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law, Councilmember Pust opined that in this instance, the argument had been made by some 125 members that the proposed Wal-Mart was not a permitted use. In that context, Councilmember 126 Pust opined that an analysis of permitted versus non-permitted use became an appropriate part of 127 preliminary plat consideration. 128 Councilmember Pust asked what would result, if the City Council took action tonight on the 129 Preliminary Plat, and the Planning Commission found that it was not a permitted use, and it was 130 obvious that this could be a possibility, since it was being sent elsewhere for a recommendation. 131 Councilmember Pust questioned, if it was found to be a non-permitted use, but the Preliminary 132 Plat had already been approved, there would then not be a Final Plat. Based on that scenario, 133 and if the issue was found for a conflict between the Zoning Code and Comprehensive Plan, 134 Councilmember Pust noted that the Comprehensive Plan would then need revised either way, 135 whether a permitted use or not. Therefore, if the Preliminary Plat had already been granted, and 136 then the Comprehensive Plan revised, Councilmember Pust noted that there would be no changes 137 applied to that Preliminary Plat for one (1) year. Taking the City out of the legal situation and 138 changing its position based on the timing of this decision, Councilmember Pust opined that it 139 was then a waste of time for the Planning Commission to make a recommendation. If a Final 140 Plat was approved, Councilmember Pust noted that it would take two (2) years to affect this 141 application. 142 Based on the potential that the City Council may be wrong in their analysis to-date, 143 Councilmember Pust opined that she didn’t want the City to come out on the wrong side of that 144 analysis with this particular application; and reiterated her preference that the City Council hold 145 off one (1) week on this Preliminary Plat decision, allowing the Planning Commission to hold 146 their discussion and provide a recommendation. 147 At the request of Mayor Roe to provide a response to Councilmember Pust, City Attorney 148 Gaughan noted that the only reason the decision on the Preliminary Plat was back before the City 149 Council tonight was due to the applicant voluntarily extending the 120-day review period until 150 tonight’s meeting. Otherwise, based on the expiration of the review period, the Preliminary Plat 151 would be approved by default, based on State Statute (Chapter 462.3454). 152 Based on the Board of Appeals, City Attorney Gaughan noted that, as the process was laid out in 153 State Statutes, a decision could not be made without a recommendation by the Planning 154 Commission, necessitating their part in the process. 155 Regarding the controversy of whether the proposed Wal-Mart is or is not a permitted use, City 156 Attorney Gaughan noted that to-date, that has not come into play as part of the Plat analysis 157 because the authority to make that decision had been delegated by the City Council to staff to 158 make an administrative decision; with no provision available to have the City Council take back 159 that authority to determine whether or not a use is permitted. Under City Code, City Attorney 160 Gaughan advised that the issue came before the City Council only in their role as the Board of 161 Adjustments and Appeals; and based on the applicant’s request that the Administrative Appeal 162 be addressed now rather than down the road as additional funds were expended by the applicant 163 through the permitting process. 164 City Attorney Gaughan concluded that this was the mechanics of why and how things were 165 occurring at this point. 166