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HomeMy WebLinkAbout20100586 Ver 2_Court Case Correspondence_20110527 (15)STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 11 EHR 1254 M A ALEXANDER III, ) Petitioner ) PETITIONER'S RESPONSE TO RESPONDENT'S FIRST SET OF v ) REQUESTS FOR ADNIISSION, WRITTEN INTERROGATORIES, NORTH CAROLINA DEPARTMENT OF REQUESTS FOR PRODUCTION OF ENVIRONMENT AND NATURAL ) DOCUMENTS, and REQUEST FOR RESOURCES, DIVISION OF WATER ) ENTRY UPON PREAUSES QUALITY, ) Respondent ) Petitioner M A Alexander III ( Petitioner "), by and through his undersigned counsel serves the following Answers to Respondent s First Set of Requests for Admission, Written Interrogatories, Request for Production of Documents and Request for Entry Upon Premises Each answer separately answers each Request except those as to which objections are made Petitioner reserves the right to supplement and amend these answers to the extent new or additional information shall become available Pursuant to agreement of counsel 1) the site visit requested for May 10`h was postponed and will be rescheduled for a mutually convenient date after June 9 2011 if needed, 2) Petitioner agreed to have discovery responses to Respondent s counsel by May 27, 2011 Respectfully submitted this the V day of , 2011 THE LAW OFFICES OF F BRYAN BRICE, JR By F Bryan Brice, Jr State Bar No 17840 Catherine Cralle Jones State Bar No 23733 Law Office of F Bryan Brice, Jr 5 West Hargett Street, Suite 200 Raleigh, NC 27601 Telephone (919) 754 -1600 Fax (919) 573 -4252 Attorneys for Respondent GENERAL OBJECTIONS AND LIMITATIONS Petitioner objects to any and all discovery requests to the extent that such requests seek information or documents which are privileged or immune from discovery including without limitation documents or information or protected information or documents will not be disclosed and the inadvertent disclosure of any such privileged or protected information or documents shall not be construed as a waiver of any applicable privilege or immunity 2 Petitioner objects to Respondent s discovery requests to the extent said requests seek information or documents prepared by any consulting expert 3 Petitioner objects to Respondent s discovery requests to the extent that such requests are vague, overly broad, unduly burdensome, irrelevant or not reasonably calculated to lead to the discovery of admissible evidence under the North Carolina Rules of Civil Procedure 4 Petitioner generally objects to Respondent s First Set of Interrogatories to the extent that such discovery requests seek the disclosure or production of information or documents which are already in the possession, custody or control of Respondent's or which are otherwise as readily available to Respondent as to the Petitioner 5 Petitioner generally objects to Respondents' First Set of Request for Production of Documents to the extent that such discovery requests seek the disclosure or production of information or documents which have been previously made available to, are already in the possession, custody or control of Respondents or which are otherwise as readily available to Respondents as to the Petitioner 6 Petitioner generally objects to Respondents Request for Admission to the extent that such discovery requests seek to impose on the Petitioner duties or obligations beyond those required by the North Carolina Rules of Civil Procedure 7 Petitioner generally objects to Respondents Request for Production of Documents to the extent that such discovery requests seek to impose on the Petitioner duties or obligations beyond those required by the North Carolina Rules of Civil Procedure 8 Petitioner generally objects to Respondent s Fast Interrogatories to the extent that such discovery requests seek to impose on the Petitioner duties or obligations beyond those required by the North Carolina Rules of Civil Procedure 9 Each of the foregoing objections is specifically incorporated by reference into each of the following answers or responses 10 Petitioner reserves the right to supplement these answers and responses and to make further objections thereto as additional information may become available in this matter 2 RESPONSES REQUESTS FOR ADMISSION 1 Admit that on or around January 25 2008 you requested that staff of DWQ s Raleigh Regional Office make an on -site determination regarding whether Feature A existed as surface waters for purposes of the Buffer Rule RESPONSE Objection Petitioner objects on the basis that the request as stated is vague and ambiguous Without waiving this objection, Petitioner admits that sometime in early 2008, he requested assistance from DWQ to understand the set -back requirements of the Buffer Rule and whether and how the Buffer Rule might apply to the Property Except as expressly admitted, the request is denied 2 Admit that on or around February 20, 2008, Ms Lauren Witherspoon (maiden name Cobb) of DWQ's Raleigh Regional Office made an on site determination at the Property regarding whether Feature A existed as surface waters for purposes of the Buffer Rule RESPONSE Objection Petitioner objects on the basis that the