HomeMy WebLinkAbout20041764 Ver 4_NOV Response_20100805o*k - 1'7 LP4 03
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SCHELLBRAY
SCHELL BRAY AYCOCK ABEL & LIVINGSTON PLLC
ATTORNEYS AND COUNSELORS AT LAW
August 5, 2010
DORIS R. BRAY
WILLIAM P. AYCOCK II
MICHAEL R. ABEL
PAUL H. L.IVINGSTON, JR.
THOMAS C. WATKINS
MICHAEL H. GODWIN
BARBARA R. CHRISTY
MELANIE SAMSON TUTTLE
JENNIFER L.J. KOENIG
HOLLY H. ALDERMAN
MARK T. CAIN
GARLAND G. GRAHAM
STACEY A. BRADY
J. CRAIG KISER
AMY H. KINCAID
CHRISTINA FREEMAN PEARSALL
THOMAS P. HOCKMAN
APRIL E. KIGHT
PARRISH LENTZ PEDDRICK
BRAXTON SCHELL
(1924-2008)
GREENSBORO I CHAPEL HILL
scheIIbray. com
SENT VIA ELECTRONIC MAIL
AND CERTIFIED U.S. MAIL
Ann H. Stuart, Esquire
Troutman Sanders LLP
434 Fayetteville Street
Two New Hanover Square, Suite 1900
Raleigh, NC 27601
Wal-Mart Stores East, LP
2001 S.E. 10th Street
Bentonville, AR 72716-0550
Attention: Joshua Katzer, Real Estate Manager
Attention: Fred Lutz, Real Estate Manager
Store #4250-00
WRITER'S DIRECT DIAL NUMBER
919.929.0990
WRITER'S EMAIL ADDRESS
haiderman@schelibray.com
Re: Demand for performance under the Joint Development Agreement dated
October 18, 2006 (the "JDA") between Wal-Mart Stores East, LP ("Wal-Mart")
and Shiloh Morrisville, LLC ("Shiloh") to remedy deficiencies identified in Notice
of Violation dated March 12, 2010 (the "NOV") from the North Carolina
Department of Environment and Natural Resources-Division of Water Quality
("DWQ"); responsibility for potential penalties as proposed in the letter from
DWQ dated June 28, 2010 (a copy of which is enclosed); and responsibility for
maintenance of incomplete Site Development Work
Dear Ann,
As set forth in my letters to you dated September 21, 2009, October 5, 2009,
December 8, 2009, and April 9, 2010, pursuant to the JDA, Wal-Mart is the
party responsible for the deficiencies specified in the NOV. Accordingly, to the
extent any penalties are assessed by DWQ related to the NOV as threatened
in DWQ's letter dated June 28, 2010, and to the extent Shiloh has incurred
legal fees, engineering fees and other third party expenses related to the
matters set forth in the NOV, Shiloh intends to deduct the same from any
payment Wal-Mart claims it is owed under the JDA.
Shiloh has been and remains willing to meet with Wal-Mart and DWQ to
discuss potential solutions to remedy the deficiencies noted in the NOV that
Wal-Mart and its contractors have created, but notes the following: (a) if Wal-
Mart performs the work in accordance with the plans and specifications
100 EUROPA DRIVE SUITE 271 CHAPEL HILL, NC 27517 • p 919.929.0990 • f 919.882.9495
Ann H. Stuart, Esq.
August 5, 2010
Page 2 of 3
submitted by Wal-Mart for the DWQ permits as repeatedly requested of Wal-Mart
by Shiloh, there will be no need to modify the 401 Water Quality Certification and
Buffer Authorization; (b) if Wal-Mart acquires the property to which the NOV
applies and assumes the long-term maintenance obligations, then Shiloh's
objections to modifying the permits will be moot.
