61-24 Amended by CRC Variance 24-06

Permit Class
AMENDED
(BY CRC VARIANCE)
STATE OF NORTH CAROLINA
Department of Environmental Quality
and
Coastal Resources Commission
rrmit
for
X Major Development in an Area of Environmental Concern
pursuant to NCGS I I3A-118
Excavation and/or filling pursuant to NCGS 113-229
Permit Number
61-24
Issued to Dare Co. Tourism Board & Town of Nags Head,1 Visitors Circle, Nags Head, NC 27954
Authorizing development in Dare County adj. to Roanoke Sound, at 6906, 6900, 6800, 6714, 6708 S Croatan
Hwy, in Nags Head, as requested in the permittee's application dtd 8/14/23 (MP-1) and "Rev 5/14/24" (MP-3,4), incl
att wrkpin drawings (7), SAV Survey dtd "Rev 8/17/23", C201-C204, S1.1 all dtd "Rev 5/2/24 & A1.1 dtd "Rev 4/30/24".
This permit, issued on September 17, 2024 , 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 civil or criminal penalties; or may cause the permit to be null and void.
Sound Side Event Complex and Docking Facility Expansion
1) This permit authorizes only the piers, kite board pier, walkways, gazebo, viewing platforms, pergola,
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 sound side event complex and docking facility expansion without permit
modification. No non -water dependent uses of structures shall be conducted on, in or over Public
Trust waters without permit modification. [07J .0202(c); 07H .0208(a)(1)]
2) No sewage, whether treated or untreated, shall be discharged at any time from any boats using the
docking facility. Any sewage discharged at the docking facility shall be considered a violation of this
permit for which the permittee is responsible. This prohibition shall be applied and enforced
throughout the entire existence of the permitted structure. [07H .0208(a)(2)(B)]
(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.
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
June 21, 2029
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 DEQ and the Chair
of the Coastal Resources Commission.
for Tancred Miller, Director
Division of Coastal Management
This permit and its conditions are hereby accepted.
Signature of Permittee

Dare Co. Tourism Board & Town of Nags Head Permit No. 61-24
Page 2 of 3
ADDITIONAL CONDITIONS
3) The permittee shall install and maintain at their expense any signal lights or signals prescribed by the
U.S. Coast Guard, through regulation or otherwise, on the authorized facilities. At minimum, permanent
reflectors shall be attached to the structure in order to make it more visible during hours of darkness or
inclement weather. [07H .0208(a)(2)(G); 07J .0209(a); G.S. 113-229(a)]
4) This permit authorizes a maximum of seven (7) formalized boat slips located as shown on the drawing
labeled C204 dated "Rev 5/2/24". The docking of vessels at any location not shown on the permitted
drawings shall be considered a violation of this permit. [07J .0202(c)]
Upland Development
5) Unless specifically altered herein, this permit authorizes the grading and other land disturbing activities
associated with the development of the above referenced property, including the retaining wall,
sidewalk, boardwalk and sign, all as expressly and specifically set forth in the attached permit
application and workplan drawings. Any new development proposed in an Area of Environmental
Concern (AEC), including but not limited to the Coastal and Estuarine Shoreline AECs and located
within the applicant's property, shall require additional authorization from the Division of Coastal
Management prior to work commencing. [07J .0202(c); 07H .0209(d); G.S. I I3A-103(5)(a)]
Sedimentation and Erosion Control
6) In order to protect water quality, runoff from construction shall not visibly increase the amount of
suspended sediments in adjacent waters. [07H .0208(a)(2)(B); 07H .0209(d)(4)]
7) Appropriate sedimentation and erosion control devices, measures or structures shall be implemented to
ensure that eroded materials do not enter adjacent wetlands, watercourses or properties. [07H
.0208(a)(2)(B); 07H .0209(d)(4)]
General
NOTE: This permit, in full or part, was authorized under 15A NCAC 07H .0207(d) and 15A NCAC 07H
.0208(a)(3).
8) In keeping with the Variance (CRC-VR-24-06) granted by the Coastal Resources Commission (CRC) on
August 28, 2024, and the Order signed by the CRC Acting Chair on September 12, 2024, this permit
authorizes the permitted piers, boardwalk and docking facilities built over coastal wetlands to the width
and elevation above the wetland substrate as measured from the bottom of the decking, as depicted in
the attached workplan drawings. [G.S. I I 3A- 120. 1 (b)]
9) 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. [07H .0208(a)(2)(G)]
10) The authorized structure and associated activity shall not cause an unacceptable interference with
navigation and shall not exceed the dimensions shown on the attached permit drawings. [07H
.0208(a)(2)(G)]

