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Analysis ofLaw on Creek Setback Permit and Findings Requirements <br />This Court's interpretation and application of the above laws, is as follows: <br />Section 32.12(F)(3) of the Zoning Ordinance requires that Real Party in Interest <br />obtain a Use Permit prior to building any new homes within 25 feet of the Cordilleras <br />Creek, and that findings must be made under Article 42 plus the three mandatory findings <br />under Section 32.12(F)(3). <br />A review of the Resolution No. 15218 approving the issuance of a Planned <br />Development Permit under the Zoning Ordinance (2AR 74 -94) -- and even Resolution No. <br />15219 approving the related Vesting Tentative Map under the Municipal Code (2AR <br />95 -114) — reflect no such findings. None of the three mandatory findings under Section <br />32.12(F)(3) are stated by Respondent. <br />Further, Respondent did not make written findings, with supporting evidence, of <br />the five mandatory findings (and potential additional sixth finding) required under Section <br />42.3(B) and (C) for issuance of a Use Permit to allow building within the 25 -foot creek <br />setback. (Although it is arguable whether some of the findings made by Respondent, such <br />as 2AR 76 ¶b, ¶c; 2AR 77 ¶e; 2AR 80 ¶c, might fit the bill of one or more of the required <br />findings, they do not reflect all categories of findings required by Section 42.3.) <br />Respondent and Real Party in Interest assert that since a Planned Development <br />Permit was granted, that a Use Permit is not required and accordingly that the findings <br />under Section 42.3 and Section 32.12(F) are not required. The Court does not agree. <br />Under the auspices of a Planned Development Permit, Respondent has authority to <br />allow certain modifications from the typical zoning ordinance requirements. Those <br />permissible modifications are specifically identified in Section 46.7(A). None of those <br />enumerated exceptions include the authority to modify the creek setback requirements <br />14 <br />8.B. - Page 73