Agenda Item No. 14.  Appeal:  SDP-2006-0071, Gillispie Preliminary Site Plan - Critical Slopes waiver/curb and gutter request.  Request for Preliminary Site Plan to allow the construction of two (2) residential condominium units totaling 16,023 s.f., and 7 total dwelling units on 1.71 acres, and is zoned R4 (Residential).  The property is described as Tax Map 61K, Parcels 10-0A and 10-0A2, and is located in the Jack Jouett Magisterial District at the end of Inglewood Drive, near its intersection with Hydraulic Road (Route 631).  The Comprehensive Plan designates this property as Neighborhood Density in Urban Area 7.


            Mr. David Pennock, Planner, said this is an appeal of a denial by the Planning Commission of a waiver for a critical slopes disturbance in order to construct the Gillespie Preliminary Site Plan.  The site is located in the Jack Jouett District at the end of Ingleside Drive.  The request is based on a preliminary site plan requesting construction of seven condominium units.  It is an administrative review of the plan but part of it requires two waivers.  One waiver is for a portion of curb and gutter not shown on the original plan.  One waiver would be for disturbance of critical slopes.  Since the time of the original submittal, the applicant has indicated a willingness to construct the curb and gutter, so the only thing left to talk about is the critical slopes waiver. 


            Mr. Pennock said the site consists of about 30 percent critical slopes.  This plan would necessitate disturbance of almost 60 percent of those slopes.  Staff analysis of any critical slopes waiver is based on several factors including determination of critical resources that may be present on the site.  There are five engineering types of analyses to determine if site design can accomplish the disturbance using sound engineering practices.  Those items are summarized (see staff’s report on file) with three recommendations based on the three criteria the Commission can use to grant waivers; staff wasn’t able to conclude that any of those criteria had been met, therefore, staff’s recommendation was for denial of the critical slopes waiver.


            Mr. Pennock said the applicant submitted a packet of information which was forwarded to the Board.  It included justifications that basically go through the original staff report, and the applicant also submitted an alternative plan (Diagram “B”); staff has not had time to do a full analysis of that plan.  However, just in preliminary review, that plan would also necessitate Commission approval of a critical slopes waiver. 


            Mr. Rooker said he understands that plan was put forward by the applicant to show another way the project could be built.  In his view it is worse than the plan he was asking be approved.  Mr. Pennock said even though this plan would have almost as much disturbance of critical slopes area, some of those areas would be exempted because they are for travelways, etc.  Things like parking areas and grading related to the buildings could not be exempted and could require a waiver. 


            Mr. Boyd asked if the critical slopes waiver is the only thing before the Board today.  Mr. Davis said that is correct.  Neither staff nor the Commission has made a final decision on the site plan, so the plan has not been denied at this point.  The only thing before the Board today is whether to grant the critical slopes waiver for the application plan that was reviewed by the Commission.  Mr. Cilimberg said the Commission agreed with staff regarding the critical slopes waiver.  They did not feel it was consistent with waiver criteria – and the vote was unanimous.


            Ms. Thomas said part of this property drains to the south, and part to the north.  Mr. Pennock said there was no dispute over the drainage areas as shown. 


            Ms. Thomas asked if the riprap channels are doing okay now. The applicant is suggesting that their decisions about the critical slopes were made based on engineering concerns.  Since that will probably be part of the Board’s thinking, she wanted more facts about how this situation works.  She does not think there is more impervious surface on the south drainage, so if the riprap channels are working fine today on that section, that is not an engineering concern.  Then there is a north drainage section which she thinks should be taken care of with the detention basin.  Mr. Pennock said the concern was based on the plan which concentrated flows in different patterns than had been done previously.  Even if the outfall was the same volume in specific points than it had been previously, it was more concentrated.  In other words, in some areas there was sheet flow and in other areas there were ditches.  Based on the final plan, more of it was going to a concentrated point than had been going there before.  That raised concern about possible offsite disturbance of the neighbors’ property.


            Mr. Boyd asked that Mr. Brooks address that from an engineering standpoint.


            Mr. Glenn Brooks, County Engineer, said it is the section coming out of the detention basin that concerns staff.  There is more water going in that direction, but it is managed now by the basin.  There was also a distinction made because natural drainage divided on the property in either direction.  That natural drainage line was being moved so more was being collected in the back of the site and going through the basin in the channel now.  The natural drainage divide has changed with the proposed plan.