Dare Co. Tourism Board & Town of Nags Head Permit No. 61-24
Page 2 of 3
ADDITIONAL CONDITIONS
11) All mechanized equipment will be regularly inspected and maintained to prevent contamination of waters
and wetlands from fuels, lubricants, hydraulic fluids, or other toxic materials. In the event of a spill of
petroleum products or any other hazardous waste, the permittee shall immediately report it to the National
Response Center at [phone] and provisions of the North Carolina Oil Pollution and Hazardous
Substances Control Act will be followed. [07H .0208(a)(2)(A); 07H .0208(a)(2)(B)]
12) 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. [07J .0406(b)]
13) All construction debris associated with the removal or construction of the permitted development shall
be contained within the authorized project area and disposed of in an approved upland location. [07J
.0209(a); G.S. 113A-120(b)]
14) The permittee and/or their contractor shall meet with a representative of the Division prior to project
initiation. [07J .0209(a)]
NOTE: This permit does not eliminate the need to obtain any additional state, federal or local permits,
approvals or authorizations that may be required, including but not limited to any authorizations
from the U.S. Army Corps of Engineers. Authorization must be received from The U.S. Army
Corps of Engineers prior to the commencement of any operations authorized under this permit.
NOTE: The N.C. Division of Water Resources authorized the proposed project by way of Individual
Water Quality Certification No. 006952 and assigned the project DWR Project No. 2023-1371
v2.
NOTE: 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 water level.
NOTE: An application processing fee of $400 was received by DCM for this project. This fee also
satisfied the Section 401 application processing fee requirements of the Division of Water
Resources.

REPLY TO:
JOSH STEIN STATE OF NORTH CAROLINA MARY L. LUCASSE
ATTORNEY GENERAL DEPARTMENT OF JUSTICE ENVIRONMENTAL DIVISION
[phone]
[e-mail]
September 12, 2024
Robert E. Hornik, Jr., Esq. E-mail: hornik(c�broughlaw arm.com
The Brough Law Firm PLLC
1526 E. Franklin St. Ste. 200
Chapel Hill, NC 27514
Re: Variance Request CRC-VR-24-06
Dear Mr. Hornik:
At its August 28, 2024 meeting, the Coastal Resources Commission granted Petitioners
Dare County Tourism Board and Town of Nags Head's request for a variance. Attached is a copy
of the final agency decision signed by the Acting Chair of the Coastal Resources Commission.
Prior to undertaking the development for which a variance was sought, Petitioners must obtain a
CAMA permit from the Division of Coastal Management.
If for some reason you do not agree to the variance as issued, you have the right to appeal
the Coastal Resources Commission's decision by filing a petition for judicial review in the superior
court as provided in N.C.G.S. § 150B-45 within thirty days after receiving the final agency
decision. A copy of the judicial review petition must be served on the Coastal Resources
Commission's agent for service of process at the following address:
William F. Lane, General Counsel
Dept. of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
If you choose to file a petition for judicial review, I request that you also serve a copy of
the petition for judicial review on me at the email address listed in the letterhead. If you have any
questions, please feel free to contact me.
Sincerely,
Mary L. Lucasse
Special Deputy Attorney General and
Counsel for the Coastal Resources Commission
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602-0629

Robert E. Hornik, Jr., Esq.
September 12, 2024
Page 2
cc: Neal Andrew, Acting Chair, electronically
M. Renee Cahoon, Chair electronically
Christine A. Goebel, Esq. electronically
Tancred Miller, DCM Director, electronically
Michael Lopazanski, DCM Deputy Director, electronically
Ronald Renaldi, DCM District Manager, electronically
Yvonne Carver, DCM Field Representative, electronically
Angela Willis, electronically
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602-0629

