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Regular City Council Meeting Monday, October 25, 2010 Page 20 City Attorney Bartholdi referenced his written opinion dated October 14, 2010 (At- tachment A) and clarified that his opinion had changed based on recent amendment to City ordinance making the asphalt plant a non permitted use. Mr. Bartholdi noted his previous opinion based on a lack of environmental factors; and advise to the City Council as to whether they should proceed at that time or not. However, noting the ordinance amendment, he advised that the City Council could deny the use if it so de- termined. However, Mr. Bartholdi recommended that the applicant be provided suf- ficient written notification on denial of the CUP, since this is the only permit being requested at this time; and the original information they had received that this CUP was associated with a permitted use based on interpretation that asphalt was a manu- facturing use, without clarification that this was only one aspect of the proposed use, later determined to include crushing operations and outdoor liquid storage, neither of which would be permitted uses based on existing performance standards. Ms. McGehee referenced an opinion from an Environmental Attorney, supporting denial at this time with no need to complete the environmental review. Nancy Nelson, 2154 Bloom, south of proposed site Ms. Nelson addressed concerns related to potential reduct in residential and/or commercial property values in that area if a plant was permitted; and questioned if those property owners had recourse against the City or the asphalt plant to reimburse them for their losses. Ms. Nelson opined that she did not want to have her property value decrease due to smelling asphalt. Councilmember Pust cautioned the City Council to not take any action until they had procedurally confirmed the entire process to minimize litigation for the City, includ- ing sufficient notice to the applicant. City Attorney Bartholdi concurred with Councilmember Pust regarding notice rec- ommendations. Megan Dushin, 2249 St. Stephen Street Ms. Dushin questioned whether Bituminous Roadways had a vested interest; and questioned if the City Attorney was confident Issue of whether the City Attorney was confident that the ordinance amendment served to support the proposed action of Councilmember Ihlan. City Attorney Bartholdi opined that Bituminous Roadways did not have a vested in- terest based on the status of their application process and no start to their construction of the proposed plant and similar case law; however, he did not preclude any future litigation they may choose to pursue. Councilmember Johnson noted ongoing discussions at the staff level based on per- formance standards and criteria and what triggers a CUP in zones.