20160875 Ver 1_WQC Written Decision_20161206

Burdette, Jennifer a
From:
Shaw, Denise <[e-mail]>
Sent:
Tuesday, December 06, 2016 2:30 PM
To:
[e-mail]; [e-mail]; Zimmerman, Jay; Higgins, Karen;
Burdette, Jennifer a; Weaver, Adriene; Thomas, Lois; [e-mail]
Cc:
Hauser, Jennie; Shaw, Denise
Subject:
Petition for Variance from 15A NCAC 2B .0233 Neuse River Riparian Area Protection
Rules by Belinda R. Keever
Attachments:
2016-12-6_Ltr_EMC Variance w Conditions -Belinda R. Keever.pdf, 2016-12-6_EMC
Decision for Major Variance w Conditions -Belinda R. Keever.pdf
Attached is an electronic copy of the Cover Letter and Decision Granting Major Variance with Conditions which our office
forwarded by US Mail today. Please let Jennie Hauser know if you have any difficulty opening the attachments. Thank
you.

ROY COOPER.
ATTORNEY GENERAL
sTArre a
STATE OF NORTH CAROLINA
DEPAR.TMENI' OF JUSTICE
11.0. Box 629
Rnliicrt, NC 27602
December 6, 2016
REP1,YTO:JENNIL:`VELl1L[Ni HAUSER
L''NVIRONMENTAL Divis1ON
'I'LL; [phone]
FAX: [phone]
jli,[e-mail]
Belinda R. Keever Certified Mail/Return Receipt Re uestecl
8005 Falling Leaf Court
Raleigh, NC 27615
Re: Final Decision Granting Variance with Conditions
Dear Ms. Keever:
At its November 9, 2016 meeting, the Water Quality Committee of the Environmental
Management Commission granted your request for a variance with conditions. Attached is a
copy of the Final Agency Decision. If for some reason you do not agree with the terms of the
variance as issued, you have the right to appeal the Commission's decision by filing a petition
for judicial review in the superior court of the county in which you reside within thirty days after
receiving the order pursuant to the procedure set forth in the North Carolina General Statutes §
15013-45. A copy of the judicial review petition must be served on the Commission's agent for
service of process at the following address:
Sam M. Hayes, 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 nye at the address listed in the letterhead. If you have any
questions, please feel free to contact me.
Sincerely, r
Jennie Wilhelm Hauser
Special Deputy Attorney General and
Counsel for the Environmental Management Commission

Belinda R. Keever
December 6, 2016
Page 2
c w/enol.: Steven J. Rowian, Chair of the Commission, electronically
Julie Wilsey, Chair of the WQC, electronically
Jay Zimmerman, Director, DWR electronically
Karen Higgins, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically
Adriene Weaver, Environmental Specialist, electronically
Lois Thomas, recording secretary for Commission, electronically

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE MATTER OF: )
PETITION FOR VARIANCE FROM )
15A NCAC 213.0233 )
NEUSE RIVER RIPARIAN AREA )
PROTECTION RULES BY )
BELINDA R. KEEVER )
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION GRANTING MAJOR
VARIANCE WITH CONDITIONS
On May ll, 2000 the North Carolina Environmental Management Commission
(Commission) delegated to the Commission's Water Quality Committee all decisions relating to
requests for variances from the riparian buffer. This matter came before the Water Quality
Committee at its meeting on November 9, 2016, in Raleigh, North Carolina upon Belinda R.
Keever's (the Applicant's) request for approval of a major variance from the Neuse River
Riparian Area Protection Rules pursuant to 15A NCAC 02B .0233 to allow construction of a
residential above ground pool and deck at 8005 Falling Leaf Court in Raleigh, North Carolina
(the Site). The proposed development will impact 644 square feet of buffer Zone I and 569
square feet of buffer Zone 2.
Based on the information provided, the Division of Water Resources supported the
request for a major variance. Jennifer Burdette, 401/Buffer Coordinator in the Division of Water
Resources, presented the request for a major variance to the Water Quality Committee.
Upon consideration of the record documents, the request and the staff recommendation,
and based upon the approval of the Water Quality Committee, the Commission hereby makes the
following:

