HomeMy WebLinkAbout20042019 Ver 3_More Info Received_201109151
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Wetland and Natural Resource
Consultants, Inc.
September 13, 2011
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Ms. Crystal Amschler )EP j 5 2011
Wilmington Regulatory Field Office
US Army Corps of Engineers ?E?-?TERQl1ALITY
?SAND Sj??R6RANCH
69 Darlington Avenue
Wilmington, NC 28403-1343
RE: Anderson Creek South Development, Harnett County, North Carolina
Action ID No. SAW-2006-41244
NC DWQ Project #0 4-2019
Dear Ms. Amschler:
We are in receipt of your August 23, 2011 correspondence as it relates to potential un-authorized impacts
to jurisdictional waters. Attached please find another copy of Anderson Creek Partner's response to your
inquiry dated August 24, 2011 (Attachment 1: Mr. Levinson's Letter of August 24, 2011). Incidentally,
our reply was mailed to your office prior to our receipt of your letter on August 25, 2011. Below you will
find further discussion on this issue.
Attached is a figure that depicts the proposed wetland preservation areas. (Attachment 2: Preliminary
Wetland Preservation Map, September 9 2011). Included in the body of this letter are both a justification
for the preservation of these wetlands and the proposed preliminary protective language. We have
included a copy of the wetland disclosure mechanism for Anderson Creek North for informational
purposes as it demonstrates the applicants desire to maintain compliance. (Appendix 1: Anderson Creek
North Protective Mechanism).
Additionally, we have attached a copy of the lake and stream monitoring and management plan
' (Attachment 3: Anderson Creek Club Lake and Stream Monitoring and Management Plan). This
document is being sent to the NC Division of Water Quality for review and is included herein to show
how the applicant proposes to be compliant the with Condition 9 of the issued 401 Water Quality
Certification.
Potential Un-Authorized Impacts:
I have reviewed Anderson Creek Partners response to your office and I find that they acted within their
understanding of the regulations. Albeit some of the assumptions do not precisely adhere to the
regulatory conditions of this complex set of wetland regulations. I believe that the actions were not
' intentional subversions of the rules, regulations or policies that protect water resources but rather a
misunderstanding on their behalf. I agree with the assertions in the letter that the wetland, stream and
pond conditions within Anderson Creek South are substantially the same as when they purchased the
property.
W
PO Box 1492
Sparta, NC 28675
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Pond Reconstruction:
Air photos clearly show the pond when the property was purchased. The approved delineation shows
wetlands at this same location. To me, the ultimate question seems to be: Was the pond bottom
significantly naturalized? And, if so, who made such a determination? To my knowledge, no wetland
professionals made a specific determination at this location in consideration of re-constructing the pond. I
believe that if Anderson Creek Partners thought a permit was needed they would have made arrangements
for such a determination at the time that the delineation was conducted. Based on field observations,
aerial photography, and discussions with Anderson Creek staff the dimensions of the pond are the same as
they were when they purchased the property.
Road Crossings:
Air photos of the site show the road in question in 1993. The road has been constructed with four pipes
and headwalls. The old wetland delineation flags are visible in the field and it is clear that there has been
no additional discharge of fill. Mr. Levinson and his staffs understanding relating to the roads was that
they could re-build the roads so long as they did not impact any additional wetlands. This understanding
was based on a meeting with the Corps in 2008 when the representative of Anderson Creek Partners heard
that permits were not needed if an area did not show as a wetland or stream on the approved wetland map.
Potential Remedies:
Anderson Creek Partners desires to remedy these situations and requests your guidance in developing
potential resolutions. They desire to demonstrate a willingness to work with the regulatory agencies and
to gain compliance for unintentional impacts to wetland and stream resources. Please advise us on how
we might formalize a resolution to this issue.
Wetland Preservation:
The wetland and stream preservation areas are comprised of forest types that will ultimately be classified
as bottomland hardwood forests. These areas can currently be classified in two major categories; one is
high-grade mature timber resources and the other are less mature forest resources. The less mature stands
have been managed as part of the pine timber resources on the site. The high-grade mature forest
resources are those that support Atlantic White Cedar and other specimen oak, gum and cypress trees.