request as stated is vague and ambiguous Without waiving this objection, Petitioner admits that on or around Nis Witherspoon visited the Property and quickly stated that both features would be subject to the Buffer Rules However, there appears to be no record of her observations or field notes from that visit, or other basis for her conclusion Except as expressly admitted, the request is denied 3 Admit that you received a copy of DWQ s determination letter dated February 22 2008 RESPONSE Denied Objection Peddoner objects on the basis that the request as stated is vague and ambiguous as concerns the date of receipt Without waiving this objection, Petitioner Ke demes that he received a copy of the letter in 2008, and upon information and belief the letter was never sent by Lauren Cobb because she did not have an address necessary to mad the letter Petitioner did receive a copy of the letter recently in the course of discovery in this matter Except as stated above, the request is denied Persons with knowledge include Petitioner and Lauren Cobb 4 Admit that DWQ's determination as described in the letter dated February 22 2008 was correct RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects to this Interrogatory because it is unduly burdensome, overly broad, unreasonably vague, and not reasonably calculated to lead to the discovery of admissible evidence Without waiving and subject to the foregoing objections, Petitioner provides the following response The determination that both Feature A and Feature B were subject to the Rule was incorrect because Feature A is a ditch, not subject to the Rule, and Feature B is ephemeral, not subject to the rule Persons with knowledge include Petitioner Steve Mitchell Amy Chapman 5 Admit that you hired Mitchell Environmental Consulting among other things to evaluate whether Feature A existed as surface waters for purposes of the Buffer Rule RESPONSE Admitted 6 Admit that Mitchell Environmental Consulting informed you that Feature A existed as a stream for purposes of the Buffer Rule RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the 4 attorney -chent privilege Petitioner also objects to this Interrogatory because it Is unduly burdensome, overly broad, unreasonably vague, and not reasonably calculated to lead to the discovery of admissible evidence Without waiving and subject to the foregoing objections, Petitioner provides the following response Mitchell advised that Feature A was "close" to being subject to buffer protections, but after considering the property history, on -site and other evidence, he determined that Feature A was a ditch, not subject to the Buffer Rule Persons with knowledge include Petitioner and Steve Mitchell 7 Admit that via letter dated May 19, 2005 and received by DWQ on or around July 21, 2010, you referred your dispute over DWQ's on site determination on or around February 20, 2008 to the Director of DWQ RESPONSE Objection Petitioner objects on the basis that the request as stated is vague and ambiguous as concerns the dates Without waiving this objection, Petitioner states that the May 19, 2005 date Is incorrect The letter was written on or about July 19, 2011 by Steve Mitchell The purpose of the letter Is stated therein 8 Admit that on or around August 18 2010, Ms Amy Chapman of DWQ's Central Office visited the Property RESPONSE Admitted 9 Admit that you received a copy of the DWQ Director s determination letter dated August 23 2010 RESPONSE Objection Petitioner objects on the basis that the request as stated is vague and ambiguous as concerns the date of receipt Without waiving this objection, Petitioner states that a copy of the letter was timely sent to Mitchell Consulting Petitioner received a copy of the letter recently in the course of discovery in this matter 5 10 Admit that the DWQ Director's determination as described in the letter dated August 23, 2010 was correct RESPONSE Petitioner admits that as to Feature B, DWQ Director's determination is correct Except as specifically admitted, the request is denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information winch falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects to this Interrogatory because it is unduly burdensome, overly broad, unreasonably vague, and not reasonably calculated to lead to the discovery of admissible evidence Without waiving and subject to the foregoing objections, Petitioner provides the following response As to Feature A, the determination was not correct because it did not consider any evidence relating to the initial construction and later modification of the ditch and the effect of that construction on the evaluation of the feature Persons with knowledge include Petitioner Steve Mitchell Amy Chapman 11 Admit that via letter dated January 31, 2011, you referred your dispute over DWQ s determinations to the Director of DWQ RESPONSE Objection Petitioner objects on the basis that the request as stated is vague and ambiguous as concerns the dates of the letter Without waiving this objection, Petitioner states that the May 19, 2005 date on the letter is incorrect The letter was written on or about January 29, 2011 by