CC/RDA/CUA SPE MIN JAN 26 - Laserfiche WebLink

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2. Reference to condition No. 1 of CUP, the requirement that approval shall bet null and void one year from the date of approval if building permits have not occur within 12 months, is similar to language in Municipal Code but different standard, condition 1 was never raised before the planning commission, in comparing the grounds this appears to be a new ground and not permissible at appellate level. Attorney Pierce pointed out the what he felt were legal errors 1. Planning Commission relied on 18.58.070 of Municipal Code, which was not mentioned in notice of intention, this section deals with expiration not revocation and noticed as a revocation meeting, the section does not give Planning Commission discretion to decide for CUP to be revoked. 2. Planning Commission relied on 18.58.080(a) use has not been exercised, no one year requirement in this code section. Attorney Pierce further explained that in review Municipal Code found version of 18.58.070 of March 2006, that is date staff contends use permits expires, the only way permitee could have gotten extension if CUP was subject of lawsuit. Mr. Tsay was not eligible at that time. In staff report drafted by Attorney Burns, regarding staff's points and authorities, cup is being revoked as city is moving in different direction. City Attorney Ballinger advised council the test is not whether it happened within the one year period during the time period, legal test is that did the property owner exercised a good faith to presently commence on approved use. Attorney Pierce highlighted on various dates, commencing with September 2005 with the original submission of detailed building plans, and compliance with city requests for corrections or revisions and believed that based on relevant law it seems that there is very little question that Mr. Tsay has proceeded in good faith to try to develop this property, keeps submitting corrections, never indicated holding on to property for other use, hasn't ask for fees because Mr. Tsay wants to develop property. Rebuttal by Attorney Montgomery Attorney Montgomery explained that Kalama was dragging their feet. If someone is processing a plan you have to give them a chance to explain. Whether old code or new code, if use is inactive you can have it revoked. No grading permit. No good faith perception. When they signed CUP they didn't have anything to go on, didn't sign approval for six months, staff went along until pointless. Attorney Pierce clarified that the period of time does not commence September 2, 2004 rather than on March 3, 2005, when amended CUP was operative, that is in fact the time cited in notice of intention to revoke CUP, city used the date that is operative. Public Comment: The following citizens addressed the council: Jonathan Zane — spoke in favor of the appeal. 2009 JAN 26 SPC CC/RDA/CUA MEETING - 4 -