Generally, the higher quality resources are located east of the proposed main spine road through Anderson
Creek South.
There will always be inherent economic and ecologic conflicts when high-grade wetland timber resources
' are involved. Namely, Atlantic White Cedar has both significant ecological and economic value. The
same species that provides great habitat value is also a highly sought after wood for boat building.
Additionally, the high quality mast produced by wetland oak species is in conflict with the timber value
of mature trees that can be harvested with current technology. Interestingly, both the ecological and
economic values of the resource increase with time. Absent preservation, these forest resources are in
peril of being harvested as marketable timber either now or in the future. Preservation of the wetland
resources will eliminate future timber sales.
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Attached is a figure of the wetland and stream areas that will be preserved as a portion of the mitigation
for the site. The protection of these areas falls under two levels of restriction. The most protective
restrictions are those approved by the US Army Corps of Engineers (generally east of the spine road) and
the lesser level of protection is a deed notification approved by the NC Division of Water Quality
(generally west of the spine road). The applicant reserves the different levels of protection in the event
that economic conditions mandate the sale of timber to generate revenue; this applies to only those areas
falling under the DWQ Deed Notification.
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We propose to finalize maps and record the following language prior to any impacts associated with the
development of the lake:
US Army Corps Protective Language (92.2 Wetland Acres and 19,000 Stream Feet)
"The areas shown on the recorded plat entitled Final Anderson Creek Wetland
Preservation Map as conservation areas shall be maintained in perpetuity in their
natural or mitigated condition. No person or entity shall perform any of the
following activities on such conservation area:
a. fill, grade, excavate or perform any other land disturbing activities
b. cut, mow, burn, remove, or harm any vegetation
c. construct or place any roads, trails, walkways, buildings, mobile
homes, signs, utility poles or towers, or any other permanent or temporary
structures
d. drain or otherwise disrupt or alter the hydrology or drainage ways of
the conservation area
e. dump or store soil, trash, or other waste
f. graze or water animals, or use for any agricultural or horticultural
purpose
This covenant is intended to ensure continued compliance with the mitigation
' condition of a Clean Water Act authorization issued by the United States of
America, U.S. Army Corps of Engineers, Wilmington District, Action ID
SAW-2006-41244 and NC DWQ Project Number #04-2019 and therefore may be
enforced by the United States of America. This covenant is to run with the land,
and shall be binding on the Owner, and all parties claiming under it."
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NC Division of Water Quality Protective Language (32.8 Wetland Acres)
COMPLIANCE WITH WETLAND & BUFFER REGULATIONS
In accordance with Title 15 A NCAC 2H.0500, the following DEED NOTIFICATION shall be
recorded in the Harnett County Registry prior to disturbing areas designated for protection and
depicted on the Final Anderson Creek Wetland Preservation Map.
"A portion of this lot has been determined to meet the requirements for designation as a wetland,
stream or protected stream buffer. Any subsequent fill or alteration of this area shall conform to
the requirements of the state rules adopted by the State of North Carolina in force at the time of
the proposed alteration. The intent of this provision is to prevent additional wetland, stream or
buffer filling or draining, so the property owner should not assume that a future application for
filling or draining would be approved. The property owner shall report the name of the
subdivision
in any application pertaining to said rules. This covenant is intended to ensure continued
compliance with all rules adopted by the State of North Carolina and therefore the State of North
Carolina may enforce benefits. This covenant is to run with the land and shall be binding on all
Parties and all persons claiming under them".
Lake and Stream Monitoring and Management Plan:
Attached please find a copy of the proposed lake and stream monitoring and management plan
(Attachment 3: Anderson Creek Club Lake and Stream Monitoring and Management Plan). The plan is
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being submitted to the NC Division of Water
Q for their review prior
uality to any impacts occurring on
the site.
In closing, please let me know if there is any ad ditional information that I might be able to provide to
' expedite your review. Also, my presumption is that review process for the Individual Permit has been re-
started with this submittal. If you have any que stions or comments please feel free to call me at 336 /
406-0906.
