HomeMy WebLinkAbout14025_Fairview Rd_Email Correspondence Property Uses_2021Jun181
Peacock, David
From:Peacock, David
Sent:Friday, June 18, 2021 3:48 PM
To:Tgrella@mwblawyers.com; Wahl, Tracy
Cc:Nicholson, Bruce
Subject:RE: [External] RE: NC Brownfields - New Matter - Fairview Road (14025-10-011)
Tom,
I’m doing well and thanks for asking. I hope that you are too.
I believe that the allowed uses listed in LUR 1 of the Notice, which includes retail, office and residential do not require
further DEQ approval. Notwithstanding, compliance with other land use restrictions does require additional
environmental plans prior to those allowed uses, mainly residential as you mentioned. In the case of “other commercial
uses,” I interpret that as broad “uses” not specifically falling within the residential, office and retail definitions already
allowed. So, I concur with your interpretation that the other commercial uses, though non‐specific, is separate of the
preceding list of uses not needing further approval. I understand the intent of having “other commercial uses” listed was
to make the property use more sellable for the PD and remain flexible for a follow‐on owner not knowing what
commercial uses they would what for the property. Thereby allowing DEQ to appropriately manage any related
exposure risks for a specific commercial enterprise when known.
As for your client’s intended use of the property, which I view as retail/office rental supply, and believe it would be a
combination of both of those already allowed uses. Rental supply being a more specific category of retail involving a
service, along with functional offices to operate the business and/or service.
I am sending this reply to the Brownfields Project Manager, Tracy Wahl, who may have further input on that particular
project’s interpretation of LUR 1 uses and/or your client’s would‐be operations at the Brownfields.
If you don’t receive correspondence within 5 business days from either Tracy or Bruce contrary to your and my
interpretations of the allowed uses, please allow this email to serve as our written clarification on the matter. I will be
absent all of next week and will not be able to respond until June 28th at the earliest.
Have a great weekend!
Sincerely,
DP
David Peacock
Environmental Senior Specialist, Brownfields - Division of Waste Management
North Carolina Department of Environmental Quality
1646 Mail Service Center
Raleigh, NC 27699-1646
910.796.7401 (Office) | 919.280.3408 (Mobile)
David.Peacock@ncdenr.gov
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
2
Join our Land Use Restrictions Update (LURU) reminder list: http://eepurl.com/cvVzfr
One‐Stop Project Data Gate (Map, Inventory, Documents): http://deq.nc.gov/brownfields‐sites‐and‐boundaries
From: Tom Grella [mailto:TGrella@mwblawyers.com]
Sent: Friday, June 18, 2021 11:19 AM
To: Peacock, David <david.peacock@ncdenr.gov>
Cc: Nicholson, Bruce <bruce.nicholson@ncdenr.gov>; Thompson, Jordan L <jordan.thompson@ncdenr.gov>
Subject: [External] RE: NC Brownfields ‐ New Matter ‐
CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to
Report Spam.
Hi David:
You may recall I had a matter that you folks helped us with back in December 2020 and January this year, on the
Hillsborough property. I have another matter, and not knowing who might be able to help, I thought I would reach out
to you. I hope that you are doing well.
Anyway, things are (real property is) really moving here in Asheville, and I have another client purchasing a Brownfields
property. The original restrictive covenant is attached. I have made it very clear to the attorney on the seller side that I
need him to put the proper and required language in the deed regarding the covenant. I have also checked and it
appears that the current owner has appropriately and timely filed LURs as he should. Here is the issue:
If you look at the Brownfields Agreement, there are two issues:
First, the wording on page 2 under “Land Use Restrictions” is a bit confusing. The first sentence of #1 could be
interpreted in one of two ways. It could be interpreted that any of the listed uses need prior written approval, or it could
be interpreted that only “other commercial uses” need prior written approval but those defined as “retail, office,
residential” do not (though residential has its own set of requirements below – and we are not interested in residential
at all anyway). It is my belief that the only logical reading is that the prior written DENR approval wording is in reference
to “other commercial uses” however the lender (and of course there is a lender funding the purchase) needs to know
DENR believes that is what the wording means.
Second, my client intends to open up another location of its business in the building. The business stores and leases out
event/party equipment. The best way to show you is to simply provide a link:
https://professionalpartyrentals.com/
As you can see from the link, they generally “rent” the party equipment. At the facility they will store it, but also do the
typical office work that any business needs, and take calls and orders for events. Technically, what they do does not
seem to fit under Retail, since that is “sale” of goods. I am thinking it might fit under the term “office” as a place where
business services are conducted. Again the wording is not clear for our specific facts, as the service to customers actually
occurs at an event location, but there is work going on in the building where the business is located. I think there
definitely will include activities traditionally recognized as “office” work. Once again, the lender will want clarity that if
they lend money for this business that the business activity is included in what is permitted on the property.
If we need anything from the present owner, I can obtain that from him (George Morosani), through his lawyer.
If I need to send this inquiry elsewhere please let me know. I suspect if DENR is willing an email of clarity might be all we
need for the lender, unless they ask for some formal letter.
3
Thanks for your help, and please let me know if you need any other information.
Tom Grella
Attorney
Phone 828-254-8800
Fax 828-641-9150
Website www.mwblawyers.com
CONFIDENTIALITY NOTICE: This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it
is addressed. If you have received this transmission in error, please notify the sender and delete the original. Unintended transmission shall not
constitute a waiver of the attorney-client or any other privilege.