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HomeMy WebLinkAboutBH_09-12_KueyATTACI- NMNT E Village of Bald Head 2009.12y- Islan4 ftmit Number Local Government b o A _4 ANOR DEVELOPMENT RMIT__ as authorized by the State of North Carolina, Department of Envlronmentr and Natural Resources and the coastal Resources Commission for devield0 mt in an area of environment concem pursuant to Section 113A-118 ofttle- General'Statutes,'Coastal Area Management" .. Issued to Natafe Kuey, authorizing development in the Ocean Hazard (AEC) at 230 Station House Way, Lot 4030, to Bald Head Island, as requested in the permittee's application, dated September 28, 2 09, This permit, issued on October 9. 2009, is subject to compliance with the application and site drawing (where�corsistent with the permit), all applicable regulations and special conditions and notes set forth ,below. Any violation of these .terms may subject permlttee to afine, imprisonment or civil action, or may cause the permit to be null and void. This permit authorizes: construction of a rev; single family residence. (1) All proposed development and associated construction must be done in accordance with the permitted work plat drawings(s) dated„ received on September 28, 2009. (2) All construction must conform to the N.C. Bulld)ng. Code -requirements _and all other local, State and Federal; regulations, applicable local ordinances and FEMA Flood Regulations. (3) Any change or changes in the plans for development, construction, or land use activities will Milne a re-evaluation and modification of this permit, (4) A copy of this permit shall be posted or available on site. Contact this office at 910-467-970D'tiar a final inspection at completion of work. (Additlonai Permit Conditions on Page 21 This permit action may be appealed by the per lllee or other qualifled persons within twenty (20) days of the issuing date. From the date of an appeal, any work conducted under this permit must cease unt1 the appeal Is resolved: This permit must be on tba4wi6v.. site and accessible to the permit officer when the project is lisp ed for complianca Any maintenance work or project modiflcanor not covered under this penNt, require further Written peant approval. All work must ce"eii this pemit expires on: DECE,7SR 31 2012 In Issuing this permit It is agreed thatIhi; project Is cans'slent with the local Land Use Plan and all applicable ordinances. This permll may not be Iransferred to another pant vviihotit the written approval of Iha Division of Coastal Manaciellenl. OCT-28-2009 10:47AM From: Daralyi�bauj CAMA LOCAL PERMIT OFFICIAL PO Box 3009 Bald Head Island, NC 28461 �0 VIAEE ISIrnah ve. rprutlmd If mAdifinris above anoty in nermitl IO:PREVATTE PREvATTE Paee:003 R=100: STATE OF NORTH CAROLINA BEFORE THE CHAIRMAN COASTAL RESOURCES COMMISSION COUNTY OF BRUNSWICK CMT-09-13 IN THE MATTER OF THE THIRD PARTY RECOMMENDATION OF THE HEARING REQUEST BY DIVISION OF COASTAL KEVAN BUSIK MANAGEMENT I. BACKGROUND Petitioner Kevan Busik (Petitioner) requests permission to file a petition for a contested case hearing as a third party pursuant to N.C.G.S. § 113A-121.1(b). Petitioner seeks to challenge the October 9, 2009 issuance of Coastal Area Management Act (CAMA) Minor Permit No. 2009-12, issued by Daralyn Spivey, the CAMA Local Permit Official (LPO) for the Village of Bald Head Island (Village) to Natale Kuey (Permittee), the representative for the landowner, 1118 Longwood Avenue Realty Corporation (Longwood). Under the CAMA, a third party may file a contested case hearing petition to challenge the granting or denial of a CAMA permit to someone else only if the Coastal Resources Commission (CRC) first determines that a contested case hearing is appropriate_ N.C.G.S. § 113A-121.1(b) provides that along with being timely filed, the determination as to whether a hearing is appropriate should be based upon a consideration of whether the petitioner:. 1. Has alleged that the decision is contrary to a statute or rule; 2. Is directly affected by the decision; and 3. Has alleged facts or made legal arguments that demonstrate that the hearing request is not frivolous. The CRC has delegated the authority to. its Chairman to determine whether a third party request for a hearing should be granted or denied. Rule 15A NCAC 7J .0301(b). A third party Page 1 of 11 whose hearing request is granted may file a contested case hearing petition with the Office of Administrative Hearings. N.C.G.S. § 113A-121.1 (b) A third party whose hearing request is denied may seek judicial review. Id. II. FACTS A. The Permittee is Ms. Natale Kuey (Permittee), acting as the representative for the property owner of record, 1118 Longwood Avenue Realty Corporation (Longwood), a New York corporation. This entity was incorporated in New York on July 11, 1995 and is an active corporation according to the state's corporation website. Longwood owns property known as Lot 4030 of Cape Fear Station Single Family 14 Subdivision (Map 23/538) on Bald Head Island (the site). Longwood has owned this property since March 24, 2003, as evidenced by a deed recorded at Book 1720, Page 60 of the Brunswick County Registry. Currently this site is undeveloped. B. Petitioner owns Lot 4032 of Cape Fear Station Single Family 14 Subdivision (Map 23/538), also on Bald Head Island. This lot is located adjacent to, and to the north of the site at issue in this case. Petitioner has owned this lot since May 11, 2009, as evidenced by a deed recorded at Book 12924, Page 904 of the Brunswick County Registry. Currently, Petitioners' property has a 4,797 square foot home located on it, which was built in 2005. C. The site is located adjacent to the Atlantic Ocean, and the proposed residence is within the High Hazard Flood and Ocean Erodible Area sub -categories of the Ocean Hazard Area of Environmental Concern (AEC). Accordingly, any development on this site requires a CAMA permit perN.C.G.S. § 113A-1.18. D. At this site, the applicable long-term annual erosion rate per 15A NCAC 7H.0304 is 2.0 feet per year. Page 2 of 11 E. In this case, the Perlmttee's agent incorrectly listed the total enclosed floor area of the building within the AEC as 6,500 square feet. He based his calculation on the old setback 8 F A -+s+Ar — rules which included roof -covered deck areas. The Commission's "new" setback rules, which went into effect on August 11, 2009, no longer include roof -covered deck areas as total enclosed floor area. Based on the construction drawings and the application submitted for a building permit, the LPO calculated the total of the heated or air-conditioned living space, including the two stories of the house and the crofter over the garage, as 4,878 square feet. Per the definition in 15A NCAC 7H.0306(a)(1), this is the figure to use to determine the setback. A copy of the �q D1 building permit application is attached. F. Since the applicable long-term erosion rate is 2 feet per year, and because the ¢aq1 proposed house has a total of 4,878 total floor area based on the definition found at 15A NCAC 7H.0306(a)(1), the resulting applicable setback for the proposed development is 60 feet, per 15A NCAC 7H.0306(a)(2)(A). G. On or about September 28, 2009, the Village's received an application for a CAMA minor permit from Mr. Wayne Lambert, Agent for the Permittee. The Permittee was f acl-a. proposing to develop a 4,878 square foot single family residence and associated landscaping. A copy of the CAMA permit application and plat drawing is attached. H. As part of the CAMA minor permit review process, the Permittee sent notice of the proposed project to the adjacent riparian owners, which includes the Petitioner. USPS tracking shows that Petitioner received the notice on September 30, 2009. No objection letters were received before the permit was issued. The required notice to the public through a newspaper ad and posting on -site was also completed. Page 3 of 11 I. On October 9, 2009 T&e Village's LPO issued CAMA Minor Permit No. 2009- 12 to the Permittee. I On October 21, 2009, the Village received an objection letter from Attorneys Prevatte & Prevatte, PPLC representing Petitioner. A copy of this objection letter is attached. K. On or about October !�, 2009 (Heather is getting this), as part of the LPO permit program review process, staff from the DCM Wilmington Regional Office reviewed the permit, and after spotting the incorrect figure of a 6,500 square foot enclosed floor area structure only using a 60-foot setback, contacted the LPO and resolved the issue. It was found that the correct figure for the heated or air conditioned living space under the "new" rule and definition ya9I- was actually 4,878 square feet. L. On October 28, 2009 the Village faxed a letter to Petitioner's counsel notifying them of the permit issuance on October 9, 2009 and the appeal rights for third -parties under the CAMA which had to be received by DCM within 20 days of the permit issuance date. A copy of this letter is attached. M. On October 31, 2009, DCM received this third parry hearing request from Petitioner, seeking to challenge the issuance by DCM of CAMA Minor Permit No. 2009-12. Page 4 of 11 ATTACHMENT A: Copy of INDEX OF ATTACHMENTS 2 ATTACHMENT B: Copy of CAMA minor permit application ATTACHMENT C: Copies of objection letter ATTACHMENT D: Copy of ATTACHMENT E: Copy of ATTACHMENT F: Copy of CAMA Minor Permit No. ATTACHMENT G: Copy of Petitioners' Third Parry Hearing Request Page 11 of 11 III. DCM'S RECOMMENDATIONS A. Was the appeal of the permit timely filed? No. As an initial matter of jurisdiction, the CAMA specifically requires that third parties ... may file a petition for a contested case hearing only if the Commission determines that a hearing is appropriate. A request for a determination of the appropriateness of a contested case hearing shall be made in writing and received by the Commission within 20 days after the disputed permit decision is made. N.C.G.S. § 113A-121.1(b) (emphasis added). Petitioners take issue with CAMA Minor Permit No. 2009-12, which was issued by the Village CAMA LPO on October 9, 2009. The 20-day appeal period to file a hearing request petition expired on October 29, 2009. Petitioner's counsel was made aware of this fact on October 28, 2009, through a faxed letter from the Village, but still failed to submit its appeal to DCM in time. Therefore, the CRC and the Office of Administrative Hearings (OAH) lack jurisdiction to consider the merits of this untimely Petition. North Carolina case law is clear that an untimely filing cannot be considered by OAH or other courts as they lack jurisdiction over the matter. "North Carolina cases interpreting administrative laws have consistently held that a contested case petition to challenge an agency's decision must be filed within the statutory deadline." Gaskill v. State, 109 N.C. App. 656, 658, 428 S.E.2d 474, 475, disc. rev. denied, 334 N.C. 163 (citing Gummels v. N.C. Dept. of Human Resources, 98 N.C. App. 675, 392 S.E.2d 113 (1990)). If a petition is not filed before the statutory deadline, the court does not obtain subject matter jurisdiction. Gaskill, 109 N.C. App. at 660, 428 S.E.2d at 476; see also Gummels, 98 N.C. App. at 678, 392 S.E.2d at 115 (holding the trial court properly affirmed the ALTs dismissal of the petition for a contested case hearing that was filed in OAH one day late); Lewis v. N. C. Dept. of Human Resources, 92 N.C. App. Page 5 of 11 737, 741, 375 S.E.2d 712, 715 (1989) (upholding the dismissal of an employee grievance appeal because it was filed one day late). Subject matter jurisdiction is not waivable by the court or either party. See Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417 (1971). Under N.C. Gen. Stat. § IA-1, Rule 12(h)(3), when a court lacks jurisdiction of the subject matter, the court shall dismiss the action. As Petitioner's hearing request, received by DCM on October 30, 2009, was after the statutory 20-day deadline to file, the appeal period had elapsed and the Petition was one -day late. Petitioner's untimely filing results in the CRC and OAH lacking jurisdiction to consider the merits of Petitioner's hearing request. Notwithstanding the argument for lack of jurisdiction, if the Commission finds that Petitioners' petition was timely filed and that it has jurisdiction to consider the merits of the petition, Staff offer the following responses to the statutory criteria which Petitioners must prove in order to have the right to file a contested case petition in the OAH B. Has the Petitioner Alleged that the Decision is Contrary to a Statute or Rule? Yes. In order to prevail in a third party hearing request, a petitioner must first allege that the agency has made a decision that is contrary to a statute or rule. N.C.G.S. § 113A- 121.1(b)(1). Petitioner states that "Petitioner alleges that the decision is contrary to a Coastal Area Management Act Rule" and then attached a copy of the text of Rule 15A NCAC 7H.03061 . Staff agrees that the Petitioner has "alleged that the agency has made a decision that is contrary to a statute or rule" insofar as Petitioner has alleged the CAMA permit is contrary to 15A NCAC 711.0306. For this reason, Staff agrees Petitioners have met the requirements of N.C.G.S. § 113A-121.1(b)(1). 'Petitioner attached a copy of the "new" version of 7H.0306 which became effective in August 2009 and which was used for this permit review. Page 6 of 11 C. Is the Petitioner Directly Affected by the Decision? No. Staff does not agree that Petitioners meet the requirements of N.C.G.S. § 113A- 121.1(b) (2). Petitioner first states that "Petitioner owns a home located adjacent to the subject property." (Petitioner's Petition, Exhibit item 2) Adjacent ownership alone fails to qualify a person as directly affected, without further information about possible harm. Petitioner also notes that, Location of house on proposed site interferes with the use and enjoyment of Petitioner's property in that it obstructs Petitioner's view, is substantially closer to the ocean and could possibly damage Petitioner's property in the event of a storm. (Petitioner's Petition, Exhibit item 3) Staff contends that Petitioners' stated concerns about view are not the focus of the Commission's rules for development within the Ocean Hazard AEC. According to 15A NCAC 7H.0303 and 7H.0306(a), the purpose of the rules is to protect life and property. Also, Petitioner's allegation that the permitted development "could possibly damage Petitioner's property in the event of a storm" is much too speculative to base a whole contested case on, and could also be made by any oceanfront owner against any other oceanfront owner on the coast. The Commission's rules at 15A NCAC 7H.0303 recognize that "absolute safety from the destructive forces indigenous to the Atlantic shoreline is an impossibility for development located adjacent to the coast." To have a contested case on this issue would be futile. For all these reasons, Staff contend that Petitioner fails to meet the requirements of N.C.G.S. § 113A- 121.1(b)(2). Page 7 of 11 D. Has the Petitioner Demonstrated that the Hearing Request is not Frivolous? No. Staff contend that Petitioner has failed to demonstrate that the hearing request is not frivolous as required by N.C.G.S. § 113A-121.1 (b)(3). Petitioner alleges that the "new" oceanfront setback rules at 15A NCAC 71-1.0306 were not met. While the incorrect figure on the CAMA permit application is misleading, further examination of the facts by the LPO and by DCM staff last week as part of the LPO permit program review process and again through this 4,;I-9j-- staff recommendation, show that the 4,878 square foot total floor area structure must only meet the 60-foot setback from the vegetation line. As that setback is met by the proposed and permitted development, there is no reason to have a contested case on this issue. For this reason, Staff contends that Petitioners have not met the burden of showing that the hearing request is not frivolous as required by N.C.G.S. § 113A-121.1 (b)(3). Page 8 of 11 IV. CONCLUSION In conclusion, Staff maintains that Petitioner has not met the criteria justifying a contested case hearing. For the reasons stated herein, the Division of Coastal Management, through its undersigned attorney, recommends that Petitioner's Third Party Hearing Request be DENIED by the Chairman. This the _ day of November, 2009. FOR THE DIVISION OF COASTAL MANAGEMENT ROY COOPER ATTORNEY GENERAL Christine A. Goebel Assistant Attorney General N.C. Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001 (919)716-6600 (919) 716-6767 (FAX) cgoebel@ncdoj.gov Page 9 of 11 CERTIFICATE OF SERVICE This is to certify that I have served a copy of the attached Recommendation of the Division of Coastal Management on Petitioners' counsel by causing a copy thereof to be placed in the United States Postal Service bearing sufficient postage for delivery by first class mail and addressed as follows: James R. Prevatte, Jr., Counsel for Petitioner PO Box 10969 Southport, NC 28461 And emailed to: jimp@prevatte-prevatte.com And to the Permittee: Natale Kuey 2 Cabin Ridge Road- C Chappaqua, NY 10514 and to the Permittee's Agent: Wayne Lambert Custom Built Homes PO Box 3180 Bald Head Island, NC 28461 This the _ day of November, 2009. Christine A. Goebel Assistant Attorney General Page 10 of 11 L I � • Correspondence Tracking System 00312200903532 suety Civil Summons: Kevan Busik v. Robert R. Emory of CRC and DCM Received 12/17/2009 via Letter Legal issue for Mary Penny Thompson Issued 12/15/2009 by Cynthia W. Baldwin of Shanklin & Nichols, LLP ** For Recipient Use Only ** Po: )ate: tespond By: 4ease' Prepare a reply for my signature and return to me. Reply, noting the letter was referred to you by me. ' Prepare a reply for the Governor's signature and return to me. Reply, noting the letter was referred to you by the Governor. ' For your information, Take appropriate action Note and file. Note and return to me. Note and see me about this. Your comments and/or recommendations. Copy to Secretary's Office Remarks tp://ibeam.enr.state.nc.us/os/dts/print.do?dispatch=crsdProfile&id=3532 12/18/2009 KENNETH A. SHANKLIN" MATTHEW A. NICHOLS" COLIN J. TARRANT CYNTHIA W. BALDWIN SHANKLIN & NICHOLS, LLP ATTORNEYS AT LAW 214 MARKET STREET POST OFFICE BOX 1 347 WILMINGTON. NORTH CAROLINA 28402-1347 TELEPHONE (91 O) 762-9400 • TELEFAX (91 O) 251-1773 E-MAIL: SHANKLAWOEARTHUNK.NET December 15, 2009 VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED #7114 8008 6004 2388 7623 North Carolina CRC c% Mary Penny Thompson, General Counsel 1601 Mail Service Center Raleigh, NC 27699 JEC .. .J�. ;.E-s.O _. Tl+.-SF4•L,II(u�4'Wy�e.." BOARDCERTIFIEDSPECIAU] IN REAL PROPERTY LAW -RESIDENTIAL SUSINE55, COMMEROALAND INDUS IALTRANSARCNS "ALSO ADMITTED IN NEW YORK Re: Kevan Busik vs. Robert R. Emory, in his capacity as Chairman of the North Carolina Coastal Resources Commission, et al. Brunswick County File No. 09 CVS 3421 Our File No. 09074.001 Dear Ms. Thompson: Please find enclosed Civil Summons and Petition for Judicial Review, in the above referenced matter. With best regards, I remain Very truly yours, Cynthia W. Baldwin CWB/js Enclosures ROY COOPER ATTORNLN GENGRAL Kevan Busik 6603 Route 202 New Hope, PA 18938 James R. Prevatte, Jr. P.O. Box 10969 319 n. Howe Street South Port, NC 28461 Natale Kuey 2 Cabin Ridge Road — C Chappaqua, NY 10514 Wayne Lambert Custom Built Homes P.O. Box 3180 Bald Head Island, NC 28461 State of North Carolina Department of Justice PO Box 629 Raleigh. North Carolina 27602 November 13, 2009 REPLY TO: Jennie Wilhelm Hauser Environmental Division Telephone: 919/716-6600 Fax: 919nl6-6767 CERTIFIED MAIL RETURN RECEIPT REQUESTED CERTIFIED MAIL RETURN RECEIPT REQUESTED and electronically iimp@orevatte-prevatte.com U.S. Mail RVIeurml Re: Third Party Hearing Request CMT09-13 for CAMA Minor Permit 2009-12 Dear Messrs. Busik, Prevatte, Kuey, and Lambert: The Chairman of the Coastal Resources Commission has decided to deny the request for a third party hearing. Attached is a copy of the order denying the request. Pursuant to N.C.G.S. §113A-121.1(c), the permit is no longer suspended and the permitiee is allowed to proceed insofar as it concerns CAMA. You may appeal the Chairman's decision by filing a petition for judicial review in the Superior Court of Brunswick County within thirty days after receiving this 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: Mary Penny Thompson, General Counsel, Dept. Of Environment and Natural Resources 1601 Mail Service Center Raleigh, N. C. 27699-1601 If you chose to file a petition for judicial review, I request that you serve a copy on me at the above address. Very truly yours, Jennie Wilhelm Hauser Special Deputy Attorney General cc: Christine A. Goebel, electronically Jim Gregson, electronically Angela Willis, electronically Robert R. Emory, Jr., Chairman, electronically r STATE OF NORTH CAROLINA COUNTY OF BRUNSWICK IN THE MATTER OF THE ) THIRD PARTY HEARING ) REQUEST BY ) KEVAN BUSIK ) BEFORE THE CHAIRMAN COASTAL RESOURCES COMMISSION CMT 09-13 FINAL DECISION I. PERMIT & REQUEST Petitioner requests permission to file a petition for contested case hearing as a third party pursuant to N.C.G.S. § 113A-121.1(b). Petitioner seeks to challenge a CAMA Minor Permit No. 2009-12, issued to Natale Kuey (Permittee), the representative for the landowner, 1118 Longwood Avenue Realty Corporation, on October 9, 2009. U. STANDARD OF REVIEW Under the Coastal Area Management Act (LAMA), a third party may file a contested case hearing petition to challenge the issuance or denial of a CAMA permit to someone else only if the Coastal Resources Commission (CRC) first determines that a contested case hearing is appropriate. Section 113A-121.1(b) of the North Carolina General Statutes provides that the determination as to whether a hearing is appropriate should be based upon a consideration of whether the petitioner: 1. Has alleged that the decision is contrary to a statute or rule; 2. Is directly affected by the decision; and 3. Has alleged facts or made legal arguments that demonstrate that the hearing request is not frivolous. 1 The CRC has delegated to its Chairman the authority to determine whether a third party request for a hearing should be granted or denied. 15A NCAC W .0301(b). A third party whose hearing request is granted may file a contested case hearing petition with the Office of Administrative Hearings, and the permit remains suspended pursuant to N.C.G.S. §113A-121.1 (b) and (c). A third party whose hearing request is denied may seek judicial review. Id. If the third party's hearing.request is denied, the permittee's permit is reinstated by operation of law pursuant to N.C.G.S. §113A-121.1(6). III. FACTS A. The Permittee is Natale Kuey (Pemrittee), acting as the representative for the property owner of record, 1118 Longwood Avenue Realty Corporation (Longwood), a New York corporation. Longwood owns property known as Lot 4030 of Cape Fear Station Single Family 14 Subdivision (Map 23/538) on Bald Head Island (the site). Longwood has owned this property since March 24, 2003, as evidenced by a deed recorded at Book 1720, Page 60 of the Brunswick County Registry. Currently this site is undeveloped. B. Petitioner owns Lot 4032 of Cape Fear Station Single Family 14 Subdivision (Map 23/538), also on Bald Head Island. This lot is located adjacent to, and to the north of, the site at issue in this case. Petitioner has owned this lot since May 11, 2009, as evidenced by a deed recorded at Book 12924, Page 904 of the Brunswick County Registry. Currently, Petitioners' property has a 4,797 square foot home located on it, which was built in 2005, based on county records. K C. The site is located adjacent to the Atlantic Ocean, and the proposed residence is within the High Hazard Flood and Ocean Erodible Area sub -categories of the Ocean Hazard Area of Environmental Concern (AEC). Accordingly, any development on this site requires a CAMA permit per N.C.G.S. § 113A-118. D. At this site, the applicable long-term annual erosion rate per 15A NCAC 7H .0304 is 2.0 feet per year. E. On or about September 28, 2009, the Village's Local Permit Official (LPO) received an application for a CAMA minor permit from Mr. Wayne Lambert, Agent for the Permittee. The Permittee was proposing to develop a single-family residence and associated landscaping. F. In the application for a CAMA minor permit the Permittee's agent incorrectly listed the total enclosed floor area of the single-family residence located in the AEC as 6,500 square feet. As suggested by the information on the application form completed, the Permittee's agent based this calculation on the "old" CRC rules which included roof -covered porches in the total enclosed floor area total. The Commission's "new" rules, which went into effect on August 11, 2009, no longer include roof -covered porches in the total enclosed floor area. G. Based on the architectural drawings submitted to the Village of Bald Head Island (the Village), along with the information provided to the Village in the application for a building permit, the LPO calculated the total of the heated or air-conditioned living space for the two- story house, as 4,292 square feet. Therefore, per the definition in 15A NCAC 7H .0306(a)(1), the proposed structure is less than 5,000 square feet for purposes of determining the correct setback. 3 H. Based on the total floor area of the structure as defined above and given the applicable long-term erosion rate of 2.0 feet per year, the resulting applicable setback for the proposed development is 60 feet, per 15A NCAC 7H .0306(a)(2)(A). I. As part of the CAMA minor permit review process, the Permittee sent notice of the proposed project to the adjacent riparian owners, which includes the Petitioner. The required notice to the public through a newspaper ad and posting on -site was also completed. United States Postal Service tracking shows that Petitioner received the notice on September 30, 2009. On October 9, 2009, the Village's LPO issued CAMA Minor Permit No. 2009-12 to the Permittee. No objection letters were received before the permit was issued. K. On October 21, 2009, the Village received an objection letter from Attorneys Prevatte & Prevatte, PLLC representing Petitioner. L. On or about October 26; 2009, as part of the LPO permit program review process, staff from the DCM Wilmington Regional Office reviewed the permit, and after spotting what appeared to be an error allowing a 6,500 square foot enclosed floor area structure to use only a 60-foot setback, DCM contacted the LPO to resolve the issue. It was determined, as indicated in the application for building permit and attached plans, that the correct figure for the heated or air-conditioned living space under the "new" rule and definition was 4,292 square feet. M. On October 28, 2009, the LPO faxed a letter to Petitioner's counsel notifying them of the perrnit issuance on October 9, 2009 and the appeal rights for third -parties under CAMA, including the need for such document to be received by DCM within 20 days of the permit issuance date. M. On October 30, 2009, DCM received this third party hearing request from Petitioner seeking to challenge the issuance by DCM of CAMA Minor Permit No. 2009-12. CONCLUSIONS OF LAW 1. The Coastal Area Management Act was adopted, in significant part, to address "development," as defined in N.C.G.S. § 113A-103(5a) in any area that the CRC may designate as an "Area of Environmental Concern," pursuant to N.C.G.S. § 113A-113. 2. The CRC has by rule designated the High Hazard Flood Area and Ocean Erodible Area of the Ocean Hazard Area as areas of Environmental Concern. 15A NCAC 07H .0301 and 15A NCAC 07H .0304. 3. CAMA requires that third parties who wish to challenge a decision to deny or grant a minor or major development permit file their hearing request "within 20 days after the disputed permit decision is made." N.C.G.S. § 113A-121.1(b). The statutory right to request a third party hearing is not given for any other actions taken: e.g., civil penalties assessed against the permitee for violations of CAMA or the CRC's rules that occur during development pursuant to a permit granted by DCM. In the present case, DCM issued its decision to grant Natale Kuey's CAMA minor permit for construction of a single-family dwelling on October 9, 2009. The deadline for any petitions challenging the decision expired on October 29, 2009, before Petitioner's request for third party hearing was received on October 30, 2009. For this reason alone the third party hearing request is DENIED. 