-2 -
FINDING OF FACTS
A. The Applicant owns the Site at 8005 Falling Leaf Court in Raleigh, North
Carolina which is located near the intersection of Six Forks Road and Mourning Dove Road.
The Site is located in an area that has been developed for several years.
B. The property was purchased March 26, 2015, which is after the effective date of
the Neuse Riparian Area Protection Rules.
C. There is an unnamed tributary (UT) to Mine Creek that runs outside the western
property line and flows into another tributary.
D. The application is for an 18 ft. x 33 ft. oval-shaped, above -ground pool and a 3.5
ft. deck surrounding the pool at a single family residence. The Applicant installed the pool and
partially built the deck before the Raleigh Regional Office of DEQ informed Applicant of the
buffer rule.
E. The Applicant has requested approval of a major variance from the Neuse River
Riparian Area Protection Rules pursuant to 15A NCAC 02B .0233 to allow the development to
remain on the Site and to complete construction of the decking and installation of a heater for the
pool. The Applicant would be required to remove this development without the variance.
F. The Applicant cannot make reasonable use of the property without impacting the
protected riparian buffer.
G. The development will impact 644 square feet of Zone 1 of the Neuse River Buffer
and 569 square feet of Zone 2 of the Neuse River Buffer. The riparian buffer occupies
approximately 90 percent of the backyard of the existing home.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,

BE
CONCLUSIONS OF LAW
A. The Site owned by Applicant is subject to the Neuse River Riparian Area
Protection Rule, 15A NCAC 2B .0233.
B. The Environmental Management Commission is authorized to issue a final
decision granting the variance, including riparian buffer mitigation conditions, pursuant to a
request under 15A NCAC 2B .0233 upon a finding that:
(1) There are practical difficulties or unnecessary hardships;
(2) The variance is in harmony with the general purpose and intent of
the buffer protection and preserves its spirit; and
(3) In granting the variance, the public safety and welfare have been
assured and substantial justice has been done.
C. The Commission affirmatively finds that Applicant has demonstrated the
following:
First Factor: There are practical difficulties or unnecessary hardships that prevent
compliance with the strict letter of the riparian buffer protection requirements.
In its assessment of whether the Applicant had made a showing of "practical difficulties
or unnecessary hardships," the Commission considered the following factors.
A. If the applicant complies with the provisions of this Rule, helshe can
secure no reasonable return from, nor make reasonable use of, his/her
property. Merely proving that the variance would permit a greater profit
from the property shall not be considered adequate justification for a
variance. Moreover, the Division or delegated local authority shall
consider whether the variance is the minimum possible deviation from the
terms of this Rule that shall make reasonable use of the property possible.
B. The hardship results from application of this Rule to the property rather
than from other factors such as deed restrictions or other hardship.
C. The hardship is due to the physical nature of the applicant's property,
such as its size, shape, or topography, which is different from that of
neighboring property.
D. The applicant did not cause the hardship by knowingly or unknowingly
violating this Rule.

-4-
E. The applicant did not purchase the property after the effective date of this
Rule, and then requesting an appeal.
F. The hardship is unique to the applicant's property, rather than the result
of conditions that are widespread. If other properties are equally subject
to the hardship created in the restriction, then granting a variance would
be a special privilege denied to others, and would not promote equal
justice;
15A NCAC 02B .0233 (9)(a)(i)(A) through (F).
The Commission affirmatively finds that the Applicant has made the required showing
that there are practical difficulties preventing compliance with the strict letter of the riparian
buffer protection requirements. Specifically,
A. The Applicant cannot use the property without impacting the protected riparian
buffer.
B. The hardship results from the application of this rule rather than from other
factors. The riparian buffer occupies approximately 90 percent of the backyard of
the existing home.
C. The hardship is due to the physical nature of the applicant's property. An
unnamed tributary to Mine Creek runs just outside of the western property line
and flows into another tributary that runs along the southwestern property line,
resulting in a riparian buffer that encumbers approximately 90 percent of the
backyard, which makes this property different from neighboring properties.
D. The Applicant unknowingly violated the buffer rule by installing an above -ground
pool and partially constructing a deck around the pool within the protected buffer.