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STATE OF NORTH CAROLINA
COUNTY OF DARE
IN THE MATTER OF:
PETITION FOR VARIANCE
BY DARE COUNTY TOURISM BOARD
AND TOWN OF NAGS HEAD
BEFORE THE NORTH CAROLINA
COASTAL RESOURCES
COMMISSION
CRC-VR-24-06
FINAL AGENCY DECISION
On July 10, 2024, Petitioners Dare County Tourism Board and Town of Nags Head
submitted a request for a variance from the North Carolina Coastal Resources Commission's
("Commission") rule set forth at 15A N.C. Admin. Code 07H .0208(b)(6)(C) to construct segments
of a walkway over coastal wetlands to a width of ten feet as proposed in their application. This
matter was heard pursuant to N.C. Gen. Stat. § 113A-120.1 and 15A N.C. Admin. Code 07J .0700,
et seq., at the regularly scheduled meeting of the Commission held on August 28, 2024 in Beaufort,
North Carolina. Assistant General Counsel Christine A. Goebel, Esq. appeared for Respondent
Department of Environmental Quality, Division of Coastal Management ("DCM"). Robert E.
Hornik, Jr., Esq. appeared on behalf of Petitioners.
The Commission has delegated to its Chair the authority to determine whether a third party
request for a hearing should be granted. 15A N.C. Admin. Code 07J .0301(b). After receiving this
variance request, the Chair recused herself to avoid any possible appearance of a conflict of interest
or bias. Pursuant to the authority contained in the Commission's Internal Operating Procedures,
the Chair delegated authority to Vice -Chair Neal Andrew to chair the Commission during
consideration of the variance and in the issuance of this final agency decision.
When reviewing a petition for a variance, the Commission acts in a quasi-judicial capacity.
Riggings Homeowners, Inc. v. Coastal Resources Com'n, 228 N.C. App. 630, 652, 747 S.E.2d

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301, 314 (2013) (Commission has "judicial authority to rule on variance requests ... `reasonably
necessary' to accomplish the Commission's statutory purpose."); see also Application of Rea
Const. Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968) (discussing the Board of Adjustment's
quasi-judicial role in allowing variances for permits not otherwise allowed by ordinance). In its
role as judge, the Commission "balance[es] competing policy concerns under CAMA's statutory
framework." Riggings, 228 N.C. App. at 649 n.6, 747 S.E.2d at 312.
Petitioners and Respondent Division of Coastal Management ("DCM") are the parties
appearing before the Commission. The parties provided stipulated facts for the Commission's
consideration and stipulated to the relevance and admissibility of documents. See, N.C. Admin.
Code 15A 07J .0702(a). If the parties had been unable to reach agreement on the facts considered
necessary to address the variance request, the matter would have been forwarded to the North
Carolina Office of Administrative Hearings for a full evidentiary hearing to determine the relevant
facts before coming to the Commission. Id. 07J .0702(d). As in any court, the parties before the
decision -maker are responsible for developing and presenting evidence on which a decision is
made. If DCM and Petitioner had entered into other stipulated facts, it is possible that the
Commission would have reached a different decision. In this case, the record on which the
Commission's final agency decision was made includes the parties' stipulations of facts, the
stipulated documents provided to the Commission, and the arguments of the parties.
FACTS STIPULATED TO BY PETITIONER AND DCM
1. Petitioners are the Dare County Tourism Board (the "Tourism Board") and the
Town of Nags Head (the "Town" and collectively "Petitioners"). Both are represented by Robert
Hornik, Jr., Esq. The Tourism Board is a public authority formed and operated pursuant to the laws

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of the State of North Carolina per Sessions Law 1991, Chapter 177. The Town is a municipality
formed and operated pursuant to, inter alia, North Carolina General Statutes Chapter 160A.
2. Petitioners jointly own fee simple title to properties identified as 6800, 6900 and
6906 South Croatan Highway in the Town of Nags Head. The Tourism Board owns fee simple title
to properties identified as 6708 and 6714 South Croatan Highway in Nags Head. Together the
properties make up the site of the Soundside Event Site (the "Site") which consists of about 26
acres of land located west of South Croatan Highway and east of the Roanoke Sound. The Site has
about 2400 linear feet of frontage on Roanoke Sound.
3. Petitioners have agreed to develop the Site with the Tourism Board being
responsible for the development and management of the Site pursuant to a Memorandum of
Understanding dated April 14, 2015.
4. The Site is bounded to the east by South Croatan Highway, to the west by Roanoke
Sound, to the north by SanDar, LLC and to the south by 16 Mile Post, LLC.
5. The waters of the Roanoke Sound at this location are classified as SA -High Quality
Waters by the Environmental Management Commission and are open to the harvest of shellfish.
6. The upland area within 75 feet of normal water level of Roanoke Sound is within
the Estuarine Shorelines sub -category of the Coastal Shorelines Area of Environmental Concern
("AEC"). The waters of Roanoke Sound at the Site are Public Trust Areas and Estuarine Waters
AECs. At the Site, there are also wetlands within the Coastal Wetlands AEC. Any development
proposed within one of these AECs requires CAMA permit authorization per N.C. Gen. Stat. §
113A-118 and any dredging and filling activity requires a Dredge and Fill permit per N.C. Gen.
Stat. § 113-229.