Steve Mitchell and was received by DENR Wetlands Division on January 31, 2011 The purpose of the letter is stated therem 12 Admit that on or around February 11, 2011 Mr Ian McMillan and Ms Penann Russell of DWQ's Central Office visited the Property RESPONSE Admitted 6 13 Admit that you received a copy of the DWQ Director s determination letter dated February 15, 2011 RESPONSE Objection Petitioner objects on the basis that the request as stated is vague and ambiguous as concerns the date of receipt Without waiving this objection, Petitioner states that a copy of the letter was timely sent to Mitchell Consulting Petitioner received a copy of the letter recently in the course of discovery in this matter 14 Admit that the DWQ Director's determination as described in the letter dated February 15, 2011 was correct RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney - client privilege Petitioner also objects to tins Interrogatory because it Is unduly burdensome, overly broad, unreasonably vague, and not reasonably calculated to lead to the discovery of admissible evidence Without waiving and subject to the foregoing objections, Petitioner provides the following response The determination that Feature A was subject to the Rule was incorrect because Feature A is a ditch, not subject to the Rule The determination failed to take into account historical, and topographic evidence from the Property and adjacent land The determination was made using mconsistent methodologies and personnel Persons with knowledge include Petitioner, Steve Mitchell, Roy L Vick, USDA Natural Resources Conservation Service, Ian McMillan, Penann Russell 15 Admit that Feature A conveys water for at least part of the year RESPONSE Petitioner admits that Feature A conveys water after a rain event Except as expressly admitted, the request is denied 16 Admit that Feature A conveys water in the winter and spring RESPONSE 7 Petitioner admits that Feature A conveys water in the winter and spring after a rain event Except as expressly admitted, the request is denied 17 Admit that Feature A conveyed water for at least part of the year before the mid 1960s RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney - client privilege Petitioner also objects to this Interrogatory because it is unduly burdensome, overly broad, unreasonably vague, and not reasonably calculated to lead to the discovery of admissible evidence Without waiving and subject to the foregoing objections, Petitioner provides the following response Based upon personal knowledge of Art Alexander, prior to late 1970s, Feature A did not cross the Property Prior to the late 1970 s only a small shallow ditch was cut into a small portion of the northern edge of the Property to facilitate stormwater drainage from Yeargan Road There is no evidence that prior to 1959, there was any channel that conveyed water in the location of feature A Persons with knowledge include Petitioner 18 Admit that Feature A is a well defined channel RESPONSE Petitioner admits that portions of Feature A currently evidence a well- defined channel as a result of repeated and deep excavation as a result of construction of the ditch Except as expressly admitted, the request is denied 19 Admit that Feature A shows at least some evidence of a continuous bed and bank RESPONSE Petitioner admits that portions of Feature A currently show some evidence a continuous bed and bank, consistent with the excavation of the ditch Except as expressly admitted, the request is denied 20 Admit that Feature A shows strong evidence of a continuous bed and bank RESPONSE Petitioner admits that select portions of Feature A currently show strong evidence a continuous bed and bank, consistent with the excavation of the ditch Except as expressly admitted, the request is denied 21 Admit that Feature A shows at least some evidence of sinuosity RESPONSE Petitioner admits that only a small portion of Feature A shows some evidence of sinuosity The majority of Feature A has no sinuosity, consistent with the excavation of the ditch Except as expressly admitted, the request is denied 22 Admit that Feature A shows at least some evidence of in channel structure RESPONSE Petitioner admits that only small portion of Feature A shows weak evidence of in- channel structure Except as expressly admitted, the request is denied 23 Admit that Feature A shows at least some evidence of a difference in particle size between the stream substrate and surrounding upland soils RESPONSE Petitioner admits that portions of Feature A show weak evidence of a difference in particle size between stream substrate and surrounding upland soils Differences in particle size may be attributed to excavation along the ditch Except as expressly admitted, the request is denied 24 Admit that there is at least some evidence that a relic floodplam exists adjacent to Feature A RESPONSE Denied in part �J Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney - client privilege Petitioner also objects to tins Interrogatory because it is unduly burdensome, overly broad and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the following response Based upon the on site