-5-
E. The Applicant purchased the property on March 26, 2015, which is after the
effective date of this Rule. The lot was platted and the home was constructed in
1984, which is prior to the effective date of the rule.
F. The hardship is unique to the Applicant's property in that the riparian buffer
occupies approximately 90 percent of the backyard. This constraint is different
from that of most of the other properties in the neighborhood.
Second Factor: The variance is in harmony with the general purpose and intent of the
State's riparian buffer protection requirements and preserves its spirit.
The Commission affirmatively finds that Applicant has demonstrated she meets the
second factor required under 15A NCAC 02B .0233(9)(a)(ii). Specifically, the purpose of the
riparian buffer rules is to protect existing riparian buffer areas. However, the Applicant cannot
make reasonable use of the property without impacting the protected riparian buffer. The
Applicant has offered to install and maintain two rain gardens if needed to address stormwater
impacts. By granting the requested variance, the proposed development will be in harmony with
the general purpose and intent of the riparian buffer protection rules and preserves their spirit.
Third Factor: In granting the variance, the public safety and welfare have been
assured, water quality has been protected and substantial justice has been done.
The Commission affirmatively finds that the Applicant has demonstrated she meets the
third factor required under 15A NCAC 02B .0233(9)(a)(iii). Specifically, in granting the
variance subject to the condition that the Applicant install and maintain two rain gardens if
needed to address stormwater impacts, the proposed development will protect water quality and
grant substantial justice.

0 1101
Based on the Findings of Fact and Conclusions of Law set forth above, IT IS HEREBY
ORDERED that the request for the variance is GRANTED pursuant to 15A NCAC 2B
0233(9)(c) as a major variance to the Neuse River Riparian Area Protection Rule with the
following condition:
The Applicant shall install and maintain two rain gardens as proposed in
the application dated September 9, 2016, if it is determined by the Division of
Water Resources that the above -ground pool and surrounding deck create
stormwater impacts which require mitigation.
This is the 6 'h day of December, 2016.
ENVIRONMENTAL MANAGEMENT COMMISSION
Steven J. Rowlan, Chairman

-7 -
CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon the Applicant and the Division of Water Resources in the manner described
below as follows:
Belinda R. Keever
8005 Falling Leaf Court
Raleigh, NC 27615
Jennifer A. Burdette
401/Buffer Coordinator
401 & Buffer Permitting Unit
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
Karen Higgins, Supervisor
Division of Water Resources
1650 Mail Service Center
Raleigh NC 27699-1650
This is the �Ih
day of , 2016,
Certified Mail/Return Receipt Requested
and E-mail: banril,19(a)aoLcom
E-mail:.Iennifer, Burdettenncdeiir _aov
E-mail: Karen. Hi ins(jr..ncdenr. ov
ROY COOPER
Attorney General
�J�ennni�e�Wilhelm Hauser
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602

Belinda Keever
8005 Falling Leaf Court
Raleigh, NC
November 9, 2016
Belinda Keever has requested the Water Quality Committee (WQC) to grant an after -the -fact
Major Variance from the Neuse Riparian Area Protection Rules (15A NCAC 02B .0233) for an
aboveground pool and partially constructed deck within Zone 1 and Zone 2 of the buffer at 8005
Falling Leaf Court in Raleigh, NC. The pool and deck will impact 644 square feet of Zone 1 and
569 square feet of Zone 2.
Accordingly, pursuant to 15A NCAC 02B .0233 (9)(c), the Division of Water Resources makes the
preliminary finding that the major variance request demonstrates the following:
• Practical difficulties or unnecessary hardships are present;
• The harmony and spirit of buffer protection requirements are met; and
• The protection of water quality and substantial justice has been achieved as required in
15A NCAC 02B.0233 (9)(a).
15A NCAC 02B.0233 (9)(a)(i) states the following:
"There are practical difficulties or unnecessary hardships that prevent compliance with the strict
letter of the riparian buffer protection requirements. Practical difficulties or unnecessary
hardships shall be evaluated in accordance with the following:
A. If the applicant complies with the provisions of this Rule, he/she can secure no reasonable
return from, nor make reasonable use of, his/her property. Merely proving that the
variance would permit a greater profit from the property shall not be considered
adequate justification for a variance. Moreover, the Division or delegated local authority
shall consider whether the variance is the minimum possible deviation from the terms of
this Rule that shall make reasonable use of the property possible.
B. The hardship results from application of this Rule to the property rather than from other
factors such as deed restrictions or other hardship.
C. The hardship is due to the physical nature of the applicant's property, such as its size,
shape, or topography, which is different from that of neighboring property.
D. The applicant did not cause the hardship by knowingly or unknowingly violating this Rule.
State of North Carolina I Environmental Quality I Water Resources
1611 Mail Service Center I Raleigh, North Carolina 27699-1611
919 707 9000

