53-13 TX Hines, Benjamin

Permit Class
TRANSFER
Permit Number
53-13
STATE OF NORTH CAROLINA
Department of Environment and Natural Resources
and
Coastal Resources Commission
Vermit
for
X Major Development in an Area of Environmental Concern
pursuant to NCGS 113A-118
_ Excavation and/or filling pursuant to NCGS 113-229
Issued to Beniamin Gerald Hines Jr., Unit 701.100 Olde Towne Yacht Club, Beaufort, NC 28516
Authorizing development in Carteret County at adi. to Taylors Creek, at 2570 Lennoxville
Road, in Beaufort as requested in the permittee's application dated 3/18/13 including the
attached work
plan drawings (3). all dated 3/4/13
This permit, issued on February 21 2014 is subject to compliance with the application (where consistent
with the permit), all applicable regulations, special conditions and notes set forth below. Any violation of these terms may
be subject to tines, imprisonment or civil action; or may cause me permit to be nun ana voia.
Docking Facility
1) Unless specifically altered herein, this permit authorizes only the construction of the additional
docking facility with associated tie pilings, and other structures and uses located in or over the water
that are expressly and specifically set forth in the permit application. No other structure, whether
floating or stationary, shall become a permanent part of this docking facility without permit
modification. No non -water dependent uses of structures shall be conducted on, in or over public
trust waters without permit modification.
2) All portions of the access pier/walkway located over Coastal Wetlands shall not exceed a width of 6
ft. and shall be elevated a minimum of 3 feet above the marsh substrate as measured from the bottom
of the decking.
(See attached sheets for Additional Conditions)
This permit action may be appealed by the permittee or
other qualified persons within twenty (20) days of the issuing
date. An appeal requires resolution prior to work initiation or
continuance as the case may be.
This permit must be accessible on -site to Department
personnel when the project is inspected for compliance.
Any maintenance work or project modification not covered
hereunder requires further Division approval.
All work must cease when the permit expires on
December 31, 2016
In issuing this permit, the State of North Carolina agrees
that your project is consistent with the North Carolina Coastal
Management Program.
Signed by the authority of the Secretary of DENR and the
Chairman of the Coastal Resources Commission.
JVVA
�T
Braxton C. Davis, Director
Division of Coastal Management
This permit and its conditions are hereby accepted.
3ao&�
�/ Signature of Permittee

Benjamin Gerald Hines Jr. Permit # 53-13
.: Page 2 of 3
AIDDITIONAL CONIDITIONS
i 3), The authorized structure shall not extend more than''/4 of the width of the waterbody, as measured from
the waterward edge of the marsh on both sides of the water body immediately in front of the project site.
i'
4)' No attempt shall be made by the permittee. to prevent the full and free use by the public of all navigable
waters at or adjacent to the authorized work.
5) The permittee shall maintain the authorized work in good condition and in conformance with the terms
and conditions of this permit. The permittee is not relieved of this requirement if he abandons the
permitted activity without having it transferred to a third party.
{ •`` 6)�" This permit does not authorize the interference with any existing or proposed Federal project, and the
s permittee will not be entitled to compensation for damage to the authorized structure or work, or injury
which may be caused from existing or future operations undertaken by the United States in the public
interest.
7);``
The permittee shall install and maintain at his expense any signal lights or signals prescribed by the U.S.
Coast Guard, through regulation or otherwise, on the authorized facilities. At a minimum, permanent
reflectors shall be attached to the structure in order to make it more visible during hours of darkness or
inclement weather.
This permit authorizes one additional boat slip for maximum of five formalized boat slips.
General
The permittee understands and agrees that, if future operations by the United States requires the
removal, relocation, or other alteration of the structure or work authorized by this permit, or if in the
opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause
unreasonable obstruction to free navigation of the navigable waters, the permittee shall be required,
upon due notice from the Corps of Engineers, to remove, relocate or alter the structural work or
obstructions caused thereby, without expense to the United States or the state of North Carolina. No
claim shall be made against the United States or the state of North Carolina on account of any such
removal or alteration.
No Coastal Wetlands or open water areas shall be excavated or filled, even temporarily.
This permit shall not be assigned, transferred, sold, or otherwise disposed of to a third party without the
written approval of the Division of Coastal Management.
The permittee and/or his contractor shall meet with a representative of the Division prior to project
initiation.

Gerald Hines Jr.
ADDITIONAL CONDITIONS
Permit # 53-13
Page 3 of 3
This permit does not eliminate the need to obtain any additional state, federal or local permits,
approvals or authorizations that may be required.
Future development of the permittee's property may require a modification of this permit.
Contact a representative of the Division at [phone] prior to the commencement of any
such activity for this determination. The permittee is further advised that many non -water
dependent activities are not authorized within 30 feet of the normal high water level.
The U.S. Army Corps of Engineers authorized the proposed project under COE Action Id. No.
SAW- 2013-00662.