observations of DWQ staff member Amy Chapman, there was no evidence of a relic floodplain adjacent to Feature A Based upon the observation of Steve Mitchell, there was some evidence of a relic floodplain in the vicinity of Feature A Persons with knowledge include Steve Mitchell and Amy Chapman 25 Admit that Feature A shows at least some evidence of depositional bars or benches in the streambed RESPONSE Petitioner admits that portions of Feature A show some evidence of depositional bars or benches in the streambed, that are likely the result of water flow from rain events scouring the bed of the ditch Except as expressly admitted, the request is denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney - client privilege Petitioner also objects to this Interrogatory because it is unduly burdensome, overly broad and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the following response Persons with knowledge include Steve Mitchell 26 Admit that Feature A shows at least moderate evidence of depositional bars or benches in the streambed RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney client privilege Petitioner also objects to this Interrogatory because it is overly broad and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the following response Portions of Feature A show some evidence of depositional bars or benches in the streambed that are likely the result of water flow from ram events scouring the bed of the ditch Except as expressly stated above the request is denied Persons with knowledge include Steve Mitchell 10 27 Admit that Feature A shows at least some evidence of recent alluvial deposits RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests mformation which falls withm the attorney work product privilege or the attorney -chent privilege Petitioner also objects to this Interrogatory because it is overly broad and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the followmg response Based upon the on -site observations of Steve Mitchell and DENR staff member, Perianne Russell, there was no evidence of recent alluvial deposits Persons with knowledge include Steve Nhtchell and Perianne Russell 28 Admit that there is at least some evidence that Feature A exists in a natural valley RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that It requests mformation which falls within the attorney work product privilege or the attorney client privilege Petitioner also objects to this Interrogatory because It is overly broad and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the following response Based upon the on -site observations of Steve Mitchell, there Is no natural valley and no evidence that the feature should be located where it except as a result of excavation Persons with knowledge include Steve Nhtchell 29 Admit that Feature A shows at least some evidence of groundwater flow or discharge RESPONSE Petitioner admits that portions of Feature A show some evidence of groundwater flow or discharge consistent with deep excavation of the ditch Except as expressly admitted, the request is denied 11 Persons with knowledge include Steve Mitchell 30 Admit that Feature A shows at least some evidence of flowing water in the channel in mid summer through early fall RESPONSE Petitioner admits that Feature A shows some evidence of flowing water after a rain event in mid- summer through early fall Except as expressly admitted, the request is denied Persons with knowledge include Art Alexander, and Steve Nfitchell 31 Admit that Feature A shows only weak evidence of leaf litter in the channel RESPONSE Admitted 32 Admit that Feature A shows at least some evidence of sediment on plants or debris in the channel RESPONSE Admitted 33 Admit that Feature A shows at least some evidence of organic debris lines or piles in or near the channel RESPONSE Admitted 34 Admit that Feature A shows soil based evidence of a seasonal high water table RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects on grounds that it is unduly overly broad 12 and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the following response Based upon the on -site observations of Steve Mitchell, there is no soil based evidence of a high water table Persons with knowledge include Steve NLtchell 35 Admit that Feature A shows at least some evidence of redoximorphic features RESPONSE Denied Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects on grounds that it is unduly overly broad and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the following response Based upon the on -site observations and soil sampling by Steve NLtchell, there is no supporting evidence Persons with knowledge include Steve NLtchell 36 Admit that Feature A shows no evidence of fibrous roots in the streambed RESPONSE Admitted 37 Admit that Feature A shows no evidence of rooted upland plants in the streambed RESPONSE Admitted 38 Admit that Feature A is not an entirely man-made channel RESPONSE Denied 13 Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney client privilege Petitioner also objects on grounds that it is unduly overly broad and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the following response