2007-09-21 TIBBETSON - Laserfiche WebLink

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GRAHAM: Thank you, so the motion is approved. And the motion essentially states that we’ve ruled on Mr. Matsukawa’s correspondence, and the motion tells us that the ruling that we made makes us free to, leaves us free to entertain a motion for approval today. And I’d also like to say in my role as Chairman, I concur with that ruling also. So I think we’ll go forward from that point to the substance of the issue before us today, as Mr. Woodward would like to see us address. The hearing is closed. I have no public testimony signed up. If anybody from the public wants to come and speak, please come forward right now. All right, thank you. We have no one from the public. So I believe the motion, excuse me, the item is before us for action today; the item being the Special Permit application of Mr. Ibbetson. And I’ll open it to the Commissioners. Commissioners, do you have any motions, comments, anything you like? WOODWARD: I’d like to make a comment, if I could, Mr. Chairman. GRAHAM: Commissioner Woodward? WOODWARD: This is basically rephrasing what I said at the last meeting. We’ve been caught up here in what really would be a very simple issue. And as Director Yuen said, if it wasn’t for the question of gravesites on this property, there is no reason not to grant a Special Permit. The Third Circuit Court ruled that the undisputed facts – this was Judge Strance’s decision on December 22, 2006 – “the undisputed facts are that Mr. Ibbetson applied for and was granted building permits for the home and swimming pool on the subject property consistent with the requirements of the law. Thus, the ‘essential character’ of the subject property was established prior to Mr. Ibbetson’s application for a Special Permit. --- without any regulation, Mr. Ibbetson could put the property to the following uses: crop production, fertilizer yards utilizing only manure and soil, for commercial uses, group living facilities, livestock production, telecommunication antennas. --- it is clear from these Findings of Fact that the presence of the burial sites on the subject property is what drove the Planning Commission’s determination of the ‘essential character of the land and the present use of the property.’ This determination appears to have been made without consideration of the current residential nature of the property derived from Mr. Ibbetson’s construction of his home and associated structures on the property. --- Mr. Ibbetson’s deed does not contain a use restriction. It reserves rights of third persons to enter the property to visit certain identified gravesites on the property. There is an absence of evidence of any intent to maintain the character of the property as a cemetery. Thus, the Planning Commission’s reliance on an undetermined legal issue – a characterization of the property as ‘cemetery use’ after conveyance to Mr. Ibbetson – and its disregard of the current residential character and use of the property were all clearly erroneous.” And as I said, if it wasn’t for this question of the gravesites – and we’ve heard nothing but testimony to the fact that nobody has ever been restricted from visiting those gravesites; Mr. Ibbetson has allowed them access – if it wasn’t for that question, this would have been a very simple issue. We spent way too much time on it, and I see no legal reason not to grant Mr. Ibbetson the right to use this as a bed and breakfast. GRAHAM: Thank you, Commissioner Woodward. Commissioner Domingo? DOMINGO: Just one question for clarification. I don’t know if I read someplace in the transcript. But is the issue of the interpretation of the deed still in question and that it is in Court at the present time? EXHIBIT A 13