Boat f4to pie"
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We don't PUMP 'em.... WE DRIVE 'em
Gr7Gi / G�i�V,�G
PROPOSAL FOR Braxton Davis DATE 2/17/14
WORK TO BE PERFORMED AT. 2570 Lennoxville Road, Beaufort, N.C. 28516
IntraCoastal Marine proposes to transfer Major Permit no. 53-13 from Stevenson and Becky Weeks,
P.O. Box 360,Beaufort, N.C. 28516 T to Benjamin Gerald HinesJr. And wife Dale Pate Hines whose
address is Unit 701,100 Olde Towne Yacht Club Road, Beaufort, N.C. 28516.
President,
Earl Weeks
RECEIVED
FEB 17 2014
t�
DCM-MHDCITY
EARL WEEKS, Owner P.O. 698 MOREHEAD CITY, NC 28557 [phone] [phone]
f
aem

I
NORTH CAROLNA CARTERET COUNTY
This Instrument and this eadmkete am duly flied at
the date and time enI * Book and Pape shown
on the first page her�M. \ (-\
THIS INST..1 Wi NerMEO Br.
C. R. WHEATLV. III
we Ra n
WHFATLY WHEAnY WEFxe EU"ON A MASSIF, PA
P O Box 36(1 ButvoRT, NC 1e616
TbmK
—thoR.psor
WARRANTY DEED
HEd147,173
I OR REOIS7RJUFOLam GGS.ER 0 ulEUS
G.rbr.I ca+,Ir IY.'
December 16. 2013 02:42:20 PM
BWc DEED 3 P
FEE 326 W
NC REVENUE STA467413� :00
FIL
STATE OF NORTH CAROLINA PARCEL ID NUMBER:731530472329000
COUNTY OF CARTERET STAMPS: $3000.00
THIS DEED, made this llX —day of December, 2013 by and between Stevenson L. Weeks Sr.,
unmarried, Grantor, whose address is PO Box 360, Beaufort, NC 28516 and Rebecca M. Weeks, unmarried,
Grantor whose address is 1723 Lennoxville Road, Beaufort, NC 28516, Grantors and Benjamin Gerald Hines
Jr. and wife, Dale Pate Hines, Grantee, whose address is Unit 701, 100 Olde Towne Yacht Club Road,
Beaufort, NC 28516;
WITNESSETH:
That said Grantor, for a valuable consideration paid by Grantee, the receipt of which is hereby
acknowledged, has and by these presents does grant, bargain, sell and convey unto the Grantee in fee
simple, all of the following described tract or parcel of land situated in the Beaufort Township, Carteret
County, North Carolina, and more particularly described as follows:
SEE ATTACHED EXHIBIT "A'
The property hereinabove described was acquired by Grantors by instrument recorded
in Book 728, Page 742, Carteret County Registry.
This property is the primary residence of the Grantors.
TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all privileges and appurtenances
thereunto belonging to the said Grantee, in fee simple.
AND said Grantor does covenant with the Grantee that he is seized of the said property and has
BOOi'i l,4tal f AGE 4-n
RECEIVED
FEB 17 2014
DCMMA WY

the right to convey same in fee simple, that title is marketable and free and clear of all encumbrances,
and that he does warrant and defend the title to the said property against the lawful claims of all
persons whomsoever.
IN WITNESS WHEREOF, said Grantor has hereunto set his hand and seal, the day and year first
above written.
(SEAL(
/7hStd (fit L. ks Sr.
[
X�. a &�C. . n�SEAQ
Rebecca M. Weeks
STATE OF NORTH CAROLINA
COUNTY OF CARTERET
11
�dd�i—�ll`/it�h . Notary Public of the County and State aforesaid,
Sr. certify that Stevenson L Weeks personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and Notarial seal this
NO Tq9 + e
M CM mi n
A
ny AELIG Oa
�2a
ATE OF NORTH CAROLINA % .oF
COUNTY OF CARTERET
/
I, .k'/./�.:1[L . Notary Public of the County and State aforesaid,
certify that Rebecca M. Weeks p rsonally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and Notarial seal this L_'' aa'�y of December, 22001�3.
AGL11 ZZ-
,,._ Notary Public
My Commission Ex Tres:
S-d3-oZIJILi � NO?,
BOOK y . PAGE TY2 Inc,
17 2014