Petitioner states that Feature A is entirely man -made to the point of intersection with Feature B Persons with knowledge include Steve Mitchell and Petitioner 39 Admit that Feature A has at least some of the hydrological characteristics commonly associated with the conveyance of water RESPONSE Admitted, to part Interrogatory # 3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney - client privilege Petitioner also objects on grounds that it is unduly overly broad and unreasonably vague Without waiving and subject to the foregoing objections, Petitioner provides the following response Petitioner admits that portions of Feature A has some hydrological characteristics associated with the conveyance of water consistent with a deeply excavated ditch Except as expressly admitted, the request is denied Persons with knowledge include Steve NLtchell 40 Admit that Feature A has at least some of the biological characteristics commonly associated with the conveyance of water RESPONSE Admitted, in part Interrogatory #3 Response Objection Petitioner objects on grounds that it requests information winch falls within the attorney work product privilege or the attorney -cheat privilege Petitioner alsobjects on the bans that the request as stated is vague and ambiguous Without waiving this objection, Petitioner states that portions of Feature A indicate a lack of fibrous roots and lack of rooted plants winch indicate the conveyance of water, consistent with an excavated ditch Except as expressly admitted, the request is denied 14 Persons with knowledge include Steve Nhtchell 41 Admit that Feature A has at least some of the physical characteristics commonly associated with the conveyance of water RESPONSE Admitted, insofar as those physical characteristic are consistent with a man -made ditch 42 Admit that Feature A is an on -site channelization or relocation of a stream channel RESPONSE Denied Interrogatory #3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects on the basis that the request as stated is vague and ambiguous Without waiving this objection, Petitioner states that based upon on -site observations and review of best available topographic and sod based evidence, there is no evidence that watertlow was ever concentrated along Feature A ditch prior to excavation Except as expressly admitted, the request is denied Persons with knowledge include Art Alexander Steve Mitchell 43 Admit that Feature A is at least an intermittent stream RESPONSE Denied Interrogatory #3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects on the basis that the request as stated is vague and ambiguous Without waiving this objection, Petitioner states that Feature A is a man -made excavated ditch, the primary purpose of which was to drain stormwater away from Yeargan Road Except as expressly admitted, the request is denied Persons with knowledge include Art Alexander Steve Mitchell 15 44 Admit that the 1970 Soil Conservation Service map of Wake County is the most recent version of the Wake County soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture for purposes of the Buffer Rule RESPONSE Denied Interrogatory #3 Response Objection Petitioner objects on grounds that it requests information winch falls within the attorney work product privilege or the attorney -client privilege Petitioner also objects on the basis that the request as stated is unduly burdensome, vague and ambiguous Without waiving this objection, Petitioner states that the 2007 sod survey map is the most recent version Persons with knowledge include Art Alexander Roy L Vick, USDA Natural Resources Conservation Service 45 Admit that Feature A is approximately shown on the most recent version of the Wake County soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture RESPONSE Denied Interrogatory #3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney - client privilege Petitioner also objects on the basis that the request as stated is unduly burdensome, vague and ambiguous Without waiving this objection, Petitioner states that Feature A is not shown on the 2007 soil survey map Persons with knowledge include Art Alexander, Roy L Vick, USDA Natural Resources Conservation Service 46 Admit that the 1998 version is the most recent version of the Lake Wheeler 124,000 scale (7 5 mmute) quadrangle topographic map prepared by the United States Geologic Survey for purposes of the Buffer Rule 1[ei RESPONSE Denied Interrogatory #3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney - chent privilege Petitioner also objects on the basis that the request as stated is unduly burdensome, vague and ambiguous Without waiving this objection, Petitioner states that 2002 is the most recent version Persons with knowledge include Art Alexander, Steve Strader, USGS, Raleigh 47 Admit that Feature A is approximately shown on the most recent version of the Lake Wheeler 124 000 scale (7 5 minute) quadrangle topographic map prepared by the United States Geologic Survey RESPONSE Denied Interrogatory #3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects on the basis that the request as stated is unduly burdensome, vague and ambiguous Without waiving