5 4. In the event that a court determines that the twenty -day deadline of N.C.G.S. § 113A- 121.1(b) does not bar Petitioner's hearing request, the Chairman addresses the factors set forth in N.C.G.S. § 113A-121.1(b)(1)-(3) as follows: A. Petitioner has alleged the issuance of CAMA Minor Permit No. 2009-12 to Natale Kuey, as the representative for 1118 Longwood Avenue Realty Corporation, has violated the provisions of 15A NCAC 7H .0306; therefore, Petitioner's request meets requirements of N.C.G.S. § 113A-121.1(b)(1). B. Petitioner alleges that he owns the property adjacent to the property in question. He further alleges that he is harmed by the approved development because it is substantially closer to the ocean than Petitioner's property and may obstruct Petitioner's view and could possibly damage Petitioner's property in the event of a storm. The CRC rules do not address view as a criteria for development within the Ocean Hazard AEC and the allegation concerning potential harm is not supported by any facts to distinguish why this property is any different than any other property built adjacent to the coast; therefore, Petitioner's request does not meet the requirements of N.C.G.S. § 113A- 121.1(b)(2). C. Admitting that there is an error in the CAMA Minor permit application form stating the size of the structure to be 6,500 square feet total enclosed floor area, including roof -covered porches, instead of 4,292 square feet total heated or air- conditioned living spaces, excluding covered porches (per CRC rule 15A NCAC 07H .0306, effective August 11, 2009), as shown on the building permit application and attached architectural drawings, Petitioner has not demonstrated that issuance of the 3 ■ permit allowing construction with a 60-foot setback violates CAMA or the CRC's rules. Therefore, Petitioner has not demonstrated that his appeal would not be frivolous and would meet the requirements of N.C.G.S. § 113A-121.1(b)(3). V. DECISION For the reasons stated herein, Petitioner's third party hearing request is DENTED. This the 13th day of November 2009. Robert R. Emory, Jr., Chairman N.C. Coastal Resources Commission 7 CERTIFICATE OF SERVICE This is to certify that I have served a copy of the attached Final Decision on Petitioner, Respondent, and the Permittee by the means specified below: Kevan Busik 6603 Route 202 New Hope, PA 18938 James R. Prevatte, Jr. P.O. Box 10969 319 N. Howe Street Southport, NC 28461 Natale Kuey 2 Cabin Ridge Road- C Chappaqua, NY 10514 Wayne Lambert Custom Built Homes PO Box 3180 Bald Head Island, NC 28461 Christine A. Goebel Assistant Attorney General James H. Gregson Director of DCM CERTIFIED MAIL RETURN RECEIPT REQUESTED CERTIFIED MAIL RETURN RECEIPT REQUESTED and electronically jimpCa,urevatte-orevatte.com Regular Mail Regular Mail electronically CGoebel@ncdoj.gov electronically Jim.Gregson@ncdenr.gov Angela Willis electronically Angela.Willis@ncdenr.gov Assistant to Director of DCM This the 131h day of November 2009. ennie Wilhelm Hauser, Special Deputy Attorney General North Carolina Beverly Eaves Perdue, Governor Mr. and Mrs. Natale Kuey #2 Cabin Ridge Road — C Chappagua, NY 10514 NCDENR Department of Environment and Natural Division of Coastal Management James H. Gregson, Director October 30, 2009 Resources Dee Freeman, Secretary CERTIFIED MAIL (70071490 0004 7748 6619) RETURN RECEIPT REQUESTED Re: Suspension of Work / Appeal of CAMA Permit Decision Dear Mr. and Mrs, Kuey: The Chairman of the Coastal Resources Commission, Robert Emory, has received a request for an administrative hearing to challenge CAMA Minor Permit #2009-12. The Third Party Hearing Request was filed on behalf of petitioner Kevan Busik on October 30, 2009. Under N.C.G.S. § 113A-121.1 (the Coastal Area Management Act), your CAMA permit is automatically suspended upon receipt of a hearing request and will remain suspended until either: (1) Chairman Emory denies the hearing request (under standards set out in the statute); or (2) there is a final Coastal Resources Commission decision on the permit appeal. You may not undertake any development under the permit until further notice after Chairman Emory issues his decision. The Division of Coastal Management will prepare a recommendation for the Chairman on whether to grant or deny the hearing request. The Chairman must make a decision within 15 days after receipt of the hearing request. Therefore his decision is due close of business on November 16, 2009. If you wish to submit any materials for the Chairman's consideration in ruling on the request for contested case hearing, please send them to me as soon as possible. cc: Ted Tyndall Steve Everhart Sincerely, Jim Gregsdn RECEIVED � p� Director R E C E I V E D NOV 0 4 2009 DCM WILMINGTON, NC 400 Commerce Avenue, Morehead City, North Carolina 28557 Phone: 252-808-2808 \ FAX: 252-247-3330 \ Internet: www.nccoastalmanagement.net An Equal Opportunity \ Affirmative Action Employer- 50% Recycled \ 10% Post Consumer Paper KENNETH A. SHANKLIN* MATTHEW A. NICHOLS*" COLIN J. TARRANT CYNTHIA W. BALOWIN SHANKLIN & NICHOLS, LLP ATTORNEYS AT LAW 214 MARKET STREET POST OFFICE BOX 1347 WILMINGTON. NORTH CAROLINA 28402-1347 TELEPHONE (91 O) 762-9400 . TELEFAX (91 O) 251-1773 E-MAIL: SHANKLAW@EARTHLINK.NEf December 15, 2009 VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED 47114 8008 6004 2386 0220 North Carolina CRC c/o Mary Penny Thompson, General Counsel 1601 Mail Service Center Raleigh, NC 27699 OEC t009 IT P::,TUnf� EiSOUr'�I.: S *'BOARD CE"RED$PECIAUJ IN REAL PROPERTY LAW-RESIDENUAL BUSINESS, COMMERCIAL AND INDUSTRIALTRANSAC ONS *AALSO ADMITTED IN NEW YORtt Re: Kevan Busik vs. Robert R. Emory, in his capacity as Chairman of the North Carolina Coastal Resources Commission, et al. Brunswick County File No. 09 CVS 3421 Our File No. 09074.001 Dear Ms. Thompson: Please find enclosed Civil Summons and Petition for Judicial Review, in the above referenced matter. With best regards, I remain Very truly yours, e67jh-:- w- A� Cynthia W. Baldwin CWB/js Enclosures STATE OF NORTH CAROLINA vRcvs a� BRUNSWICK County In The General Court Of Justice - ❑ District ® Superior Court Division Name O/Plein6'9 ,.. ., KB VAN BUSIK Address CIVIL SUMMONS City. State. Zp ❑ ALIAS AND PLURIES SUMMONS �v VERSUS VIA CERTIFIED BAIL G.S. 1A-1, Rules 3,4 IName Of De/endantts) Date Odgtrrar Summons Issued ROBERT R. EMORY in his capacity as Chairman of the North Carolina Coastal Resources Commission• NORTH 12-14-2009 CAROLINA COASTAL RESOURCES COMMISSION; NORTH CAROLINA Dates) suss quest smm�rons(ea) rsaued DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES; NORTH CAROLINA DIVISION OF COASTAL MANAGEMENT, NATALE KUEY; 1118 LONGWOOD AVENUE REALTY CORP.; and §AYNE LAMBERT To Each Of The Defendant(s) Named Below: Name And Address W Defendanr l Name AndAddmcs Ol Dekndant 2 North Carolina Coastal Resources Commission By serving it's agent. Mary Penny Thompson,13eneral Counsel Dept, of Environment and Natural Resources 1601 Mail Service Center, Raleigh NC 27699-1601 A Civil Action Has Been Commenced Against Yout You are notified to appear and answer the complaint of the plaintiff as follows: 1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiffs attorney within thirty (30) days after you have been served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to. the plaintiffs last known address, and 2. File the original of the written answer with the Clerk of Superior Court of the county named above. If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint. Name And Address Q. Plainetrs Ammey prNorte, Address ofP/ain#M Date Issued 77me Kenneth A. Shanklin and Cynthia W. Baldwin 12-14-2009 4; ,2 j ❑ AM ® PM SHANKLIN & NICHOLS, LLP Signature P.O. Box 1347 Wilmington NC 28402 Deputy CSC ❑ Assistant CSC ❑ CMofsup.,k C.,t LI ENDORSEMENT This Summons was originally issued on the date indicated above and returned not served. At the request of the plaintiff, the time within which this Summons must be served is extended sixty (60) days. ❑ AM ❑ PM U Deputy CSC ❑ Asdl rtCSC ❑ Clerk OfSupedor Court NOTE TO PARTIES: Many counties have AtANDATORYARBITRATION pnxgrams in which most cases where the amount in controvenlyis s15, 000 or less are heard by an arb&atorbefore a tdal. fie parties will be notirred it this case is assigned tormandatory arbitration, and, if so, what procedure is to be followed. AOC-CV-100. Rev. 10/01 (Over) 0 2001 Administrative Office of the Courts STATE OF NORTH CAROLINA FeNo. cvs �a� BRUNSWICK Countyµ In The General Court Of Justice ❑ District ® Superior Court Division Name OfPlaindff KEVAN BUSIK Address CIVIL SUMMONS City stare, zp ALIAS AND PLURIES SUMMONS VIA CERTIFIED MAIL G.S.1A-1,Rules 3,4 VERSUS Name of RT R.n EMs/ ROBER. MORY in his capacity as Chairman of the North Carolina l;oastal Resources Commission- NORTH Date Original Summons Issued 12-14-2009 DEPARTMENTOOFTAF�IRONMENTSA COMMISSION; ATLRESOURCES, ONORTH Data(s)SulutyventSummons(es)Issued CAROLINA DIVISION OF COASTAL MANAGEMENT; NATALE KUEY; 1118 LONGWOOD AVENUE REALTY CORP.; and WAYNE LAMBERT To Each Of The Defendant(s) Named Below: Name ArdAdd,.Ot Defendant! Name A,dAddress O/Defendant 2 North Carolina Department of Environment and Natural Resources North Carolina Division of Coastal Management By Serving: Mary Penny Thompson, General Counsel I601 Mail Service Center, Raleigh NC 27699-1601 A Civil Action Has Been Commenced Against Youi You are notified to appear and answer the complaint of the plaintiff as follows: 1. Serve_ a copy of your written answer to the complaint upon the plaintiff or plaintiffs attorney within thirty (30) days after you have been served. You may serve your answer by delivering a copy to the by plaintiff or mailing it to the plaintiifft. last known address, and 2. File the original of the written answer with the Clerk of Superior Court of the county named above. If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint. Name AndAddess OlPainglrs Anomey fir None, Address OfPlaintill) Date Issued Tj Kenneth A. Shanklin and Cynthia W. Baldwin 12-1472009 ❑ AM R PM SHANKLIN & NICHOLS, LLP Signa(ure P.O. Box 1347 Wilmington NC 28402 Depu(y CSC ❑ Assistant CSC ❑ Cleric of superior court LJ ENDORSEMENT This Summons was originally issued on the date indicated above and returned not served. At the request of the plaintiff, the time within which this Summons must be served is extended sixty (60) days. ❑ Deputy csc ❑ AM ❑ PM U Assistant CSC ❑ Clerk0FSupedorcaun NOTE TO PARTIES: Many heard have less eraa heard MANDA TORYARBM" TION programs In which most cases where the amount In controversy is $15,000 or by an albibalarbeforea trial. The parties will be n0bfied if this case is assigned formandatoly arbitration, and, if so, what procedure Is to be followed. AOC-CV-100, Rev.10/01 (Over) 0 2001 Administrative Office of the Courts STATE OF NORTH CAROLINA . COUNTY OF BRUNSWICK KEVAN BUSIK, Petitioner, ) vs. ) ROBERT R. EMORY, in his capacity ) as Chairman of the North Carolina ) Coastal Resources Commission; ) NORTH CAROLINA COASTAL ) RESOURCES COMMISSION; ) NORTH CAROLINA DEPARTMENT ) OF ENVIRONMENT AND NATURAL ) RESOURCES, NORTH CAROLINA ) DIVISION OF COASTAL ) MANAGEMENT; NATALE KUEY; ) 1118 LONGWOOD AVENUE ) REALTY CORP.; and WAYNE ) LAMBERT, ) Respondents. ) coPY IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FILE NO.: 09 CVS oZ1 PETITION FOR JUDICIAL REVIEW Petitioner Kevan Busik ("Petitioner"), by and through his undersigned counsel, respectfully petitions the Court pursuant to N.C. GEN. STAT. §§ 15013-43, 45 and N.C. GEN. STAT. § 113A-123(a) for judicial review of a Final Decision of the North Carolina Coastal Resources Commission, which denied the Petitioner's request for a third party hearing. Petitioner requested permission to file a petition for a contested case hearing as a third party pursuant to N.C. GEN. STAT. § 113A-121.I(b) to challenge CAMA Minor Permit No. 2009-12 issued to Natale Kuey ("Kuey" or "Permittee") dated October 9, 2009 ("Permit"). Kuey was issued the Permit in anticipation of Wayne Lambert's construction of a residence on property owned by 1118 Longwood Avenue Realty Corp., described as Lot 4030 of Cape Fear Station Single Family 14 Subdivision in Brunswick County, North Carolina ("Lot 4030"), Petitioner says and alleges: IDENTIFICATION OF PARTIES TO JUDICIAL APPEAL 1. Petitioner holds legal title to Lot 4032 of Cape Fear Station Single Family 14 Subdivision on Bald Head Island, as recorded in Map Book 23 at Page 538 of the Brunswick County Registry, pursuant to a deed recorded in Book 2924 at Page 904 of the Brunswick County Registry ("Lot 4032' ), which lot directly adjoins Lot 4030. 2. Respondent Robert R. Emory ("Emory') is Chairman of the North Carolina Coastal Resources Commission, an agency of the State of North Carolina, charged with the. administration of the Coastal Area Management Act, N.C. GEN. STAT. § 113A-100, et seq, and: signed the Final Decision issued on November 13, 2009 ("Final Decision") as hereinafter described. 3. Respondent North Carolina Coastal Resources Commission ("CRC") is an agency of the State of North Carolina charged with the administration of the Coastal Area Management Act, N.C. GEN. STAT. § 113A-100, et seq. 4. Respondent North Carolina Department of Environment and Natural Resources ("Department's, Division of Coastal Management ("DCM) regulates the coastal areas of the State pursuant to authority conferred upon it by the 1974 Coastal Area Management Act ("CAMA'� which is found in Chapter 113A, Article 7 of the North Carolina General Statutes and various regulations, promulgated thereunder by the CRC and codified at Title 15A, Chapter 7 of the North Carolina Administrative Code (collectively, the "CRC Rules"). 2 5. Upon information and belief, Respondent Permittee Natale Kuey is a citizen and resident of Westchester County, New York. 6. Respondent 1118 Longwood Avenue Realty Corp. C'Longwood") is a corporation organized and existing pursuant to the laws of New York, and owns fee simple title to Lot 4030 of Cape Fear Station Single Family 14 Subdivision, as recorded in Map Book 23 at Page 538 on Bald Head Island, Brunswick County, North Carolina, pursuant to a deed recorded at Book 1720 at Page 60 of the Brunswick County Registry. According to the New York State Department of State, Division of Corporations, Longwood has no Registered Agent, but Service of Process will be accepted on Longwood's behalf by AGULNICK & GOGEL, ESQS., of New York, New York. This entity is not domesticated in North Carolina pursuant to the Office of the Secretary of State of North Carolina. 7. Respondent Wayne Lambert, upon information and belief, operates the business of Custom Built Homes in Brunswick County, North Carolina Custom Built Homes is not listed with the North Carolina Secretary of State's corporation's database. Wayne Lambert's North Carolina Unlimited Contractor's License is # 31391. PETITIONER'S PROPERTY 8. The Petitioner Kevan Busik's Deed recorded May 11, 2009, describes Lot 4032 as follows: BEING ALL of Lot 4032 Single Family 14, Cape Fear Station. Bald Head Island State Two, as the same is shown on a map thereof duly recorded in Map Cabinet 23, Instrument 538, of the Brunswick County Registry, and is described and included in Amendment and Annexation to Protective Covenants by Bald Head Island Limited file in said Registry in Book 1435 at Page 657, and re -recorded in Book 1436 at Page 366. It is the intent of the Grantor to convey title to the high water mark of the Atlantic Ocean, such that the eastern property line of the land herein conveyed shall be co- existent with said high water mark as of the date of this conveyance. The conveyance is made SUBJECT TO the reservations, conditions and restrictions contained in Protective Covenants, Bald Head Island Stage Two, filed in the Office of Register of Deeds for Brunswick County, in the aforesaid Amendment and Annexation to Protective Covenants, and to any and all addendum and amendments thereto. The Grantee, by acceptance of this Deed, agrees to abide by the covenants, conditions and restrictions set forth in said Protective Covenants, including the payment of assessments as provided for therein. Being the same property conveyed to Homesales, Inc. d/b/a/ Homesales, Inc., of Delaware, by Substitute Trustee's Deed dated July 21, 2008 and recorded in Book 2820, Page 953, Brunswick County, North Carolina. JURISDICTION AND VENUE 9. This Court has jurisdiction over this matter pursuant to N.C. GEN. STAT. § 113A- 121.1, N.C. GEN. STAT. § 113A-123, N.C. GEN. STAT. § 150B-43 and N.C. GEN. STAT. § 15013- 45. Petitioner is an aggrieved party directly affected by the Final Decision of the CRC, as signed by Robert R. Emory, who denied Petitioner's request for a third -party hearing regarding the construction of a,residence on the Permittee's property located in Brunswick County, North Carolina. No other adequate procedure for judicial review is provided by another statute. 10. The Superior Court of Brunswick County is the appropriate venue to hear this matter pursuant to N.C. GEN. STAT. § 113A-123 and Article 4 of Chapter 150B of the North Carolina General Statutes, because the land in question is Iocated in Brunswick County and the CAMA Permit was issued in Brunswick County. Additionally, Petitioner has a residence constructed on Lot 4032. STATEMENT OF THE FACTS 11. The Subject Property is a part of Bald Head Island Stage Two located on Bald Head Island, and was acquired by Bald Head Island Limited, a Texas limited partnership, in June, 1983. Bald Head Island Limited began development of Bald Head Island Stage Two in 1995, as stated in" the Protective Covenants, Bald Head Island Stage Two, recorded in Book 1045 at Page 676 in the ld Brunswick County Registry. The Cape Fear Station Single Family 14 Map was recorded in Map Book 23 at Page 538 in the Brunswick County Registry on February 14, 2001. This Cape Feaz Station Single Family 14 Map ("Single Family 14 Map") shows Lot 4030 and Lot 4032, which are adjacent to each other. Lot 4020, Lot 4022, Lot 4024, Lot 4026, Lot 4028, Lot 4030, Lot 4032, and Lot 4034 are shown on the Single Family 14 Map as bordering the Atlantic Ocean. A conservation easement is indicated on the eight lots by a shaded area that is located between the Atlantic Ocean and the buildable area of the eight tots. 12. Petitioner's Lot 4032 is located directly adjacent to and to the north of Lot 4030. Based on Brunswick County public records, Lot 4032 has a 4,797 square foot residence on it, built in 2005. 