WSMU_MRSV_Ltr_20210405_Annotated

L.Charles Grimes
GRIMES YEOMAN
1_Jr 1 PII.0 11TTORNEYS AT LAW [e-mail]
Direct Phone:[phone]
Direct Fax:[phone]
April 5, 2021
Mr. Paul Clark
Water Supply Watershed Protection Coordinator
N.C. Dept. of Environmental Quality
512 N Salisbury St, 6th Floor
Raleigh,NC 27604
CC:
Mr. Douglas Ansel
Assistant General Counsel
N.C. Dept. of Environmental Quality
217 W. Jones St.
Raleigh,NC 27603
Re: Follow Up on Request to Open Case File; Statutorily Required Complaint for Violations of
North Carolina Law Pursuant to N.C. Gen. Stat. § 143-214.5(e); and Request Most Respectfully
Made for Compliance With All Applicable Law by the Town of Mooresville.
Dear Mr. Clark:
I write in follow-up to my detailed March 9, 2021 email concerning our findings from
documents received in response to a January 2021 Public Records Request ("PRR"). Again, this
was a PRR that my law firm had earlier sent to the Town of Mooresville ("Town") about the
Town's Water Supply Watershed Protection ("WSWP") program, basically concerning our law
firm seeking any and all of their Built Upon Area ("BUA") Averaging provisions, plans,
communications and the like.
Overview.
As you know, local municipalities must include BUA Averaging provisions within their
WSWP programs as required by N.C. Gen. Stat. §143-214.5(d2) since 2012. However,the Town
has failed to adopt the required BUA averaging provisions since that time (2012), and instead it
has denied these density averaging rights to owners and developers making request for such
density averaging, all to the detriment of my clients and others who wish to develop land in the
Town's planning jurisdiction.
Based upon the information obtained via the PRR mentioned above,we now know that the
Town has fully admitted to you at the DEQ this violation of not having any BUA Averaging
provisions within their WSWP programs (again, as required by N.C. Gen. Stat. §143-214.5(d2)),
Phone:[phone] 179 Gasoline Alley www.grimesyeoman.com
Fax:[phone] Main Floor,Suite 102-A
P.O.Box 4232
Mooresville,NC 28117

P. Clark
April 5,2021
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and further, the Town may well have made this admission in substance to the DEQ as early as
November 2020. Additionally, the documents included in the PRR have informed us that the
Town, in response to my Complaint made to you at the DEQ,has now hastily placed together and
provided you a purported draft of a Built Upon Area("BUA") averaging ordinance,being one that
we believe improperly construes and applies state law as well as fully misses the mark as a practical
matter.
This quickly placed together language by the Town was not earlier planned. At least, it
was not planned until they received my late 2020 detailed DEQ complaint.
As explained below, these draft BUA ordinance provisions are not even the actual
ordinance provisions that the Town intends to install in their ordinances later as governing law --
and by later,that time is also fully unknown,and very likely to be many months from now if even
in the year 2021.
Detailed Analysis, and Discussion of
PRR Responses Being Directed to You With This Letter.
January 2021 BUA Public Records Request from the Town.
On January 11, 2021, my law firm submitted another PRR to the Town for any records
regarding the Town's water supply watershed protection("WSWP")program and BUA averaging
in accordance with Chapter 132 of the NCGS. My law firm only received the initial responsive
documents to this PRR on March 8, 2021, after having to make follow-up inquiries to the Town,
asking when these public records would be made available to us.
After reviewing the PRR, we have additional strong concerns about the process that the
Town has taken to implement the statutorily required changes to their WSWP Program, and we
strongly believe the "draft ordinance" they have shared with you at the DEQ to be little more
than an effort to postpone or appease the DEQ, and to stop the DEQ and State of North Carolina:
(1)_From coming in and auditing their void and non-existent BUA Averaging Program,
even though it is a program that was required to have been in place since 2012 under
GS §143-214.5,
(2)From declaring the Town in direct violation of law, and thereafter
(3) From forcing the Town of Mooresville to finally allow for density averaging,just as
has been clearly required under law since 2012.
The information contained in the PRR responses again has informed us that the Town has
been fully aware they were not in compliance with state law since at least November 2020, if not
much earlier. I base this on emails between you, Mr. Jonathan Young (Engineering Services
Director for the Town), and Mr. Danny Wilson(Planning Director for the Town).
In one of these emails, dated November 18, you provided Mr. Wilson with draft BUA
language from the model ordinance to assist the Town in drafting their own ordinance to come

