File Memorandum: References to Tree Felling and Preservation in Rest-Haven CUP (CU 95-2) <br />August 28, 2002 <br />Page 2 of 17 <br />time. LUBA and the Court of Appeals characterize this as an attempted collateral attack on the <br />earlier decision and disallow it. See, e.g. Westlake Hornemi hers Assoc. v. City of Lake Oswego, <br />25 Or LUBA 145, 148 (1993); Burghardlt v. City ol'Holalla, 22 Or LUBA 369 (1991). The <br />earlier decision may not be challenged or changed in a subsequent stage decision that relies upon <br />the earlier decision. Here, by not following the CUP, the tree felling permit is collaterally <br />attacking that decision. <br />The context here is analogous to tentative PUD or tentative Subdivision approvals. In <br />those approvals development projects are approved to go forward at a conceptual design stage. <br />There, the City and the applicant recognize that, while some aspects of the development proposal <br />remain unanswered, the tentative approval with the associated conditions of approval establish <br />most of the final design of the project. Those aspects of the project are subsequently reduced to <br />an agreement and are not revisited at later stages of the process. Those tentative approvals often <br />require the applicant to obtain a tree felling permit before any tree felling occurs [note, the <br />process has changed under LUCU]. However, in those instances, the issue of which trees are to <br />be felled is not revisited during the tree felling permit process - the trees designated for <br />preservation or removal have already been established by the earlier decision. I can recall no <br />instance where the Urban Forester required an approved street be moved or an approved <br />dwelling to be relocated as a condition of approval for a tree felling permit issued pursuant to an <br />approved tentative PUD or SD. The situation is similar here. There is a CUP reduced to an <br />Agreement. If the issue of which trees were to remain and which were to be felled was resolved <br />by the CUP approval and embodied in the Agreement, then that issue should be binding on the <br />Urban Forester and the City Manager, and the purpose for the tree felling permit becomes <br />regulating how trees are to be removed and what protection measures should be taken to protect <br />the trees to remain. <br />B. Relevant References to Tree Felling and Preservation in the CUP and the <br />Agreement <br />References to tree felling and preservation are contained throughout the conditions of <br />approval, findings of fact and evaluation portion of the CUP as well as in the Agreement and the <br />exhibits that are part of the Agreement. This section first addresses the references in the findings <br />of fact portion of the CUP decision, then the evaluation portion of the CUP and then the <br />conditions of approval, where the Agreement references will be integrated with corresponding <br />conditions of approval. The masterplan sheets are examined separately. References are quoted <br />at length here. Citations are to the LUBA record for the appeal of the second tree felling permit. <br />1. CUP Findings of Fact <br />In a section discussing the conceptual plan at issue in the decision, the Hearings Official <br />explained: <br />"The proposal also contemplates new roads in the southern portion of this site and <br />clearing much of the vegetation in that area, with an extension of cemetery lawns <br />