EXHIBIT "A"
BEGINNING at a point located on the southern right of way of SR 1310 (Lennowille Road) and the high
water mark of the western side of Cowpen Creek, said point being located S 89-47-30 W 125.34 feet
from a PK Nail located in the center of the Intersection of SR 1386 and SR 1310, thence from said
beginning point with the high water mark of Cowpen Creek 5 20-15-05 W, 97.24 feet to a point; thence 5
10-32-02 W 75.87 feet to a point; thence N 80-23-32 W 45.59 feet to a paint; thence 5 6-06-28 W 23.51
feet to a point; thence 5 44-19-36 E 50.11 feet to a point; thence S 4-54-33 W 133.20 feet to point;
running thence with the high water mark of Taylor's Creek S 61-57-57 W 68.29 feet to a point; thence N
77-46-12 W 90.19 feet to point; thence N 18-18-50 E 232.0 feet to point; thence N 26-52-20 E 168.20
feet to a point In the southern right of way of SR 1310; thence with the southern right of way of SR 1310
S 76-21-44 E 72.17 feet to the POINT OF BEGINNING. Being all of Lot 1 on that map entitled Stephen M.
Valentine and Stevenson L. Weeks and assigns dated January 13, 1994, prepared by Powell Surveying
Company.
Included in this conveyance is a septic easement for Stevenson L. Weeks and assigns (Lot 1) for so long
as needed being described to wit: BEGINNING at a point located on the southern right of way of SR 1310
(Lennoxville Road) said point being further identified as being looted the following two courses and
distances from a PK nail set at the centerline of the intersection of SR 1310 and SR 1386, S 89-47-30 W
125.34 feet to point; thence N 76-21-44 W 72.17 feet to the POINT OF BEGINNING; thence S 26-52-20 W
i68.20 feet to a point; thence N 57-37-40 W 64.0 feet to a point; thence N 24-19-38 E 145.68 feet to
point; thence 576-21-44 E 72.17 feet to the POINT OF BEGINNING.
R()O1�&,ri__PA --r
RECENED
17 2014

STATE OF NORTH CAROLINA OFFICE OF ADMINISTRATIVE HEARINGS
HEARINGS DIVISION
COUNTY OF CARTERET FILE NO. 14EHR05989
STEPHEN M. VALENTINE, )
Petitioner )
V. ) SETTLEMENT AGREEMENT
DIVISION OF COASTAL )
MANAGEMENT, )
;Ab Respondent
s n- 96(01
THIS MATTER was mediated before John A. J. Ward, Certified Mediator, on the 13th
day of November, 2014, at the office of John A. J. Ward, PLLC located at 219 Pollock Street,
New Bem, North Carolina. Stephen M. Valentine, Esquire, Petitioner, appeared pro se;
Elizabeth J. Weese, Esquire, appeared for the Respondent; and C. R. Wheatly, III, Esquire,
appeared for Dr. Benjamin Gerald Hines, Jr., Permittee.
After mediation of the matter, the parties resolved the matter and agreed to the following
terms of settlement:

3

Responder
ZPermittee
Stephen M. Valentine, Petitioner
Elizabeth J. Weese, Esquire
C. R. Wheatly, III, Esquire
Attorney for Permittee
John A. J. Ward '
Certified Mediator

STATE OF NORTH CAROLINA
COUNTY OF CARTERET
BEFORE THE CHAIRMAN
COASTAL RESOURCES COMMISSION
CMT 14-04
IN THE MATTER OF THE THIRD PARTY )
HEARING REQUEST BY ) FINAL DECISION
STEPHEN M. VALENTINE )
1. PROCEDURALBACKGROUND
Petitioner Stephen M. Valentine (Petitioner) submitted a request for a Third Party
Hearing to the Division of Coastal Management (DCM) on June 2, 2014 seeking permission to
file a petition in the Office of Administrative Hearings for a contested case hearing pursuant to
N.C.G.S. § 113A-121.1(b). Petitioner seeks to challenge the November 2013 request for
modification to CAMA Major Permit No. 53-13 approved by DCM on December 10, 2014 and a
second minor modification to the permit issued March 6, 2014 allowing revisions to a permitted
docking facility along the Taylor's Creek portion of property located at 2570 Lennoxville Road,
Beaufort, Carteret County, North Carolina.
In reviewing the Request the undersigned considered the following which together
constitute the official record on which this decision was made:
• July 2, 2014 CAMA Third Party Hearing Request Form submitted to DCM by
Stephen M. Valentine and letter to DCM dated July 2, 2014 with Exhibit A;
• CAMA Major Permit No. 53-13 issued on May 1, 2013, including 3 workplan
drawings dated March 4,2013,
• Minor modification of CAMA Major Permit No. 52-12 issued on December 10,
2013, including a workplan drawing dated November 19, 2013.
• CAMA Major Permit No. 53-12 transferred to Benjamin Gerald Hines, Jr, on
February 21, 2014;
• Letter dated March 6, 2014 authorizing refinement to CAMA Major Permit #53-
12, including correspondence and workplan drawing;

