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NC BROWNFIELDS
LAND USE RESTRICTIONS (“LUR”) UPDATE
Year Certification Made:2017
Name:
Battleship RoadAddress:
105 & 125 Battleship Road
Project #: County:
19071-15-065 New Hanover
Property Owner (In part or whole):
____________________________
Read the following LURs and mark each restriction accordingly. Additional remarks may be added for
compliance status clarification. Attach any required or supplemental documentation, sign, notarize and
submit to the following address:
NC Division of Waste Management
Attn: Brownfields Program Staff
1646 Mail Service Center
Raleigh, NC 27699-1646
LUR 1:No use may be made of the Brownfields Property other than single family
residential, high density residential with amenities for residents, retail, restaurant, office, hotel,
recreation, open space, parking, and subject to the Department of Environmental Quality’s
(“DEQ”) prior written approval, other commercial uses. For purposes of this restriction, the
following definitions apply:
a.“Single Family Residential” refers to a permanent dwelling on an individually
owned lot designed for residence by one family.
b.“High Density Residential” refers to permanent dwellings where residential units
are attached to each other with common walls, such as condominia, apartments,
group homes, dormitories or boarding houses, and any property outside the
dwelling structures is usable by all residents and not privately owned as part of a
particular unit, and may include related amenities, such as pools, clubhouses,
courtyards, common seating and gathering areas, recreation areas and parking
garages.
c.“Retail” refers to the sale of goods, products, or merchandise directly to the
consumer or businesses and includes showrooms, personal service, entertainment,
and the sales of food and beverage products.
d.“Restaurant” refers to a commercial business establishment that prepares and serves
food and beverages to patrons.
e.“Office” refers to the rendering of business or professional services, including
financial services.
f.“Hotel” refers to an establishment providing accommodations, meals, and other
services for travelers and tourists.
g.“Recreation” refers to indoor and outdoor exercise-related, physically focused, or
leisure-related activities, whether active or passive, and the facilities for same,
including, but not limited to above-ground swimming or wading pools or in-ground
Form revised: 8-1-2016
Battleship Road (#19071-15-065) LUR Update
swimming or wading pools, clubhouses, open space, walking paths, dog runs,
picnic and public gathering areas, campgrounds, boat docks, and marinas.
h.“Open Space” refers to land maintained in a natural or landscaped state and used
for natural resource protection, buffers, greenways and/or detention facilities for
stormwater.
i.“Parking” refers to the temporary accommodation of motor vehicles and/or boats
in an area designed for same.
j.“Commercial” refers to an enterprise carried on for profit by the owner, lessee or
licensee.
k.“Courtyard” refers to a landscaped or hardscaped area for residents' use for leisure
activities.
l.“Dog Run” refers to an enclosed area designed to allow freedom of movement and
a play area for residents' dogs.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 2:Physical redevelopment of the Brownfields Property may not occur other than
in accord, as determined by DEQ, with an Environmental Management Plan approved in writing
by DEQ in advance (and revised to DEQ's written satisfaction prior to each subsequent
redevelopment phase) that is consistent with all the other land use restrictions and describes
redevelopment activities at the Brownfields Property, the timing of redevelopment phases, and
addresses health, safety and environmental issues that may arise from use of the Brownfields
Property during construction or redevelopment in any other form, including without limitation:
a.soil and water management issues, including without limitation those resulting
from contamination identified in the Environmental Reports;
b.issues related to potential sources of contamination referenced in paragraph 8 of the
Brownfields Agreement (“Agreement”) attached as Exhibit A to the Notice of
Brownfields Property (“Notice”);
c.contingency plans for addressing, including without limitation the testing of soil
and groundwater, newly discovered potential sources of environmental
contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators,
soil contamination); and
d.plans for the proper characterization of, and as necessary, disposal of any
contaminated soils excavated during redevelopment.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 3:Prior to the occupation of any single family residential dwelling to be
constructed on the Brownfields Property, the Brownfields Property shall be subject to a declaration
Battleship Road (#19071-15-065) LUR Update
of covenants, conditions, and restrictions, or a functionally equivalent instrument recorded, or to
be recorded, in the New Hanover County Register of Deeds Office (the “Declaration”), and a
homeowners association, a lot owners association, or similar entity associated with the
Brownfields Property (“Property Association”) shall be established:
a.The Declaration described above shall provide that all owners of all or part of the
Brownfields Property shall strictly comply with the terms and conditions of the
Agreement attached as Exhibit A to the Notice and the Notice.