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7. Currently the Site is developed with paved asphalt parking, gazebo, decks, ramp,
office building, pier, platform and slips as well as onsite septic systems for the former restaurants
on the Site. One parcel also has the climbing structure which was formerly First Flight Adventure
Park.
8. On or about August 14, 2023, Petitioners jointly applied to the DCM for a CAMA
Major Development Permit to develop the Site.
9. Petitioners initially proposed the following development at the Site:
a. Ten -foot -wide wooden elevated boardwalks,
b. Six -foot -wide elevated vinyl access walkways
c. Two viewing platforms, and
d. A pergola constructed over Section 404 wetlands on an upland portion of
the Site, and
e. A gazebo over open water.
10. On September 29, 2023, DCM Field Representative Yvonne Carver completed a
Field Investigation Report for the project, describing the Site and impacts from the proposed
development described in the initial application.
11. As part of the CAMA Major Permit process, information about the proposed
development was sent to other resource agencies for review and comment. Substantive comments
were received from the Division of Marine Fisheries who raised concerns about shading impacts
by a wider walkway over coastal wetlands. The North Carolina Wildlife Resources Commission
also raised concerns about shading and walkway width. Petitioners have received approval from
the U.S. Army Corps of Engineers, the Division of Water Resources' ("DWR") and have received
a State Stormwater Permit.2
' The 401 Certification was issued but will need to be modified if the variance is granted.
2 The Stormwater Permit will need to be modified if the project is modified through the grant of a variance.

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12. On or about May 5, 2024, Petitioners submitted amended plans for the Site. The
amended plans generally call for the construction of approximately 3,000 linear feet of boardwalk
and piers on the Site. The boardwalk and piers are designed with a eight -feet -wide deck and an
additional one foot of width for handrails, resulting in a deck with a total width of nine feet. The
plans also call for, among other amenities and features, the construction of a gazebo and a pier
with seven boat slips (both extending into the Roanoke Sound). The Boardwalk Plan depicted on
Sheet C201 and included in the amended application illustrates the proposed improvements
associated with the application and this Petition.
13. As part of the application process, Petitioners sent notice to two of the adjacent
riparian property owners. Sandbar, LLC (through Darnell Tillett) received notice on August 19,
2023. 16 Mile Post, LLC (through Brian Wilson) received notice on May 23, 2023. Petitioners also
posted notice of the application on the Site and DCM published notice in the Coastland Times
newspaper on October 8, 2023. Mr. Tillett of SanBar, LLC commented favorably about the revised
project after expressing concerns about the initial design.
14. The Commission notes that the Town is also a riparian property owner to the Site.
However, individualized notice was not provided to the Town because it was on notice of the
project through its involvement with the proposed development.
15. On June 21, 2024, DCM issued CAMA Major Permit No. 61-24 (the "Permit").
The Permit largely approved the Petitioners' application, as amended, including the piers, kite
board pier, walkways, gazebo, viewing platforms, and pergola. However, in Condition 8 DCM
limited the width of "[a]ny portion of the permitted piers, boardwalk and docking facilities built
over coastal wetlands [to not more than] six feet in width and shall be elevated a minimum of three

