Planning Commission Exhibits - Laserfiche WebLink

Page 6 September 6, 2016 propose the condition of approval it now proposes for the Planning Commission's consideration on appeal. The only argument the Applicant could have raised on appeal was that the Hearings Official erred in concluding that the street tree standards applied to the Application. Presumably, the Applicant did not even attempt to challenge the Hearings Official's determination on this issue because it recognized that the Hearings Official was correct. Since the Applicant did not challenge the Hearings Official's interpretation in its statement of appeal, it waived that argument on appeal. EC 9.7655(3). The Applicant also improperly included new evidence as part of its appeal of this issue. The Applicant tacitly acknowledges that there may not be sufficient trees to satisfy the street tree standards, but it claims that it could comply with a proposed condition of approval because "the design of the property allows for additional trees to be placed, if necessary, in the landscaping strip along the eastern boundary of the property." Appeal, p.3. The Applicant's statement that it can add additional trees in this area, or anywhere on the property, in order to comply with the street tree standards is new evidence that was not submitted before the Hearings Official. Similarly, the City staff comments on this appeal issue exceed the narrow scope of review. The staffs comments are focused predominately on the issue of whether or not the street tree standards apply to the Application - an issue the Applicant did not appeal. Additionally, the staffs reference to Public Works past interpretations/applications of the street tree standards, claims that the City does not have jurisdiction to require street trees along I-105 and Delta Highway,2 and comments on the ability to require street trees under the City Street Tree Program Administrative Rule R-7.280 are all new issues and evidence that were not raised below. The Applicant and/or the City staff clearly could have raised these issues before the Hearings Official, and the Applicant could have appealed the determination that these standards apply to the Application, but they chose not to do so. As a result, the Planning Commission cannot consider or rely on the arguments or evidence submitted on appeal and therefore must affirm the Hearings Official's decision. Even if the Planning Commission could consider the new issues and evidence that the Applicant and the staff are attempting to introduce into the appeal process, the Applicant still failed to demonstrate compliance with the street tree standards. As the Hearings Official explained, the problem with finding compliance with EC 9.2170(5)(d) and the street tree standards is that the 2 Although Valley River Inn will not respond to each of these points since they are all new issues beyond the scope of the appeal, Valley River Inn does want to correct the staff s claim that the City doesn't have jurisdiction to require street tree improvements along I-105 and Delta Highway. There are sections of the EC that expressly grant the City the right to require street trees on a "public street." See e.g. EC 9.3720(4). A "public street" includes streets under the jurisdiction of the County and/or State. A "street" is defined as "An improved or unimproved public or private waX EC 9.500. (Emphasis added). A "public way" is defined as: "Any street, road, alley, right-of-way, pedestrian or bicycle easement or accessway, or utility easement for public use that is controlled by the city, county, or state * * EC 9.500. (Emphasis added). Therefore, a street controlled by the County or State is still a public street and the EC gives the City the authority to require street trees on public streets.