1997-05-12_REVISION - M1981302 (8)

Home Browse Search

1 Using land use control as an example: the original berm would be considered as a legally existing feature predating the applicable permit requirements. However, once the permit requirements came into effect, the berm became a "legal nonconforming" structure. This status would mean that while the berm could continue to exist in its pre-permit form, it could not be altered or expanded without making the entire feature conforming (i.e. , subject to permit requirements) . Therefore, under the County's regulatory approach, which involves basic grandfathering principles applicable here, the post-permit changes to the berm would require the entire feature to be evaluated in order to grant authorization for the changes. Based on this analysis, the Board of County Commissioners urges the MLRB to consider the proposed "technical revision" as a significant change to the existing permit. Even if the State were to confine its focus to the changes to the berm, those changes are not "technical" since they cannot be effectively reviewed in isolation from the other aspects of the amendment application. For example, the amendment application includes internal grading and drainage changes whose potential hydrologic impacts are of concern to the County. (See our April 17 letter at the second full paragraph on page 2. ) The drastic reduction in pond surface also has hydrologic implications or effects. It is totally illogical to review those changes as part of the amendment, and the berm changes as a technical revision. Sound public review procedures demand that all of these changes having potential floodplain or hydrologic balance impacts, be reviewed in a unified manner as part of the proposed amendment process. Western Mobile should not be allowed to circumvent the appropriate amendment review process by filing an after-the-fact technical revision request which may seem minor by itself, but which in reality, from a hydrologic standpoint, is inseparable from the other changes which the amendment application proposes. Second, the prehearing conference offered the idea that the Division Staff and the MLRB could condition any approval issued in this matter, to require that Western Mobile conform the berm to the flood control measures which the ongoing studies for the South Boulder Creek floodplain master plan are expected to produce. The City of Boulder, County of Boulder, and Urban Drainage and Flood Control District, which have contracted for such a study with Taggart Engineering Associates, expect that such measures may be developed by early fall of this year. The future adopted flood mitigation measures may or may not include the present berm. It is critical that the MLRB retain jurisdiction under the permit, through an appropriate condition placed on the proposed amendment, which allows the State to 3