• Letter dated June 17, 2014 from Daniel M Giovani to Stephen Valentine;
• Letter dated July 8, 2014 from Braxton C Davis to Benjamin G. Hines, Jr.
• Letter dated July 8, 2014 from Stevenson Weeks to Braxton C. Davis including
two photographs.
II. STANDARD OF REVIEW
Under the. Coastal Area Management Act (CAMA), a third party may file a contested
case hearing petition to challenge a CAMA permitting decision involving someone else only if
the Coastal Resources Commission (Commission) first determines that a contested case hearing
is appropriate. Moreover, the statute provides that
A determination of the appropriateness of a contested case ... shall be based on
whether the person seeking to commence a contested case:
(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 request for a hearing is not frivolous.
Section 113A-121.1(b) (emphasis added). The Commission has delegated to its Chairman the
authority to determine whether a third party request for a hearing should be granted or denied.
15A NCAC 7J .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 seekjudicial review, Id. If the third party's hearing request is denied, the permit is reinstated
by operation of law pursuant to N.C.G.S: § 113A-121.1(c)
2

HI. FACTS
A. The Permittee is Benjamin Gerald Hines, Jr. Mr. Hines owns property at 2570
Lennoxville Road along Taylor's Creek, in the Town of Beaufort, Carteret County, North
Carolina. According to county records, Mr. Hines and his wife purchased this property from
Stevenson L. Weeks and Rebecca M. Weeks on or about December 16, 2013.
B. The Petitioner is Stephen M. Valentine. Petitioner owns property at 2568
Lennoxville Road along Taylor's Creek, in the Town of Beaufort, Carteret County, North
Carolina. The Petitioner's property is to the west and adjacent to Permittee's lot. Petitioner's
property includes an existing "L" shaped dock which extends into Taylor's Creek.
C. On March 19, 2013 Petitioner received notification as an adjacent riparian
landowner of Mr. and Mrs. Week's application for a CAMA major permit. The notification
included a copy of the application for a CAMA Permit along with maps and aerial photos
showing the location and size of the proposed pier. The proposed pier was 96 feet in length and
5.5 feet wide. At its end, an "L" section approximately 29 feet long and 7 feet wide was planned
for the east side of the pier. Four tie-up pilings were also proposed. Three were planned
approximately 18 feet waterward of the main pier/platform structure and one was located
approximately 15 feet east and in line with the proposed pier/platform. The proposed structure
was planned approximately 70 feet from the nearest adjacent riparian property line and
approximately 90 feet from Petitioner's adjacent docking facility. The planned dock was similar
to Petitioner's existing "L" shaped dock.
D. The proposed construction did not impact any shellfish harvesting areas or
primary nursery areas. The proposed pier was within coast wetlands and, as planned, would
shade 88 square feet of coastal wetlands.
3

E. In his July 2, 2014 letter to DCM, Petitioner states that based on the location of
the proposed dock, he determined that it would not interfere with the use of his existing dock and
for that reason, Petitioner did not object to the proposed development or submit comments to
DCM on the original permit application.
F. CAMA Major Permit No. 53-13 was issued to Stevenson and Rebecca Weeks on
May 1, 2013.
G. The original permit authorized the construction of a pier, L-head platform, four tie
pilings and one slip along the Taylor's Creek portion of property located at 2570 Lennoxville
Road, in the Town of Beaufort, Carteret County, North Carolina as described in the application.
H. In. November 2013. Mr. Weeks requested a minor modification to CAMA Major
Permit No. 53-13 to reconfigure the previously permitted pier and dolphin mooring pilings.
Specifically, Mr. Weeks requested permission to increase the "L" shaped platform to nine feet
wide by fifty-one feet long to accommodate a larger boat, reduce the length of the pier to ninety-
two feet and the width to five feet as well as to add dolphin style mooring pilings located
approximately nineteen feet from the eastern riparian corridor, twenty-five feet from the east and
west sides of the platform and twenty feet from the south side. The western location of the pier
would remain as previously permitted. All parts of the docking facility (including dolphin
pilings) shall be located a minimum of 15 feet from riparian corridors.
I. Mr. Weeks did not provide adjacent riparian landowner notification regarding the
requested modifications to the permit to Mr. Valentine.
J. The request for a minor modification of CAMA Major Permit No. 53-13 was
issued to Stevenson and Rebecca Weeks on December 10, 2013 consistent with the request and
4

