Hearings Official was correct in her conclusion that the word "bank" is ambiguous on pages 14-17 of her <br />decision and in her reliance on the second definition of bank as "the margin of a watercourse; the rising <br />i2round b rdP..ina n 1A-f- river or sea or fin-nina the Pdae of a out rrr rvtl,er h~ilo;v" t, rPQn1ve this <br />ambiguity, given that this is the only definition of bank addressed in the decision that is specntlc to a <br />watercourse However , rile e,-c-d ill i.l~llcl _iilirig Ill at ii~ij dell~li liEJn S:.ippeirts t~~.. a.V ».^>2rire that the 1',.i <br />is part of the riparian bank addressed at EC 9.4920(1)(c)(1). <br />The code specifies that "top of high bank is the highest point at which the bank meets the grade of the <br />surrounding topography"; thus we must simultaneously determine both the extent of the bank and the <br />grade of the "surrounding topography". The Planning Commission finds that because the berm is found <br />adjacent to only a portion of the watercourse and does not surround it, and because it is a discrete feature <br />other wise unrelated to the waterway or I iau vGly S1aL LUPOgiaphy 01 Li1e Site ailiply desenbedd -in the record, <br />the "noticeable change from a steeper grade to a less steep grade" occurs at the intersection of the line <br />describing the elevation of the landward meadow and that place on the stream bank where "the edge of a. <br />cut or other hollow" is located. With respect to [1] [a], the Planning Commission finds that the riparian <br />bank evidences an abrupt change in grade from a steeper grade to a less steep grade at the base of the <br />berm where the bank meets the grade of surrounding topography, albeit this abrupt change in grade is <br />obscured by the presence of the berm in portions of the riparian corridor and is not as noticeable as would <br />3 if i_ " i l i <br />ue the case si 'e Uerr,i :Adu°s rlv Y'resen . ' nls vreuk ir' 5l- de corres.. onds with the GelinParwn nr 'the tin nt <br />Y ' FJY" Y ezisaavx.c e.aa;sa vE eaav e,v¢s vb <br />1___!_ A A and and T3 Bdl and alld _i ll__ e____ase _ of1•al__the 1_______ n nl___L C'1 _P'l__ _ l° <br />iligLi UMM III "iUUL1Ui1s /A-x -B at Lne U Qerni o- Sheet 32 oI lne applicant's lvlarch 26, <br />2 vvc"i Site plains. <br />With respect to [1][b], the Planning Commission finds that the Hearings Official erred in finding that <br />natural conditions do not prevail due to agricultural and excavation activities. The Planning Commission <br />acknowledges that the riparian corridor has been altered, but finds that these conditions are outweighed by <br />the presence of more significant natural conditions specific to hydrology, vegetation, and habitat. The <br />Planning Commission further finds that available information regarding the level of surrounding <br />topography and the topography of the riparian bank evidences that the top of high bank identified at the <br />base of the berm is characterized by a noticeable change from vegetation primarily shaped by the <br />presence of water to topography not shaped by the presence of water. <br />Given the above considerations, the Planning Commission finds that the Hearings Official erred in <br />finding that the top of high bank is located at the top of the berm for cross section A-A. The Planning <br />Corrunisslon fiul Cher finds that the applicant's delineation of the top of High baaak in cross-sectior,, A-A and <br />B-13 are correct, and additional information regarding the extent to which the topography mimics cross- <br />section A-A or B-B is not needed to demonstrate that the applicant's site plan delineation of the top of <br />high bank and resulting conservation setback are consistent with EC 9.4920(1)(c)(1). <br />Appeal Issue 8: The Hearings Official erred by ailing to address or approve the applicant', pr used <br />contingency to condition approval upon the combination of Lots S and 6 <br />To the extent that the Hearings Official may have erred with respect to appeal issue 8, the question is <br />moot due to the resolution of the /WR Site and conservation setback boundaries and approval of Lots 5 <br />and 6. <br />t ,peal issues 9 ac 12: The Hearings Official erred by not approving the Standards Review for all <br />elements of the proposal, including the endings indicating that berm removal is not permitted eursuant to <br />9. X930(3) (a) on page 20 of the decision. <br />A1e~d~e~r~~i~T 07-5 & SDR 08-2) November 2008 Page Rage 1176 <br />