P. Clark
April 5,2021
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into compliance with State law. Instead of promptly acting upon this information to come into
compliance with State law, the Town willfully chose not to act until you flat out asked them for a
draft of a BUA ordinance in February 2021. Your request for this BUA draft appears to be solely
in response to my Complaint.
Additionally, even though it took the Town more than two months to draft the BUA
ordinance they have shared with you, it still does not follow State law in various respects.
First, the Town's draft ordinance clearly fails to follow NCGS §143-214.5(d2) and the
guidance provided by DEQ about using up to two noncontiguous properties for density averaging.
NCGS §143-214.5(d2) specifically and unequivocally states that "[a] local government
implementing a water supply watershed program shall allow an applicant to average development
density on up to two noncontiguous properties for purposes of achieving compliance with the water
supply watershed development standards."
Furthermore, the DEQ's Water Supply Watershed Protection — Density Averaging
PowerPoint presentation from June 2020 (which I have offered the DEQ assistance with
concerning future alterations that I also would like to follow up on soon), is easily accessible to
an one on the DEQ's website. The PowerPoint quite clearly drives home the fact that a landowner
ma se two noncontiguous donor properties to bring one recipient property into watershed density
quirements, as clearly shown on slides 22 and 23.
Mooresville has failed to incorporate the allowances granted to landowners in these
documents when drafting their new BUA ordinance. If you look at the proposed language in the
Town's draft, the plain reading of both 4.2.4 (D) (iii) and (iv) shows that the Town has decided
that they will only allow the density averaging process to include one donor and one receiving
parcel. This is in contradiction of state law requires and greatly restricts the rights granted to
landowners in NCGS §143-214.5(d2); I would humbly submit that this restriction cannot be
allowed to go uncorrected.
Additionally, the Town's BUA ordinance was drafted by its contractor, Clarion, the firm
the Town has retained to develop the new Unified Development Ordinance. In the email chain
where the draft was submitted to the Town, Mr. Tim Richards of Clarion stated that "the draft
revisions are not intended for staff review but to demonstrate to DEO that we are moving
forward with the UDO drafting to address the density averaging issue and the watershed
regulations in the UDO more generally." A memo on the draft BUA ordinance included within
this email chain states that "[a] comprehensive review of the [Town's] zoning districts,
including the Watershed Protection Overlay district,is currently underway.The staff review
draft of Module 1 will reflect this more comprehensive review and Ili' ig 1'ght portions of
the UDO where input from Town staff is needed.".-.; 4 202.1
These emails, from my reading and understanding of them, would indicate that the draft
BUA ordinance sent by the Town to the DEO was put together to keep the DEQ from coming in
and auditing the Town's WSWP Program and that what has been shared is not likely be at all,and

