File Memorandum: References to Tree Felling and Preservation in Rest-Haven CUP (CU 95-2) <br />August 28, 2002 <br />Page 15 of 17 <br />Condition 5, specifically conditions 5(f) and 5(h), expressly addresses individual trees <br />that are to remain in the areas intended to be cleared for cemetery lawn. Condition 5(f) requires <br />that trees of a certain diameter that are to be left remaining be identified on the masterplan. <br />Condition 5(h) requires that the boundaries of the retention areas for those identified trees be <br />indicated on the masterplan. Those conditions were satisfied before the CUP Agreement was <br />signed. The specific trees to be preserved and the protective boundaries - i.e. where protective <br />fencing will be placed to protect those trees - have been expressly identified on the masterplan <br />sheets. See sheets 3 of 8 and 4 of 8, reproduced at Rec. 651 and 652 respectively. The notes on <br />page 3 of 8 describe not only the type of protective fencing to be used, but that the fencing is to <br />be placed along the perimeter drip lines of the trees identified to remain. Furthermore, sheet 6 of <br />8, reproduced at Rec. 654, shows a detailed plan and elevation of several of the groupings of <br />trees on the knoll, specifically identified to be preserved. <br />It strains the imagination to believe that when the CUP requires that certain trees are to <br />be specifically identified, to be classified as to whether they are to remain or be felled, to have <br />that information placed on a master plan with details about where the protective fencing for <br />those identified trees will be located, to have a tree preservation plan for those trees in the <br />masterplan and then have that plan be approved by the City, the City can later contend that the <br />issue of what trees were to remain, and consequently which trees were to be removed, was not <br />addressed during the CUP proceedings. If that is the case, then one could equally argue that the <br />CUP did not address or resolve the buffer areas, which is not the case. The CUP and its <br />implementing Agreement resolved both the location of the buffer zone trees and the interior trees <br />designated to remain. <br />The extensive references to the trees to be removed and preserved in the cemetery lawn <br />areas of the proposed development cited above indicate that not only was the general concept of <br />an open cemetery lawn interspersed with selected trees and groups of trees part of the CUP <br />approval process, the specific trees to be preserved and those to be felled were resolved in the <br />approval through the conditions of approval and then finalized by the approved masterplan in the <br />CUP Agreement. <br />2. The exercise of discretion by the City was expressly limited by the CUP. <br />Condition 7 in the CUP expressly limits the exercise of discretion by the City in two <br />enumerated instances. The first concerns whether the revised masterplan makes provision for an <br />adequate buffer zone. Rec. 179. There, the City is granted discretion to make that decision, but <br />then the discretion allowed is regulated. In addition to the criterion provided in EC 9.702(a) [as <br />interpreted by the CUP decision], several additional criteria were specified by the Hearings <br />Official. <br />The second limit of discretion applies to the exercise of discretion by "the planning <br />division or the Urban Forester." That condition requires the decision maker to utilize the site <br />