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GRAHAM: Thank you. All right, Commissioner Iwashita. We’ll have any discussion
<br />on the motion before us.
<br />IWASHITA: On the motion, yeah. I speak in opposition to the motion. Since the Third
<br />Circuit Court decision reversing this, our prior decision, expressly recognizes that the issue of the
<br />use restriction in the deed is still to be determined and there is, the parties in their final argument
<br />have confirmed that there is a pending case to resolve that issue, it’s my view, you know, it’s
<br />consistent to me that what the Third Circuit Court said was that the granting of the building
<br />permit and the establishment of the residence established the residential use of the property. And
<br />so that should be a given. That residential use of the property, in my view if we’re not being
<br />consistent with one interpretation of the deed restriction which basically says that the
<br />conveyance of the property to the predecessor in interest of the applicant was for cemetery
<br />purposes, you can’t have a caretaker home, somebody who cares for the cemetery. That’s a
<br />residential use of the property. Okay? So, you know, it’s not inconsistent to me that
<br />Mr. Ibbetson can continue to reside on the property, basically as a caretaker, nominally, and that
<br />the Court can enforce that restriction of the use of the property as a cemetery. Those are not
<br />inconsistent uses. And so because that issue to me is outstanding, to me it’s not incumbent upon
<br />us to accept the argument that because residential use is allowed that it’s reasonable to extend it
<br />to a bed and breakfast. That is not a logical sequence in my mind. And because it’s admitted on
<br />the record that there’s a pending case to determine the extent of use of the property it’s not, for
<br />me, appropriate for this body to grant this application.
<br />GRAHAM: Thank you, Commissioner Iwashita. Any other comments from Planning
<br />Commissioners? Yes, Commissioner Woodward.
<br />WOODWARD: Well, I think it, as, Commissioner (sic) Yuen said, this really, if it wasn’t
<br />for this question of graves on the property would have been a very simple issue. There’s no
<br />reason not to grant a special permit. There’s no other reason, period. And we’ve been told by
<br />the Third Circuit Court that we don’t have authority in that area. It says here “While the
<br />Planning Commission candidly admitted that it lacked authority to determine the legal effect of
<br />the language of 1915 deed,” etc., etc., etc. That’s not part of our purview. And any further legal
<br />action is purely speculative. You know, we can’t delay an action based on something that might
<br />happen five years down the road.It might not happen at all. There’s no good reason for us and,
<br />in fact, no legal reason for us to deny this application.
<br />GRAHAM: Thank you, Commissioner Woodward. Any other comments before we do
<br />a vote? Commissioner Iwashita, you have something further?
<br />IWASHITA: Yes, just one. I’m not saying, I’m not of the mind that this body is going
<br />to decide the extent or limitations of the use restriction in the 1915 deed. Right? And I wholely
<br />agree that the parties ought to resolve that. I’m fine with the parties resolving that with Judge
<br />Strance and/or the Supreme Court. However far they want to take it, you know, in the private
<br />litigation matter, that’s fine. What I’m saying is that given the lack of resolution of that issue,
<br />you know, and the timing of that, that’s for the parties to deal with. That’s not our concern.
<br />How long, if they want to, you know, expedite and push the Court for a decision and resolve it,
<br />that’s for the parties and the judicial system to do. That’s not our concern. Our concern is the
<br />proper use of this land; and to me it is proper for this body to consider that the Court may very
<br />well say you can’t do a bed and breakfast. What the heck then are we doing approving one?
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