this objection, Petitioner states Feature A is not shown on the most recent version and that a stream feature is indicated as first beginning south of US70, well down slope of the Property Persons with knowledge include Art Alexander, Steve Strader, USGS, Raleigh 48 Admit that immediately downstream of the Property there is a stream that is at least intermittent for purposes of the Buffer Rule RESPONSE Admitted in part Interrogatory #3 Response Objection Petitioner objects on grounds that it requests information which falls within the attorney work product privilege or the attorney -client privilege Petitioner also objects on the basis that the request as stated is unduly burdensome, vague and ambiguous Without waiving tins objection, Petitioner states that a stream feature begins south of US Hwy 70, well downslope of the Property Petitioner believes that stream to be ephemeral Except as expressly admitted, the request is denied 17 Persons with knowledge include Art Alexander Steve Strader, USGS, Roy L Vick USDA Natural Resources Conservation Service Teresa Furr Wake County Soil & Water Conservation Distract 49 Admit that the contents of the DWQ stream form filled out by Mr Steve Mitchell on or around 7/8/2010 are correct RESPONSE Petitioner admits that the stream form was a preliminary field evaluation of both Feature A and Feature B, and did not take into account the historic or other evidence of Feature A being a ditch not subject to evaluation Except as expressly admitted, the request is denied INTERROGATORIES Identify the person or persons answering or assisting with answering these discovery requests and identify the request that each person answered or assisted in answering Objection Petitioner objects to this Interrogatory on the grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Without waiving and subject to the foregoing objections, Petitioner answers as follows The answers to these Interrogatories are provided by Petitioner, Steve Nfitchell, and the undersigned counsel The documents provided in response to the Requests for Production were compiled by Petitioner and counsel 2 If you cannot answer any of the requested admissions then as to each such requested admission, set forth in detail the reasons why you cannot truthfully admit or deny the matter (identifying facts, persons and documents as required by the Definitions and Instructions preceding this request) Not applicable 18 3 For each request for admission that you have denied, in whole or in part, state the following (a) The basis for your denial (b) All facts supporting your denial, (c) The identity of all persons known to have knowledge of such facts and (d) The identity of all documents that contain information pertaining to such facts Objection Petitioner objects to the extent that the answer to this Interrogatory may be derived or ascertained from an examination, audit, or inspection of the documents produced in response to Respondent's First Request for Production of Documents Petitioner also objects to tins Interrogatory because it requests information which falls within the attorney work product privilege or the attorney -chent privilege Additionally, Petitioner objects to this Interrogatory because it is unduly burdensome and overly broad Finally, Petitioner restates all objections made to any respective Request for Admission Without waiving and subject to the foregoing objections, Petitioner provides the following answer to this Interrogatory The answer to tlus Interrogatory can be derived from a review of the documents produced herewith, the Petition for a Contested Case Hearing, and Prehearing Statement, and from Petitioner's answers to these Interrogatories, and information provided in the responses to the Requests for Admission Petitioner reserves the right to supplement this answer and to make further objections thereto as additional information may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 4 Identify each person who has knowledge of this case that you or your attorneys expect to call as a witness at the contested case hearing As to each person describe (a) the substance of the expected testimony of the witness, (b) the person s relation to Petitioner (c) a summary of the witness qualifications that make him or her competent to testify on the matters outlined in subpart (a) above IM Objection Petitioner objects to this Interrogatory on the grounds that it requests information which falls within the attorney work product privilege or the attorney -client privilege Without waiving and subject to the foregoing objections, Petitioner responds as follows Petitioner is actively engaged in the process of making determinations regarding witnesses to be called in the hearing of this matter, including the full extent of the subject matter on which each witness may testify, the substance of the facts and opinions to which they may testify, and a summary of the grounds of each opinion At this point, Petitioner can identify the following witnesses Art Alexander Mr Alexander has personal knowledge of the history of the ownership and use of the Property, including the deep excavation and lengthening