            Ms. Thomas asked if the applicant would be required to handle that drainage.  Mr. Brooks confirmed that the applicant would be required to handle that drainage.  He said said a basin does not cure the problem, it helps the problem.  There is still more water going in that direction and it is still collected in a pipe and discharged in a way that was not done naturally. 


            Mr. Boyd asked if that is Mr. Brooks’ reason for being opposed to this request.  Mr. Brooke said there were lots of reasons, this was only one factor. 


            Mr. Wyant asked if the applicant can meet the requirements of an E&S19 plan.  Mr. Brooks said that is hard to determine at this time since this is a preliminary plan. 


            Mr. Boyd said if there were no further questions for staff, he would ask the applicant to speak. 


            The applicant, Mr. Bill Daggett of Daggett & Gregg Architects, addressed the Board on behalf of the Gillespies.  He said they hope to address the question of drainage which was used by Engineering as most of the reason for recommending denial of the critical slopes waiver.  They have asked for a letter of intent for the stormwater easement on the next property.  That has been discussed thoroughly, but they have more information to add.  They have additional information to add relative to the design of the property. 


            Mr. Daggett showed on a screen Diagram “D”.  He said about 60 percent of this site is qualified as critical slopes.  Part of the issue they have raised is that there is an exemption for building on critical slopes for accessways.  He pointed out that there are only two ways to get onto this property.  The first is at upper Inglewood Drive where there is an easement shared between this property and the adjacent property, but the configuration of the road there prohibits a driveway entrance permit because there is no sight line.  They are forced to come off of lower Inglewood Drive so in order to access the property they have to traverse the end of the property; no matter how they do it they have to cross critical slopes for access. 


            Mr. Daggett said it was suggested that since there are areas on the property in non-critical slopes that they look at those areas and come back with a plan that does not require building in the critical slopes.  He showed a rendering of the property and explained which areas are buildable slopes by ordinance.  They would essentially have to go through an existing house in order to meet the grades they are allowed.  The buildings were broken into three sets so they would have areas for construction, but that would cause the applicant to cross the swale with a road which would cause them to build more impervious surface area to get parking to the three units that would be there.  The applicant looked at this possibility, but it was a less reasonable solution. 


            Mr. Daggett then showed Diagram “B” which is called the alternative approach.  He said this alternative was explained to the Commission verbally, but there was no diagram at that time.  Effectively, this brings the accessways, sewer, etc. from the same direction into the site and turns it so they avoid going across the swale and builds the units on the “white” area.  When they looked at this situation, they were crowding the house by putting it adjacent to the property line in order to stay off of the critical slopes, and yet they still disturb the critical slopes with the road. 


            Mr. Daggett said this takes him to what they proposed which was to swap the building and the road.  That will increase the distance between the house at the lower section of the property and reduce the travelway by about 1,000 square feet, and create a situation where all of the units are facing into the open space. That gives a relationship between the buildings which is similar to the relationship everybody in the neighborhood has between each other now; they are looking at backyards.  Under Diagram “B” everybody who now looks at the open space is looking at a parking lot.  They felt it was a reasonable approach as opposed to what is seen in Diagram “B” because it is a better neighborhood model. It conceals the parking from everyone. 


            Mr. Daggett then showed another diagram which showed open space at the swale and a better relationship between neighborhoods.  It provides more than 100 feet between their single neighbor to the south and the parking is concealed from that neighbor and the building is concealed from all the other neighbors.  They felt these are positive aspects and are reasons why they should be permitted to attain a slopes waiver.  He said stormwater management and stormwater issues were apparently why Engineering could not support the slopes waiver.  He then asked Mr. Clark Gathright, his firm’s engineer, to address the Board.


            Mr. Gathright said he wanted to discuss two items relative to the plan and the slopes waiver request.  He talked about requirements in the Zoning Ordinance for preliminary site plans. He said from the County’s review of the plan in October, six of the eight comments made were final site plan requirements and not preliminary.  The comments contained phrases such as “provide written documentation of how stormwater runoff is addressed” and this involves extensive calculations; they are not conceptual in nature.  Another was “more specific design information as requested for the design and construction” i.e., details of a particular storm structure.  Another one called for “timeframes for inspections for particular work” and he sees no relevance to either preliminary or final site plans.  This is a means and methods issue to be worked out by a contractor after this plan is approved.  This project is a prime example of why they need to adhere to the process set forth in the Zoning Ordinance.  There are many other issues that determine the feasibility of a site’s development.  Only when such feasibility is established should their clients incur the expense of providing detailed engineering calculations. 


