20090030 Ver 1_Other Agency Correspondence_20081017

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State of North Carolina Reply to:
Donald W. Laton
Department of Justice Environmental Division
ROY COOPER
NFI-OR EY GENERAL PO BOX 629 Tel: [phone]
Fax: [phone]
Raleigh, North Carolina
27602
October 15, 2008
Timothy P. Sullivan, Esq. 0 ! ^ 3 0
Poyner & Spruill LLP
P.O. Box 10096
Raleigh, North Carolina 27605-0096 ..?
Re: Kingsborough Estates
Neuse Riparian Buffer Rule, 15A NCAC 2B.0233 2008
Vested Rights Inquiry 1)E;,4R i?;ATER'Qdi"L!1y p
??F IJdF DJ AN'D STrJE A"^ iE? fV?lti`I
Dear Tim:
Staff in the Division of Water Quality (DWQ) and I have completed reviewing the
materials that you provided along with your request for a decision on the existence of vested
rights by Kingsborough Limited Partnership (KLP) in property located at the intersection of New
Bern Avenue (Hwy 64 East) and Kings Parkway, Raleigh, Wake County, NC (the Property).
As you know the concept of common law vested rights has been extended to regulations such as
the Neuse River Buffer Rule, 15A NCAC 2B.0233. (See 1998 N.C. Sess. Laws 221.) The
property according to the submitted material and prior correspondence is approximately 71.38
acres and consists of two separate adjacent parcels both of which were already existing
manufactured home communities when KLP purchased the property in 1988.
With respect to the property you identified as "Parcel 1" in your letter of June 6, 2008 (the
Letter), the use of Parcel 1 as a manufactured home community prior to the effective date of the
Neuse River Buffer Rule is substantiated by the plat map which was filed with the Wake County
Register of Deeds (Attachment 2 of the Letter). The purchase price of Parcel 1, expenditures for
improvements on it, and the apparent reliance upon the necessary governmental approvals to
operate a community of manufactured homes all appear to have been actions taken in good faith
to comply with all applicable rules rather than an effort to avoid application of the Neuse River
Buffer Rule. Therefore, the facts demonstrate that KLP has a vested right to continue to operate
all the lots in Parcel 1 without application of the Neuse Buffer Rule.
With respect to the property you identified as "Parcel 2" in the Letter, the use of Parcel 2
as a manufactured home community prior to the effective date of the Neuse River Buffer Rule is
It
Kingsborough Estates
October 15, 2008
Page 2
substantiated by several documents. DWQ is willing to accept the John A. Edwards &
Company survey as confirmation that 59 manufactured -
home lots existed on Parcel 2 in June, 1993. In addition you submitted a site plan for sanitary
sewer improvements which was initially drawn on or about April 23, 1997, prior to the July 22,
1997 effective date of the Neuse River Buffer Rules. Furthermore you have established that KLP
negotiated with the City of Raleigh to undertake installment of sewer service to Parcel 2 prior to
the July 22, 1997 effective date, and eventually, on September 16, 1997 entered into a contract
for such installation contingent upon KLP being able to add certain specified additional lots.
Therefore, the facts demonstrate that KLP has a vested right to treat all Parcel 2 lots as described
in your June 6, 2008 letter without application of the Neuse River Buffer Rule.
This letter is not an opinion as to whether or not the current proposal is within the
conditions of any existing 404 Certification issued by the U.S. Army Corps of Engineers or
whether a further certification by it would be required. DWQ will not issue a letter in this
matter, relying instead on this letter as its determination that KLP has a vested right to permit
placement of manufactured homes at all currently existing lots at the Property.
Thank you for your attention to this matter.
Sincerely,
Do ald . Laton
Assistant Attorney General
/Amy Chapman
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