authorized reconfiguration of the permitted docking facility and additional dolphin style mooring
pilings.
K. CAMA Major Permit No. 53-13 was transferred pursuant to 15A NCAC 7J
.0406(c) to Benjamin Gerald Hines, Jr. on February 21, 2014.
L. Shortly thereafter, on February 25, 2014, Mr. Hines requested a minor
modification of the Minor Modification previously issued regarding CAMA Major Permit No.
53-13 issued on February 21, 2014. Specifically, the applicant requested an increase in the pier
width to six feet and relocation of the four dolphin style mooring pilings so that the dolphin
pilings would be located forty feet from the eastern riparian corridor, twenty-five feet from the
western riparian corridor, and twenty-five fee from the east and west sides of the platform. The
applicant did not provide notification of the request to Mr. Valentine as the adjacent riparian
property owner.
M. On March 6, 2014 Mr. Hines received written authorization by letter from DCM
to reconfigure the previously permitted L-head platform to a T-head design and to relocate the
dolphin style mooring pilings as requested. The'letter authorizing the request indicated that the
application would be considered a refinement and that all permit conditions including the
December 31, 2016 expiration date would still apply and remain unchanged.
N. The refinement authorized development within the Permittee's riparian access
area and did not allow development within 15 feet from the riparian setback from Petitioner's
riparian access area.
O. ' Petitioner was not notified of DCM's grant of the November 2013 request for a
minor modification of the permit or the February 2014 minor modification request. As a result of
the approval of Permittee's two requests for minor modifications of the permit, the pilings on the
5

west side of the proposed docking facility were relocated approximately forty-five feet closer to
Petitioner's property but still outside the fifteen -foot riparian setback.
P. In approximately May 2014, Mr. Hines began construction of the permitted dock
as modified and Petitioner noticed that the dock did not confirm with the drawings attached to
the permit application he had received with the adjacent riparian landowner notification. In
particular, Petitioner noticed installation of a dolphin mooring pier about thirty-five (35) feet
from his own dock.
Q. Based on these developments, Petitioner visited the Morehead City DCM office in
early June 2014, learned about the requests for modification of CAMA Major Permit No 53-13
which had been approved without any notification to Petitioner, and discussed his concerns with
the District Manager for the Morehead City district. Following that meeting, Petitioner received
a letter dated June 17, 2014 acknowledging the discussion and informing Petitioner of the
process for contesting DCM's actions.
R. On July 2, 2014 DCM timely received Petitioner's request to for a third party
hearing to challenge the minor modification and refinement of CAMA Major Permit No. 53-13.
In particular, Petitioner noted that as a result of the modifications to the permit, Mr. Hines had
built a massive dock with dolphins approximately thirty-five (35) feet from Petitioner's slip
making it difficult or impossible for Petitioner to maneuver his forty-five (45) foot boat in and
out of the slip at the end of his dock. Petitioner claimed that the.modifications to CAMA Major
Permit No. 53-13 were major modifications insofar as authorized the length of his slip to double
to approximately 100 feet. Petitioner specifically claimed that the approval of the permit
modifications violated 15A NCAC 07H .1202(b) which requires notice to the adjacent riparian
property owners and 15A NCAC 07H .0405(a) which requires a new application for any major
C

modification request. In his request, Petitioner pointed out that section .0405 also requires that
"modification requests are subject to the same processing procedures applicable to original
permit applications" including notification to adjacent riparian property owners. Finally,
Petitioner claimed that the agency decision violated 15A NCAC 07H .1205 which prohibits piers
and docking facilities from interfering with access to any riparian property.
S. On July 7, 2014 the Assistant Major Permits Coordinator conducted a site visit via
boat in regards to the Petitioner's Hearing Request.
T. DCM Executive Director Braxton C. Davis notified Permittee by letter dated July
8, 2014 of Petitioner's Request for a Third Party Hearing to challenge CAMA Major Permit No.
53-13 and informed him that the permit is suspended and no development may occur under the
permit until further notice. .
U. On July 8, 2014 the Morehead City District Manager also conducted a site visit
via vehicle. Both the District Manager and the Assistant Major Permits Coordinator observed
that all development authorized by the refinement issued on March 6, 2014 had been completed.
V. On July 9, 2014 the Director of DCM received a letter and photographs from
Stevenson Weeks commenting on the modified CAMA Major Permit No. 53-13 and his personal
observation of the site on July 8, 2014. Mr. Weeks stated that "The Hines' dock is clearly
constructed within their riparian access zone and provided photographs illustrating the location
of the dock. Mr. Weeks further offered the opinion that "the only reason Mr. Valentine would
have difficulty docking his vessel is the placement of the pilings outboard of his dock in
particular the center piling.
IV. CONCLUSIONS OF LAW
7