13. On April 8, 2009, Homesales, Inc. d/b/a/ Homesales, Inc. of Delaware conveyed Lot 4032 Single Family 14, Cape Fear Station, Bald Head Island as shown on the recorded plat for Cape Fear Station Single Family 14 to Kevin [sic] Busik, 6603 Route 202, New Hope, PA, which deed is recorded in Book 2924 at Page 904 of the Brunswick County Registry ("Lot 4032"). The legal description was by reference to the recorded plat of Cape Fear Station Single Family 14 and incorporated by reference the legal description of the property conveyed via the Substitute Trustee's Deed dated July 21, 2008 and recorded in Book 2820 at Page 953 of the Brunswick County Registry, which conveyed Lot 4032 to Homesales, Inc. d/b/a/ Homesales, Inc., of Delaware. 14. On March 24, 2003, Howard M. Long and wife, Diane T. Long, conveyed Lot 4030 Single Family 14, Cape Fear Station, Bald Head Island as shown on the recorded plat for Cape Fear.Station Single Family 14 to 1118 Longwood Avenue Realty Corporation, 810 East 170th Street, Bronx, NY, which deed is recorded in Book 1720 at Page 60 of the Brunswick 5 County Registry. The legal description was by reference to the recorded plat of Cape Fear Station Single Family 14, recorded in Map Book 23, Page 538 of the Brunswick County Registry. 15. Lot 4030 and Lot 4032 lie adjacent to the Atlantic Ocean. Both lots are within the High Hazard Flood and Ocean Erodible Area sub -categories of the Ocean Hazard Area of Environmental Concern (AEC). Pursuant to N.C. GEN. STAT. § 113A-118, any development on these properties requires a CAMA permit. 16. Pursuant to 15A NCAC 7H.0304, the long-term annual erosion rate for this area is 2.0 feet per year. 17. On August 11, 2009, new setback rules went into effect regarding the total enclosed floor area total. The new rules no longer required inclusion of roof -covered porches in the total enclosed floor area. 18. In the September 28, 2009 Natale Kuey CAMA Permit Application ("Permit Application"), Natale Kuey was listed as the "Land Owner," and Wayne Lambert was listed as the "Authorized Agent." However, no DCM authorized agent form was signed by the owner of the property, Respondent Longwood. The size of the lot was listed as 40,000 square feet, and the total enclosed floor area of a building in the Ocean Hazard Area of Environmental Concern (AEC) was listed as 6,500 square feet, which number included all floors and roof covered decks. The size of the building footprint and other impervious or built -upon surfaces in the Coastal Shoreline. AEC was listed as 8,000 square feet. This calculation included the area of the roof/drip line of all buildings, driveways, covered decks, concrete or masonry patios, etc., that within the applicable AEC. Applicants were directed to attach these calculations with their project drawings. The total built upon area/impervious surface allowed for Lot 4030 was listed as 5,500 square feet. 2 19. In the Permit Application, the directive for the Statement of Ownership section of the application stated: The undersigned, an applicant for a CAMA minor development permit, being either the owner of property in an AEC or a person authorized to act as an agent for purposes of applying for a CAMA minor development permit, certify that the person listed as landowner on this application has a significant interest in the real property described therein. This interest can be described as: (check one) 4 an owner or record title, Title is vested in 1118 Longwood Av. Realty Corp Natale Kuev, see Deed Book 1720 Page 60 in the Brunswick County Registry of Deeds. (handwritten sections are indicated by underlining). The Permit Application was signed by Wayne Lambert. 20. According to United States Postal Service tracking confirmation dated September 30, 2009, Petitioner received a letter dated September 28, 2009 from Wayne Lambert of Custom Built Homes, which stated: "Mr. and Mrs. Natale Kuey are applying for a CAMA permit to build a new residence on Lot #4030 Station House Way, Bald Head Island, NC. The plans of the new residence are at my office for review." 21. No objection letters were received before the CAMA permit was issued for the development on Lot 4030. Notice to the public via newspaper ad and on -site posting, as required, was completed. 22. Daralyn Spivey, CAMA Local Permit Official of Bald Head Island, NC ("LPO"), issued CAMA Minor Development Permit No. 2009-12 ("Permit") to Natale Kuey on October 9, M authorizing development in the Ocean Hazard (AEC) at 230 Station House Way, Lot 4030, in Bald Head Island, as requested in the pemuttee's application, dated September 28, 2009. . . . This permit authorizes: construction of a new single family residence. 7 (1) All proposed development and associated construction must be done in accordance with the permitted work plat drawings(s) dated received on September 28, 2009.... (3) Any change or changes in the plans for development, construction, or land use activities will require a re-evaluation and modification of this permit. 23. In a letter dated October 20, 2009, James R. Prevatte, Jr., attorney for Petitioner, alerted Ms. Corey Boyette, Bald Head Island Architectural Review, and Mr. Chris Mitchell, Assistant Village Manager & Development Services Director, that the plans for Lot 4030's proposed residence called for the home to be built much closer to the ocean than the other houses in that area. The Village of Bald Head Island received this objection letter on October 21, 2009. Mr. Prevatte stated in this letter: "The location of the house appears to be in violation of the restrictions for `Single Family 14 Cape Fear Station' and most likely, in violation of the regulations of Coastal Area Management Act. The residence should be in line with that of Mr. Busik at lot 4032.11 24. On or about October 26, 2009, staff from the DCM Wilmington Regional Office reviewed the permit as part of the LPO permit program review process. Staff spotted the error of a 6,500 square foot enclosed floor area structure only using a 60-foot setback, contacted the LPO, and revised the Application to show the correct heated square footage of the proposed residence for Lot 4030 under the "new" setback rules and definitions, which were made effective August 11, 2009. 25. Based on the construction drawings and the application submitted for a building permit, the LPO changed the calculated total enclosed floor area from the applicant's response of 6,500 square feet 4,292 square feet, pursuant to the "new" setback rules and definitions, made effective August 11, 2009, in 15A NCAC 7H.0306(a)(1). 3 26. Because the applicable long-term erosion rate is 2 feet per year, and because the proposed residence for Lot 4030 has a total of 4,292 total floor area based on the definition found in 15A NCAC 7H.0306(a)(1), the resulting setback applicable to the proposed development on Lot 4030 is 60 feet, pursuant to 15A NCAC 7H.0306(a)(2)(A). 27. On October 28, 2009, the LPO telefaxed a letter to Petitioner's counsel, Mr. Prevatte, notifying them of the issuance of the permit on October 9, 2009, and listing the rights of appeal for third -parties under LAMA. This appeal had to be received by DCM within 20 days of the permit issuance date, which was October 9, 2009. 28. , In the letter to Mr. Prevatte dated October 28, 2009, Chris McCall, Assistant Village Manager & Development Services Director/CAMA LPO, stated: "The proposed project has been determined to comply with local regulations and the Rules of the Coastal Resources Commission (15A NCAC 07H.0306), and as such, a permit has been issued to authorize the development." A copy of the permit and the applicable rules were enclosed with this correspondence. 29. Mr. Prevatte, on behalf of Petitioner, sent a Third Parry Hearing Request on CAMA Permit No. 2009-12 Decision ("Hearing Request") to the Director of DCM, via UPS/Overnight delivery, on October 28, 2009. UPS tracking shows delivery of copies of this Request to the Environmental Division of the Attorney General's Office in Raleigh, to the Director of the Division of Coastal Management in Morehead City, and to the Petitioner in Pennsylvania on October 28, 2009. This Hearing Request was stamped as filed on October 30, 2009 by DCM staff. I - 30. In a Memorandum dated November 6, 2009, Assistant Attorney General Christine A. Goebel ("Goebel") explained the Staff Recommendation regarding Petitioner's Third Parry 6 Hearing Request. This Memorandum is attached as Exhibit "A." In this Memorandum, Goebel stated: "On October 30, 2009, DCM received this third parry hearing request from Petitioner, seeking to challenge the issuance by DCM of CAMA Minor Permit No. 2009.12." Goebel stated in DCM's Recommendations that the Request was not timely filed, pursuant to N.C. GEN. STAT. § 113A-121.1(b). CAMA Permit No. 2009-12 was automatically suspended upon receipt of the hearing request by DCM on October 30, 2009, and no development under this permit would be allowed to take place until further notice by the CRC. 31. Goebel, in her November 6, 2009 Memorandum, stated: "The 20-day appeal period to file a hearing request petition expired on October 29, 2009. Petitioner's counsel was made aware of this fact on October 28, 2009, through a faxed letter from the Village, but still failed to submit its appeal to DCM in time. Therefore, the CRC and the Office of Administrative Hearings (OAH) lack jurisdiction to consider the merits of this untimely Petition." In her conclusion, Goebel recommended that Petitioner's Hearing Request be denied by the Chairman. 32. On November 13, 2009, the Final Decision of the CRC ("Final Decision") was signed by Emory, in his capacity as Chairman of the CRC, denying Petitioner's Hearing Request because "[t]he deadline for any petitions challenging the decision expired on October 29, 2009, before Petitioner's request for third party hearing was received on October 30, 2009. For this reason along the third party hearing request is DENIED." The Final Decision is attached as Exhibit 'B." In the cover letter for the Final Decision, it is stated: "Pursuant to N.C. GEN. STAT. § 113A-121.1(c), the permit is no longer suspended and the permittee is allowed to proceed insofar as it concerns CAMA." 10 33. Petitioner is entitled to appeal the decision of the Commission denying his Hearing Request on the Final Decision, and this Court has jurisdiction of this matter, pursuant to N.C. GEN. STAT. § 113A-121.1. CRC RULES AND GENERAL STATUES AT ISSUE 34. According to 15A N.C.A.C. 710201 (2009), entitled "Permit Required," "[a]fter March 1, 1978, every person wishing to undertake any development in an area of environmental concern shall obtain a permit ... from the local permit officer, in the case of a minor development permit, unless such development is exempted by the Commission." 35. In 15A N.C.A.C. 710202, it is stated in provision (b) that "[a]ny person seeking to obtain a permit for a minor development project is required to file with the local permit officer a completed application form as adopted and approved by the Coastal Resources Commission and in accordance with the minor permit provisions in 15A NCAC 7J .0204. Provision (c) of that same rule states: "Regardless of whether any advice or information was provided by other persons, including department officials, the applicant is responsible for the accuracy and completeness of the information provided in the application." 36. According to 15A N.C.A.C. 710208 (2009)(b), the LPO "may condition a minor development permit upon amendment of the proposed project to take whatever measures may be reasonably necessary to protect the public interest with respect to the factors enumerated in G.S. 113A-120." 37. N.C. Gen. STAT. § 55-15-01 (2009) states that authority from the Secretary of State for foreign corporations to transact business in this State is required. Subsection (a) states: "A foreign corporation may not transact business in this State until it obtains a certificate of authority from the Secretary of State." 11 Commission's Final Decision Was Based upon Numerous Errors of Fact and Law 38. Petitioner incorporates and realleges the foregoing Paragraphs 1-39. 39. The Commission's November 13, 2009, decision denying Petitioner's Request for a Third -Parry Hearing was in violation of constitutional provisions, was in excess of the statutory authority or jurisdiction of the CRC, was based on unlawfiil procedure, is in error as a matter of law, in unsupported by substantial evidence, and is arbitrary and capricious. Among other things, Respondents Emory, CRC, and Department: a. Erred by allowing the submission of a CAMA Permit Application from a foreign corporation that did not have the requisite authority to transact business in this State. Longwood has not domesticated itself in North Carolina. There are no records for Longwood on the North Carolina Secretary of State's corporation's website. As stated in N.C. GEN. STAT. § 55-15-01 (2009) (a), "A foreign corporation may not transact business in this State until it obtains a certificate of authority from the Secretary of State." Longwood has not met any of the exclusions to N.C. GEN. STAT. § 55-15-01, which are listed as follows: (b) Without excluding other activities which may not constitute transacting business in this State, a foreign corporation shall not be considered to be transacting business in this State solely for the purposes of this Chapter, by reason of carrying on in this State any one or more of the following activities: (1) Maintaining or defending any action or suit or any administrative or arbitration proceeding, or effecting the settlement thereof or the settlement of claims or disputes; (2) Holding meetings of its directors or shareholders or carrying on other activities concerning its internal affairs; (3) Maintaining bank accounts or borrowing money in this State, with or without security, even if such borrowings are repeated and continuous transactions; 12 (4) Maintaining offices or agencies for the transfer, exchange, and registration of its securities, or appointing and maintaining trustees or depositories with relation to its securities; (5) Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this State before becoming binding contracts; (6) Making or investing in loans with or without security including servicing of mortgages or deeds of trust through independent agencies within the State, the conducting of foreclosure proceedings and sale, the acquiring of property at foreclosure sale and the management and rental of such property for a reasonable time while liquidating its investment, provided no office or agency therefor is maintained in this State; (7) Taking security for or collecting debts due to it or enforcing