98-0015_Perl, Marjorie_19980731

]?AMLICO 98-0015
Local Government CAMA P rmit Number
AU J'�
MORDEVELOPMENT �74
PERMIT -�
as authorized by the State of North Carolina, Department of Environment
I -A
and Natural Resources and the Coastal Resources Commission for development
in an area of environmental concern pursuant to Section 113A-118 of the
General Statutes, "Coastal Area Management."
Issued to MARJORIE PERL authorizing development in ESTUARINE SHORELINE
at Lot 72, Sea Vista, Whitaker Point Rd., Oriental, NC
adjacent to Whitaker Creek as requested in the permittee's application, dated June 17, 1998
This permit, issued on July 31 , 1998 is subject to compliance with the application and site drawing (where consistent
with the permit), all applicable regulations and special conditions and notes set forth below. Any violation of these terms may subject
permittee to a fine, imprisonment or civil action, or may cause the permit to be null and void.
1. Any additional development within 75 of Normal Water Level and not shown on the
-work plat dated June 17, 1998 may require permit modification. Permittee shall
contact the Local Permit Officer for such determination.
2. All construction must conform to the Nor-th Carolina Building Code requirements
and all other Local, State and Federal regulations.
3. No wetlands are to be filled or excavated.
4. Issuance of this permit does not relieve the permittee of the requirement for
compliance with the North Carolina Division of Water Quality's Neuse River
Basin Rules. To ensure compliance, the permittee should contact Ms. Deborah
Sawyer in the Washington Regional Office at 919-946-6481.
This permit action may be appealed by the permittee or other
qualified persons within twenty (20) days of the issuing date.
From the date of an appeal, any work conducted under this per-
mit must cease until the appeal is resolved.
This permit must be on the project site and accessible to the
permit officer when the project is inspected for compliance.
Any maintenance work or project modifications not covered
under this permit requires further written permit approval.
All work must cease when this permit expires on December
31, 2001
In issuing this permit it is agreed that this project is consistent
with the local Land Use Plan and all applicable ordinances.
This permit may not be transferred to another party without
the written approval of the Division of Coastal Management.
rm
Skip Lee, Local Permit Officer
Pamlico County Building Inspections name
PO Box 776`
Bayboro, NC 28515
address
[phone]
Permittee
(signatur equrdpecial conditions above apply to permit)

MICHAEL F. EASLEY
ATTORNEY GENERAL
Mr. John R. Sutter
Post Office Box 481
Whittaker Point Road
Oriental, N.C. 28571
Mr. Edward Perl
710 East Rosemary Street
Chapel Hill, N.C. 27514
s
State of North Carolina
Department of .justice
P. O. BOX 629
RALEIGH
27602-0629
September 11, 1998
Re: Request for Contested Case Hearing
Dear Mr. Sutter and Mr. Perl:
yf
REPLY TO Robin W. Smith
Environmental Division
Tel. [phone]
Fix [phone]
SEP 14 1998
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Enclosed please find the order signed by the Chairman of the Coastal Resources Commission, Mr.
Eugene B. Tomlinson, Jr., denying Mr. Sutter's hearing request concerning CAMA Minor Development
Permit No. 98-0015. Mr. Sutter may appeal the Chairman's order by filing a petition for judicial review
in superior court within thirty days after receiving the order. A copy of the judicial review petition must
also be served on the Coastal Resources Commission's agent for service of process at the following
address:
General Counsel
Dept. of Environment, Health and Natural Resources
P.O. Box 27687
Raleigh, N.C. 27611
As indicated earlier, the applicant;may begin or resume construction as authorized under the
permit. Please call if you have any questions.
e--�
Robin W. Smith
Special Deputy Attorney General
cc: Skip Lee
Ted Tyndall
David Heeter
ep/27575

STATE OF NORTH CAROLINA BEFORE THE CHAIRMAN
COASTAL RESOURCES COMMISSION
COUNTY OF PAMLICO CMT 98-06
IN THE MATTER OF: ) SEP 14 1888
REQUEST FOR CONTESTED )
CASE HEARING BY JOHN ) FINAL ORDER
AND MADELINE SUTTER 1
This matter came on before the Chairman of the Coastal Resources Commission as a request
for a contested case hearing pursuant to N.C.G.S. § 113A-121.1 and 15A 7J.0301. John and
Madeline Sutter (hereinafter "Petitioners") filed a Third Party Hearing Request pursuant to N.C.G.S.
§ I I3A-121.1 seeking permission to file a Contested Case Petition to challenge the issuance of
CAMA Minor Development Permit No. 98-0015 by the Pamlico County CAMA local permit officer
(LPO). The permit was issued to Marjorie Perl for construction of a single family residence
adjacent to the western branch of Whitaker Creek in the Town of Oriental, Pamlico County, North
Carolina.
Upon consideration of the petition for contested case hearing and the recommendation of the
Division of Coastal Management, Department of Environment, Health and Natural Resources, the
Chairman makes the following:
FINDINGS OF FACT
1. On July 31, 1998, the Pamlico County Local Permit Officer issued CAMA Minor
Development Permit No. 98-0015 to Marjorie Perl.
2. Permit No. 98-0015 authorizes the construction of a single family dwelling on
Whitaker Point Road adjacent to the western branch of Whitaker Creek in the Town of Oriental,
Pamlico County.