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no
feet above the wetland substrate as measured from the bottom of the decking" as required by 15A
N.C. Admin. Code 07H .0208(b)(6)(C).
16. The Commission's rule further requires that "[p]iers greater than six feet shall be
permitted only if the greater width is necessary for safe use, to improve public access, or to support
water dependent use that cannot otherwise occur." 15ANCAC 07H .0208(b)(6)(A).
17. There are two segments of the proposed boardwalk, as shown on the Boardwalk
Plan which are proposed to be built over coastal wetlands. Petitioners have proposed that Segment
1 (145.75 linear feet) and Segment 7 (177.34 linear feet) be built eight feet wide (the boardwalk
deck itself) with an additional one foot of width for handrails. The plans submitted demonstrate
that the proposed boardwalk platform as measured from the bottom of the decking will be
approximately six feet above the wetland substrate, well above the three-foot minimum established
by Permit Condition Number 8. The six-foot height of the decking will match the height of the
existing walkway located north and west of the existing climbing tower on the Site.
18. Petitioners assert that the purpose for the proposed development of the Site is to
provide pedestrian connection from the Harvey Sound access (to the south of the Site), northward
across the entire length of the Site, to the abutting properties to the north. The Tourism Board
intends to create this connection to bring enhanced public access to Site and to provide enhanced
views of and access to the Roanoke Sound, other existing features at the Site, the First Flight
Adventure Park and abutting properties to the north.
19. Petitioners assert that the proposed boardwalk as designed with an eight -foot -wide
deck and six-inch handrails on each side (with a total width of nine feet), is necessary for safe use
and will improve public access to the Roanoke Sound and other features at the Site by making

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two-way pedestrian traffic possible, particularly for individuals with mobility impairments, such
as wheelchair -bound individuals. Moreover, the uniform eight -foot -wide boardwalk deck will
make it possible for visitors to more easily walk side -by -side on the boardwalk and would reduce
or eliminate "bottlenecks" in traffic at the locations where the eight -foot -wide boardwalk
transitions to the narrower, six- foot -wide boardwalk (if the variance requested is not granted).
20. Petitioners assert that the additional height of the bottom of the proposed
boardwalk deck, approximately six feet above the substrate below, is double the minimum height
required by the regulation. The additional height reduces the amount of shading of vegetation
beneath the boardwalk, as demonstrated by the graphic provided by Petitioners.
21. Pursuant to 15A NCAC 7J.0701(c)(6) the Petitioners stipulate that Segments 1 and
7 of the proposed Boardwalk Plan for the Site are inconsistent with 15A NCAC 07H.0208(b)(6)(C)
because the proposed width of the boardwalk exceeds six feet.
22. Pursuant to 15A NCAC 07J.0701(c)(7), Petitioners sent notice of this Variance
Petition to riparian property owners whose property shared a property line with the Site. Notice to
SanDar, LLC, care of Tony Dartnell Tillett, Jr., was mailed on July 10, 2024 and was received by
him on July 16, 2024. Notice to Joe, LLC, care of Sandra Dowdy Jump, was mailed on July 10,
2024, and was received by her on July 24, 2024. Notice to 16 Mile Post, LLC, care of Bryan
Wilson, was mailed on July 10, 2024 and sent by Federal Express on August 7, 2024, and was
delivered on August 8, 2024.
23. The Commission's rule at 15A NCAC 07J.0701(a) states in relevant part, "Before
filing a petition for a variance from a rule of the Commission, the person must seek relief from
local requirements restricting use of the property[.]" However, Petitioners have not sought a

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variance from the Town asserting that the Town does not have any ordinances related to boardwalk
width and therefore cannot provide relief.
24. Without a variance, Petitioners could construct the boardwalk segments 1 and 7 as
permitted at six feet in width.
EXHIBITS PROVIDED TO THE COMMISSION BY PETITIONER AND DCM
1. Deeds to the Site
2. 2015 Memorandum of Understanding between Petitioners
3. LLC filings for adjacent riparian owners
4. Initial Major Permit Application documents
5. September 29, 2023 DCM Field Investigation Report
6. DMF Comments on initial and revised plan
7. WRC Comments on initial and revised plan
8. Amended Site Plans/application materials
9. Notice and tracking to adjacent riparian owners
10. CAMA Major Permit No. 61-24
11. Notice and tracking to adjacent riparian owners for the Variance Request
12. A PowerPoint with ground -level and aerial photographs of the Site
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the parties and the subject matter.
2. All notices for the proceeding were adequate and proper.
3. As set forth in detail below, Petitioners have met the requirements in N.C. Gen.
Stat. § 113A-120.1(a) and 15 N.C. Admin. Code 07J .0703(f) which must be found before a
variance can be granted.
a. Strict application of the rule will cause unnecessary hardships.