Accordingly, Shiloh is willing to deed to Wal-Mart the areas shown approximately
by cross hatching on the enclosed site drawing so that Wal-Mart will have
flexibility in negotiating a resolution that is acceptable to it and DWQ. Shiloh's
offer, however, is conditioned upon (a) an agreement that will preserve Shiloh's
ability to develop the remainder of its property (such as the reservation of
appropriate easements and restrictions to preserve the required tree
conservation areas required in the SUP for the project), and (b) Wal-Mart
agreeing to pay for all costs and expenses incurred in connection with
implementing this solution.
We look forward to hearing from Wal-Mart times that it is available to meet with
DWQ and Shiloh to discuss Shiloh's proposals or any other proposals Wal-Mart
may have to remedy the concerns set forth in the NOV.
On a related note, unless and until the Site Development Work under the JDA is
100% complete, the maintenance obligations remain Wal-Mart's responsibility.
In addition to the incomplete work described in the NOV, the Town of Morrisville
has advised Shiloh that the Town has refused to release the bonds posted by
Wal-Mart in connection with the Site Development Work due to unfinished work
related to Shiloh Glen Drive, dying landscaping plants and incomplete storm
water facilities.
Best regards, ,
Holly . Alderman
North Carolina board certified specialist in
Real Property Law- Business,
Commercial and Industrial Transactions
and also licensed in Georgia
Enclosures
cc: Mr. James E. Speake
Mr. Phillip Moltz
Richard Ellis, Esquire
Ashley H. Story, Esquire
Danny Smith - Surface Water Protection Section
Raleigh RO -Water Quality
John Hennessy, NPS Assistance and Compliance Oversight Unit
Ian McMillan, 401 Wetlands Permitting Unit, 1650 MSC, Raleigh, NC 27604
Cindy Karoly, Archdale Building - 9th floor
USACE Raleigh Regulatory Field Office
Wake County Water Quality Div., 336 Fayetteville Street, Raleigh, NC 27602
Ann H. Stuart, Esq.
August 5, 2010
Page 3 of 3
Chris Roberts, Durham County, 120 E. Parrish St., 1st Floor, Durham, NC 27701
Keith Billy, Town of Morrisville, 260 Town Hall Dr., Suite B, Morrisville, NC 27560
Beverly Eaves Perdue
Governor
Coleen H. Sullins
Director
Dee Freeman
Secretary
June 28, 2010
CERTIFIED MAIL #7009 0080 0000 9764 9928
RETURN RECEIPT REQUESTED
Wal-Mart Stores East, LP
Attn: Mr. Fred Lutz
Sam Walton Development Complex
2001 SE 10`" Street
Bentonville, AR 72716-4050
CERTIFIED MAIL #7009 0080 0000 9764 9935
RETURN RECEIPT REQUESTED
Shiloh Morrisville LLC
c/o USAA Real Estate Company
Attn: Mr. Phillip R. Moltz
9830 Colonnade Blvd Suite 600
San Antonio, TX 78230
Subject: DWQ Review of Responses to NOTICE OF VIOLATION (NOV-2010-WQ-0012)
for DWQ Project #04-1764, Shiloh Crossing Shopping Center, Wake County and Durham
County
Dear Messrs. Lutz and Moltz:
On March 12, 2010, the Raleigh Regional Office of the Division of Water Quality (DWQ) issued
a NOTICE OF VIOLATION (NOV-2010-WQ-0012) for DWQ Project #04-1764, for the
tract/project known as the Shiloh Crossing Shopping Center, on NC54 in Morrisville, in both
Wake and Durham Counties North Carolina. The stream on the site is an unnamed tributary to
Stirrup Iron Creek, Class C, Nutrient Sensitive Waters (NSW), in the Neuse River Basin.
In response to the NOV, DWQ received several submittals from several parties. The submittals are listed
in Attachment A. At the request of each party, DWQ met to discuss the responses. On May 26, 2010,
DWQ met with Kimley-Horn and Associates, Inc. staff who were representing Wal-Mart Stores East, LP
and on June 16, 2010, DWQ met with Soil & Environmental Consultants, PA and Priest, Craven &
Associates, Inc who were representing Shiloh Morrisville LLC.