of the ditch in the late 1970 s, and the impact of the application of the buffer requirements to the value, the conditions surrounding DWQ s site investigations and development and use of the property Steve N htchell Mr Mitchell is an environmental specialist with the State of North Carolina with more than 30 years of experience As the primary of Mitchell Consulting, has provided private consultation and evaluation of stream features for more than six years, specializing in buffer rules and regulations His academic background in biology and chemistry had been supplemented by numerous continuing education courses dealing with stream ecology His experience also included years of evaluating sites for compliance with environmental regulations Mitchell has been qualified in previous proceedings by the trial court as an expert in environmental science and pollution control regulations He has knowledge regarding his evaluation of the features on the Property Some of his opinions and knowledge is outlined in a letter received by DWQ on or around July 21, 2010 Bobby C Raynor, DDS Dr Raynor owns property across Yeargan Road, upslope from the subject Property He has knowledge regarding the history of the excavation of the ditch north of the subject Property and the flow of stormwater in the channel Steve Strader Mr Strader is the NC Liaison, with the U S Geological Survey and has knowledge and expertise regarding the most recent version of the topographic map of the Property prepared by the United States Geologic Survey Roy Vick Mr Vick is the NRCS State Soil Scientist, with the USDA Natural Resources Conservation Service in Raleigh and has knowledge and expertise regarding the most recent version of the Wake County soil survey map prepared by the Natural Resources Conservation Service of the USDA 20 Teresa Furr Ms Furr is the District Conservationist with the Wake County Soil & Water Conservation District and has knowledge and expertise regarding the use of soil survey maps and their application to stream information Petitioner reserves the right to supplement this answer and to make further objections thereto as additional information may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure and any discovery scheduling order in this case With respect to each person you or your attorneys expect to call as an expert witness at the heanng to be held on this matter please provide the following information (a) Identify each such person, (b) For each person identified, describe the subject matter about which the expert is expected to testify (c) For each person identified describe the substance of the facts and opinions about which the expert is expected to testilyll (d) For each person identified describe the grounds for each opinion identified in response to subsection (c) of this interrogatory (e) Identify any and all documents that contain information pertaining to such expert testimony Objection Petitioner objects to this Interrogatory on the grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege. Petitioner also objects to this Interrogatory because it requests documents and information which are not within the applicable scope of discovery as defined in Rule 26(b)(4), and N CA C 3 0101 and 3 0112 Without waiving and subject to the foregoing objections, Petitioner responds as follows Petitioner is actively engaged in the process of making determinations regarding experts to be called as witnesses in the hearing of this matter, including the full extent of the subject matter on which each expert may testify, the substance of the facts and opinions to which they may testify, and a summary of the grounds of each opinion At tins point, Petitioner can identify the following expert witnesses Steve Mitchell (see information above) Additionally the following witnesses may also be qualified as experts in their respective 21 Steve Strader Roy Vick Teresa Furr Petitioner reserves the right to supplement tins answer and to make further objections thereto as additional information may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure and any discovery scheduling order in this case 6 Provide the date on which you terminated business with Spangler Environmental Inc Objection Petitioner objects to this Interrogatory on the grounds that the term "terminated business" is vague and ambiguous Without waiving and subject to the foregoing objections, Petitioner responds as follows June 29 2008 Provide the date on which you hired Steve Mitchell Environmental Consulting Objection Petitioner objects to this Interrogatory on the grounds it is is vague and ambiguous Without waiving and subject to the foregoing objections, Petitioner responds as follows Petitioner first contacted Mr Mitchell on or about July 21 2009, seeking his advice and assistance regarding stream buffer related issues relating to the Property With regard to your Petition s contention that DWQ s determination that Feature A is subject to the Buffer Rule deprived Petitioner of property provide the following information (a) State the legal and factual basis for your contention (b) Identify by name and address all persons known to you to