b.For the purposes of NCGS §130A-310.35(f), which authorizes various persons to
enforce land use restrictions, the Declaration shall provide that the Property
Association is such a person so authorized by the Act to administer and enforce the
land use restrictions as an owner of land and as a person eligible for liability
protection pursuant to the Act. Further, the Declaration shall provide that the
Property Association has the authority to administer and enforce the land use
restrictions on behalf of all lot owners and members of the Property Association.
c.The Declaration shall give the Property Association the authority, to the extent
permissible under North Carolina law, to treat any violation of the terms and
conditions of the Agreement attached as Exhibit A to the Notice or of the Notice
by any owner of any part of the Property as a violation of the Declaration and to
undertake any and all enforcement remedies provided in the Declaration for such a
violation. The Declaration shall provide that, in the event of a violation of the
Agreement attached as Exhibit A to the Notice or of the Notice by any owner of
any part of the Brownfields Property, the Property Association will undertake
reasonable enforcement actions to correct said violation. Furthermore, the
Declaration shall specifically provide that failure by any owner of any part of the
Brownfields Property to remedy or correct such violations of the Agreement
attached as Exhibit A to the Notice or of the Notice after any applicable notice and
cure periods to the reasonable satisfaction of DEQ could result in that owner's loss
of liability protection afforded by the Agreement attached hereto as Exhibit A and
the Act.
d.The Declaration shall provide that the Property Association will notify DEQ of
violations of the Agreement attached as Exhibit A to the Notice or of the Notice by
any owner of any part of the Brownfields Property and any associated enforcement
actions taken or planned within thirty (30) days of such violation becoming known
to the Board of Directors of the Property Association.
e.The Declaration shall provide that the Property Association maintain a cash reserve
separate and distinct from other funds and reserves of the Property Association, to
ensure the availability of funds to undertake such enforcement actions. The cash
reserve shall be not less than Ten Thousand Dollars ($10,000.00), and such reserve
shall be increased by Two Hundred Fifty Dollars ($250.00) each year after the year
in which the Agreement attached as Exhibit A to the Notice becomes effective
unless DEQ determines, in writing, that such increase is not necessary to ensure the
availability of funds to undertake such enforcement actions.
f.The portions of the Declaration, and the portions of the bylaws of the Property
Association, pertaining to the subject matter of this LUR shall be prepared in
consultation with DEQ and then provided to DEQ for review and comment as to
the subject matter of this LUR, which shall not be unreasonably withheld,
conditioned, or delayed.
Battleship Road (#19071-15-065) LUR Update
g.The Declaration shall further provide that the Property Association will be
responsible for submission of copies of deeds and other instruments of conveyance
to the persons listed in Section XV (Notices and Submissions) of the Agreement
attached as Exhibit A to the Notice.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 4:Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 5:No activity that disturbs soil on the Brownfields Property in the “Area of
Potential Contamination” as delineated on the plat component of the Notice may occur unless such
activity is done in accordance with an Environmental Management Plan approved in writing by
DEQ, in advance of the proposed activity, except:
a.in connection with landscape planting to depths not exceeding two feet;
b.mowing and pruning of above-ground vegetation; and
c.for repair of underground infrastructure, provided that DEQ shall be given written
notice at least seven days in advance of a scheduled repair (if only by email) of any
such repair, or in emergency circumstances, no later than the next business day, and
that any related assessment and remedial measures required by DEQ shall be taken.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 6:No enclosed building may be constructed on the Brownfields Property in the
“Area of Potential Contamination” as delineated on the plat component of the Notice unless and
until DEQ determines in writing that:
a.the building is protective of the building's users, public health and the environment
from risk of vapor intrusion based on site assessment data or a site-specific risk
assessment approved in writing by DEQ; or
b.the building would be or is sufficiently distant from the Brownfields Property's
groundwater and/or soil contamination based on assessment data approved in
Battleship Road (#19071-15-065) LUR Update
writing by DEQ that the building's users, public health and the environment will be
protected from risk from vapor intrusion related to said contamination; or
c.vapor intrusion mitigation measures are installed and/or implemented to the
satisfaction of a professional engineer licensed in North Carolina, as evidenced by
said engineer's professional seal on a report that includes photographs and a
description of the installation and performance of said measures. Any design
specification for vapor intrusion mitigation measures shall be approved in writing
by DEQ in advance of installation and/or implementation of said measures. The
design specifications shall include methodology(ies) for demonstrating
performance of said measures.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 7:None of the contaminants known to be present in the environmental media at the
Brownfields Property, including those appearing in paragraph 8 of the Agreement attached as