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The Commission affirmatively finds that strict application of the Commission's rule at 15A
N.C. Admin. Code 07H .0208(b)(6)(C) will cause unnecessary hardships. The width limitation in
this rule is designed to balance impacts to Coastal Wetlands AECs with the public's use of these
natural areas. While a six-foot wide boardwalk at a residential property is generally sufficient, this
Site is designed as a public access area with a significant length of the boardwalk over Coastal
Wetlands. The width limitation will cause Petitioner an unnecessary hardship in limiting the
number of pedestrians utilizing the boardwalk at one time and could possibly present a safety issue.
Specifically, Petitioners own the Site comprised of approximately 26 acres of land located
in the Town of Nags Head on the west side of Croatan Highway (NC Highway 158). The Site is
between South Croatan Highway and the Roanoke Sound. About 11 acres of the Site has Section
404 and coastal wetlands lying between the Roanoke Sound and upland portions of the property.
The property has been used by the Petitioners and their predecessors for recreational purposes for
several years. The Petitioners, both public agencies, have developed a master plan for the property,
which includes a boardwalk as presented in the Permit Application. One of the goals of Petitioners'
Master Plan is to connect existing boardwalks located north and south of the Site to create a single,
continuous boardwalk along the Roanoke Sound waterfront.
As public agencies, Petitioners have a legal obligation to make their facilities accessible to
the broadest section of the public possible, including those with mobility impairments. It is
primarily for that reason that the boardwalk design calls for a uniform eight -foot -wide boardwalk
deck (with an additional 6 inches on each side for handrails). This design is intended to
accommodate those with mobility -impairing disabilities and to provide a uniform width platform
to facilitate two-way pedestrian traffic on the boardwalk. The eight -foot -wide boardwalk deck

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design was approved for the entire length of boardwalk area which does not encroach upon coastal
wetlands. However, the Condition 8 of the Permit restricts the width over the Coastal Wetlands
AEC to six feet.
Petitioners have requested the variance so that they can construct and operate a boardwalk
of a uniform eight -foot width (with an additional foot for railings) for the entire north -south
expanse of the Site to facilitate accessibility for the entire Soundside Event Site.
The Commission notes that DCM Staff agrees that the strict application of the
Commission's limitations on boardwalk width in Coastal Wetlands causes Petitioner unnecessary
hardships. The Commission agrees that as shown by the stipulated facts, strict application of the
rule would cause Petitioner hardship by requiring the design and construction of a non -uniform
width boardwalk. Moreover, the narrower segments of the proposed boardwalk, if the requested
variance is not granted, will result in pedestrian "bottlenecks" as the wider boardwalk deck
transitions to the narrower deck. Furthermore, the narrower boardwalk deck will reduce access to
the Site's other features for the mobility impaired public. Finally, it would be impractical to attempt
to design a boardwalk which avoids the coastal wetland areas, adding complexity and expense to
the construction and more difficult features (such as corners and intersections) for mobility
impaired guests. These hardships are unnecessary insofar as the project's design raises the
boardwalk further above the coastal wetlands than is required by the Commission's rule and that
will limit adverse impacts. For these reasons, the Commission affirmatively finds that Petitioners
have met the first factor without which a variance cannot be granted.
b. The hardship results from conditions peculiar to Petitioner's property.
The Commission affirmatively finds that Petitioners have demonstrated that the hardship

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results from conditions peculiar to the property. Specifically, as demonstrated by the Site Plan, the
shoreline areas of the site are irregularly shaped and encumber nearly forty percent of the Site.
Additionally, the Site has existing boardwalks to the north and south of the Site which would be
joined by the proposed development. The proposed boardwalk has an irregularly shaped, curving
design from north to south, with "spokes" radiating from the central reinforced turf area of the Site
southeast towards the proposed new gazebo and northwest towards the proposed boat slips.
Boardwalk Section 1, consisting of 145.75 linear feet, lies at the southern terminus of the proposed
new boardwalk, where it will connect to a ten -foot -wide concrete pad. This location is where many
guests and visitors will enter the boardwalk from the existing parking lots on the Site. Boardwalk
Section 7, consisting of 177.34 linear feet, will provide access to the proposed pier just off the
western shoreline of the Site. The eight -foot -wide boardwalk in this location is necessary to ensure
mobility -impaired access to and from the pier.
The Commission agrees with Petitioners that the features of the Site, including the
transition from upland to coastal wetlands to the Roanoke Sound, and the desire to connect the
boardwalk to existing boardwalks north and south, are peculiar to this Site. Accordingly, the
Commission affirmatively finds that Petitioners have demonstrated that this hardship results from
conditions peculiar to the property and have met the second factor required for the grant of its
request for a variance.
C. Petitioners have demonstrated that hardship do not result from their actions.
The Commission affirmatively holds that Petitioners have demonstrated that the hardship
does not result from their actions. Specifically, Petitioners have acquired the properties which
make up the Site over the past several years. They have done nothing to change the features of the

