The hearings official, in conditioning his approval of the CIR-CUP application upon the <br />applicant obtaining a future CUP removing the site from the cemetery masterplan, may have <br />been relying on a recommendation in the Planning Division's staff report to impose such a <br />condition, if approval was granted. Conditional Use Permit Staff Report, p. 5. <br />The city's position, when this CIR-CUP application was first filed, was that a CUP removing <br />the site from the cemetery masterplan must be un existence in order for the CIR-CUP <br />application to proceed. (See LUBA I). However, without giving any explanation, when the <br />case came up for hearing, the city reversed its position and recorntnended that approval <br />could be granted while the 1995 CUP was still in effect as long as a future CUP excising the <br />site was obtained. <br />The city's position and the hearings official's decision ignore the holding irn LUBA II that <br />the site is part of the mastetplan of the cemetery and is limited to cemetery uses. To grant <br />approval for a different use when the 1995 CUP is still in effect flies in the face of the LUBA <br />II decision regarding use of the land and should not be permitted. The hearings official, in <br />discussing the goal post rule later in the opinion, made it clear that he was approving a use of <br />the site - a use that is clearly contrary to the holding m LUBA II. See Decision, p.12. <br />In addition, and more importantly, the city's position and the hearings official's decision <br />ignore the fact that due to the restrictions in the 1995 CUP, the applicant camlot provide <br />evidence of a commitment to provide private services and facilities which is necessary for an <br />affirmative finding. <br />Accordingly, the hearings official's decision, approving the application on the condition that <br />the applicant obtain a future CUP, was erroneous. The Commission should find that 1) the <br />approval conflicts with the restrictions in the 1995 CUP regarding uses of the site, 2) the <br />applicant; due to the restrictions in the 1995 CUP, cannot meet the approval criterion in EC <br />9.724(2) (a) (2) regarding a commitment to provide private facilities and services, and 3) due <br />to the lack of evidence of a commitment, an affirmative finding cannot be made. <br />Accordingly, the Commission should reverse the hearings official's decision and deny the <br />application. <br />Respectfully submitted, <br />Marilyn Cohen <br />3 <br />