any rights in property securing the same; (8) Transacting business in interstate commerce; (9) Conducting an isolated transaction completed within a period of six months and not in the course of a number of repeated transactions of like nature; (10) Selling through independent contractors; (11) Owning, without more, real or personal property. By initiating and following through with the construction of.a residence in this Ocean Hazard Area, Longwood excludes itself from two of the above -listed exclusions that are applicable to this situation: (9) Conducting an isolated transaction completed within a period of six months and not in the course of a number of repeated transactions of like nature; (11) Owning, without more, real or personal property. Construction of the proposed residence involves the rendering of drawings of the proposed residence and its ancillary buildings, the submission of these plans to various local and state agencies, the application of various permits, and the approval of those permits after considerable review. This process, by itself, is more than just owning real property, and this process takes longer than six months to complete; therefore, Longwood cannot avail itself of the above -listed exceptions to N.C. GEN. STAT. § 55-15.01(a). Because Longwood is 13 required to have a certificate of authority from the North Carolina Secretary of State, and it does not have this certificate, Longwood is not permitted to complete this type of transaction in this State. Longwood was not a permitted entity to fill out or sign a CAMA Permit Application and was the only entity or person to be allowed as a permittee of the subject CAMA Permit. b. Erred by failing to require DCM's appropriate agency authorization form from Longwood, which authorizes an agent to act on behalf of a corporation. Kuey is not listed as the registered agent of the owner, Longwood, on the State of New York's Secretary of State's Corporations website, and Kuey is not the owner of the fee simple to Lot 4030. There is no evidence, other than the bare -bones Application, that Kuey is the authorized agent of Longwood. Without including the form that authorizes Kuey to act on behalf of Longwood in the Application, the Application is incomplete and erroneous. Issuance of a CAMA Minor Permit on the basis of an incomplete and erroneous application is an unlawful procedure. The burden is on the applicant to submit a complete application. This Application was deficient, and it should not have been processed. C. Erred by accepting a CAMA Permit Application from one who is neither the landowner nor the authorized agent of the landowner. Longwood, or its authorized agent, did not sign the CAMA Permit Application. The applicant, Kuey, in the CAMA Application at hand is not the landowner, nor has Kuey met the requirements as an authorized agent. "In the general information section, the applicant and future permittee is always the Land Owner, although an agent, such as a contractor or realtor, may obtain the permit for the property owner." North Carolina Division of Coastal Management, Directions For Filling Out A CAMA Minor Permit, http://dcm2.enr.state.nc.us/permits/ 14 Minor%20Peimit%2OApplication%2Odirections.pdf (last visited Dec. 14, 2009). To issue a CAMA Minor Permit to one who is not the landowner and who is not an authorized agent for the landowner is in excess of the statutory authority of the CRC. d. Erred by awarding a CAMA Minor Permit to Kuey and by denying Petitioner's Third Party Hearing Request because the CAMA Minor Permit was improperly issued, incomplete, and deficient as a matter of law. e. Erred by awarding a CAMA Minor Permit to Kuey and by denying Petitioner's Hearing Request because the Permit was altered or amended after its initial October 9, 2009, issuance. An amended or altered permit changes the timeline for when objections to the issuance of the permit are due. On or about October 26, 2009, the Application was revised to show the correct applicable square footage to consider when calculating the setback for the proposed residence. This should have reset the Application timeline. Petitioner mailed his Hearing Request, via UPS/Overnight delivery, on October 28, 2009. UPS tracking shows delivery of copies of this Request to the Environmental Division of the Attorney General's Office in Raleigh, to the Director of the DCM in Morehead City, and to the Petitioner in Pennsylvania on October 28, 2009. Even though tracking confirmed the receipt of this Hearing Request to the applicable agencies on October 28, 2009, the Hearing Request was not file -stamped until October 30, 2009. This should not cut off Petitioner's right to a Hearing Request because the revisions to the Application were made on or about October 26, 2009. Petitioner should have had.an additional, proportional amount of time to submit his Hearing Request. In any event, the filing of the Hearing Request was timely if received on 15 October 28, 2009, as the. filing stamp has nothing to do with jurisdiction of this Court or the Office of Administrative Hearings. f. Erred by stating that Petitioner's Hearing Request is frivolous and that Petitioner lacks sufficient standing to contest the issuance of the Permit. Contrary to the findings and conclusions of Emory as the Chairman of the CRC, Petitioner is directly affected by the issuance of the Permit to Kuey within the meaning of N.C. GEN. STAT. § 113A-121(b)(1-3) in that Petitioner is an adjoining property owner. Petitioner's status as an adjoining property owner is significant, contrary to the arguments of the DCM and its counsel and findings in Chairman's Final Decision. i. Recently, the Supreme Court clarified the special status that an adjoining property owner has to oppose or contest zoning and other regulatory decisions, such as the Permit issued to Kuey. See, Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008). In Mangum, the Supreme Court noted in that case that, " [i]t is undisputed that defendants' proposed use of the land is unlawful unless they are issued a Special Use Permit" Mangum, 362 N.C. at 643, 669 S.E.2d at 282 362 N.C. at 643, 669 S.E.2d at 282. The Court held that the petitioners' allegations in their petition for writ of certiorari as well as the evidence presented "in regards to the `increased traffic, increased water runoff, parking, and safety concerns,' as well as the secondary adverse effects on petitioners' businesses, were sufficient special damages to give standing to petitioners to challenge the issuance of the permit" Mangum, 362 N.C. at 644, 669 S.E.2d at 282-83 362 N.C. at 644, 669 S.E.2d at 282-83. The Mangum Court explained that the "petitioners alleged that they either owned 16 property immediately adjacent to or in close proximity to the subject property" and that, while such allegations standing alone are insufficient, proximity to the property that is the subject of a variance "bears some weight" on determining whether the petitioner has suffered or will suffer special damages necessary for standing. Mangum, 362 N.C. at 644, 669 S.E.2d at 283 362 N.C. at 644, 669 S.E.2d at 283. I Furthermore, a determination of standing is jurisdictional and is always de novo upon judicial review. Id The legal right to appear in any action, commonly referred to as having "standing," is jurisdictional and depends in part upon the existence of a justiciable case or controversy. Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 141, 544 S.E.2d 821, 824 (2001); Town of Pine Knoll Shores v. Carolina Water Serv., 128 N.C. App. 321, 321, 494 S.E.2d 618, 618 (1998). The standing of a party to pursue any case or cause of action is a necessary prerequisite to the Court's proper exercise of subject matter jurisdiction. See Peacock v. Shinn, 139 N.C. App. 487, 491, 533 S.E.2d 842, 845, disc. review denied, 353 N.C. 267, 546 S.E.2d 110 (2000); Transcontinental Gas Pipe Line Corp. v. Calco Enter., 132 N.C. App. 237, 241, 511 S.E.2d 671, 675, disc. review denied, 351 N.C. 121, 540 S.E.2d 751 (1999). Accordingly, standing is a necessary threshold inquiry for the Court. "Standing" refers to the critical issue of whether a party or proposed intervenor has a sufficient stake in an otherwise justiciable controversy that it may properly seek adjudication of the matter. Sierra Club v. Morton, 405 U.S. 727, 730, 92 S. Ct. 1361, 1364, 31 L.Ed.2d 636, 641 (1972). The relationship between standing and the requirement of a justiciable controversy has 17 been expressed as follows: "[Jjudicial intervention in a dispute is normally contingent upon the presence of a `justiciable' controversy." See Texfz Indus. v. City of Fayetteville, 44 N.C. App. 268, 269-70, 261 S.E.2d 21, 23 (1979) ("The gist of standing is whether there is a justiciable controversy being litigated among adverse parties with substantial interest affected so as to bring forth a clear articulation of the issues before the court."), affd, 301 N.C. 1, 269 S.E.2d 142 (1980). In most cases, the issue of standing depends on whether the party has suffered an "injury in fact." Neuse River Found v. Smithfield Foods, Inc., 155 N.C. App. 100, 114, 574 S.E.2d 48, 52 (2002), disc. rev. denied, 356 N.C. 675; 577 S.E.2d 628 (2003); see also Strates Shows, Inc. v Amusements ofAmerica, Inc., 184 N.C. App. 455, 460, 646 S.E.2d 418, 423 (2007); Coker v. DaimlerChzysler Corp., 172 N.C. App. 386, 391, 617 S.E.2d 306, 310 (2005), 'aff'd per curiam, 360 N.C. 398, 627 S.E.2d 461 (2006); Dunn v. Pate, 334 N.C. 115, 119-20,.431 S.E.2d 178, 180-81 (1993). . iii. The allegations of Petitioner in his Hearing Request on the CAMA Permit Decision was sufficient as a matter of law to met this threshold inquiry and the technical requirements of N.C. GEN. STAT. § 113A-121(b)(1-3). The placement of any structure as "development" under CAMA is absolutely controlled and governed by the intricate structure of the Rules adopted by the CRC and as enumerated in CAMA. An example of this is the hardened structure , rules applicable to the areas of environmental concern applicable to oceans. See, e.g., Shell Island Homeowners Assn v. Tomlinson, 134 N.C. App. 217, 224, 517 S.E.2d 406, 412 (1999) (hardened structure rules) and Robert Don Foster, 18 Petitioner vs. N. C. Department of Environment and Natural Resources, Division of Coastal Management, Respondent and William F. Candy, Respondent Intervenor, 06 EHR 1833 (applying the Coastal Shoreline Buffer Rule which requires development to be located 30 feet from the normal high water level and the exception known as the small house exception set forth in 15A NCAC 7H.0209(d)(10)(I))• iv. Based upon Petitioner's Hearing Request on the CAMA Permit Decision, there was sufficient information alleged to demonstrate that Petitioner was entitled to proceed to a contested case hearing on the merits of his objections to an Administrative Law Judge. The third parties in Robert Don Foster, Petitioner vs. N. C. Department of Environment and Natural Resources, Division of Coastal Management, Respondent and William F. Candy, Respondent Intervenor, 06 EHR 1833 bore the same relationship to the permitted property as Petitioner Busik does in the instant case. Thus, to be consistent with other CAMA cases and contested case hearings, Petitioner Busik should have been allowed to have a Third Party Contested Case Hearing before the Office of Administrative Hearings. 40. For the foregoing reasons, the CRC erred in denying Petitioner's Hearing Request on the Permit, and the CRC's decision is contrary to N.C. GEN. SrAT. § 113A-121.1 and other applicable Iaw, in the following respects: a.. The proposed location of the residence presents an unacceptable safety risk-.,: to the property and persons, including Petitioner, proximate thereto. Because of the residence's improper location further seaward of Petitioner's residence, during a large 19 storm, as frequently experienced on Bald Head Island, great debris from the residence will impact Petitioner's property and the property of others. b. The proposed location of the residence would unlawfully diminish Petitioner's use and enjoyment of his property and property value. Petitioner's home on his property is located and designed to take advantage of the expansive view the property affords of the Atlantic Ocean. Such view and Petitioner's property value would be decimated by the proposed location of the Longwood residence. c. The grant of the Permit and the denial of Petitioner's Hearing Request has deprived Petitioner of his property rights, jeopardized the safety of his property and persons thereon, and has otherwise substantially prejudiced Petitioner's rights as follows: i. Respondents Emory, Department, and CRC acted wrongfully by basing their decisions on findings of fact that were erroneous or that were unsupported by any competent underlying evidence or factual information. ii. Upon information and belief, Respondents Emory, Department, and CRC failed to use proper procedures and acted wrongfully in evaluating Pennittee's permit application and Petitioner's Hearing Request in violation of applicable law. iii. Respondents Emory, Department, and CRC acted arbitrarily and capriciously in basing their decisions on erroneous information or factually unsupported presumptions. iv. Respondents Emory, Department, and CRC failed to act as required by N.C. GEN. STAT. §§ 113A-120(a) and -121.1 in that the purported findings, upon which the Department based the grant of the Permit, are unsupported by any facts and are based on erroneous presumptions. 20 V. The grant of the permit is unconstitutional and the rules upon which the Permit grant was based are unconstitutional and/or are unconstitutional as applied In particular, the Permit's grant and the rules upon which the grant were based are: 1. in excess of the police power; 2. deny Petitioner substantive and procedural due process; and, 3. deny Petitioner equal protection of law and discriminate against Petitioner without a lawful basis. vi. The denial of Petitioner's Hearing Request by the CRC is unconstitutional. In particular, the denial of the hearing request is: 1. in excess of the police power; 2. denies Petitioner's substantive and procedural due process; 3. denies Petitioner equal protection of law and discriminates against Petitioner without a lawful basis; and, 4. is otherwise unlawful. vii. Petitioner is directly affected by the Department's decision to grant the permit and the CRC's denial of Petitioner's Hearing Request. 