06 Public Record Pages 1021-1272

by the Hearings Official) that the evidence regarding the condition of the riparian corridor and surrounding area, historically and in the recent past, is sufficient to establish that the site's condition in .,.'v i, .x-A :»Q ili:9i _1(, Il 0, VY 11'I ij 11 el. II ..v Lfliev QVv ' i daVS`.s ~ dr!l _ J_ area outside the /WR conservation setback delineated on the applicant's site plans. Therefore, those areas - + e~ h r ~o~ ;i sc h css 5 5 5; ~l ire at are dlv iE ~ d4l Ua.l.ei-,d VVdLt Lrd Liii+ boundary of lll°L, rest/ urco m. siis°. in ass's.; eJLS.~°v, _I X, a 11 resource site boundary is within the /WR setback area along the western portion of proposed Lots 5 and 6. Apart from the errors noted above, the Planning Commission finds that the Hearings Official did not err in the manner in which she resolved the ambiguous /WR Site boundary, or improperly assigned the burden for identifying the applicable Goal 5 /WR Site boundary. In any case, the appellant's remaining assignments of error regarding the location of the resource site boundary are mooted by the Planning Commission's conclusion that the /WR conservation setback delineated by the applicant wholly accounts for the /WR Site and, therefore, the conservation area. For the reasons set out above, and below with regard to appeal issue 7, the Planning Commission finds that the Hearings Official erred with respect to her conclusion on page 36 that the applicant has not accurately depicted the resource site boundaries on the site plan, and has therefore erred with respect to her related determination that lot development and stornnwater design standards are not met for Lots 5 and ti Therefore approval c ondition-, 1 and 17 1mpOsed by the Hearings Official are eliminated. A2peal Issue 7: The Hearings Official erred with respect to the top of high bank and /WR conservation .,P.t z-11 ack. Regarding appeal issue 7, the Planning C_'om nission finds that the Hearings Official erred in concluding that the top of high bark was located at the top of the berm on proposed Lots 5 and 6 for the purposes of EC 9.4920(1)(c)(1). - EC 9:4920(1) provides in relevant part that the "component areas of the 1WR conservation area for Goal 5 Water Resources Sites are described and defined as follows: * * * "(b) For riparian corridor sites not listed in [EC 9.4920(1)(a)], the /WR conservation area consists ofL the area itJitx'tii the vv Water Resource Site and the area avi`hln the v applicable conservation setback." "(c) The conservation setback for a particular riparian corridor or upland wildlife habitat is determined based on whether it is a Category A, E, C, D or E stream in the [Goal 5 Plan.] ld-r .'J 'E~1 e~ },•~e,v9 ~h t(l /1$ {-1'9[2 1 YlV Conservation seLUdcks are 1dea siiTGU lioriZviil ally ai vaas Lasm6 Lv~'®'S vi Loam. ri1gOt as Olvisa' "L 11 ] For conservation setback distances measured from the top of the high barilk, the top of high bank is the highest point at which the bank meets the grade of the surrounding topography, characterized by "[a] an abrupt or noticeable change from a steeper grade to a less steep grade, "and "[b] where natural conditions prevail, by a noticeable change from topography or vegetation primarily shaped by the presence and/or movement of water to topography not primarily shaped by the presence of water. Where there is more than one such break in the grade, the uppermost shall be considered the top of high bank."' The Planning Commission finds that the berm adjacent to the Goal 5 riparian corridor is a landform_ that is distinct from the riparian bank and the surrounding topography in the context of clause [1] and that the Hearings Official erred in finding otherwise under EC 9.8320(4), or, pages 14-17 of her decision. The 2 The Hearings Official used the format adopted by the parties and LUBA in The Picullel Group. Al~ffI MF&cl `U)1~11t)T 07-5 & S17R 08-2) November 2009 page'99' 1175