A. 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.
B. The CRC has by rule designated the Estuarine and Ocean Systems as Areas of
Environmental Concern (AEC). This AEC includes estuarine waters, coastal wetlands, public
trust areas and estuarine and public trust shorelines. The proposed docking facility is within these
AECs. Therefore, the proposed development requires a CAMA permit pursuant to N.C.G.S. §
113A-118.
C. CAMA requires that any third party who wishes to challenge a permitting
decision file their hearing request "within 20 days after the disputed permit decision is made."
N.C.G.S. § 113A-121.1(b). In the present case, DCM does not dispute that the request was
timely. The Commission affirmatively finds that Petitioner's request for a third party hearing is
timely.
D. Thus, the Chairman addresses the factors set forth in N.C.G.S. § 113A-
121.1(b)(1)-(3) to determine if a contested case hearing is warranted in this case:
1. Petitioner has alleged that Decision is Contrary to Rule or Statute.
In order to prevail in a third party hearing request Petitioner must first allege that the
decision made by the DCM is contrary to a CAMA rule or statute. N.C.G.S. § 113A-121.1(b)(1).
In this case, Petitioner asserts that the Permittee was required to provide notice to the adjacent
riparian property owners and that DCM approval of the permit modifications without notice
violated 15A NCAC 07H .1202(b) and 15A NCAC 07H .0405(a) which requires a new
application for any major modification request. In his request, Petitioner pointed out that section
.0405 also requires that "modification requests are subject to the same processing procedures
8

applicable to original permit applications" including notification to adjacent riparian property
owners. Finally, Petitioner claimed that the agency decision violated 15A NCAC 07H .1205
which prohibits piers and docking facilities from interfering with access to any riparian property.
DCMS states that 15A NCAC 07H 1205(q) applies only to general permits and is not applicable
to the facts in this case which involve modifications to a CAMA major permit. Without
determining whether the decision in this case is consistent with any rule and for the sole purpose
of determining whether Petitioner has met the burden of identifying a section of the statute of
this Commission's rules that he is alleges is contrary to the agency's decision, the Commission
affirmatively finds that Petitioner's request meets the first requirement set forth in N.C.G.S. §
113A-121.1(b)(1).
2. Petitioner is directly affected by issuance of the Decision.
In determining whether Petitioner is entitled to a contested case hearing, the second factor
to consider is whether Petitioner has shown that he is directly affected by DCM's decision. In his
Request, Petitioner states that he owns the immediately adjacent property to the west of
Permittee's property which is the site of the permitted development. DCM does not dispute this
claim. Petitioner also claims that the permitted development will interfere with access to his
riparian property even though it is located outside the minimum setback of 15 feet required
between any part of the pier or docking facility and the adjacent property owner's area of
riparian access. In the DCM Staff Recommendation, DCM disagrees with Petitioner's claim that
the permitted dock "interferes with access to [his] riparian property." In support of this position
Staff maintains that the authorized development i.e., the permitted docking facility, substantially
complies with the CRC's riparian access rule 15A NCAC 714 .0208(b)(6)(I) based on the fact
that the authorized development is located twenty-five feet from the riparian line of division
E

which exceeds the fifteen -foot minimum setback. Furthermore, DCM claims that following
multiple visits to observe the docking facility which was constructed pursuant to the minor
modification of CAMA Major Permit No. 53-13 DCM Staff concludes that, as required under
15A NCAC 07H .0208(a)(2)(G), the constructed facility does not jeopardize the use of adjacent
waters for navigation or for other public trust rights in public trust areas including estuarine
waters. However, the DCM Staff Recommendation did not include facts, other than the fact that
the permitted development was outside the fifteen -foot setback, in support of this contention.
And, while it is accurate to state that the minimum riparian setback is fifteen feet and the
permitted facility complies with the minimum setback, Petitioner has alleged that in this case the
minimum setback is not adequate to provide access to his existing riparian access area. For these
reasons, the Commission affirmatively finds that Petitioner has established that he will be
directly affected by the decision. Therefore, Petitioner has met the requirements of N.C.G.S. §
113-121.1(b)(2).
3. Petitioner has demonstrated that hearing would not be frivolous.
In order to prevail on their third party hearing request, Petitioner must show that his
appeal would not be frivolous as required by N.C.G.S. § 113A-121.1(b)(3). Petitioner raises two
arguments in support of the request. First, whether DCM's issuance of the modification and
revision to CAMA Major Permit No. 53-13 was consistent with the adjacent riparian property
owner notice requirement. Second, whether the permitted development interferes with
Petitioner's access to his riparian property even though it meets the minimum fifteen -foot
riparian setback. The Commission affirmatively finds that Petitioner has made legal arguments
and alleged facts sufficient to demonstrate that the hearing request is not frivolous.
10