            Regarding excessive stormwater runoff, Mr. Gathright said Section 17-3.14 states that land and receiving waterways which are downstream from land development be protected from stormwater runoff damage.  The applicant is exempt from that section if the land development disturbs one acre or less of land area.  Excluding work in the right-of-way, their proposed disturbed area on the site plan is 1.07 acres, and approximately 20 percent of that disturbed area is associated with stormwater management and BMP construction.  By adhering strictly to the ordinance, they can develop this project without providing any stormwater measures, i.e., if they don’t add the 20 percent basin (bio-filter), they would not have to provide any control of velocity, even peak runoff.  He said water quality measures are non-existent in this neighborhood so they thought some water measure was of importance.  Other stormwater planning considerations concerned the drainage areas.  Their site has 1.07 acres and it straddles two drainage areas which total about .48 acres.  Of the two drainage areas, the larger one to the north is about .38 acres, and about two-thirds of their site contributes to that drainage area and contributes about 1.6 percent of the total impervious area.  He then explained some of his engineering calculations.


            Mr. Gathright showed pictures of the current drainage area and explained his engineering of the site.  He emphasized that the stormwater flow from the site creates no jeopardy to damage downstream property.  From a conceptual standpoint, there is no merit to obtaining easements or detailed design at this time.  He said the drainage has no relevance on the critical slopes issue. Excessive stormwater runoff is primarily a concern for critical slopes if the runoff is above and across from these critical slopes.  They don’t have that since the water is in the swale at the bottom of the hill. 


            Mr. Wyant asked how much drainage area passes through this property coming in from the south where the head wall is placed. Mr. Gathright said where it passes off of their property it is about 30 acres now. 


            Mr. Wyant said that drainage is just passing through the applicant’s site, so if some mitigation were done it would help. He said Mr. Gathright showed a picture of the downstream area which is much steeper, and is not favorable to this site.  Additional flow from this site will only make the situation worse.  That stormwater is of concern to the adjacent property owner downstream.  Mr. Gathright said he would like to point out that in his storm pipe routing calculations, at the swale where it goes off of the property, it is running 13 to 14 feet per second, then where it discharges from the pipes it is about 10 feet per second so it is not faster than what is coming off of the property. 


            Mr. Wyant asked how stormwater will be handled at the proposed entrance into the property.  Mr. Gathright said he provided two Filtera Boxes along that travelway.  On the site there is no significant decrease in impervious area over what’s there now, and out in the right-of-way there is a significant paved area which will only be increased by about 1,400 square feet.  He said his intent is to over-detain in the bio-filter swale for any extra running off on that side.


            Mr. Wyant said Mr. Gathright talked about infiltration trenches being used for recharge.  Mr. Gathright said he showed on the last plan typical French drain things like gutters off of the back of the houses to catch the back half of the buildings. 


            Mr. Wyant said that is being used for the rooftops and then for the asphalt and the change in grades, it will be taken care of through the bio-filters.  Mr. Gathright said at this time he plans on sending that to the bio-filter.  He said that the one-acre exemption would allow him to leave the swale there.  He could put another Filtera Box in the corner of his parking lot and the pipe that takes it back out to the swale takes them to .8 acres.  There would be no need for significant grading to try and balance the cut and fill on the site so as not to haul it away.  He said there are other options.  His point was that they are so close to not having to do anything, from a conceptual standpoint he thinks they should be able to go forward from the preliminary plan.  


            Mr. Wyant said the County is trying to protect critical slopes, so he is looking for something with less environmental impact if he allows critical slope use.  If whatever is being done can be enhanced that is the position he is looking for.  Mr. Gathright said this will be the only water quality element in this entire neighborhood; the bio-filter is about three times larger than it needs to be with some notion that it will capture some runoff from houses to the north. 


            Ms. Thomas asked Mr. Gathright to point out the bio-filter (detention pond) locations on Diagram “A”.  Mr. Gathright replied that “detention” is a strong word for this.  He has essentially designed a bio-filter with some detention on top. 


            Ms. Thomas asked if it will receive drainage from the south watershed as well as from the north.  Mr. Gathright said “no.”  He noted that there are the two Filtera Boxes (which are in essence a mini bio-filter) on the south end of the site, and they would catch the first half-inch of runoff and then filter it through a compost type medium. 