Best regards,
Chris Huysman
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Cc:
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Mr. Ian McMillian Congresswoman Renee Ellmers
NC DWQ Wetlands Unit US House of Representative
1650 Mail Service Center 1533 Longworth House Office Building
' Raleigh, NC 27699-1650 Washington, DC 20515-3302
Representative David Lewis Senator Richard Burr
' 533 Legislative Office Building 217 Russell Senate Building
300 N. Salisbury Street Washington, DC 20510
Raleigh, NC 27603-5925
Mr. Scott Sauer, County Manager
102 East Front Street
Lillington, NC 27546
Mr. Joseph Jefferies, Planning Services
102 East Front Street
Lillington, NC 27546
Senator Kay Hagan
310 New Bern Avenue
Raleigh, NC 27601
Ms. Jenny Hartsock
310 New Bern Avenue
Raleigh, NC 27601
Governor James Holshouser
100 Market Square
PO Box 1227
Pinehurst, NC 28370
Ms. Phyllis Owens, Director
Harnett County Economic Development
PO Box 1270
Lillington, NC 27546
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' Mr. James Burgin
Harnett County Commissioner
PO Box 1685
Angier, NC 27501
Mr. Robbie Oldham
Withers and Ravenel
1 1 1 MacKenan Drive
' Cary, NC 27511
Ms. Becky Fox
' USEPA - Region 4
1307 Firefly Rd
Whittier, NC 28789
Mr. John Ellis
US Fish and Wildlife Service
PO Box 33726
Raleigh, NC 27636-3726
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Mr. Donald Belk and Mr. Greg Taylor
BRAC Regional Task Force
PO Box 87129
Fort Bragg, NC 28307
Mr. John Hutton
Wildlands Engineering
5605 Chapel Hill Blvd. #122
Raleigh, NC 27607
Ms. Jennifer Derby
Wetlands Protection Section
USEPA - Region 4
61 Forsyth Street,
Atlanta, GA 30303
Ms. Molly Ellwood
NC Wildlife Resources Commission
Permit Coordinator
127 Cardinal Drive Ext.
Wilmington, NC 28405
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Attachment 1:
Mr. Levinson's Letter of August 24, 2011
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ANDERSON CREEK CLUB
125 WHISPERING PINES DRIVE • SPRING LAKE, NC 28390
866-465-3568 910-814-2633 910-814-2892(PAX)
wtvw.ctitclet-.rutacreekcittb.cutn
August 24, 2011
Ms. Crystal Amschler
USACE Wilmington Field Office
69 Darlington Avenue
Wilmington, NC 28403
Dear Ms. Amschler,
' This letter is in response to the Corp's suggestion that Anderson Creek Partners may have
done work on its property in Anderson Creek South that required authorization and which
authorization was not received. Anderson Creek Partners does not believe that it has done
' so and certainly had no intention of doing so.
When the property was acquired by Anderson Creek Partners, aerial photography
' indicated certain water features (ponds) on the property. It was and is the understanding
of Anderson Creek Partners that the partnership has the right, and indeed the obligation,
to maintain and repair any deterioration of existing dams so that the flow of water is not
' changed. Other than repairing washed out roads by replacing pipes in areas that are not
regulated in accordance with the maps which we have, this is the only thing that
Anderson Creek Partners has done and Anderson Creek Partners believes that a current
' aerial photograph of the property will show that there are no more nor any fewer ponds
on the property and that the size of the ponds has not changed during the time that the
property has been owned by Anderson Creek Partners.
' To fin-ther explain why Anderson Creek Partner's understanding is as outlined above,
there was an incident in Anderson Creek North in which a violent storm caused a stream
' to break its banks and to change its direction dramatically. Anderson Creek Partners
repaired the break and redirected the stream back to its original course but modified the
repair with a small dam to prevent a repeat of the incident. The Corps took the position
' that this was not acceptable and required Anderson Creek Partners to restore the stream to
exactly what had existed before the storm, at considerable cost to Anderson Creek
Partners, both the original repair and then destroying that repair and restoring the original
creek line. From this encounter with the Corps, Anderson Creek Partners understanding
that Anderson Creek Partners was expected to not only maintain but, when other factors
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intervened, to restore wetlands to their original (when the property was purchased)
condition was reinforced.
