between the 1995 CUP and the CIR-CUP application had <br />misconstrued the nature of the application. Decision, p. 10. The hearings official apparently <br />read the opponents' arguments as relying on a violation of a specific condition of the 1995 <br />CUP - the need for a 75 foot buffer - and held that "there is nothing in the approval <br />criteria for a CIR housing CUT that requires a 75 foot buffer". Decision, p. 11. <br />However, the argument before the hearings official, as set forth in my Testimony for the <br />hearing on June 29, 2016 at pp. 1-3 and subsequent submissions, was much broader. I <br />argued that under the 1995 CUT the site is part of the cemetery masterplan and there can be <br />no housing development, no roads, no utilities and services, and no use of other parts of the <br />cemetery that are under the masterplan as long as the 1995 CUP is in effect. My testimony <br />did not rely on and was in no way limited to the 75 foot buffer requirement in the 1995 <br />CUP. <br />I argued further that due to tlne restrictions in the 1995 CUP, limiting the use of the site to <br />cemetery uses and restricting access to roads and to installing utilities on other parts of the <br />cemetery, the applicant could not make the necessary commitment under EC 9.724(2) (a)(2) <br />to provide private services and facilities. (See my Testimony for the hearing on June 29, <br />2016, Part II, p.3, and my subsequent testimony in that document that due to the 1995 CUP, <br />the applicant could not make a commitment to provide wastewater (p.4), storm-water (p.6), <br />water and electricity (p.6), and a road for fire protection (p.7). I also raised the issue in my <br />Post Hearing Submittal, submitted July 8, 2016, Part II, page 2, and in my Response <br />Testimony dated July 15, 2016, at p.2 and in response to Condition of Approval 4 <br />(Conditioning approval on a new CUT) at pp. 6-7). <br />EC 9.724(2) (a) allows the hearings official to make an affirmative finding if there is evidence <br />of a commitment by the applicant that he will provide the necessary services and facilities. <br />Since, the evidence of such a commitment needs to be presented to the Hearings Official in <br />order for him to make an affirmative finding, the evidence of commitment must be <br />presented before not after he makes his decision. In light of the restriction in the 1995 CUP <br />limiting uses on the site to cemetery uses, there was no evidence and could not be any <br />evidence at the time of the hearing that the applicant could make the commitment Thus <br />this approval criterion was not met. <br />The hearings official did not address these issues. Instead, he found, without explanation, <br />that conditioning the approval on the applicant obtaining a future CUP that allows Zone 6 <br />to be removed from the cemetery CUP is sufficient, and he summarily stated that "[a]ll of <br />opponents' arguments regarding the 1995 CUP and/or the 75 foot buffer area do not <br />provide a basis to deny the application". Decision, p. 11. <br />2 <br />