File Memorandum: References to Tree Felling and Preservation in Rest-Haven CUP (CU 95-2) <br />August 28, 2002 <br />Page 16 of 17 <br />review procedures provided in EC 9.690. Rec. 179. In the evaluation section of the decision, the <br />Hearings Official explains that the standard for evaluation is whether the proposal meets "the <br />stated intent and conditions" of the CUP. Rec. 183. The discretion to be exercised by the <br />planning division or the Urban Forester is not unfettered. <br />Worthy of note is that the Urban Forester is expressly mentioned in the condition. That <br />condition can only have meaning in one of two instances. In the first, the issue of what trees <br />were to be removed and what trees were to remain is resolved by the CUP. In that instance, the <br />Urban Forester is to ensure that the trees identified for removal in the revised masterplan comply <br />with the intent and conditions of the CUP before the City signs the CUP Agreement. The second <br />instance is that the issue of what trees were to be removed and what trees were to remain is not <br />resolved by the CUP. In that instance, the CUP limits the exercise of the Urban Forester's <br />discretion in issuing the tree felling permit referred to in Condition 8 to an exercise of discretion <br />that is consistent with the stated intent and conditions of the CUP. If that is the case, the CUP <br />expressly notes the open cemetery lawn character of the knoll and the conditions of approval <br />mandate the changes reflected in the drawings that reflect that intent. In either of the above two <br />instances, the Urban Forester's exercise of discretion is restricted so as to allow an open <br />cemetery lawn with selected trees preserved on the knoll, and the Urban Forester did not follow <br />the site review procedures to change that stated intent and related conditions as was required by <br />the CUP. <br />The limitations upon the exercise of discretion by the City are expressly provided in the <br />CUP decision and were not followed during the tree felling permit process. <br />3. The upland area of the property was expressly identified as a knoll in the CUP. <br />As noted above, the CUP expressly identifies the higher elevations of the development <br />site as a knoll. Rec. 186. The term "knoll" is used twice in a paragraph analyzing the <br />applicability of the South Hills Study to the portions of the site that are above 701 feet in <br />elevation. As explained above, the use of that term is significant because the tree felling permit <br />criteria contain no standards regulating "knolls," but do contain standards regulating "hills" and <br />"ridges." <br />Both the first and the second tree felling permit refer to the higher elevations of the <br />development site as a "hill." That reference in the first tree felling permit was dicta because the <br />permit did not allow tree felling in that area of the project. However, in the second tree felling <br />permit, the City and Hearings Official mandated that all vegetation above 730 feet in elevation <br />remain untouched, despite the recognition in the CUP that a substantial amount of the vegetation <br />on the knoll would be removed under the proposed development to create an open cemetery <br />park. <br />The question must be asked whether, having been identified by the City as a knoll in the <br />CUP, the City can then revisit the issue and later define the same geographic feature as a hill in a <br />subsequent proceeding. Whether one views the issue as a law of the case issue or as a collateral <br />