I hope that this letter explains why Anderson Creek Partners believes that it has acted in
good faith in maintaining and restoring those situations that existed when it purchased the
property known as Anderson Creek South twelve years ago.
Anderson Creek Partners is committed to preserving the wetlands and open space on the
property and will protect wetlands, ponds and streams according to the guidance that is
published by the Corps. We will be sending to you by separate cover a figure that depicts
the protected areas.
Sincerely,
Anderson Creek Partners LP
by Anderson Creek, Inc, General Partner
David N. Levinson
President
Cc: Chris Huysman
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Attachment 2:
Anderson Creek Wetland preservation Map
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ANDERSON CREEK
HARNM COUNTY, NC
PRELIMINARY WETLANDS PRESERVATION MAP
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BOUNDARY UNF
' D(ISTING WETLANDS
- - PROPOSED STREAM PRESERVATION (19AW Lfl
USACE -AND PRESERVATION NU AO.
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Attachment 3:
Anderson Creek
Lake and Stream Monitoring and
Management Plan
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Anderson Creek Club
Lake and Stream
Monitoring and Management Plan
September 6, 2011
Objectives are to provide for an attractive, aesthetically pleasing, recreational lake for the general
use of the residents of Anderson Creek and the public with an efficient and organized
maintenance plan. This comprehensive plan will include lake and stream monitoring and certain
routine maintenance activities identified below. Our goal is to make certain the lake is
' proactively-maintained as a safe and attractive recreational focal point for the property.
Duration:
' The lake and streams will be regularly monitored by Anderson Creek and its consultants for a
period of five years. Technical management of the lake will be conducted by Foster's Lake
Management or other qualified lake management professionals. Proposed sample locations are
depicted on the attached map entitled Anderson Creek Club Lake and Stream Sampling
Locations.
' Quantifiable parameters will be analyzed in State Certified laboratories. Observational
parameters will be conducted by trained staff familiar with the protocol in this document. An
annual report will be filed with the agencies at the end of each monitoring year.
' Sample Locations:
Four jurisdictional stream locations are proposed to be monitored and are as described below:
' • Stream 1: Downstream of the dam on the unnamed tributary (UT) to the South Prong
Anderson Creek
• Stream 2: At the confluence of the lake's UT and the South Prong Anderson Creek
• Stream 3: Proximate to Road Crossing 1 along the boundary of ACC North and ACC
South on a UT of the South Prong Anderson Creek
' Three in lake locations are proposed to be monitored and they are described as below:
• Lake 1: Proximate to the outlet structure
• Lake 2: Proximate to the middle of the lake
' • Lake 3: Proximate to the head of the lake
Two sample locations will be defined in wetland areas as no streams enter the lake
' 0 Wetland 1: Largest in acreage drainage into the lake
' Potential Management Strategies:
Deviations from water quality standards within the lake will be addressed on a case by case basis
under the direction of qualified lake management specialists. Anticipated corrective actions
include but are not limited to the following: aerators will be used to influence issues with
dissolved oxygen and to a lesser degree temperature, liming will be used to influence issues
relating to pH and to a lesser degree hardness, plankton eating fish and approved dyes will be
used to influence issues relating to chlorophyll.
' Deviations from water quality standards within receiving waters located at stream sample point 1
will be addressed on a case by case basis. Anticipated corrective actions include but are not
' limited to the following: low flow orifice alterations will be used to increase flows, splash-pad
modifications will be used to increase dissolved oxygen, depth of low flow orifice will be
manipulated to decrease / increase temperature.
' Proposed Activities for Year-Round Management
? Consistent Monitoring
' o Schedule quarterly visits to the lake and stream observation points during the year
with more frequent observation occurring during the months of May through
September.
o Monitor the following during each visit to the lake and stream sampling points.
Observations will be included on each visit report. Adverse observations will
result in contacting Foster's Lake Management if developing conditions need
additional attention.