Exhibit A to the Notice, may be used or stored at the Brownfields Property without the prior written
approval of DEQ, except in de minimis amounts for cleaning and other routine housekeeping
activities.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 8:No mining may be conducted on or under the Brownfields Property, including,
without limitation, extraction of coal, oil, gas, sand, or any other minerals or non-mineral
substances unless approved in writing in advance by DEQ.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 9:The owner of any portion of the Brownfields Property where any existing, or
subsequently installed, DEQ-approved monitoring well is damaged shall be responsible for repair
of any such wells to DEQ's written satisfaction and within a time period acceptable to DEQ, unless
compliance with this LUR is waived in writing by DEQ in advance.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
Battleship Road (#19071-15-065) LUR Update
LUR 10:Neither DEQ, nor any party conducting environmental assessment or
remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or
agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for
purposes of conducting such assessment or remediation, which is to be conducted using reasonable
efforts to minimize interference with authorized uses of the Brownfields Property.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 11:Any deed or other instrument conveying an interest in the Brownfields Property
shall contain the following notice: “The Property which is the subject of this instrument is subject
to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property
recorded in the New Hanover County land records, Book 1607, Page 1759. A copy of any such
instrument shall be sent to the persons listed in Section XV (Notices and Submissions) of the
Agreement attached hereto as Exhibit A, though financial figures related to the conveyance may
be redacted. Prospective Developer may use the following mechanisms to comply with the
obligations of this paragraph: (i) If every lease and rider is identical in form, Prospective Developer
may provide DEQ with copies of a form lease or rider evidencing compliance with this paragraph,
in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notice and
Submissions); or (ii) Prospective Developer may provide abstracts of leases, rather than full copies
of said leases, to the persons listed in Section XV.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
LUR 12:During January of each year after the year in which the Notice is recorded, the
st
owner of any part of the Brownfields Property as of January 1 of that year shall submit a notarized
Land Use Restrictions Update (“LURU”) to DEQ, and to the chief public health and environmental
st
officials of New Hanover County, certifying that, as of said January 1, the Notice of Brownfields
Property containing these land use restrictions remains recorded at the New Hanover County
Register of Deeds office and that the land use restrictions are being complied with, and stating:
a.the name, mailing address, telephone and facsimile numbers, and contact person's
e-mail address of the owner submitting the LURU if said owner acquired any part
of the Brownfields Property during the previous calendar year;
______________________________________________________________
b.the transferee's name, mailing address, telephone and facsimile numbers, and
contact person's e-mail address, if said owner transferred any part of the
Brownfields Property during the previous calendar year; and
Battleship Road (#19071-15-065) LUR Update
______________________________________________________________
c.whether the “Area of Potential Contamination” pursuant to LUR _ remains properly
covered with two feet of clean fill.
______________________________________________________________
d.whether any vapor barrier and/or mitigation systems installed pursuant to LUR _
above are performing as designed, and whether the uses of the ground floors of any
buildings containing such vapor barrier and/or mitigation systems have changed,
and, if so, how.
LUR 13:A property owners' association or other entity may perform this LURU's duties,
on behalf of some or all owners of the Brownfields Property, if said association or entity has
accepted responsibility for such performance pursuant to a notarized instrument satisfactory to
DEQ that includes at a minimum, the name, mailing address, telephone and facsimile numbers,
and e-mail address of each owner on whose behalf the LURU is proposed to be submitted.
In compliance Out of compliance
☐☐
Remarks: ______________________________________________________________
Notarized signing and submittal of this Land Use Restrictions Update constitutes certification that
the Notice of Brownfields Property remains recorded at the New Hanover County Register of
Deeds office and that the Land Use Restrictions are being complied with.
This Land Use Restrictions Update is certified by _____________, owner of at least part of the
Brownfields Property on this ___day of _________, 20__.
Name typed or printed of party making certification: __________________
Battleship Road (#19071-15-065) LUR Update
\[Note: additional entities or owners may be added if appropriate (i.e. multiple managing members/entities)\]
By: __________________________ (signature)
Name typed or printed: __________________
Title typed or printed: ___________________
NORTH CAROLINA
__________ COUNTY
I certify that the following person(s) personally appeared before me this day, each
acknowledging to me that he or she voluntarily signed the foregoing document for the purpose
stated therein and in the capacity indicated: ______________________.
Date: ____________ ___________________________________
Official Signature of Notary
____________________________________
Notary’s printed or typed name, Notary Public
(Official Seal) My commission expires: _________________