1. The decisions of Respondents Emory, Department, and CRC, complained of herein, are: a. In violation of constitutional provisions of N.C. Const. Art. I, § 18 which.. provides that "All courts shall be open; [and] every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law ...: ; 21 b. In excess of the statutory authority or jurisdiction of the agencies; C. Made upon unlawful procedures; d. Affected by other error of law; e. Unsupported by substantial evidence; and/or f. Arbitrary or capricious. viii. Petitioner's Hearing Request on the Permit is not frivolous for the reasons and legal arguments herein stated. CONCLUSIONS Based upon the foregoing citations of authority and arguments, Petitioner requests this Court to review the administrative record in this case and the Final Decision of Chairman Emory, and reverse the Final Decision, finding and concluding that Petitioner is entitled to a Third Parry Contested Case Hearing before the Office of Administrative Hearings to oppose and reverse the subject CAMA Permit No. 2009-12 wrongfully and illegally issued to Respondent Pennittee Kuey. WHEREFORE, Petitioner respectfully prays the Court: 1. Grant this Petition for Judicial Review; 2. Enter an Order pursuant to N.C. GEN. STAT. § ISOB-48 staying the operation of the CRC's Final Decision and the issuance of CAMA Permit No. 2009-12 pending the outcome of the review; 3. Declare and find that the CRC erred in denying Petitioner's request for a contested case hearing; 22 4. Remand this matter to the CRC for a contested case hearing under N.C. GEN. STAT. § 150B-22 before the Office of Administrative Hearings, and final CRC decision on the permit, pursuant to N.C. GEN. STAT. § 113A-122; 5. Award Petitioner his reasonable attorneys' fees and expenses, pursuant to N.C. GEN. STAT. § 6-19.1; 6. Award Petitioner his costs; and 7. For such other and further relief as to the Court seems proper. Respectfully submitted, This the 10 day of December, 2009. SHANKLIN & NICHOLS, LLP By: %Al %- L j. /a^(6i� Ke eth A. Shanklin, NCSB #05826 Cynthia W. Baldwin, NCSB #38011 Attorneys for Petitioner 214 Market Street P.O. Box 1347 Wilmington, NC 28402 Telephone: (910) 762-9400 Telefax: (910) 251-1773 23 N TA NCDENR North Carolina Department of Environment and Natural Resources Beverly Eaves Perdue Governor November 13, 2009 Mr. and Mrs. Natale Kuey #2 Cabin Ridge Road — C Chappagua, NY 10514 Division of Coastal Management James H. Gregson Director Re: Reinstatement of CAMA Minor Permit #2009-12 Dear Mr. and Mrs. Kuey: Dee Freeman Secretary You were informed, by certified mail, that the Chairman of the Coastal Resources Commission, Robert Emory, received a request for an administrative hearing to challenge CAMA Minor Permit #2009-12. The request was filed on behalf of Petitioner Kevan Busik on October 30, 2009. Your CAMA Permit was automatically suspended upon receipt of this hearing request and you were instructed not to undertake any development under this permit until further notice. Please be advised that Chairman Emory has DENIED this third party hearing request. At this time, CAMA Minor Permit #2009-12 is reinstated and you may now undertake development on this property pursuant to the permit. Please contact me at 252-808-2808 if you have any further questions. Sincerely, .- Ga�r w, James H. Gregson Director cc: Ted Tyndall Steve Everhart 400 Commerce Ave., Morehead City, NC 28557-3421 Phone: 252-808-2808 \ FAX: 252-247-3330 Intemet: www nccoaStalmanagement.net An Equal Opponunity \ Afiimafive Action Employer RED"EVV E D NOY 19 2009 DCM WILMINGTON, NC NorthCarolina Mundy Page 1 of Wayne Lambert From: George Gallop [Gallop@hrassociates.com) sent: Thursday,November 12, 20091:08 PM To: wayne lambert@bellsouth•het - , Cc: John Farabow Subject:, Kuey jouse A1.1 Survey Site.Plan Attachments: A1_1 Survey &Site Plan-11x17:pdf Afternoon Wayne Attached you'll find an I U17'PDF of the revised A1.1 Site plan showing the revised imperious area of �5,437�sq ft:K. Should you have any questions or need any other drawings please contact Me at this email or at the phone number listed below. Have a good day. George "G'' Gallop Architectural Designer H R Associates 2202 Wrightsville Ave. Suite 212 Wilmington; N.C.28403 T. (910) 343-6008 Ext. 24 F. (910) 343-8761 gallop@hrassociates:com 11/12/2009 IC OCEALN ,r 9 w o-�.. \ll RRW Ro .tar w2a r .,. •�:� __.cL'w 1116 lONW000 a AM RMW CORPMTM I'll aYY.• - wuav oxYv -loom wlY\ \ Y[\Ra A4A.Y.IAVT =a� i S(aSan Ho. r...+'ram 2A -141TAjnllsjz& %IV - b • Y .fWRn MRARAAlY1QY.W.�R"• � '.� ..-B-YRRR1..41.1.l�Ip.[WiVt � � t00\ IDq.NRCNY.YRYYR.®\Ilp'1 .1�RY.R'p......YI. M..,R ADDI«Rb[ YNVRRa'.YatRt. aw..wR.r�a[su •�B1 mmuwaYme.mmR aa4a4.v +.e eaaom YRn.uRRma. [\a'0tmmmruj1tli.ae�iuro.�eu EEiP1EN nm H RASSOCNB PA ARMRECM RAMM �r [ 3673 /1� I .r I �Ylr...lW I-.Rwwwroa I Yne10y\i CMIMIM YG.I. pSYT O�ana[Y. I`__l Y' 1R001�6tYR O I 0 I 1 � I � v1AWp 'a I .a I a I a I a I 181809.00 Al,l 4 NCDENR North Carolina Department of Environment and Natural Resources Division of Coastal Management Beverly Eaves Perdue James H. Gregson Govemor Director October 28, 2009 Natale Kuey #2 Cabin Ridge Road-C Chappagua, NY 10514 Dear Ms. Kuey: Dee Freeman Secretary Part of North Carolina's Coastal Management Program includes the delegation of permit authority for minor development permits from the State to local governments that adopt a local Implementation and Enforcement Ordinance to administer a Minor Permit Program. This cooperative effort reduces permit review times and provides a convenient service to the citizens of those participating local governments. The NC Division of Coastal Management trains local government employees to administer the program and consults on and reviews permits issued by those local programs to ensure consistency with NC Coastal Area Management Act (CAMA) and the Coastal Resources Commission's (CRC) administrative rules and regulations. This letter is in reference to CAMA Minor Permit BM 2009-12, which was recently issued to you by the Village of Bald Head Island on October 9, 2009. Your property at 230 Station House Way (Lot 4030, Cape Fear Station, Tract 14) is subject to a built -upon -area (BUA) limitation of 5500 square feet in the subdivision's State Stormwater Permit (No. SW8 980920 MOD), which was issued to the island developer Bald Head Island Limited, LLC. Your agent, Wayne Lambert, submitted a project drawing with your minor permit application (drawn by H. R. Associates) that indicated a built -upon - area of 5318 square feet, however during our review of the issued permit we have calculated a built -upon -area of approximately 6000 square feet. This figure is based upon the sum of the square footage of the roofline footprint of the main house, the crofter and the section of concrete driveway. To resolve this inconsistency it is recommended that you modify your permitted development to comply with the State Stormwater Permit or obtain additional built -upon -area allocation for Lot 4030, Cape Fear Station, Tract 14 from Bald Head Island Limited, LLC. Failure to do so would result in noncompliance with Condition #2 of your CAMA Minor Permit and could result in an enforcement action. Condition #2 of your CAMA Minor Permit states: "All construction must conform to the N.C. Building Code requirements and all other local, State and Federal regulations, applicable local ordinances and FEMA Flood Regulations." By copy of this letter we are notifying the NC Division of Water Quality — Stormwater Section and the Stormwater Permit holder, Bald Head Island Limited., LLC, of the potential noncompliance with State Stormwater Permit No.SW8 980920 MOD. Any resulting modifications to your permitted design or reallocation of additional BUA allowance should be submitted to Chris McCall, Local Permit Officer for the Village of Bald Head Island at P. O. Box 3009, Bald Head Island, NC 28461, or at (910) 457-9700. If you have any questions, or need additional information concerning this matter, please feel free to contact me at (910) 796-7425. Sincerely, � Lyt I dT d� Ed Brooks Minor Permit Program Coordinator Cc: Steve Everhart DCM Georgette Scott, DWQ — WiRO Stormwater Section Supervisor Chris McCall, LPO Village of Bald Head Island Jim Henry, Bald Head Island Limited, LLC One 127 Cardinal Drive Ext., Wilmington, NC 28405 NO Carolina Phone: 910-796-72151 FAX: 910-395-3964 Internet: www.nocoastalmanagement.net Nawa//y PREVATTE S PREVATTE, PLLC ATTORNEYS AT LAW ELIA9 J. PRE�ATTE 1191,-aCC41 JAMES R..REVATTE. JR. E-MAIL: jiMPGPrCV&"*-PN`Vttte.COT Director Division of Coastal Management 400 Commerce Avenue Morehead City, NC 28557 1:n Dear Sir or Madam: 319 NORTH HOWE STREET SOUTHPORT, NORTH CAROLINA 2B461 MAILING AOORE55: POST OFFICE BOX 10969 SOUTHPORT, NORTH CAROLINA 2134SI Permit No. 2009-12 October 28, 2009 ATTACHMENI ' TELEPHONE: (910). FAX: (910) 4 FIRM PPcoP,evatte-ptM VIA: UPS I OVERNIGHT Enclosed please find Third Party Hearing Request on CAMA Permit Decision filed on behalf of Petiboner, Kevan Busik. JRPjr:md Enclosure copy: Attorney General's Office Environmental Division 9001 Mail Service Center Raleigh, NC 27699-9001 Mr. Kevan Busik 6603 Route 202 New Hope, PA 18938 P REV ATTE 11911.20Oa1 .LIPS �REV PTT E, JR Vatt¢ GOT JE MnEA F �rtnV@1Prevatte-p(e PRtv— , ORNET". 319 NONo [AR THPOROL NA 26161 OUT, 5 MPI LING A°oR E55. POST OFFICE BOX RO6p1A 26461 SOUTHPORT, NORTH CA oaskat Management pirector prp0 rComm rce A C 28557 October 26, 2009 1910145]-SOB6 TELEPHONE 1910145].023] F PX: FIRM E-MP1 L: PPc 09 I¢vatte-Pl ev atte. c°I^ VIA. UPS I OVERNIGHT 4 d City , N Morehea permit No. 2009-12 Re. ecision fled on behalf of rd Party Hear ng Request on CAMA Permit D Deaf Sir or Madam: Enctosed Please find 1hr peU6onerl Kevan gunk Yours Attorney Gene4's—Oon e Environmental.I Center 9001 Mail SeNice Rale�9hNC 27699-900t Mr. Kevan Busik 6603 Route 202 PA 18936 P. Ano ^vPonien ofa burldin � V"' toe shorcliae erosi knee braced or Otherwise�aductttrq Intl on Arc to place at t laadward-mostad' extended beyond pf°verhan he !scent building Yond the Ppon ofp gigs or f oho porti at buildinga g or.structure. ors that y i structure in line w �t he con fi Q+ "tends t 0 dotercpon shall be de tic landward_most gyration Of. lotg'a"tends Preclude, cet to dctezrr ino an ocean tetrdred adjacent building the lusts the ,Y the bilasion of (E) shorcliae hazard setback that is lan Coastal Alcoa or With the erosion strucutre, arena exception of rate or60feet,which�rr1eoftl an enton (� eccanward su"unming pools gelation a c C by tun b! Dcvclo of the static the developmedt def! * line, a drstanee o 1t (b) 7n order to avoid w pment is no[ e1i °egetation line; and red ffect the i at Inv eakening the rel grti a for the exce�'n beaches e C�Cl SA NCAC 07H rope th .into °Ives theWC, n� ortelocatien nature ofo fined in ISq Al 0309(a) i Propenl' is o rtvise�hedunc, Otherd[y tionofPnmaryar&, tala�sandptitnyy d.0309(b)- NCAC 07H ,p308(Ise impracticable, and within the ocean h and or v (c) Devcl any disturbance hazard area shay egetabon th frontal dunes no deldloF Div ciao optnontshall notcause i of any othcy d notbCdisturbed er�t Which woo o Archives and HisI rrev Nahondma a hitec ones rs allowed only to the xterdeVelopmenr (ad ) Mb 0 OP'nent shall cotap� W9th e g to historic arc Historical Re and is turatorarchaeplo all°Wed b, off unc1,19�9esshallnotbeplacedwi teto los g try, the local land �Calresou cot (t) Devcl hazard Roodek requ;reu cots --S se plan or resources d°crrm ed b, (g) Dev °Proem shall corn ar tabli other ur ces risk eloprnOnt shall not p1Y with erferegeneral mans ca unless Urey arc W [h{n d by local regal, (h Devclo age to public tnynt to With legal access to, or Ul tse of for ocean ha�ary areas Mobile horror Parkexisting shall be idrpte ented 3�tho shall incorpora1c me Public resources no All sot in l sA lvCACp (1) minirdi 8PPHcants asurestoavoidorrnini eveloprne .03D; (Z) Mom re the affected environment, e Impacts lim hoay include actions hoadverse impacts of nt Increase t - (i) PNor to [hpenSale for the adverse • or g the magnitude order the Project 7•hes m the a Issuance �°tPacrs of the a meysures degree action, lirmWd ta6.1. n[ to D ofany Permit for develo replacing or pravidin suirabili Cmtbatthea Pmeotiathe gsubstitute guatant °f this Pplicant is aware of ocean ha resources cethe.cafe arcaforpe () All rolocnti ty of the developnuentnOut structure B cricks ascociath applicable and assumes Y granting d with, tlhde I ore sotbacic linostn °ttrres requires o liability gPetmits, the Costa shall be a K,r;tten ac Y With non_ as otheraPPhcablo Pproval' Structuresda ge to th Trent rn this ca �rdpusa eaand tbet relocated entire! as Well Permit a tY for future ma Recourecs Shall be septic met.may not be localled oceIc funds shall be relocated odes. Structure includin relocated with d �n meat' mission does ocated the Public not fir pe Ward of the g. shah CO threat shall inc the prtnrayatn Cture' 1 these cases, cter�a�andotherCssen'nply with the by changes in shoreline uon that a y st u all other a and of PresentCC`�s cs relocated calla or dismantled configuration cturc shall be relocated PPlicable to al aloes ; collapse or subsidence is td two years of . as de5ncd in 1$A or dis a dme the s and W nd star 'rules Wcdrre be e. However if na the time When it NCAC 071:1.030 h be a relocated or diamanComes imminently threatened, mey Of beach nemineUy threaten �� s boo it11M. U coed, me rec temporary protective meant that tilde. This conditioSO n theshucrurcc�lA°1odu ahrnent tak Pl , and in an uctij-0(s) Shall be ores allowed under on shall not af1lb the rmnn enUYtbrcat tv thin wo Yea upon its TTirtory'vote: AulhoritYG.S.II.iA-I B . 07• iSA NCAC 07H.0308(a)(Z) pemrt holder's right t edee fhenitneed of the 1Tnefea, berg, 1I3A-Il3(b)�b�, 113A_ Amended 1977, 124, eek au[ho 1��h of All DeCemb ?C oh , �al Ae ; 1,119 W� P EST jam l4, 1 ePl ember 1' J98(S• Deperyher J, lectror S, Feb !nary J, 1 93,• ' May 21, 19921 endesmully dEff,grtg,ust l� due to p 91�p�M 0i18, ��y�Jvne 191.(9921 b 15A VCAC 0714 ,0307 OCT-2B_ 3.f — 2009 10:49AM From: nr �1� Z004,� ✓une27 l99S. USE STANDA RDS POR OCEAY HAZARD AREAS.. EXCF.,p T►ONS ID: PREURTTE PREUgTTE a. Pase:007 R_100, . a DCM FORM S PETITIONER'S NAME COUNTY -`- JAMES R. PREVATTEr JR.r ATTORNEY FOR KEVAN BUSIK THIRD PARTY HEAR.LNG BRUNSWICK C)CI - 13 (Petitioner leave this line black) REQUEST ON CAMA PERMIT DECISION PLEASE TAKE NOTE that the tmdmigtled, a person affected by the decision of (check one): ---2L_ a Local Permit Officer acting on a CAMA Minor Development Permit application; or 4 the Division of Coastal Management, Department of Environment and Natural Resources, acting on a CAMA Major Development Permit application or CAMA General Permit application hereby requests permission from the Coastal Resources Commission to file an appeal pursuant to N.C. Gen. Stat. § 113A-121.1(b) and N.C- Admin. Code fit. 15A, r. 7J.0300 (Please attach a copy of the permit application decision. If you cannot obtain a copy of the permit application decision, please provide the name of the permittee, the project location and the permit number.) Requests are reviewed by the Chairman of the Coastal Resources Commission to determine whether a hearing should be granted. The determination of whether to grant a hearing is in the sole discretion of the Chairman. N.C. Admin. Code tit. 15A, t. 7J.0301(b). For this application to be complete, the Petitioner must address each factor listed below on a separate sheet of paper. You must address these factors before your request will be reviewed. The Chairman's decision to grant a heating will be based on whether the Petitioner: (1) Has alleged that the decision is contrary to a statute or rule (N.C. Gen. Stat. § 113A-121.1(b)(1)); (Please cite the statute or regulation allegedly violated by the permit decision.) (2) Is directly affected by the decision (N.C. Gen. Stat. § 113A-121.1(b)(2)]; and (Please describe how you are directly affected by the permit decision. Persons directly affected by a decision include, but are not limited to: (a) any owner of real property in the vicinity of the property to be developed who can show that the proposed development is likely to have a significant adverse effect on the value and enjoyment of his property; and 32 ID:PREUATTE PF&IATTE Paae:008 R=100s ' Jl,M •' (b) anyperson who can demonstrate a history ofsubsiantiat use ofpuhlic resources in the area directly affected by the development when she development is within or touches upon an area subject to the public trust.) (3) Has alleged facts or made legal arguments that demonstrate that the request for the hearing is not frivolous [N.C'. Gen. Stat § 113A-121.1(b)(3)). (Please summarize the evidence or arguments you will present at a hearing in support of your appeal.) Based on the attached responses to the abbve factors, the undersiguesMeifbyrequests a third party hearing. October 28, 2009 112A Date Signature of RAW"_ AttOMeyFOR Petitioner Name of Petitioner or Attorney FOR Petitioner P. O. BOX 10969 .Address SOUTHPORT, NC 28461 City State Zip ( 910 ) 457_1,na6 Telephone Number NOTES: This request must be served on the Director, Division of Coastal Management, at the addressshown on the attached Certificate of Servico Farm, within twenty (20) days of the disputed permit decision. N.C. Gen. Stat. § 113A-121.1(b). Failure to do so constitutes waiver of the right to request a hearing. A. copy should also be sentto the Attorney General's Office, Environmental Division, at the addresses shown on the attached Certificate of Service Form. Approval of a Third Party Hearing Request allows a petitioner to file a`contested case petition with the Office of Administrative Hearings within twenty (20) days of receipt of the. Chairman's Order. N.C. (}en. Stat..