LAW OFFICE OF BILL KLOOS, PC <br />OREGON LAND USE LAW <br />576 OLIVE STREET, SUITE 300 <br />EUGENE, OR 97401 <br />PO BOX 11906 <br />EUGENE, OR 97440 <br />TEL (541) 343-2674 <br />FAX (541) 343-8702 <br />E-MAIL DANTERRELL@CONTINET.COM <br />MEMORANDUM <br />From: Dan Terrell <br />Date: August 28, 2002 <br />Re: References to Tree Felling and Preservation in Rest-Haven CUP Masterplan (CU 95-2) <br />To: Rest-Haven Memorial Park Tree Cutting Permit File <br />This memorandum examines the references to tree felling and preservation in the Rest- <br />Haven CUP (CU 95-2) [CUP] and the 1998 CUP Agreement [Agreement] implementing that <br />CUP. Issues related to those references are analyzed in light of the Hearings Official's decision <br />of January 11, 2002, which concluded that the CUP and the Agreement did not address or <br />resolve which trees were to be felled and which were to remain on the property. The <br />memorandum also examines provisions contained in the CUP and the Agreement that limit the <br />exercise of discretion by the City in implementing the CUP. The memorandum concludes that <br />the issue of which trees were to remain and which were to be removed was addressed and <br />resolved by the CUP and the CUP Agreement. <br />A. Development at Rest-Haven Cemetery is Part of a Multi-Stage Land Use Approval <br />Process <br />The current decision on appeal, a tree felling permit, THE-0105, issued on August 22, <br />2001, Rec. 135, is related to a conditional use permit, CU 95-2, Rec. 176, as incorporated into a <br />conditional use permit agreement (CU 95-2 and MD 95-13), dated October 27, 1998. Rec. 161. <br />The tree'felling permit at issue here is the second tree felling permit issued pursuant to that CUP. <br />The first tree felling permit was issued on March 29, 1999. Rec. 144. Consequently, the tree <br />permit at issue here is part of a multi-stage land use approval process with the CUP and the <br />Agreement acting as the foundation for all later decisions. <br />As a preliminary matter, the memorandum will not elaborate on the argument that the <br />tree felling permit decision is a land use decision. That issue was settled by LUBA in <br />Homebuilders Association v. City of Eugene, _ Or LUBA _ (LUBA No. 2001-060, February <br />28, 2002), when LUBA concluded that the tree felling ordinance was a land use ordinance and <br />that an amendment to that ordinance constituted a land use decision. Id., slip op at 3-7. Because <br />the decision at issue here is a land use decision, the principles pertaining to multiple-stage land <br />use approvals are applicable in this instance. <br />As a general rule, when a decision is made in multiple stages, the subsequent stages are <br />bound by the scope and content of the earlier decisions. This rule typically has been articulated <br />in the context of an appeal of a subsequent stage decision in which an appellant attempts to <br />challenge something that was determined in an earlier stage decision that was not appealed at the <br />