            In response to Mr. Boyd’s question about maintenance of the bio-filters, Mr. Gathright indicated that the Filtera Boxes in many stormwater treatment structures are underground so they cannot be seen, and you do not know if they are working.  The bio-filter is in the open, and if there is standing water for any length of time, maintenance is needed.  The soil in it can be replaced.  Hopefully, as these things develop there will be mature trees and shrubs so they may or may not blend into the native environment, but it is a landscaping feature as well. 


            Mr. Boyd asked who maintains that bio-filter if it is not working.  Mr. Gathright said there is a question about any stormwater structure that is built.  For bio-filters, companies ask that you to sign a service contract.


            Mr. Boyd said as the County gets more bio-filters, he thinks it might come back on the County to take care of them.  He does not want that to happen.  Mr. Gathright said he does not see these as being any different from the old stormwater detention basins. 


            Mr. Davis said he would like to focus the Board’s discussion since it does not typically handle many of these requests.  He drew the Board’s attention to Section 4.2.5 of the Zoning Ordinance which sets out three findings that could be made.  If the Board makes any one of those findings then it may grant the critical slopes waiver.  If the Board cannot make any of those findings, the ordinance would not allow a critical slopes waiver to be granted.  It’s still an action that has some discretion in it, but that discretion can’t be exercised unless one of those findings can be made. 


            Mr. Davis said there are a number of factors that can be considered in whether or not a critical slopes waiver is appropriate, and one of those factors is whether or not excessive stormwater results from the disturbance of the critical slopes.  If the Board finds that disturbance of the critical slopes has created excessive stormwater, that is an issue which is separate from whether or not adequate detention measures can be imposed at the final site plan stage.  If the Board finds there has been excessive stormwater created by disturbance of the critical slopes as proposed, it would not be appropriate to grant the waiver unless it finds in the criteria set forth in the ordinance that there is a valid public purpose for still granting that critical slopes waiver in spite of that excessive stormwater being created.  He said the issue today is primarily the stormwater issue.  There are other factors which have been identified by staff.  The Board needs to determine if that is in fact a result of the disturbance of critical slopes, and whether or not an appropriate finding can be made that would allow the granting of the waiver. 


            Mr. Rooker said staff of the Engineering department recommended against approval of this waiver request.  He asked if anything presented today has changed that recommendation.


            Mr. Brooks said the applicant made a good presentation today, and he is sorry Engineering did not receive all of that information before they first reviewed the plan.  He said it is hard to reply without going over the calculations.  From a qualitative standpoint, if the critical slopes waiver were not granted would that large pipe pass through the site to collect stormwater and perhaps speed it up and put it on the neighbor. 


            Mr. Rooker read the comments of Engineering from the staff’s report.  He said a number of people living in the neighborhood were present to talk about the water problems they already have, problems they feel will be exacerbated by the amount of impervious surface and water coming off of this site.


            Mr. Brooks said one other thing not mentioned is the erosion control measures at the perimeter of the site.  When a site is developed this much, there is basically no perimeter at the property line, so it is hard to establish perimeter control measures that will keep the sedimentation measures well contained on the site.  At that point they start asking for offsite easements. 


            Mr. Rooker asked if this waiver were approved and the plan presented showed less than one acre of disturbance, would they be exempt from having to do any of things talked about?  The applicant made a case that if they disturbed less than an acre they were exempt from a number of the water quality, water volume requirements.  Mr. Brooks said they would be exempt from the detention requirement which is for water quantity control.  They are not exempt from water quality control.  On the front of the site where they are putting in the Filtera Boxes, there is no detention provided.  They would still have to do those little planter boxes for water quality.  The bio-filter in the back would still have to be provided. 


            Mr. Rooker asked if they would be required to slow down the volume of water coming off the site.  Mr. Brooks said Mr. Wyant referred to the State Code requirements for adequate channels.  If it affects the downstream channel, some detention can be required to try and mitigate that impact. 


            Mr. Slutzky asked if a conditioned waiver can be granted.  Mr. Davis said another way staff has dealt with issues like this in the past is to grant a critical slopes waiver conditional upon meeting certain standards.  Staff has not identified those conditions should the Board wish to grant the waiver conditionally. 


            Mr. Rooker said this area has substantial water problems today.  In this case the site is being developed to its maximum. He thinks that is part of the problem.  This site is sensitive with a lot of critical slopes in a neighborhood that does not generally have good water control measures.  This proposal is to basically max out the site which maxes out the impermeable surface.  At this time, the reasons that staff recommended denial of the waiver are still present.  He will not personally support this request because he is concerned that if this is built as proposed it will significantly increase water problems to the surrounding neighborhood.  He does not think there is any assurance that won’t occur.