In the NOV Requested Response section, DWQ requested nine specific items. Those items are listed
again in Attachment B as a reference.
Items #2 and #7 pertain to construction stormwater NPDES General Permit No. NCG010000 compliance
and compliance with the Division of Land Resources-delegated local erosion and sedimentation control
programs. Two devices remain as temporary skimmer basins on the site. Records were not provided to
DWQ as required by the NPDES General Permit. Please respond to these items.
In order to resolve the violations cited in the March 12, 2010 Notice of Violation, the 401 Water Quality
Certification and Buffer Authorization (DWQ Project # 04-1764) will need to be implemented on site as
approved or appropriately modified. It is the understanding of this office that a modification of 401
Water Quality Certification and Buffer Authorization is necessary due to current site specific constraints
and exceedences of approved impacts. This certification/authorization is applicable to both parties;
thereby both parties need to jointly submit this modification request together. Also, it is noted that Item
One
o,? Carolina
N"tura!!y
North Carolina Division of Water Quality Raleigh Regional Office Surface Water Protection Phone (919) 791-4200 ?va
Service Customer
Internet: www.ncwaterquality.org 1628 Mail Service Center Raleigh, NC 27699-1628 FAX (919) 788-7159 877.623-6748
An Equal Opportunity/Affirmative Action Employer- 50% Recycled/10% Post Consumer Paper
WKWA
A ??.)
CDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Shiloh Crossing Shopping Center
June 28, 2010
Page 2
I
#3,4, 5, 6, 8 and 9 were only conceptually addressed through the NOV responses. These items will need
to be fully addressed in the 401 Certification/Buffer Authorization modification request.
This modification request is expected to be received by the 401 Wetlands Permit Unit (NC DWQ,
401/Wetlands Unit, 1650 Mail Service Center, Raleigh, NC 27699-1650: http://www.saw.usace.army.mil/
WETLANDS/pcn/) within 90 days of the date of this letter (September 28, 2010). If by the
aforementioned date, an appropriate modification request is not submitted, it is the intention of this office
to pursue civil penalties regarding these matters. Please note these violations are subject to civil penalties
as sments of up to $25,000 per day per violation.
Thank you for your attention to this matter. Should you have any questions regarding these matters,
contact Natalie Landry at (919) 791-4200.
S' cerel
Danny Smith
Regional Supervisor
Surface Water Protection Section
Attachment A
Attachment B
cc: Raleigh RO - Water Quality
John Hennessy, NPS Assistance and Compliance Oversight Unit
Ian McMillan, 401 Wetlands Permitting Unit, 1650 MSC, Raleigh, NC 27604
Cindy Karoly, Archdale Building - 9th Floor
USACE Raleigh Regulatory Field Office
Wake County Water Quality Div., 336 Fayetteville Street, Raleigh, NC 27602
Chris Roberts, Durham County, 120 E. Parrish St., I" Floor, Durham, NC 27701
Keith Billy, Town of Morrisville, 260 Town Hall Dr., Suite B, Morrisville, NC 27560
Austin Watts, Kimley-Horn, PO Box 33068, Raleigh, NC 27636-3068
Todd St. John, Kimley-Horn, PO Box 33068, Raleigh, NC 27636-3068
Kevin Martin, S&EC, 11010 Raven Ridge Road, Raleigh, NC 27614
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Bradley'Bowlirig,?Pri'est<Craven;&Assoc:'3803B.Computer Dr.;`Ralegh NC27609.?•
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Attachment A
DWQ submittals received in response to the NOV.
1. On March 19, 2010, DWQ received a letter via the USPS from CT Corporation. CT Corporation
returned the documents because, "You have indicated several corporate entities represented by
CT Corporation System upon which you intend to make service. We request that you either
forward a complete set of documents for each entity, or indicate which entity you are serving."