a. Petitioner has made legal arguments and alleged facts sufficient to demonstrate
that a hearing request on the question of whether notice to the adjacent riparian
property owner was required is not frivolous.
In his request, Petitioner has raised a legal question and alleged facts regarding whether
adjacent riparian property notice was required for the modification and revision to CAMA Major
Permit No. 53-13 under 15A NCAC 07H .1202(b) which requires notice to the adjacent riparian
property owners and 15A NCAC 07H .0405 which requires new applications for certain requests
to modify a CAMA major permit .(thereby requiring notice as well). Specifically, Petitioner
claims that the approved modification and revision to CAMA Major Permit No. 53-13 were
major (and therefore required notice) insofar as the length 'of the permitted slip doubled to
approximately 100 feet.
DCM provided a two-part response to this claim. First, DCM explained that Petitioner's
reliance on the specific conditions and approval procedures set forth in 15A NCAC 07H .1200 et
seq. is misplaced as this section of the CAMA regulations applies only to general permits. In this
case, the Commission affirmatively finds that the permit at issue is a major permit and therefore
the regulations regarding general permits are inapplicable and do not support Petitioner's request
for a hearing.
Second, DCM addressed Petitioner's reliance on 15A NCAC 7J .0405 by stating that it
"does not concedethat 15A NCAC 07J .0405(a) requires notification of adjacent riparian
property owners for all minor modifications in every case." Staff Recommendation at page 4 of
10 (emphasis added). By so stating, DCM appears to agree that I SA NCAC 07J .0405(a) requires
notification of adjacent riparian property owners for some minor modifications. Turning to the
language of the rule itself, the Commission notes that under section 405(a), the rule states,
"Modification requests are subject to the same processing procedures applicable to original
11

permit applications." As Petitioner points out, the original permit application process requires
that notice to adjacent riparian landowners must be provided. See 15A NCAC 7J .0204(5)(A).
And, although the section of the rule dealing with permit modifications specifically provides that
a request for a minor modification of a major permit'need not be circulated to all commenting
agencies, this provision does not relax the notice requirement to adjacent riparian landowners.
Therefore, the regulation may well require notice to adjacent riparian landowners for both major
and minor modifications of CAMA major permits.
Regardless, under the specific provision of 504(c)(2) a new application is required (along
with the required notice) when the structure as modified extends past the four feet mean low
water contour line of the water body. In this case, the alleged facts included in the original
application states that the water depth is -8 to -10 NLW and the attached drawing dated 3-4-2013
appears to show a mean low water contour line of greater than four feet. In addition, the
regulation provides that a new application is required (along with notice) when the requested
modification is within 150 feet of a federally -maintained channel. Here too, the drawing dated
3-4-2013 ("scale as noted") attached to the original application appears to show that the
modification is within 150 feet of a federal channel. These facts support Petitioner's request for a
contested case hearing on whether notice was required.
In addition, the Commission affirmatively notes that 15A NCAC 07J .0206 provides that
"within a reasonable time after receiving... an application to modify substantially a previously
issued major permit, the Division of Coastal Management shall issue public notice of the
proposed development as provided in G.S 13A-119(b)." In this case, Petitioner has presented
facts in support of his claim that the proposed modification was substantial. Specifically,
Petitioner has alleged that Mr. Hines built a "massive dock" with dolphin pilings approximately
12

thirty-five (35) feet from Petitioner's slip making it difficult or impossible for Petitioner to
maneuver his forty-five (45) foot boat in and out of his slip. Petitioner also claimed that the
modifications to CAMA Major Permit No. 53-13 were substantial insofar as the length of
Permittee's slip doubled to approximately 100 feet.
DCM has not provided a legal basis or facts in support of its conclusion that notice was
not required in this case. To the contrary, DCM provided information to Petitioner by letter dated
June 17, 2014 informing him of the third party appeal process. If notice had been given,
Petitioner would have had the opportunity to engage in discussion with the Permittee and DCM
regarding his concerns over perceived limitations to his riparian access area imposed by the
proposed modifications and revisions to the permitted development. Without notice, Petitioner
was not provided the opportunity to raise his concerns prior to construction of the docking
facility.
b. Petitioner has made legal arguments and alleged facts sufficient to demonstrate
that a hearing on the question of whether the permitted docking facility interferes
with access to his riparian property is not frivolous.
The second argument Petitioner raises is based on the claim that the permitted docking
facility interferes with access to his riparian property even though it complies with the minimum
setback of fifteen feet. Note that Petitioner is not claiming that the permitted facility is located
within the fifteen -foot riparian setback; rather, Petitioner claims that even though the permitted
dock is twenty-five feet from the western riparian corridor it interferes with his riparian access.
Petitioner provides facts in support of this claim, specifically stating that in the original permit
application the dock was located about 100 feet from his dock and slip; that modifications to
CAMA Major Permit No. 53-13 relocated the dolphin mooring piers (part of the docking
facility) to within 35 feet of Petitioner's slip and has made his dock and slip virtually unusable.
13

