2007-12-12 TIBBETSON - Laserfiche WebLink

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WOODWARD: Yes. I made my feelings clear about this in the past, but let me just reiterate. I don’t think, from a legal standpoint, we have any reason to deny this application. In fact, if you read Judge Strance’s decision from the Third Circuit Court – I’ll just read parts of it – “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.” Further, she says, “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.” So regardless of your feelings, I think from a standpoint of the law, we don’t have a foot to stand on in denying this application. And I’ve made that point in the past. GRAHAM: Thank you, Commissioner Woodward. Any other Commissioners care to speak to this? Yes, Commissioner Siracusa? SIRACUSA: Well, one of the sentences you quoted was “There is an absence of evidence of any intent to maintain the character of the property as a cemetery.” And I think that is an erroneous statement in it of itself because the intent was originally, when the land was conveyed, then it went to the church; the intent was there when the church conveyed it to Mr. Ibbetson with the understanding that there were burials on the property and that he had to allow the descendants to visit those graves. To me that is evidence of an intent to maintain the character of the property as a cemetery. Furthermore, every religion that I know about on this planet considers burial locales, cemeteries as sacred sites. And we have a tradition in the Judaic Christian tradition that commercialism and sacred sites do not mix. I mean the famous story about Jesus chasing the money lenders out of the temple is a perfect example of that. I don’t think that it is an appropriate combination. For residential, yes. But I do not believe that mixing commercial with a cemetery use is appropriate. And everything else that Commissioner Domingo said, I heartily concur. GRAHAM: Thank you, Commissioner Siracusa. Any other Commissioner has anything? ALAMEDA: Mr. Chair? GRAHAM: Commissioner Alameda? EXHIBIT D 9