2. On March 19, 2010, DWQ received a copy of a letter via USPS from Holly H. Alderman (Schell
Bray Aycock Abel & Livingston PLLC) addressed to Ann H. Stuart (Troutman Sanders LLP) and
Wal-Mart Stores East, LP regarding "Default under the Joint Development Agreement dated
October 18, 2006 (the "JDA") between Wal-Mart Stores East LP ("Wal-Mart") and Shiloh
Morrisville, LLC ("Shiloh").
3. On April 9, 2010, DWQ received a letter via email from Steven Mitchael (Wal-Mart) requesting
an extension for responding to the NOV. The requested date was April 30, 2010.
4. On April 16, 2010, DWQ received a letter via Federal Express from Holly Alderman (Schell Bray
Aycock Abel & Livingston PLLC) regarding "Response of Shiloh Morrisville, LLC ("Shiloh") to
Notice of Violation 2010-WQ-0012; DWQ #04-1764 issued by the North Carolina Department of
Environment and Natural Resources-Division of Water Quality ("DWQ") dated March 12, 2010
and received March 17, 2010 at 11:22 am (the "NOV"); Shiloh Crossing Shopping Center (the
"Project" ).
5. On April 16, 2010, DWQ received a letter via LISPS from Thomas F. Craven (Priest, Craven &
Associates, Inc.) regarding "Additional Concerns, NOV-2010-WQ-0012, DWQ #04-1764 -
Shiloh Crossing, 401 Water Quality Certification Violations, Wake County and Durham County."
6. On May 4, 2010, DWQ received a letter from Austin L. Watts (Kimley-Horn and Associates,
Inc.) regarding "Wal-Mart and Sam's Club Morrisville, NC, Store #4250-00 and 6668-04, DWQ
Notice of Violation Response."
7. On June 8, 2010, DWQ received a letter via courier from Bradley Bowling (Priest, Craven &
Associates, Inc.) regarding "Shiloh Crossing-Phase One-Additional Items of Concern (NOV).
Attachment B
Requested Responsc Items that were listed in the March 12, 2010, NOTICE OF VIOLATION (NOV-
2010-WQ-0012).
1. Please provide documentation (including a detailed site map/survey) depicting all jurisdictional
water features (e.g. streams, wetlands and buffers) on the site. This documentation should
describe and quantify the impacts to those jurisdictional features and should include plans to
avoid further unauthorized stream, buffer and wetland impacts on the site.
2. Please provide documentation showing erosion and sediment control practices in full compliance
with all specifications governing the proper design, installation and operation and maintenance of
such Best Management Practices.
3. Existing stream dimensions must be maintained above and below locations of each culvert.
Provide documentation showing that Stream Impact #1 culvert has been installed in such a
manner that the original stream profiles are not altered above and below the culvert.
a. Show that the culvert has not and will not cause aggradation or erosion of the stream up
or down stream of the culvert.
b. Show that the culvert provides for continuity of water movement and can adequately
accommodate high water or flood conditions.
4. Provide documentation showing the as-built condition of the stormwater drainage system at
Stream Impact #2 and provide documentation of appropriate buffer authorizations for existing
impacts.
5. Provide a Plan that addresses non-diffuse flow in the Neuse Riparian Buffer Zones 1 and 2 for the
entire site.
6. Provide documentation that shows the final stormwater management facilities for Phase 1 were
constructed in accordance with the approved stormwater management plans received on May 15,
2007. Include in this documentation an As-Built for Wetland A, the wetland plantings and
associated soil conditioning for Wetland A, and vcrification from the engineer that the fence on
the spillway will not impede water flow or unduly block debris resulting in impeded water flow
during a large rain event.
7. Provide NPDES rainfall and BMP monitoring records for the temporary skimmer basin
(Extended Detention Pond B) that is covered under the Division of Land Resources-Delegated
Local Program Wake County Erosion and Sedimentation Control Permit program.
8. Remove the temporary skimmer basin (Extended Detention Wetland E) or convert to an extended
detention wetland.
9. Provide documentation showing the level spreaders were constructed and installed as designed.
Submit a Plan that addresses the Operation and Maintenance problems at all level spreaders,
including a timeline.
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