§ 1-13A-121,1(b). Denial of a Third Party Hearing Request is a final agency decision which may be appealed to the Superior Court in the county where the property is located under N.C. Gen. Stat. § 113A- 121.1(b) and Chapter 15013, Article 4. 33 OCT-28-2009 10:50RM From: ID:PREURTTE PREURTTE Paee:009 R=100% (9) Meainrcment Line. The line from which the ocean hazard setback as descmbod in Rute,,0306(a),of this Section is measued in thounvegetated beach area ofenvirotuuental concern as described in Rule .0304(4) of this section: Procedures tar determining the measurement lime in areas designated pursuant to Rule ,0304(4xa) of this section shallbe adopted by the Comrdssion for each area where such a line is designated pursuant to the provisions of G.S. 150B. Tbose procedures shall be available from any local permit officer or the Division of Coastal Management- Tn arm designated pursuant to Rule.0304(4)(b) of this Section, the Division of Coastal Management shall establish ameasmement line that approximates the location at which the vegetation line is expected to rcestabbsh,by: (A) determining the distance the vegetation line receded at the closest vegetated site to the proposed development site; and (B) locating the line of stable natural vegetation on the most current pro-starmaerialphotography of the proposed development site. and moving this Eno landward the distance determined in 'Subparagraph (g)(1) of this Rule. The meavtranent line established pursuant to this process shallin every tasc be located landward of the average width of the beach as determined from the mat current pre -storm aerial photography. (b) For the purposeofpublicandadmmistmitiwnotice and ceovcnience, each designatedmioordevelopmenipermitdoaing agency with ocean hazard areas may designate, subject to CRC approval to accordance with the Tool implementation and enforeemwtplan asdefined 15ANCAC 071.0500, a readily identifiable laud areawithin which the ocean hazard areas occur.. This designated notice area must include all of the land maens derfittod in Role .0304 of this Section. Natural or man-made landmarks may be considered in delineating this area History Note- Avrhori fy G.S. I MA-107; 113A-113(b)(6); 11 3A.124; E,(j: September AIM:, Amended v f., December 1, 1992; September 1, 1986, December 1,1985; rf ebruary 2, 19A1: TempoinryAmendibmiLQ. October10, 1996;' AmendedL ' Janvary 1, 1997; Temporary Amendment October 10. 1996 Expired on July W, 27 /997; Temporary Amendment r.D: October 22..1997, Amended EB: April 1, 2008: August 1, 2002; August 1,1998- 35A NCAC 07H A306 'GENERAL USE STANDARDS FOR OCEAN HAZARD AREAS (a) Tn orderto protect life and property, all development not otherwise specifically'ezempted or allowed by law or elsewhere in the CRCs Rulos'shall be located according to whichever of the following is applicable: (1) The ocean hazard setback for davbiopmont is measured in a landward direction from the vegetation line, the static vegetation line'or the measurement line, whichever is applicable. The setback distanco Is determined by both the sim of developmentandthc shoreline crosiontate asdeiinedinl5ANCAC 0711.0304: Development size is defined by total floor area for stmctrires and buildings octotal arm of footprint for development other than structures and buildings. Total floor area includes the following: (A) The total square footage of heated or air-conditioned living space;' (3). The total sgaarc footage,of parking elevated above ground level; and (C) She total pquasofootageofnoh-heotedorrcn-nit-umididonedrueaselevated abovegmundlevel,excluding attic space that is not designed to be load bearing,; Docks, mof<ovomd porches, and walkways are not included in the total floor Brea unless they are enclosed with material other than screen mesh or are being converted into an enclosed space with material other than screen mesh. (2), With the exception of those types of development defined in15ANCAC07H.0309,nodevelopment ,including any portion of a building or structure, shall oxtendoccamrardoftheocean hazard setback distance. This includes roof overhangs mtdelcvotod structural components that are ciu tilwoted, Jmee braced, or otherwise extended beyond the support of pilings or footings. The ocean hazard setback is established based on following criteria: (A) A building or otherstructurni less than 5,000 -via= feet requires it minirrium setback of 60 feet or 30 times the shoreline erosion We, whichever is greater; -(B) A building at other structure greater than or equal to.5,000 square feet but less than 10,000.square feet requires a minimum setback of 120 &et or 60 times the shoreline erosion rate, whichever is greater (C) A building or other structure greater than or cqual,to 10,000 square feet butlers than 20,000 square feet requires a minimum setback of 130 feet or 65 times the shoreline erosion rate, whichever is greater, (D) A building or other structure greater than or equal to20,000 square fact but less than 40,000 square feet requires a minimum setback of J 40 feet or 70 times the aboteline erosion raft, whichever is greater; (E) A building or other stmcturc-greater than or equal to 40,000 square feet but less than 60,000 square feet acquires a minimum setback of 150 feet or 75 times the shoreline erosion rate, whichever is greater, (F) A building or other structure greater than or equal to 60,000 square feet but less that 80,000 square feet 23 OCT-28-2099 10:48AM Frain: ID:PREVRTTE PREVRTTE Paoe:005 R=100z requires a riduimum setback of 16D feet or 80 times the shoreline erosion rate, whichever is greater, (G) A building or other structure greater than or equal to 80,000 square feet but less than 100,000 square feet ,requires a minimum setback of 170 foot or 85 titres the shoreline erosion rate, whichever is greater; (Ft) Abuilding or other structure greater thaw or equal to 100,000 square feet requires a minimun setback of 7180 feet or 90 times the shoreline erosion rate, whichever is greater, (n Infrastructure that is linear in nature such as roads, bridges, pedestrian access such as boardwalks and sidewalks„and utilities providing for'the trsnamissitm of electricity, water, telephone, cable television, data, stormwater and sewer requires a minimum setback of 60 feet or 30 times the shoreline erosion rate, whichever is greater; (J) Parking lob greater than tar equal to; 5,000 square fact requires a setback of 120 feet or 60 times the shoreline erosion rate, whichever is greater; and (iq Notwithstanding env other setback requirrament of this Subparagraph, a building or other structure greater Ann or equal to 5,000 square feet in a community with a static line exception in accordance with l'SA NCAC 071.120D requires a minimum setback of 120 feet or 60 times the shoreline erosion rate in place at the tithe ofpctmitissuance, whicheverisgreater. Tbesetbackabailbemeasured landward fromeither the static_vegcation line, the vegetation line or measurement line, whichever is farthest landward. (3) If a,primary dune exists in the AEC on or landward of the lot on which die development is proposed, the development sball, be landwarclof the crest of the primarydime of the ocean bazurd_setback, whicbever is farthest from vegetation line, static vegatationTmeofmeasurement line, whichever is,applicable 17oreXistinglots,however,Where setting the doveloptnent landward of the crest of the primary dune wouldpreclude any practical use of the lot, davelopmentttmy be i_acated oceanward'of the primary dune. In such cases, the development may be located landwardof the ocean hazard setback but shall not be located on or accarrwaul of a frontal dune. Ile words °existing lots" in this Rule shall ,mearra lot or tact of land which, as of Juno 1, 1979, is specifically described in a recorded plat and which 'cannot be enlarged by combining the lot or tract of land with a contiguous lot(s) ortract(s) of land tinder the same Ownership. (4) If no primary dune exists, but a frontal done does exist in the AEC on or landward of the lot on which the development is proposed, the development shall be landward of the frontal dune or landward of the ocean bawd setback' whichever is farthest from the vegetation line, static vegetation line of measurement_ line,whichever is applicable. _ (5) If neither a primary not frontal time exist in the AEC on or landward of the lot on which development is proposed, tbo stiacturc shall lie landward of the accea bazard setback. (6) Structural additions or increases in the footprint or atal floor area of it building or structure represent expansions to the total floor tort and shall meet the setback requirements established in this Rule and ISA NCAC 07H .0309(a). New development landward of the applicable sethr ckmay be cosmetically, but shall not be structurally, attached to an existing stru6arc thatdoesconform with current setback requirements, (7) _=Established common-law and staatorypublictights of access to and use of public trust lands and waters: in ocean hazard auras shall not be eliminated orrestrimed. Development shall not encroach upon public accesswaysnorshall it limit the intended use of the accessways: 0) Beach fill a_sdefnedinthis Section represents atemporary response tocoostalerosion, and compatible bench fill as defined in5A NC1AC 07H .0312 can be expected to emdo of least as fast as, if not faster than, the pre-project:beach. Partbermore, there is no assurance of future f uadiogor bcacb-compatible sediment for continued beach fill projects and projeetmeintcoana. Avegaationline that becomes established oceanwardofthe pre=prcjecivegcatiodline inanarea that bag received beach fill may be more wlnemble.to natural bazards along the oceanfront A development setback measured from the vegetation line provides less protection from ocean hazards. 'Therefore, development setbacks in areas that have received large-scale beach fill as defined in 15A NCAC 07H .0305 shall be measured landward from the statievegetation line as defined in this Section. However, in order to allow for development landward ofthc large-scale beach fill project that is less than 2,500 square fact and cannot meet the setbackrequirementsfrom the static vegetation fine, but can or has the potential to meet the setbackrcquirements from the vegetation lime set forth in Subparagraph (1) and (2)(A) of this Paragraph a local government or community may petition the Coastal Resources Commission for a "satin line exception" in accordance with ISANCAC 07J .1200 to allow developmentofpmp" that lies both within theitaisdictional boundary of the petitionar as well as the boundaries of the large-scale beach Bit project Thisstaticline exception shall also allow development greater than 5,000 square feet to use the setback provisions defined in Part (a)(2)(K) of this Rule in areas that lie within thc,jurisdictional boundary of the petitioner as well as the boundaries of the large-scale beach fill project The procedures for a static line exception request are defined in 15A NCAC 07J.1200.. If the request is approved, the Coastal Resources Commission shah allow development setbacks to be measured from a vegotatou line that is oeoanward of the static vegetation line ender die following conditions: (A) Development meets all setback requirements firm the vegetation line defined in Subparagrapbs (a)(1) and (a)(2)(A) of this Rule; (B) Total floor itros. of a building is no greater than 2,500 square feet; za OCT-28-2009 10:4BRM From: IMPREVRTTE PREVRTTE Pase:006 R=100x (C) Davelopiacat setbacks. are calculated froth the shoreline erosion rate in place at the time of permit issuance (D) No portion of a building orsttncturc,includingreefoverhangsendelevatedportion$thatarecantilevered, knee braced or otherwise extended beyond the support,of piimgs or footings, extends ocea»ward of the landward -most adjacent building or structure. When the configuration of a lot precludes the placement of a building or structure in line with the landward -most adjacent building or structure, an average line of construction shall be determined by the Division of Coastal Management on a caso-by-case basis in order to dckamine an ocean hazard setback that, is landward of the vegetation line, a distance no less than 30 times the shoreline erosion rate or 60 feet whichever is greater: (E) With the exception of satimming pools, the development defined in 15A NCAC '07H .0309(a) is allowed occamward of the static vegetation line; and {1) , Development is not eligible for -the exception defined in 15A,NCAC 07H .0309(b). (b) In order to avoid weakening the protective net= of ocean beaches and primary and frontal dunes, no development is pennitod that involves the femoval or relocation oflidmaty orfrontal dune sand orvegetation thereat which would adversely affectthe integrityofthedunc. Other dunes within tho ocean hazard area shall not be distwbedunless the development ofthe property is otherwise Impracticable, and any disturbance of any other climes. is allowed only to the extent allowed by 15A NCAC 07H .0308(b). (c)Development shall not cause irreversible damage to historic architectural or archaeological resources documented by the Division of Arebivesand History,.tho National Historical Registry, the local land -rue plan, or otbar sources. (d) Development shall comply with mintmarn lot size and set back TLquirtmems established by local regulations. (e)_Mobile homes shall not he placed within thehigh hazard flood area unless they sic within mobile home parks oxistingas if). Devolapmcrit shall'complywith general managementobiccyve for. ooeanbn7ard areas set forth in 15ANCAC 07H.0303. (g) Dcvclapment shall not interfere with legal access to, or use of: public resources norshall such development increase the risk of damage to public trust areas: (h) Devoteptnout proposals shalt incorporate wimsnres to avoid or minimize adverse impacts of the project. These'measuras shall be Impilemented at the applicartes exponse and may include aetions,tbat: (I) • minimize or avoid adverse impacts by limiting the inagnitudo or degree of the action, (2) restore the affaKed environment, or (3)' compensate for the adverse impacrs.by replacing of providing substioite resources. () Prior to the issuance ofany pemdt for development in the ocean hazard AECs, there shall be a written acknowledgment from the applicant to DC41 tbatthc applicant is aware of the risks associsicd wUh development in this hazardous area Mdtbe limited suitability of this area for permanent structures. By granting permits, the Coastal Resources Commission does not guarantco;the safety of the development and assumci no liability for future damage to the development. (i) All relocation of structures requires permit approval. Structures relocated with public funds shall comply rwith the applicable setback line as well as otherapplieableAFCndes. Structures includingseptictankaand other essential aeeessorip `relocated entirelyvrith non-publWfunds shall be relocated the maximum fcastblo distance landward of the proscnt location; septic tanks may notbelocated oceanwaidoftbeprimarystructure. To these cases, all other applicable local and state rules shallbe met. (k) Permits shall include the condition that any structure shall be relocated or dismantled when it becomes imminently threatened by changes in shoreline configuration as defined in 15A NCAC 07H .0308(a)(2)(B). The stttcture(s)'shall be. relocated or dismantled within two years of the time when it boeomrs imminently threatened, and in any case upon its collapse or subsidence. However, if natural shoreline recovery or beach zenourish scat takes place within twoyews of the time the structure become%imndnentLvthreatened, so that thestructtro isno longerimminently threatened, then Itneed notbe relocated or dismantled at that time. This condition shall not affect the permit holder's right to seek authorization of temporary protective measures allowed under ISA NCAC_07H .0308(a)(2). History Note, ArdhorilyG.S.113A-107, 113A-1130)(6), 113A-114: Ej] Scptember9,1977,• AmendedEjj. December 1, 1991; March 1, 1988; September 1, 1986, December 1,1985; RRC Objection due to amblguiry.Ejj.' January 24,1992; Amended Elf.' March 1,1992, RRCObjection due to amh(3uktyEff. May 21,1992; Amended Ef.. Fcbrz ary 1, J993; October 1,1992; June 19.1992: RRC Objection tine to ambiguity Ejf. May I8.1995,, Amended gff.. August 11, 2009; April 1, 2007 November 7, 2004; June 27, 1995. 