P. Clark
April 5, 2021
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may well not even resemble, any final version of the ordinance, nor it is to be provided to the
Town's own planning staff to review and provide notes or comments.
Lastly, it has been more than 90 days since I first submitted my complaint to the DEQ.
Now based on the Town's own published timeframe to complete and adopt the new Unified
Development Ordinance, Mooresville will not complete this process until September at the
earliest, if not much later in time. That timeframe is more than 6 months in the future, and at least
more than 9 months from the date of my December 30, 2020 Complaint! That would mean that
Mooresville would be out of compliance with state law by that time, for over nine years. The
statutory rights of landowners and developers cannot be allowed to be further infringed upon in
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As such and is required by NCGS §143-214.5(e), the DEQ "shall order assumption of an
approved local program if it finds that the local government has made no substantia progress 2/8/ZZ
toward compliance." There has been no compliance, or any true `progres here that we can see.
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"'u,„ . If my December 2020 Complaint had started such a time frame an. •eadline,then the Town would 7/7/21
i \k be much more than halfway through the statutorily established 120-day period that it is allowed to
bring its program into compliance - not to mention being over 8 years late in deciding to follow
the enacted 2012 law. I fully understand that a complaint to the DEQ does not start such a 120-day
deadline, but the above underscores that by their own published timeframe, the Town will not
bring their program into compliance anywhere near 120 days, it even within a year of my
December 2020 Complaint. At some point,I believe and humbly submit that the DEQ will have
no choice but to audit and assume the Town's WSWP Program.
Attached List of Supporting Documents
(Provided by Zip Drive Due to Voluminous Size).
Please see the following documents supporting the above discussion points, and the
basis of this letter that Mooresville should not be allowed to continue to drag out their multi-
year non-compliance further, especially not well into late 2021 if not into 2022.
1. FW [External] RE Mooresville Water Supply Wat....pdf—Email chain between Town
officials and Paul Clark of the DEQ. The November 18, 2020 email that contains the
model language to the Town is included here.
2. WSWP Program Survey answers 1-6-2021.pdf—January 6, 2021 email that includes the
Town's responses to the DEQ's WSWP survey. In this survey, the Town admits to not
have a BUA program installed and also admits to not tracking acreage used under their
10/70 Option as required by state law.
3. WSWP Survey.pdf-January 6, 2021 email where Danny Wilson shares the completed
WSWP survey with the Town's attorney, Sharon Crawford.
4. Density Averaging Draft and Memorandum.pdf—February 2, 2021 email from Clarion
to Town officials. In this email, Tim Richards of Clarion states that the included"draft

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April 5,2021
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revisions are not intended for staff review but to demonstrate to DEQ that we are
moving forward with the UDO drafting..."
5. FW_[External] RE_Mooresville Water Supply Wat...(2).pdf—January 5, 2021 email
where Danny Wilson sends the email chain outline above in(1)with Sharon Crawford.
6. FW_ [External] RE_Survey and Revised_updated W...(1).pdf—Email chain where
DEQ requests to see a copy of the Town's proposed BUA ordinance. Email was sent to
Sharon Crawford who asked to be kept"in the loop."
7. RE_Survey and Revised_updated WSWP model ordin...(1).pdf—February 8, 2021
email where Danny Wilson shares the Town's draft BUA with Paul Clark of the DEQ.
8. TOM Watershed-Protection-Overlay-Density-Avera.pdf—Draft version of the BUA
ordinance sent by the Town to the DEQ. This draft includes the language that does not
meet the requirements set forth by state law.
9. Watershed Protection Overlay Memo 02-05-21.pdf—Clarion memo to the Town that
introduces the draft BUA ordinance. This memo state that"[t]he attached draft is
intended to demonstrate how the density averaging provisions may be incorporated
into the overlay district regulations and Article 2: Administration. It also includes minor
revisions in organization and substance for clarity. It is not intended for review by
Town staff."
REQUEST AND APPLICATION MADE ON MARCH 26,2021 TO MOORESVILLE
FOR DENSITY AVERAGING UNDER LAW(N.C. Gen. Stat. 4143-214.5,Et.Al.)
Statutory Rights of Owners/Developers to Apply for Density Averaging
Has Necessarily Been Initiated.
Pursuant to N.C. Gen. Stat. §143-214.5, and related statutory, and we believe also
common law(if not also under the N.C. and U.S. Constitutions), owners of Watershed Act
governed real property do not have to wait and beg for their density averaging rights from local
municipalities, and they"shall"be allowed to seek and obtain full advantage of these density
averaging rights, so long as the state laws both protecting and governing these rights are
followed in making such requests and/or applications. This is true,whether there is an
established BUA Density Averaging ordinance or other explicit local written program, or not.
In sum, towns cannot ignore the law year after year, and block law abiding owners from
their rights. Plain and simple.
This is what I understood from our past communications,being those conferences
between you all for the DEQ, and me and my associate attorneys acting for my law firm and our
various impacted property owner clients. Based upon this understanding, we have provided to
the Town of Mooresville an application and request to be allowed to stand on these valuable
property and statutory rights of density averaging, and I am providing a copy of that application
to you along with this letter. This stands as further notice of our intent to move this now

