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Home My WebLink About20170799 Ver 1_WQC Finding of Fact_20171108Water Resources ENVIRONMENTAL QUALITY ROY COOPER Gorey icor MICHAEL S. REGAN secretarn S. JAY ZIMMERMAN Director Request for a Major Variance from the Neuse River Riparian Area Protection Rule City of Durham — Department of Water Management 1600 Mist Lake Drive Durham, NC November 8, 2017 City of Durham — Department of Water Management have requested the Water Quality Committee (WQC) to grant a Major Variance from the Neuse Riparian Area Protection Rule (15A NCAC 02B .0233) for expansion of their Mist Lake Facilities within Zone 1 and Zone 2 of the buffer at 1600 Mist Lake Drive in Durham, NC. The proposed project would impact 13,083 square feet of Zone 1 and 11,852 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. ollowing: 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. State of North Carolina I Environmental Quality I Water Resources 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 919 807 6300 Page 2 of 4 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. E. The applicant did not purchase the property after the effective date 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. The City purchased the two parcels prior to implementation of the Rule for several divisions of the Department of Water Management (DWM), currently operating on the property, with the intent of expanding the facility to accommodate the Water & Sewer Maintenance Division presently located at Public Works Operation Center on Martin Luther King, Jr. Drive. To provide adequate space for parking and facilities to accommodate the entire DWM, a minimum of 21 acres of buildable land is necessary. The southwestern portion of the site is relatively narrow and constrained by setbacks along the Interstate and wetlands to the north. An unnamed tributary to Goose Creek and its associated buffer bisect the property in this area and cannot be avoided. If the City cannot impact the buffer and use the existing property to consolidate the five divisions then the initial investment on the purchase of the property will be lost, additional property will need to be purchased to relieve the additional space requirements needed at the remote facilities, and the property cannot be used to consolidate the multiple in one location. B. The hardship results from application of this Rule combined with other constraints, including a 50 -foot setback from Interstate 85 and wetlands to the north. Outside of these additional constraints, an unnamed tributary of Goose Creek protrudes into the narrow southwestern portion of the property that is needed for parking and maintenance of construction equipment and large service vehicles and emergency access. C. The hardship is due to the physical nature of the applicants' property in that the southwestern portion is narrow and constrained by an Interstate to the south and wetlands and stream channels to the north and west. The tributary protrudes into this portion of the property limiting the space available to provide adequate building space and parking for all divisions including access Page 3 of 4 for emergency vehicles and roadway infrastructure to support heavy truck use. D. The applicant has not violated this Rule. E. The applicant purchased the two parcels occupied by a portion of the Water Management Department on December 6, 1990 prior to implementation of the Rule. However, the remaining parcels were purchases at different time after the effective date of the Rule. F. A portion of subject property was purchased prior to implementation of the Rule. There is an existing 20 -acre facility that houses approximately 82 staff of four divisions of the DWM along with associated vehicles, equipment, and inventory. The applicant intends to consolidate/relocate multiple divisions of the DWM into one facility. It is a unique situation for strict application of the Rule to prevent the intended use of a property a portion of which was purchased prior to implementation of the Rule. 15A NCAC 02B .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: The purpose of the riparian buffer rule 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 proposes to purchase 57,027 buffer mitigation credits to offset the buffer impacts. 15A NCAC 02B .0233 (9)(a)(iii) "In granting the variance, the public safety and welfare have 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 proposes to implement a stormwater management plan to treat stormwater runoff from the facility using four underground sand filters in conjunction with two underground detention systems. Stormwater will be released at non-erosive flows in the buffer and adjacent wetlands. 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 Rule because 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) 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 Page 4 of 4 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 impacts to the buffer by purchasing 57,027 buffer credits from North Fork Little River Nutrient Offset & Buffer Bank sponsored by Wildlands Holdings II, LLC. Stormwater Runoff Treatment The applicant shall provide one copy of the approved SMP, including plan details on full-sized plan sheets, with proof of the City of Durham's approval. The approved SMP shall be submitted to the DWR 401 & Buffer Permitting Branch digitally at https://edocs.deg.nc.gov/Forms/Supplemental-Information-Form before any impacts authorized in this approval occur. After it is approved and submitted to the Division, the SMP may not be modified without prior written authorization from the City of Durham. If the SMP is modified in the future, then one modified SMP with proof of approval shall be provided to the DWR 401 & Buffer Permitting Branch prior to the commencement of the modifications. • This major variance shall only apply if the USACE and NCDEQ approve impacts to the stream associated with the subject buffer.