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Site in a way that makes the requested variances necessary. A large portion of the Site is covered
with the Coastal Wetlands, making it difficult to provide public access while avoiding impacts to
Coastal Wetlands.
DCM Staff notes, and the Commission agrees, that Petitioners have redesigned the project
to reduce shading impacts of the boardwalk on the Coastal Wetlands. The boardwalk will be
elevated higher than the three-foot elevation over the substrate required by the rules. Petitioners
have reduced impacts to the Coastal Wetlands on this Site by elevating the boardwalk, while still
providing important access at this public amenity.
For these reasons, the Commission affirmatively finds that Petitioners have demonstrated
that they have met the third factor required for a variance.
d. Petitioners have demonstrated that the requested variance is consistent with
the spirit, purpose and intent of the Commission's rules, will secure public
safety and welfare, and will preserve substantial justice.
Petitioners have demonstrated (a) that the requested variance is consistent with the spirit,
purpose and intent of the Commission's rules, (b) that it will secure public safety and welfare, and
(c) that it will preserve substantial justice. The principal purpose of the Commission's rule from
which a variance is sought is to reduce impacts to coastal wetlands from development. 15A N.C.
Admin. Code 07H .0208(b)(6)(C). The Commission's rules allow for wider pier accessway widths
in certain situations: "Piers greater than six feet in width shall be permitted only if the greater width
is necessary for safe use, to improve public access, or to support a water dependent use that cannot
otherwise occur." 15A NCAAC 7H .0208(b)(6)(A). In this situation, a wider boardwalk will
improve safety and public access.
The variance would be consistent with the spirit, purpose, and intent of the rules because

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13
on balance there shading of Coastal Wetlands is reduced through Petitioners' voluntary, additional
elevation of the pier to six feet over the Coastal Wetlands substrate (the Commission's rule only
requires a three -feet elevation above Coastal Wetlands). While limitations on building over coastal
wetlands, specifically the pier accessway width limit, are important to the protection of the Coastal
Wetland AEC, the limited nature of the proposed expansion of this boardwalk results in minimal
additional impacts to the coastal wetlands (an extra two feet in width results in approximately 644
additional square feet over coastal wetlands).
In addition, a design with a consistent width and an eight -foot -wide deck on the boardwalk
will ensure public safety by preventing bottlenecks and allowing for easier two-way access on the
boardwalk.
Finally, the project promotes substantial justice by improving access to the Site for all
members of the public and enhancing the public's opportunity to enjoy the physical, esthetic and
recreational qualities of the natural shoreline on the Site while minimizing damage to this coastal
wetland environment.
Thus, the Commission affirmatively holds that Petitioners' proposed development is
consistent with the spirit, purpose, and intent of the Commission's rule by providing public access
to the natural resources at the Site and taking steps to minimize impacts to the Coastal Wetlands
through elevating and the earlier project redesign. The Commission further holds that the variance
sought by Petitioners will secure public safety and welfare by providing a wider boardwalk with a
consistent width for public access. Finally, the Commission agrees that granting the Town's
requested variance will preserve substantial justice by improving public access to the Roanoke
Sound and other features at the Site, particularly for individuals with mobility impairments, such

