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Pat Morrison May 9, 1989 Page 2 according to the minutes, that until such time a site plan and building appli- cation were coordinated in conjunction with the filling permit, that the City should suspend the fill operations. Based on those statements, the Council directed the City staff and attorney to notify Mr. Gorman that fill operations would be suspended until the site plan had been considered and approved by the Council. Ultimately, the question of whether or not the Council was reasonable in suspending these operations will hinge on how the proviso from the September 20, 1988 motion that it all be subject to review on approval by the City Engineer is interpreted. Clearly, Mr. Gorman was granted a permit for 20,000 cubic yards and the only actual limitation was that there be no rerouting of the drainage. There does not appear to be any connection between the initial 20,000 yards that was granted and the site plan or building permit. Clearly, from the minutes of the September 20, 1988, the only relationship between the site plan and the fill permit was review with regard to whether or not the additional 10,000 yards would be permitted in the spring of 1989. Therefore, the suspension of the fill operations on the basis that there is no site plan would be deemed to be arbitrary and capricious. Notwithstanding,Af Mr. Gorman was given notice that even the initial 20,000 yards was subject to review and approval by the City Engineer, the fact that the engineer has now expressed concern over those initial 20,000 yards and that there is a factual finding by the Council as to what, specifically, those concerns are, there is sufficient basis for suspension of the permit until it can be determined what, in fact the likelihood of interference with drainage is, whether or not there is, in fact, a danger from dirt and windblown dust, and if in fact there is a slight hazard created. All of these factors must be viewed in light of the Council's police power and its charge to protect the heath,thelfactsthatytherewisfaneof its "unattractiveens. itnuisance's'hshouldenottenterointorthat and the Council's consideration. In conclusion it is appropriate to request a site plan here for Mr. Gorman how the fill is to be utilized. However, to suspend the fill operation and the initial 20,000 cubic yards solely on the basis of the site plan not having been filed, the Council is in substantial danger of having its actions being found arbitrary and capricious and, therefore, liable to Mr. Gorman for dama- ges he sustains as a result of that action. However, if Mr. Gorman knew or