Belinda Keever
8005 Falling Leaf Court Raleigh
Major Variance Request — DWR Findings of Fact
Page 2 of 3
E. The applicant did not purchase the property after the effective dote of this Rule, and then
request an appeal.
F. The hardship is unique to the applicant's property, rather than the result of conditions
that are widespread. If other properties are equally subject to the hardship created in the
restriction, then granting a variance would be a special privilege denied to others, and
would not promote equal justice;"
The Division finds the following:
There are practical difficulties that prevent compliance with the strict letter of the riparian
buffer protection requirements:
A. In 1984, the home on this lot was constructed with a deck on the back located
partially within Zone 2 of protected buffer. The applicant purchased the home in
March of 2015 through an estate transfer. The applicant was not aware of the buffer
until they were notified after the pool was installed and the deck was partially built by
Raleigh Regional Office staff. Work was stopped, and the applicant requested this
major variance because the pool is needed to provide their granddaughter with
special needs a suitable place for exercise. Because only a small area of the backyard
is not occupied by the protected buffer, the applicant cannot install a pool and
construct a deck without impacting the protected buffer.
B. The hardship results from application of this Rule in that the riparian buffer occupies
approximately 90 percent of the backyard of the existing home.
C. The hardship is due to the physical nature of the applicants' property. An unnamed
tributary to Mine Creek runs just outside of the western property line, flows into
another tributary that runs along the southwestern property line encumbering
approximately 90 percent of the backyard, which is different from that of neighboring
properties.
D. The applicant unknowingly violated the buffer rule by installing pool and partially
constructing a deck around the pool within the protected buffer.
E. The applicant purchased the property on March 26, 2015, which is after the effective
date of this Rule. The lot was platted and the home was constructed in 1984, which
is prior to the effective date of the rule.
F. The hardship is unique to the applicant's property in that the riparian buffer occupies
approximately 90 percent of the backyard. This constraint is different from that of
most of the other properties in the neighborhood.
15A NCAC 0213.0233 (9)(a)(ii)
"The variance is in harmony with the general purpose and intent of the State's riparian buffer
protection requirements and preserves its spirit,"
The Divisions finds the following:

Belinda Keever
8005 Falling Leaf Court Raleigh
Major Variance Request — DWR Findings of Fact
Page 3 of 3
The purpose of the riparian buffer rule is to protect existing riparian buffer areas. However, the
home was constructed in 1984 near the edge of the protected buffer leaving approximately 90
percent of the backyard occupied by the protected buffer. The applicant is proposing to
purchase 2,785.50 buffer mitigation credits to offset the buffer impacts from pool and deck.
15A NCAC 0213.0233 (9)(a)(iii)
"In granting the variance, the public safety and welfare hove been assured, water quality has
been protected, and substantial justice has been done."
The Divisions finds the following:
In granting the variance, water quality has been protected and substantial justice has been done.
The applicant is proposing to purchase 2,785.50 buffer mitigation credits. Because the pool
retains stormwater and the deck is pervious, Divison staff determined that stormwater
treatment is not necessary to protect water quality.
Division of Water Resources' Recommendation:
Based on the information submitted, the Division of Water Resources supports this request for a
Major Variance from the Neuse Riparian Area Protection Rules because the harmony and spirit
of buffer protection requirements are met and the protection.0233 (9)(a) provided the below
mentioned conditions or stipulations are required. If the Water Quality Committee approves this
request for a Major Variance from the Neuse Riparian Area Protection Rules, the Division
recommends approval with the following conditions or stipulations [pursuant to 15A NCAC 02B
.0233 (9)(c)(ii) & (iii)]:
• Mitigation
The applicant shall provide mitigation for the proposed impacts by purchasing 2785.50
buffer credits from Resource Environmental Solutions, LLC banks located within HUC
03020201 as indicated in their application.