Petitioner also states that Permittee is using the docking facility to moor a boat approximately 80
feet long which extends in the slip about 20 feet. In addition, the July 8, 2014 letter to Braxton
C. Davis from Stevenson Weeks confirms that he personally observed the docks in question and
concludes that "the only reason Mr. Valentine would have difficulty docking his vessel at his
dock is the placement of the existing pilings outboard of his dock" and recommends Mr.
Valentine modify his existing dock to allow access. This information provides confirmation of
Petitioner's claim that his riparian access has been impaired. The alleged facts provided indicated
a dispute regarding the cause of that impairment. However, such a dispute may be resolved
through the hearing process.
The Commission further notes that the relevant regulation states only that the minimum
setback is fifteen feet. During the hearing process, Petitioner may attempt to prove that an
additional setback is required in this case.
For these reasons, the Commission affirmatively finds that Petitioner has raised factual
and legal questions regarding whether the decision to approve the modification and revision to
the permit is consistent with 15A NCAC 7H .0208(b)(6)(I) and has thereby demonstrated that the
request for the hearing is not frivolous on the questions of whether notice to the adjacent riparian
landowner was required for modifications to the CAMA Major Permit No. 53-13, whether
Petitioner's riparian access has been impaired, the cause of that impairment, and whether a
fifteen foot riparian setback is adequate to protect Petitioner's riparian access rights. Therefore,
Petitioner is entitled to a contested case hearing on these issues.
V. DECISION
Accordingly, since Petitioner has demonstrated each of the three factors upon which a
third -party hearing determination must be made and has established that holding a contested case
14

issue is not frivolous, Petitioner is entitled to a third party hearing. For the reasons stated herein,
Petitioner's third party hearing request is GRANTED.
Petitioner may file a petition for a contested case hearing with the Office of
Administrative Hearings 6714 Mail Service Center, Raleigh North Carolina 27699-6714 as
provided in 15A NCAC .0302 within twenty (20) days after the date of this final agency
decision.
This the 15`" day of July, 2014.
Ar'*A G 100 66 ' *vljw
Frank D. Gorham, III, Chairman
N.C. Coastal Resources Commission
15

CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the attached Final Decision by the
means specified below:
Stephen M. Valentine
306 Cedar Street
Beaufort, NC 28516
Benjamin G. Hines, Jr.
Unit 701
100 Olde Town Yacht Club
Beaufort, NC 28516
Elizabeth Jill Weese
Assistant Attorney General
NC Department of Justice — Envir. Div.
PO Box 629
Raleigh, NC 27602
Braxton C. Davis
Director of DCM
Angela Willis
Assistant to Director of DCM
400 Commerce Ave.
Morehead City, NC 28557
This the 15`h day of July, 2014.
16
Method by which Service was made:
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
electronically: [e-mail]
electronically:[e-mail]
electronically [e-mail]
Attorney General

Permit Number
53-13
9rermit Class
'MODIFICATION'I d (NOR
STATE OF NORTH Ce1.ROLINA
Del: artment of Environment and Natural Resotrces
and
Coast; d Resources Corunission
Vemlit
for
X .. Major Development in an Area of Environmental Concern
pursuant k NCGS 113A-1 8
Excavation. and/or filling pi irsuant to NCGS 113-229
Issued to Stevenso: t a ad Rebecco. Weeks, PO Box 360, Beau Port, NC 28516
Authorizing devele pm ent in_ Carteret Coumy at adi. to Taylors Creek, at 2570 Lermoxville
Road.inBeaufort .� as requested in the penaittee's letter dated 11/22/13 including the
attached Workplan jsa fvirg (1), d ded l l/19/1: (
This permit, issued c it _ ecembe: 10.2013 is subjec to compliance with the application (where consistent
with the permit), all tpp lira ale regul ations, specie I conditions and n >tes set forth below. Any violation of these terns may
be subject to fines, it .-ipr son meet or ;ivil action; e r may cause the p :rmit to be null and void.
1) Unless slecifiefily altered herein, this minor modification auth,trizes the reconfiguration of the
existing c oe dN! facilit,r and the additional dolphin; style mooring pilings that are expressly and
specifical y : m f wth in t :te attached t vorkplan drawin ;.
2) This rnin(r n .od. fication does not am horize any additional formalized boat slips.
(S,x attached sheets for Add! ional Conditions)
This permit action mabe appealed by the pern ittee or
other qualified person: wi hin twenty (A) days of the issuing
date. An appeal requi es eso ution prior to work initiation or
continuance as the cas.: may b i %
This permit must be ace-ssible ea -site to Derarhnent
personnel when the pn.,ee h i 3spected br compliance
Any maintenance w irk or lroject modification not ;overed
hereunder requires fun her Div lion approval.
All work trust cease wh:n the permit :xpires on
December 31, 21116
In issuing this perr tit, be State of forth Caroliw. agrees
that your project is co Isis ent with the North Carolina Coastal
Management Program
FEB 17 2014
Sit ned by the authority of the Secretary of DENR and the
Ch iitman of the Coastal Resources Commission.
y� v
Braxto avis, Director
' Division of Coastal Management
Th s permit and its conditions are hereby accepted.
Signature of Pennittee