            Mr. Slutzky asked if the applicant could withdraw the request, and let staff make recommendations for conditions that would be satisfactory to address the water issues, that would still allow the applicant to max out the site. 


            Mr. Rooker said there was mention of loss of aesthetic resources, so if a different plan with different information was presented, he would want it to go back to the Commission for review.  He said there was unanimous rejection by the Commission of this waiver request and staff also recommended denial.  He thinks the reasons for denial are still there. 


            Ms. Thomas said she walked over this site yesterday.  She knows that in general the County needs to encourage in-fill so the development area will be where people live.  It is not totally out of character with this neighborhood to have duplexes or triplexes.  She looked at the plan and thought that if they cut off one unit at each end, they would affect less of the critical slopes and also fit better with the character of the neighborhood.  She is favorably disposed to wanting this site to be developed as opposed to not wanting it to be developed.  She thought that more of the drainage issues were being handled, so she is no longer as favorably disposed.  The proposal uses so much of the land that there is no area left for the mitigation this site should have.


            Mr. Wyant said he did not know how the applicant arrived at the drainage shown on the plan.  He is concerned about the 30-inch pipe.  That pipe will pass a lot of water and could cause damage to adjacent property.  If that water could be handled differently he would look more favorably on this request.  He does not support a lot of curb and gutter and pipes because the County does not do any detention with pipes.  He is more for dispersing of water and the bio-filters, but the water still has to pass though pipes and the 30-inch pipe is the largest one on the plan.  He said the applicant cannot work on the channel downstream because he does not have an easement. 


            Mr. Boyd said this is not a public hearing, but he asked if there was anyone present who would like to comment.


            Mr. Dale Chadwick noted on a map the location of his house. He said there is an easement to get the water from this property down to his yard.  He said someone built a catchment and it is a 30-inch tube that runs under his yard right next to his house.  He said that maybe he owns that as well because no one takes care of it.  He was surprised to see that he may also be the owner of two of the filter boxes.  Mr. Gathright said they belong to the developer. 


            Mr. Chadwick asked who will take care of these boxes. Mr. Gathright said it would be the developer. 


            Mr. Chadwick said the existing house is not located on the site as shown on the plan; it is 15 feet from the boundary.  He said that is a concern for Ms. Cullen who lives there because she is so close.  She has some water coming through her basement.


            Mr. Dorrier asked the location of the pipe in relation to Mr. Chadwick’s house.  Mr. Chadwick said in the middle of the property is an outlet and it comes through his property as a creek.  They have an easement for the property where it starts, but not on his property, but they run the water on it.  Someone put a catchment there, so the water comes down and there is a 15-foot drop with a big steel thing over the top of it.  There is a 30-inch tube which runs from there down to the other creek where the water is dumped. 


            Mr. Dorrier asked if the 30-inch pipe bypasses Mr. Chadwick’s property.  Mr. Chadwick said it runs right through it; it is on his property. 


            Mr. Dorrier asked if it disperses on his land.  Mr. Chadwick said it does before it runs into the catchment, otherwise the water does not come out on his property.  When the creek got full of debris up above, then water ran over the catchment and down through their side yard.  He said that has only happened one time since they lived there.


            Ms. Margaret Faye Engel said she is the property owner on the other side, so is at the top of the water flow.  She thinks she will be entertaining a parking lot from her view.  She said one of these two lots could be characterized as a ravine.  The density of the development is the basis of her concern with the plan.  She understands the County is all about development, but she thinks it is to the max, plus Solomon Place is being developed at the other end of Solomon Road. 


            Mr. Davis there are a couple of procedural things he would like to suggest.  He said staff should be given an opportunity to further review the submittal that made today and if the Board can give staff a consensus position as to whether or not it is in favor of this, staff can then make some written findings for the Board to adopt so this decision can be well-supported.  If the Board can develop a consensus on that position, it should then defer this matter until March 7 to allow staff to prepare written findings for the Board to adopt to support its decision.  If the Board is inclined to support the waiver, appropriate conditions can be developed.  If the Board is inclined not to support it, staff can develop appropriate findings to support denial.


            Mr. Rooker said he thinks what was summarized in the staff’s report indicates that the applicant cannot provide adequate perimeter erosion and sediment control measures to protect adjacent properties.  The volume of water will increase coming off of this site.  And, granting the critical slope waiver would result in significant degradation of the site or adjacent properties. 