15A NCAC 07H .0307 USE STANDARDS FOR OCEAN HAZARD AREAS: EXCEi?TIONS 13 OCT-28-2009 10:49AM From: ID:PREVATTE PREVATTE Paee:007 R=100%Ir t ATTACHMENT B Loco ity-G ,M\G 4 t Q{-�_ IPermn Nuinber Ocean Hazard f Estuarine Slioreline -ORlir Shoreline I nbhc,Tivat Shoreline Other (lror official use on/Y f GENERALINFORM ATIOhi LAND OWNER Name Address IC AIie e City C ti p t7 A a to A State' --A � Zip'�51 4. Phone G} i 1 tO �9 q I AUTHORIZED AGENT / Name Address n1' 19,3( fSG City (� 14T� State /VKL Zip . ?� tf,.i Phone SJ% �tS�i3 LOCATION OF PROJECT: adjacent waterbody:) 4=0 ,ss, street name and/or directions to site. If not oceanfront, what is the name of the ).30 S.TA-fi oiv L.A._ DESCRIPTION OF MOM CT. (List all proposed construction and land disturbance.) AILW bacrfiPAi/v �fGI, I,.�,..:L_ . A 7-;?i7-&Y t�o--t- SIZE OF LOT/PARCEL: �OF 000 square feet acres PROPOSED USE: Residential =j-Z (Single-family Mplli-family_) Commercial/hAustrial Other ' 1 TOTAL ENCLOSED FLOOR AREA OFABUILDING INTHE OCEAN HAZARD AREA OFTNV7RON- MENTAL CONCERN (AEC): 6.57DO square feet (includes all`floors and roof covered decks) SIZE OF BUILDING FOOTPRINTAND OTHER IMPERVIOUS OR BUILT UPON'SURrACES IN'THE COASTAL SHORE LINE ARE, AOFENVIRONMENTAL CONCERN (AEC): $0100 square feel (Calculations includes the area of the roof/drip line of all buildings, driveways, covered decks, concrete or masonry patios,. etc., that are within the applicable AEC. Attach your calculations with the project drawing.) Choose the AEC.arca that applies to your property, (I ithin 75 feet of Normal .High Water/Normal Water Level for the Estuarine Shoreline ACC (2) within 575 feet of Normal High Water/ Normal Water Level for the Estuarine Shorcline_A C, ac 'ace f 4A Outstending Resource Waters (3) within 30 feet of Normal Iligh Water/ Normal Water Level for the Public Trust Shoreline jI 3'2009 (Contact your Local Permit Officer if you are not sure which AEC applies to your property.) NC 4. STATE STORMFVATER MANAGEMENT PERMIT. is the project located in an area subject to a Mate Stortmvater ' Management Permit issued by the NC Divisiotl of Water Quality? z 5 ?=. YIiS_ NO If yes, list the total built upon area/impervious surface allowed for your lot or parcel: 5560 square feet. )TH'ER PERMITS MAl BE REQU [RED: ]'he activity you are planning may rcquire'perma+ otlur than, the CAMA minor develop-, nent pemiit. As a service we have compiled a listing of the kinds of permits thr i might be require.we suggc"styou check over the list vith your LPO to determine if any erihese apply to yourin-oject. 7mning, Drinking Witter Well, Sepf ic7ank (or.other sanitary waste reatment system);. Building, Flectrical,.Plumbing, Ileating and. Air Conditioning, Insulation and Bnergy Canservadai, F1A CeniFiciition,.. ;and Dune, Sediment Control, Subdivision Approval, Mobile Home Park Approval, Highway'Connection, and others. iTAfEMENT OF OWNERS1112; file undesigned, an applicant fora CAMA minor development permit being either the owner of property in an AFC or a rerson authorized to act as an agent for purposes of applying for a CAMA minor development permit,. certify Lbat the person fisted as landowner on this application has a significant interest in the real property described therein. This interest can be lescribed as: (check one) -C ,p /ii er3 LDN,J Lrl06d /gY. YZCA�f*7 ` .-"an owner or record title, Title is vested in NA%/a• 16 k0e see Deed Book ! 2D rage_&a in the 1QRL4AySac�Lc _ County Registry of Beds. an owner by virtue of inheritance. Applicant is.an heir to the estate of )robate was in County. if other interest, such as written contract or lease, explain below or use a separate sheet & attach to this application. VOTIFICATION or-ADJACFNT PROPERTYOWNERS: furthermore certify thatthe followingpersons are owners of properties adjoining this property. I affirm that I have given kCTUAL NOTICE to each of them concerning my intent to develop this property and to apply fora CAMA permit. (Address) �) �GY4 N rtr 110 Bex'7 7 /Ve—it./ / �s� / zs'7 -8. 4CL4/ $ ao :3)` q) FOR DEVELOPERS IN OCEAN HAZARD AND ESTUARINE HAZARD AREAS: acknowledge that the land owner is aware that the proposed development is planned for an area which may be sosccptible o erosion and/or flooding. I acknowledge that the local permit officer has explained tome the particular hazard, problems associated with ,this lot. This explanation was accompanied by recommendations concerning stabilization and floodproofing ecliniques.' PERMISSION TO ENTER ON LAND: furthermore certify that l am authorized to grant and do in fact grant permission to the local perrait_olircer and his agents to snter on the aforementioned lands in connection with evaluating information related to this permit application. this application includes: general information (this form), a site drawing as described on the back of this application, the )wnership statement, the AFC hazard notice where necessary, a, check for $1 MOD made payable to the locality, and any nformation as may he provided orally by the applicant: The details of the application as described by these sources are ncorporated without reference in any permit which may be issued. Devta'tioi from these details will constitute a violation )f any permit. Any person developing in an AFC without permit is subject to civil, criminal and administrative action This the_�A_day of _ 5= 120 n e r SEA 3 0 2ff109 0 b O Landowner or person authorized* to act as his agent for purpose of filing a CAMA erniit-a )hctntinn t t _! i iN, p g P P g� p p] 7 0 n v AEC HAZARD NOTICE Project Is in An: ✓ Ocean Erodible Area High Hazard Flood Area Inlet Hazard Area Property --Owner: 111A25 e .wpm , t Property Address: Z 3 0 .57 `,rLi- t o � . p cz� SE AJAJc Date Lot Was,Platted: l ro/! t /?�od 81 This notice is intended to make you, the applicant, aware of the ,special risks and conditions associated with development in this area, which is subject to natural hazards such as stones; erosion .and currents. The rules of the Coastal Resources Commission :require thatyou receive anAEC Hazard Notice and acknowledge -that -notice in writing before'a permit for development can be issued. The rCommission's rules on building standards, oceanfront. setbacks and dune alterations are designed to minimize, butnof eliminate, property loss from hazards. By granting permits, the Coastal Resources Commission does not guarantee the safety of the development and assumes no liability for future damage to the development Permits issued in the Ocean klazard Area of Environmental Concern include the condition that structures be relocated or dismantled if they become imminently threatened by changes in shoreline configuration. The structure(s) must be relocated or dismantled within two (2) years'of becoming imminently threatened, and in any case upon its collapse or 'subsidence. The best available information, as accepted by the Coastal Resources Commission, indicates that the annual Tong -term average ocean erosion rate for the area where your prpperry is located is_ A _ feet per year. The rate was established by careful analysis of aerial photographs of the coastline taken over the past50 years. Studies also indicate that the shoreline could move as much as a3� feet landward in a major storm. The flood waters in a major storm are predicted to be about _feet deep in this area. Preferred oceanfront protection measures are beach nourishment and relocation of threatened structures. }lard erosion control stntctures such as bulkheads, seawalls, reveumcnts, groins, jetties and breakwaters are prohibited. Temporary sand bags may be authorized under certain conditions. The applicant must acknowledge this infomtationand requirements by signing this notice in the space below. Without the proper signature, the application will not be complete. SPECIAL NOTE: This hazard notice is required fordevelopment in areas subject to sudden and massive stones and erosion. Permits issued for development in this area expire on December 3l ofthe third year following the year in which the permit was issued. Shortly before work begins on the project site, the Local Permit Officer must be contacted to-detenninedhevegetation line and setback distance at your site. If the propertyhas seen little change since the time ofpernlitissuance, and theproposed development can still meet the setback requirement:the LPO will inform you ihaf you may begin work. Substantial progress on the project must be made within 60 days of this setback determination, or the setback must be remeasured. Also, the occurrence of a major` shoreline change as the result ofa storm within the 60-day period will necessitate remeasurement of the setback.lt is important that you check with the LPO before the permit expires for official approval to continue the work after the permit has expired. Generally, if foundation pilings have been placed and substantial, progress is continuing, permit renewal can be d"uth6fi ed. It is" unlawful to continue work after permit expiration. For inom inforination, contact: 3)NgN tiI (CQ 'J Local Per it Officer Q•D:/3ox3oyq Address Locality Phone Number ,FG ? 31D79 i'd£: tti tr/1f_(t,�l?s�I'G1°i it-� pplirant'`S Revised 2107 A ATTACHMENT C , VILLAGE OF BALD HEAD ISLAND, NORTH CAROLINA APPLICATION FOR A BUILDING PERMIT A. Property Owner`s Name: NATACP B. Coutractor's Name: 'WA4".O- C. Lot#: nn�� �fD30 D. StreetAddress:p�7(%S/'A7fO.✓ E. CAMA Permit #: "ai't IZ F. Locationofall structures on lot with setbacks MUST be on Survey Plat G. Square Footage: Heated Area Covered Area Open Area I" Floor: -2 /SDI .Z N to 2" Floor: 2 N 2 -. �i _ 3" � Floor: T Garage: ! Z g 2 Crofter: TOTALS: t/ .2721 � 2, H. Number of Bedrooms: I. Number of Bathrooms:. S ' J. Type of construction: New Construction Demolition_Repair_ Removal _ Addition — Alteration Relocation _ K. .Plumbing: #of fixtures Water closets: Urinals:. - -Lavatories:. Floor Drains: 'Bathtubs: Electric WaterHtrs: % Exterior' showers: Fired Coil Water Htrs: L Catch Basins: Fired Storage WaterHtrs: Sinks: Washing Machine: Shower baths: Storm Drains: % Laundry tubs: Water Service: Dishwashers: Sewer Service: L -' Garage. Sprinklers: L. Number of HVAC units: M. -Contractors: Building: ex License #: 3/ 39/ Address: PD_ (ff� Phone #: 41S 7 95/ 9 G! Nx .eve L-Kaw _ Electrical:. e A70- 5.4-A-- - License #: Address: b A kS/Asvcf Phone Plumbing: b MAt✓ License#: Address: S d� Phone #: 3 ZK/L HVAC: /VAA.CP /t-PA# .k'License#: Address: S 4,6& Ate- Phone #: Fire Alarm: N rd as License#: Address: Phone #: 7_I, 2 urr4 tt' Other:. f / p V .Q-%sal License #: Address: R.44 X f P v A +4e. Phone #: SCU, 2 _2/G YR2 ?� ALL NEW CONSTRUCTION MUST MEET THE NORTH CAROLINA STATE BUILDING CODES, THE ENERGY CODE, AND THE VILLLAGE OF BALD HEAD ISLAND ZONING ORDINANCES. VARIATION FROM THE APPLICATION NEEDS PRIOR APPROVAL FROM THE BUILDING INSPECTOR Date: Signature of Applicant: , 44.4, GENERAL NOTES: LEGEND: a �o� l�Ilmillyifflifflffl9ffillffillullimll!! aura5�uns!u■u*ea!aea- rsn.s��..:��euaa^� R 6 MINE 0 I ����.nemtn>ummmweu��emfamm��® >. � 3 Egg t �� �• ppp Fk AR tthh k 5 RQL / HWSEYYYY - tt C, OND FLOOR PLAN IMIR r)m H R ASSOC ALES PA ARCKMOURE PIANNWS wYvxnenam � wwae r.vioawivi ?yy v.nvaaua J r «nwm 3873 0 a a, <, a a =m- 181 12..2 voom® ATTACHMENT D W_ AYNE LAMBERT Custom Built'14omes PO Box 3180 Bald Head Island, NC 28461 wayne lambeitfbellsotith.net - - Off ce (910) 457-95 13Fax (910)457-9818 NC Unlimited License #31391 SC Unlimited License#4234 9/28109 Kevin Busik PO Box 778 New Hope, PA 18938 To Whom It May Concern: Mc.& Mrs. Natale Kuey are applying for a CAMA permit to build a new residence on Lot #4030 Station House Way,,Bald Head.Island, NC. The.plans of the new residence areat my,offce for review. 'Please feel free to„call_me with any questions concerning the construction. Thank -you, Wayne Lambert k G Lra } ki "E [t o C' 1�1;14j L i.-f3 S G d7;J a m �{ N: RA rl 17 O. O' r4: S Q' C3 0 1 0 ,tea p7x •-. 'Cerltfted Feo Aettim Rccalptiea (EldoraernalA flaquimd} rPosMa�#: c Hole ,_ �` / ;. ResvatedDAtrj Fe iEWOMMeat R0400d) � $•• a � TotalPasl@ga&F9es �� � . aIFOBoxNo.(y fL1 P1isLY�%l�,:e G141 $fafa, G7Pi .c .A-. GAS FI:9yv; __ a - O Return RecelAt :O. lEaQaeemom,RaRY �: :.Resllklatl ReGvery ,. .� ' (EnJorseapN Roga a ToW Pmiagp_ A F Er J o t7 O arF,99 Aw No. fI C1y 9Ette USPS - Track & Confirm Page 1 of 1 UNITED5TAM POSTA SERVICE tip:.. Track ;�:Confirrn Track & Confirm Search Results LabeUReceipt Number. 70091410 0001 1255 3623 Service(s): Certified Mail v Track & Confirm - Ststus:.Detivered Enter Label/Receipt'Number,,. Your, item was delivered at 11:08 AM on September30, 2009'inNEW HOPE, PA 18938. Detailed Results: - • Delivered, September 30, 2009, 1108 am, NEW HOPE, PA 18938, • Nobce Left, September 30,2009, 8:50 am, NEW HOPE, PA 18938 -At"Hit at at Unit, September 30, 2009, 8p18 am, NEW HOPE, PA 18938 - i. fdutiPsatirirr Options : , . t , Track:& Confirm by email Get current event information or updates for your item sent to,you or others by email. CED sm,man �u.�i4nr�i�erv� -" •F_aaas -. Rights Reserved: _Ca9Y'�S§�£k`5. iF.3CY i'.4Xa�Y L'�4'!. � IC@'A9 GLUS@' Business Cusiam§LGa1' No FEAR Act EEO�Data FO1A.. http:/ltrkcnfrml_smi.usps.com/PTSIntemetWeb/InterLabelInquiry.do 117312009