¦ general appearance including lake and stream water level, flows, presence
' of surface film, and weather conditions
¦ water color and clarity
¦ aquatic vegetation present and healthy
presence of aquatic life at each sampling point
' ¦ nuisance animal activity
¦ water quality (hardness, alkalinity, light penetration, pH, fecal coliform)
' fish population conditions
¦ presence of trash and/or debris
¦ drainage structure and emergency spillway condition
¦ condition of sediment collection forebays, berms, swales and riprap rock
channels
¦ condition of storm water inlets, outlets, pipes, conduits and conveyances
' condition of dam slopes, embankments, conduits and cover vegetation
¦ presence of aquatic life diversity at each stream sampling point
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? Aquatic Vegetation Management
' o Use an Integrated Pest Management approach to control nuisance aquatic
vegetation. Treatment strategies will be determined by existing conditions at the
time of the visit.
o If the need occurs, re-plant native, non-invasive aquatic plants to stabilize the
shoreline, provide cover for the fish and reduce excess nutrients. Plants can be
added to shoreline areas
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' ? Lake Appearance Enhancement
o Pick up and remove trash (not including sticks, logs, leaves, pine straw, mulch
and natural debris) along the shoreline and on the lake surface; leaving organic
' matter because it rarely causes problems, is a natural part of the lake ecosystem,
stabilizes the shoreline, provides habitat for aquatic organisms and may help
clarify the water.
o If circumstances arise resulting in the requirement of aeration and circulation
' systems the lake management contractor shall advise recommended equipment
and applications that reduce the film (dust, pollen, tree litter, algae, etc.) or other
water quality issues of the lake if it becomes an issue.
? Fishing Enhancement
o Sample the fish population or make direct observations each visit. Sample with
cast nets, quadrant seines, hook and line and electro fishing. Make restocking
' recommendations when necessary to achieve the lake objectives. Add fish of a
certain size and species that will gradually lead to meeting the approved balance
in the fish population.
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o Stock the lake with sterile grass carp 10 - 12 inches long during the first service
year to help provide the least expensive long-term control of nuisance vegetation.
Stock an additional sterile grass carp each subsequent service year to account for
' natural mortality.
o Stock tilapia each service year in the spring. Tilapia are tropical fish and will not
survive through the winter. The fish help control planktonic and filamentous algae
and are excellent forage fish for bass and other predator fish.
' o Carefully monitor the forage, predator fish relationship and make
recommendations about adding structure, cover and habitat to the lake.
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o Maintain a healthy minnow population in the lake that will help control insects
such as mosquitoes.
? Structures Monitoring and Enhancement
o Make recommendations as necessary to improve storm water flow and correct
erosion issues.
o Maintain floating docks, fish feeders, piers and fountains
o Maintain low flow orifice.
After each site visit, provide a detailed report explaining observations, activities and
recommendations.
? Additional Lake Management issues to be addressed on an as-needed basis.
o Make recommendations and suggestions for correcting conditions that could
develop into problems.
o Discuss lake management and answer questions at any time during the service
year.
o Provide guidance for the control of nuisance animals. Contract a licensed Animal
Damage Control Agent for the State of North Carolina as required addressing
these situations.
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Anderson Creek Club
Lake and Stream Monitoring Dataform
Version 2011.1
Observer: Date:
Drought Index: Recent Weather Conditions:
Observational Parameters
General appearance of lake water level, presence or absence of surface film, clarity, water color:
General appearance of stream water levels, flows, color, clarity and sheen
Presence of aquatic vegetation and health
Presence of aquatic life at each sampling point
Nuisance animal activity / presence of trash and/or debris
Fish populations and aquatic life conditions
Structure and emergency spillway condition
Condition of sediment collection forebays, berms, swales and riprap rock channels
Condition of storm water inlets, outlets, pipes, conduits and conveyances
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Condition of dam slopes, embankments, conduits and cover vegetation
Quantifiable Parameters:
Sample Point Coliform Temp. DO Ph Hardness
Stream 1
Stream 2
Stream 3
Lake 1
Lake 2
Lake 3
Wetland 1
NOTES and OBSERVATIONS:
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Appendix l:
Anderson Creek Club North
Protective Mechanism
Anderson Creek Realty LLC
125 Whispering Piney Dr.
Spring Lake, NC, 28390
Phone:910-1114-2633, Fax: 910-814-2479
ANDERSON CREEK CLUB ADDITIONAL PROVISIONS ADDENDUM
Property Address: -Lot -Phase Section
NOTE: All of the foilowing provisions which are marked with an 'A" shall apply to the attached Offer to Purchase and Contract or
Lot Purchase Agreement for Anderson Creek Club or Offer to Purchase and Contract - Vacant Lot/Land ("Contract"). 't'hose
provisions marked -N/A" shall not apply.
1. X COVENANTS: Buyer acknowledges receipt of one complete set of Declaration of Covenants, Conditions and
Restrictions and one complete set of Architectural Control Committee Guidelines, Procedures and Regulations.
2. _ ORCHARD FALLS & THE SPRINGS NEIGHBORHOODS: All Home sites within these ncighboncotyds, (Sections
3C-2 & 45-2), are subject to the following additional restrictions: All home sites adjacent to the buffer area along the
outside edge of the development must maintain all of the natural vegetation on the back of the Homesite in order to
maximize their privacy. All clearing plans and landscaping plans mast be approved by the Developer prior to the
commencement of any work.
3. BROADLAiiE NF;IGIIHORHOOD: All Home sites within the Broad lake neighborhood are subject to the following
additional restrictions: All homes must be full masonry construction and contain a minimum of 4.000 square feet of
heated living space. No garage doors may face Broadiake Lane and a side entrance is the preferred orientation. If a side
entry is not possible, then a courtyard entry will be considered, provided the garage doors face away from the entrance
4- ___ WETLANDS DISCLOSURE: A portion of this lot has been determined to meet the requirements for designation as a
regulatory wetland. Any subsequent fill or alteration of this wetland shall conform to the requirements of state wetland
rules adopted by the State of North Carolina in force at the time of the proposed alteration. Buyer acknowledges receipt
of a copy of the tot survey for the lot indicating the location of areas designated as wetlands and understand that the
wetland rules adopted by the State of North Carolina may limit the alteration or restrict the use of the area designated as
wetland.
v VSQUARF, FOOTAGE DTStLdSIIRF Buyer understands -the areas rements and-sgttare TooQe i?n rhi5 hcrnie were
measured and calculated by the listing agent or Builder, it has been entered in the Multiple Listing System. As per the
Multiple Listing System, this information is deemed reliable but not guaranteed. We recommend you, as Buyer, obtain
the services of an appraiser or third party professional to confirm the square footage and the measurements. Anderson
Creek Realty, LLC and the real estate agents involved in this sale do not warrant these measurements. We allow three
working days from the signing of the contract for you or your agent to confirm the measurements.
6. ____(L SUBDIVISION STREETS DISCLOSURE: This disclosure is given in accordance with North Carolina General statues
136-102.6 in connection with the purchase of lot of the property now known as Anderson Cheek Club, as shown
on a neap recorded in Map Book _ at Page of the Harnett County Registry. 'This is to advise that the streets
shown on the map are private streets and not public streets. All of the property owners of property in Anderson Creek
Club have easements in order to travel over and across these streets- It is the Developer's responsibility to construct the
streets: however, as private streets, and not public streets, the responsibility for maintenance of these streets is upon
Anderson Creek Property Owners Association, Inc., to which all owners will belong and pay assessments, a part of
which will be used for street maintenance. No representation is made to you that these streets will be constructed to
standards sufficient to be included in the State highway system or that the State of North Carolina would eventually
assume maintenance ofthese roadwrays,
iN THE EVENT OF A CONFLICT BETWEEN THIS ADDENDUM AND THE C'ON°TRACT, THIS ADDENDUM SHALL
CONTROL.
BUYER
DATE SEAL SLLLEW ANDERSON CREEK PARTNERS, LP
By ANDERSON CREEK, INC. GENERAL PARTNER
BUYER DATE SEAL
WIT'NES.S DATE SF-AL
By DATE
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