            Mr. Slutzky said he was going to suggest that the Board defer this appeal, send it back to staff and ask them to review the new information.  He would be interested in supporting this development at this location so long as the water control issue is adequately addressed by the proposal.  He would request that staff present a series of conditions sufficient to adequately address the water issues.  If that is possible and the applicant comes forward with a proposal to satisfy staff’s conditions, when it came back he would be inclined to support it.  Short of that, he would not.


            Mr. Rooker said he is concerned because there is a proposal that completely maxes out the number of units on the site, and part of that site is a ravine.  A lot of it is in critical slopes.  He said Mr. Cilimberg notes that there would be no significant perimeter left on the site.  He is not convinced that during rain storms there would not be significant runoff onto adjacent properties.


            Mr. Slutzky said he thinks staff should be allowed to address that issue in a technical way and set out conditions that would need to be met to satisfy that standard.  He said maxing out development of the property is another issue.


            Mr. Dorrier said he thinks the request needs to be looked at carefully.  He tends to agree with Mr. Slutzky and Ms. Thomas.  He read from Paragraph 2 of Section 6.5 of the Code which says a conceptual site development creates several potential drainage problems.  The conceptual SWM facility creates a concentrated flow from a 30-inch pipe that flows directly into the adjacent property.  “Directly into” is the magic language.  He said Mr. Chadwick said it flows through his property, so he doesn’t know if that means that when it spills over it goes into this property, or flows through his property.  He thinks there is more discussion needed about that issue.  Also, the Board needs to know whether the pipe keeps the water in its boundaries or whether it overflows that pipe and then overflows onto distance property owners.  The site is difficult, but it is in the development area.  He thinks it should be developed and if that is possible without harming the neighbors, the plan should be allowed to go forward.  


            Mr. Rooker said there could be plans for this site that might be less intense.  He is not saying the property is not proper for development of some kind.  The proposed intensity on this site which contains substantial amounts of critical slopes, and which is already surrounded by properties that have water problems, is somewhat less than optimum.  He thinks this plan is based on the fact that they think adjacent properties will be impaired. 


            Mr. Dorrier said a pipe was allowed in there to let it go past adjacent property.


            Mr. Rooker said that was in plan before; there was no change in that pipe.  Staff pointed out that it increases the volume and velocity of water leaving the site.  It concentrates the flow of water; it does not dissipate that flow. 


            Mr. Boyd asked Ms. Thomas for her comments.


Ms. Thomas said this plan shows too much disturbance of critical slopes so she does not believe the waiver should be granted.  She suggested the applicant bring back a different plan since she feels this is a developable property.


Mr. Wyant said he is not supportive of this waiver, mainly because of the drainage going through the property.  He asked staff and the applicant to look at that.  An open channel, not a paved channel, would create less velocity in the flow.  He does not know how the bio-filter would be worked in, but he would prefer that there not be a 30-inch pipe. 


Mr. Boyd said as a point of clarification he does not think there is enough support for the waiver, but that does not preclude the applicant from putting together another plan and coming back.  Mr. Davis said denial of the waiver would make the plan that has been submitted to the County not approvable.  The applicant can either amend this plan or submit a new plan to address the critical slopes issue. 


Mr. Boyd said if someone wants to makes a motion, they need to decide if it is better for the Board to move forward on this, or let the applicant ask for a deferral.  Mr. Tucker said if they submit a new plan it will have to go back through the Commission.


Mr. Davis said this plan has not been called up by the Commission, so it is a plan that is being reviewed by staff for other than the critical slopes waiver.  Once the Board makes a decision about the critical slopes waiver, staff will proceed to give additional comments or denial of the plan depending on how the developer wants to deal with it.  If the critical slopes waiver is denied and the developer wants to amend the plan, staff will review that amended plan.  If they choose not to, it would be denied. 


Mr. Boyd asked if the critical slopes waiver is denied if this appeal is denied forever.  Mr. Davis said a second plan could ask for a critical slopes waiver.  He said if the consensus of the Board is to not support the critical slopes waiver, he would recommend that the Board defer the appeal and let staff prepare a clear set of findings to adopt at a future meeting so the record would be clear as to the legal basis for denial. 


            Mr. Rooker asked that that take place.  He then moved to defer this item until March 7, 2007.  Ms. Thomas seconded the motion, which passed by the following recorded vote:


AYES:  Mr. Dorrier, Mr. Rooker, Mr. Slutzky, Ms. Thomas, Mr. Wyant and Mr. Boyd. 

NAYS:  None.




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