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14
as wheelchair -bound individuals.
For these reasons, the Commission affirmatively finds that Petitioners have met the fourth
factor required by N.C.G.S. § 113A-120.1(a).
ORDER
THEREFORE, the requested variance from 15A N.C. Admin. Code 07H .0208(b)(6)(C) is
F91M.111219"I
The granting of this variance does not relieve Petitioner of the responsibility for obtaining
any other required permits from the proper permitting authority. This variance is based upon the
Stipulated Facts set forth above. The Commission reserves the right to reconsider the granting of
this variance and to take any appropriate action should it be shown that any of the above Stipulated
Facts are not accurate or correct.
This the 12t' day of September 2023.
E
DocuSigned by:
lal
330AAE236A904CC...
Neal Andrew, Acting Chair
Coastal Resources Commission

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15
CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing FINAL AGENCY DECISION
upon the parties by the methods indicated below:
Robert E. Hornik, Jr., Esq.
The Brough Law Firm PLLC
1526 E. Franklin St. Ste. 200
Chapel Hill, NC 27514
Christine A. Goebel
Assistant General Counsel
NC Department of Environmental Quality
217 West Jones Street
Raleigh, NC 27603
Tancred Miller, DCM Director
Mike Lopazanski, DCM Deputy Director
Angela Willis, Administrative Assistant
Division of Coastal Management
400 Commerce Ave.
Morehead City, NC 28557
Kelly Spivey, DCM District Manager
Yvonne Carver, DCM Field Representative
DCM Elizabth City Office
401 S. Griffin Street, Suite 300
Elizabeth City, NC 27909
This the 12th day of September 2024.
Signed by:
@SSt,
Mary L. Lucasse
Method ofService
E-mail: horniLkbrou h�lawfirm.com
Electronically:
[e-mail]
Electronically:
[e-mail]
Mike. [e-mail]
[e-mail]
[e-mail]
[e-mail]
Special Deputy Attorney General and Commission Counsel
N.C. Department of Justice
P.O. Box 629
Raleigh, N. C. 27602

From: Bodnar, Greaa
To: 'Pelletier. Josh R SAW"; DCR - Environmental Review; Whitfield, Clif; Harrison. James A; Harris. David B;
Jenkins, Shannon; Haines, Andrew; Walton, Tim; Moser, Mike; Montalvo, Sheri A; Sullivan, Shelton; Menefee -
Dunn. Barbara A; Tankard, Robert; NNvarko. Paul; Thorne. Roger; Dunn, Maria T.; Buchanan. Mistv;
"noah.gillamCabdarenc.com"
Cc: Cannon, Amanda J
Subject: RE: Dare County Tourism Board and Town of Nags Head CAMA permit
Date: Tuesday, September 17, 2024 10:14:00 AM
Attachments: 61-24 AMENDED by CRC Dare Co & Nags Head.pdf
imaae001.Dna
imaae002.pnng
imaae003.Dna
Morning all,
Please see above for the amended permit per CRC variance. Condition No. 8 has beer
amended to in keeping with the CRC Variance order granting the walkways over CW to
dimensions as proposed.
Regards,
Gregg
Gregg Bodnar (he/him/his)
Major Permits Coordinator
Division of Coastal Management
North Carolina Department of Environmental Quality
[phone]
E
Find a Field Rep (arcg iq s.com)
El
El
From: Bodnar, Gregg
Sent: Friday, June 21, 2024 3:01 PM
To: Pelletier, Josh R SAW <[e-mail]>; DCR - Environmental —Review

<[e-mail]>; Whitfield, Clif <[e-mail]>; Harrison, James
A <James.Harrison @deq.nc.gov>; Harris, David B <[e-mail]>; Jenkins, Shannon
<[e-mail]>; Haines, Andrew <[e-mail]>; Walton, Tim
<[e-mail]>; Moser, Mike <[e-mail]>; Montalvo, Sheri A
<[e-mail]>; Sullivan, Shelton <[e-mail]>; Menefee -Dunn,
Barbara A <Barbara.Menefee-Du [e-mail]>; Tankard, Robert <[e-mail]>;
Nyarko, Paul <[e-mail]>; Thorpe, Roger <[e-mail]>; Dunn, Maria
T. <[e-mail]>; Buchanan, Misty <[e-mail]>;
'noah.gillam @darenc.com' <noah.gillam @darenc.com>
Cc: Cannon, Amanda J <[e-mail]>
Subject: Dare County Tourism Board and Town of Nags Head CAMA permit
Please see above for the conditioned permit.
Gregg
Gregg Bodnar (he/him/his)
Major Permits Coordinator
Division of Coastal Management
North Carolina Department of Environmental Quality
[phone]
0