P. Clark
April 5,2021
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ancient, 8-9 year old failed process, along now much more quickly -- such that finally we hope
that our clients' rights will be fully vindicated, and things will soon get done, one way or
another.
Please see the attached PDF documents (i.e., the legal analysis supporting cover letter
and the density averaging application,both dated March 26, 2021), making this density
averaging request and application to the Town of Mooresville. In these provided documents, I
would note that we utilized what we at my office refers to as the "Greensboro"model, or
application"by statutory right." This shorthand name is due to the fact that the same clients,
whom we are supporting in making this current application, earlier provided documentation to
the City of Greensboro for similar reasons. Of note, Greensboro allows donor land outside of
the City of Greensboro to be used in a density averaging, donor recipient, application process.
In that Greensboro approved transaction,the receiving parcel was inside the corporate city
limits of Greensboro. We believe that this new request and application is in keeping with North
Carolina law,just as stated in the supporting cover letter being provided to you today at the
DEQ for your clear understanding of this matter.
Conclusion
I want to make it very clear that it is only out of a duty to our clients, and to protect
similarly situated citizens of Mooresville,that I filed and continue to pursue my Complaint with the
DEQ. Further,it is for these very clear reasons that I continue to pursue the matter.
The Town has stated on multiple occasions in the past to owners and developers (or
words almost exactly to that effect) that it"has not seen fit to implement any density averaging
program."Because of this, my clients were left with no choice but to move forward with an
application of our own making, and it will be our position that if Mooresville refuses to honor
such application with a lawful, fair and responsible process then certainly at that point, if not
earlier, the State of North Carolina through the DEQ should step in, review and approve the
application.
For the above reasons, we find multiple problems with the language that Mooresville has
submitted to the DEQ as their BUA Density Averaging Program, but overall I would underline
strongly that in all of the Town's responses, they have essentially fully admitted being out of
compliance with their statutory requirements under law — since 2012. During our meeting, I
would like to discuss these issues and our ongoing concerns with the Town's process in bringing
their WSWP Program into compliance with State law.
I would also like to mention that I have directly in writing requested, and orally
discussed,that the Town of Mooresville should include members of the public, stakeholders,
professionals and others representatives regarding the language and terms for any new BUA
density averaging ordinance provisions. This discussions should be real, meaningful and not
simply sham hearings conducted by the Town to meet statutory requirement.

P. Clark
• April 5, 2021
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As of yet,the Town has not offered us such an opportunity and thus far has simply asked
us and other interested parties to watch a 90-120-minute webcast presentation that did not cover
any essential points or allow for any true and meaningful public participation. This webcast did
not offer the opportunity for any back and forth between the viewers and presenters or offer any
on point communication.
It is my position, and my clients'position, that whatever process of BUA density
averaging drafting that Mooresville chooses to follow, even if it's within the overall third-party
Clarion UDO process,there must be true and meaningful public consultation and participation,
rather than a"bulldozing event" where we are forced to only participate in little more than a
"webcast" format to date (i.e., a more perfunctory process where it is clear that only lip service,
but no true action, is taking place on any of our comments and suggestions).
Regardless of how the Town's UDO process or how our BUA application moves forward
with the Town, please know that we still want the DEQ to follow its statutory requirements and
provide the Town with formal notice of their continuing violations of N.C. Gen. Stat. §143-214.5,
if that has not already occurred.
I hope that you find the attached copies of the pertinent emails and documents we
obtained from the Town in our January PRR enlightening. These attachments are the documents
and emails that include the statements, admissions,and language from the Town that we find so
troubling that it has led us to seek this upcoming conference with you.
I greatly appreciate your time and attention to these issues and look forward to again
speaking with you soon to discuss these matters further. If you have any questions about the
information detailed in this letter, as always, feel free to contact me directly by telephone at(704)
770-8052 or by email at [e-mail].
Very truly yours,
GRIMES YEOMAN,PLLC.
L. Charles Grimes
Referenced Attachments Provided.