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Court’s decision. If the Court says you can have a bed and breakfast even with this restriction,
<br />fine, then we can act. But we shouldn’t usurp in a way, right, the Court’s authority. Essentially
<br />what we are doing, if we say, go ahead, do the bed and breakfast, and whatever happens in Court
<br />happens in Court, that’s not an effective way for us to proceed. I just don’t think, frankly, I don’t
<br />think once this deed restriction became – well, had, and I’m not really clear now but – if this
<br />deed restriction was made known to the Department, you know, at the time of the application, I
<br />don’t think the application should have been submitted to the Commission.
<br />One of the possible outcomes of this is that, in Court in this pending Third Circuit case, the Court
<br />may very well say, well, it restricts the use for cemetery purposes. Mr. Ibbetson was able to
<br />build a house on the property, that’s a dwelling, that’s, you know, it can be a cemetery
<br />caretaker’s dwelling, right? That’s not an inconsistent use with the restriction. But extending
<br />that use to a bed and breakfast, that would be, you know, going beyond the restriction. So
<br />Mr. Ibbetson is fully entitled to use the property as he is now, and we are not telling him he
<br />can’t. But what he is asking for is basically an additional use, entitlement, for this property,
<br />which we have to find it’s unusual and it doesn’t -, all those other considerations that we have.
<br />But I think before we get there, you know, frankly I think, well -. That’s essentially it.
<br />The point, as far as the Court’s decision is concerned, is it’s clear to me that the decision
<br />remanding this case back to us does not dispose of this issue, it doesn’t, in no way. It’s real clear
<br />that it doesn’t, and because it doesn’t, I believe, you know, it’s my position that we ought not to
<br />take an action here; where, in effect, the Court can wipe out whatever, if we do approve it. So I
<br />think we should deny it. And you know, if Mr. Ibbetson is successful in Court, then he can
<br />reapply.
<br />GRAHAM: Thank you. Commissioner Woodward?
<br />WOODWARD: Well, I have two problems. One is we are anticipating Court decisions
<br />that may or may not ever occur. And we were brought this issue by the intervenor’s attorney at
<br />the last time we discussed this, well, sometime there’s going to be a suit filed and this and that
<br />and so on and so forth. We can’t anticipate Court’s decisions; we have to act on the information
<br />that we have available. And the information we have available from Judge Strance’s ruling from
<br />the Third District Court in December of 2006 says, “the Planning Commission’s reliance on the
<br />1915 deal appears to have ignored the deed to Mr. Ibbetson’s property. Mr. Ibbetson’s deed
<br />contains the following easement:” – and basically it grants rights to visit the gravesites –
<br />“Mr. Ibbetson’s deed does not contain a use restriction. It reserves rights of third persons to
<br />enter the property to visit certain identified gravesites ---. There is an absence of evidence of any
<br />intent to maintain the character of the property as a cemetery. Thus, the Planning Commission’s
<br />reliance on an undetermined legal issue – a characterization of the property as ‘cemetery use’
<br />after conveyance to Mr. Ibbetson – and its disregard of the current residential character and use
<br />of the property were all clearly erroneous.” So I think it’s clear that the Court feels that we
<br />should act on this on the merits, and not based on our assessment of what future legal
<br />entanglements might be.
<br />GRAHAM: Thank you, Commissioner Woodward. I’d like to have a motion that we
<br />can take some action here today. Do I have a motion from any of the Commissioners?
<br />Commissioner Domingo?
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