2
3. John and Madeline Sutter own property immediately adjacent to the Perl property.
4. During the review of Marjorie Perl's permit application, the Sutters objected to the
proposed house on the ground it would violate Rule 15A NCAC 2B .0233 adopted by the
Environmental Management Commission (EMC) to provide for a riparian buffer adjacent to
waterbodies within the Neuse River Basin.
5. Rule 15A NCAC 2B 0233 provides that no new development shall be allowed
within the 50 foot vegetated buffer (Zone 1 plus Zone 2) adjacent to certain waterbodies within the
Neuse River Basin, including the western branch of Whitaker Creek. The buffer "begins at the top
of bank or mean high waterline and extends landward ..., measured horizontally on a line
perpendicular to the waterbody." Rule 15A NCAC 2B .0233 (3)(a)& (b).
6. After Permit No. 98-0015 was granted, the Sutters timely filed a Third Party Hearing
Request with the CRC's Chairman seeking permission to file a Contested Case Petition with the
Office of Administrative Hearings to contest said Permit.
7. In the hearing request, the Sutters contended that the residence as permitted violates
the riparianbuffer established by the EMC and thus Permit No. 98-0015 violates Rule 15A NCAC
7H. 0601 of the CRC which provides that "No development shall be allowed in any AEC which
would result in a contravention or violation of any rules, regulations, or laws of the State of North
Carolina or of local government in which the development takes place."
8. The "mean high water level" is generally defined as the "mean or average high -tide
and not as the extreme height of the water".. Carolina Beach Fishing Pier, Inc., v. Town of Carolina
Beach, 277 N.C. 297, 303, 177 S.E.2d 513, 516 (1970).
9. There is a pocket of irregularly flooded coastal wetlands on the Perl lot where it fronts

3
on Whitaker Creek. The pocket of coastal wetlands is populated by Cord Grass (Juncus
roemerianus) and Salt Reed Grass (Spartina cynosurodies) which are so-called high marsh species
that do not grow in standing water.
10. The Estuarine Shoreline Area of Environmental Concern (AEC) is measured from
the normal water level of Whitaker Creek. 15A NCAC 7H.0209. "Normal water level" is defined
in Rule 15A NCAC 7H .0106(2) as "the. level of water bodies with less than six inches of lunar tides
during periods of little or no wind. It can be determined by the presence of such physical and
biological indicators as ... water lines [and] marsh grasses."
11. Based on the nature of the wetland vegetation on the Perl property, the normal water
level is waterward of the wetland boundary and the porch of the house permitted under CAMA
Minor Development Permit No. 98-0015 intrudes only approximately six feet into the 75 foot AEC.
Thus, the house is located approximately 69 feet landward of the normal water level.
12. After Permit No. 98-0015 was granted, Ms. Perl's Surveyor consulted with the
Geodetic Survey Section, N.C. Department of Environmental and Natural Resources, and produced
a Survey showing that the house as permitted was located more than "50' FROM MEAN HIGH
WATER".
13. Petitioners' hearing request does not state any factual basis for locating mean high
or normal water level on the Perl property further landward based on either actual water levels or the
nature of the wetland vegetation.
14. For the reason cited above, Petitioners failed to allege facts or make legal arguments
demonstrating that the request for the hearing is not frivolous within the meaning of the statute
Based on the foregoing Findings of Fact, the undersigned makes the following:

4
CONCLUSIONS OF LAW
1. For purposes ofN.C.G.S. § 113A-121.1(b), Petitioners are directly affected by the permit
decision in that petitioners own real property adjacent to the project site.
2. Petitioners' hearing request implicitly alleged a violation of coastal management rule 15A
NCAC 7H.0601 in alleging that the permitted residence would be in violation of the Environmental
Management Commission's Neuse River Basin buffer rule, 15A NCAC 213.0233.
3. Petitioners failed to allege facts sufficient to show that there is a controversy as to the
proper location of mean high or normal water level on the Perl property and therefore controversy
as to location of the permitted house in relation to the buffer mandated under 15A NCAC 2B.0233.
Therefore, Petitioner's request for a contested case hearing is hereby DENIED.
This the ,� day of September, 1998.
Euge)e B. Tomlinson, Jr., Chairman
Coastal Resources Commission `�

MICHAEL F. EASLEY
ATTORNEY GENERAL
d 'SUTrv�
=C
State of North Carolina
Department of Justice
P. O. BOX 629
RALEIGH
27602.0629
September 1, 1998
Mr. John R. Sutter
Post Office Box 481
Whittaker Point Road
Oriental, N.C. 28571
Re: CAMA Hearing Request
Dear Mr. Sutter:
�D I
SEA Q 4 1998
REPLY TO Robin W. Smith
Environmental Division
Tel. [phone]
Fax [phone]
The Chairman of the Coastal Resources Commission has decided to deny your hearing
request concerning CAMA Minor Development Permit No.98-0015. You will receive an order,
signed by the Chairman, setting out the basis for his decision. You may appeal the decision by
filing a petition for judicial review in superior court within thirty (30) days after you receive the
order.
As a result of the Chairman's decision, Mr. and Mrs. Perl may begin or resume
construction as authorized under the permit.
Please call if you have any questions.
Si ely,
Robin W. Smith
Special Deputy Attorney General
cc: Skip Lee /
Ted Tyndall ✓
David Heeter
ep/27323

�d r�
State of North Carolina SEP 04 1998
MICHAEL F. EASLEY Department of Justice
ATTORNEY GENERAL P. O. BOX 629 REPLY TO Robin W. Smith
RALEIGH Environmental Division
27602 0629 Tel. (919) 71"6W
Fax (919) 71"767
September 1, 1998
Mr. and Mrs. Edward Perl
710 East Rosemary Street
Chapel Hill, N.C. 27514
Re:CAMA Hearing Request
Dear Mr. and Mrs. Perl:
The Chairman of the Coastal Resources Commission has decided to deny the hearing
request submitted by Mr. John Sutter concerning CAMA Minor Development Permit No. 98-
0015. You will receive an order, signed by the Chairman stating the reasons for his decision.
As a result of the Chairman's decision, you may begin or resume construction as authorized
under the permit. Please be advised, however, that Mr. Sutter may appeal the Chairman's decision
by filing a petition for judicial review in superior court within thirty (30) days after receipt of the
order.
Please call if you have any questions.
Si
Robin W. Smith
Special Deputy Attorney General
cc: Skip Lee
Ted Tyndall
Dave Heeter
ep/27324

710 EAST ROSEMARY STREET
CHAPEL HILL, NORTH CAROLINA 27514
September 3, 1998
Mr. Carl 011ison
Chairman, Coastal Resources Commission
State of North Carolina
c/o Department of Justice
Environmental Division
P.O. Box 629
Raleigh, NC 27602-0629
Dear Mr. 011ison:
RECEIVED
SEP 10 1998
COASTAL MANAGEMENT
The procedures and problems related to obtaining necessary permits to construct a small
dwelling on our water front property in Oriental have proven much more difficult and time-
consuming than we ever imagined on starting some 7 months ago. We are grateful for the latest
step, the denial of the request for an administrative hearing on the CAMA Minor Development
Permit (98-0015) for our proposed house. We thank you and your staff for that decision.
We take consolation in the effort and expense with the hope that our situation will provide
clarification of application of the DWQ Neuse River regulations to Pamlico County for others.
I also write to call to your attention the assistance given us by several persons in navigation of
the new and poorly charted specifics of regulations for the Neuse River Drainage.
First we wish to acknowledge and thank Mr. Skip Lee, the CAMA LPO, and his assistant, Ms.
Amy Spruill, who, while insisting we follow rules and procedures, were fair, open, helpful and
courteous. They went out of their way to give information and advice..
Mr. Ted Tyndall, DCM (Morehead City) and Ms.Adrienne Himer, Planner for Pamlico County
also went to extra effort to provide us and the surveyor with information necessary to determine
what was needed to apply the relevant regulations and to establish appropriate points of
measurement.
We are pleased by our contacts with these State and Pamlico County employees and believe they
all deserve praise.
Sincerely,
�ll /C4/1
Xw-"Z, � SEP 17 1998
rjorie P. Perl. Edward R. Perl
c.1&. Martin Beach
Manager, Pamlico County