have knowledge of these facts 22 (c) Identify any and all documents that contain information pertaining to such facts, Objection Petitioner objects to tins Interrogatory on the grounds that it requests information which falls within the attorney work product privilege or the attorney - client privilege Petitioner also objects to this Interrogatory because it requests documents and information which are not within the applicable scope of discovery as defined in Rule 26(b)(4), and N C A C 3 0101 and 3 0112 Without waiving and subject to the foregoing objections, Petitioner responds as follows DWQ s determination that Feature A is subject to the Buffer rule results in approximately one fourth of the 4 acre Property being subject to the conservation buffer Because of the small size shape and topography of the remaining portion of the parcel, Petitioner is deprived of all reasonable use of the property Persons with knowledge include Barry L Scott, Surveyor, who completed a survey dated, 9 -14 2010, to show impact of the buffer set backs David Connor Lincoln Harms Senior Vice President 4140 ParkLake Avenue, Suite 100 Morrisville, North Carolina 27612 (919) 840 8040 James Mattox, Lincoln Hams Property Company Lincoln Hams Senior Vice President 4140 ParkLake Avenue, Suite 100 Morrisville, North Carolina 27612 919 645 6966 Derrick Minor, Sperry Van Ness Commercial Real Estate Advisors 6736 Falls of Neuse Road Ste 200 Raleigh, NC 27615 919 554 2727 Darren Wood The Providence Group of the Carolinas 521 E Morehead St Ste 100 Charlotte NC 28202 (704) 365 0820 Each of these men have knowledge of the Property and the limitation of property value and developable use as a result of streams buffers on the Property 23 Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 9 (Omitted in Original) 10 With regard to your Petition s contention that DWQ acted erroneously in determining that Feature A is subject to the Buffer Rule, provide the following information (a) State the legal and factual basis for your contentions including a specific description of the erroneous action (b) Identify by name and address all persons known to you to have knowledge of such facts, (c) Identify any and all documents that contain information pertaining to such facts Objection Petitioner objects to tins Interrogatory on the grounds that it requests information which falls within the attorney work product privilege or the attorney - client privilege Petitioner also objects to this Interrogatory because it requests documents and information which are not within the applicable scope of discovery as defined in Rule 26(b)(4), and N C A C 3 0101 and 3 0112 Without waiving and subject to the foregoing objections, Petitioner responds as follows DWQ acted erroneously in numerous counts, including at least the following • DWQ failed to document its on -site inspection and determination by Lauren Cobb, circa Feb 2008, • DWQ failed to consult the 2002 USGS quadrangle topographic map prepared by USGS even though it was the most recent version • DWQ failed to consult the 2007 NCRS Wake County soil survey map even though it was the most recent version • DWQ failed to consider historical evidence regardmg the history of construction of the ditch before making stream determination • DWQ erroneously included points for continuous bed and bank in its evaluation even though such factors should not be included when evaluating a man-made ditch 24 • DWQ failed to investigate source ditch upslope of property before making stream determination • DWQ failed to investigate nature of water feature downslope of property before malting stream determination • DWQ failed to use consistent methodologies in its scoring of stream evaluation • DWQ failed to verify rainfall data and impact on stream evaluation • DWQ failed to conduct stream evaluation review and appeal under similar seasonal conditions • DWQ failed to account for the impact of deep excavation of the channel on the evaluation factors • DWQ failed to differentiate between starkly contrasting conditions at either end of the feature Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 11 With regard to your Petition s contention that DWQ acted arbitrarily or capriciously in determining that Feature A is subject to the Buffer Rule provide the following information (a) State the legal and factual basis for your contentions, mcluding a specific description of the arbitrary and capricious action, (b) Identify by name and address all persons known to you to have knowledge of such facts (c) Identify any and all documents that contain information pertaining to such facts Objection Petitioner objects to this Interrogatory on the grounds that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects to thus Interrogatory because it requests documents and information which are not within the applicable scope of discovery as defined in Rule 26(b)(4), and N C A C 3 0101 and 3 0112 Without waiving and subject to the foregoing objections, Petitioner responds as follows DWQ acted arbitrarily and capriciously in numerous ways, including at least the following • As detailed in response to Interrogatory #10 above • DWQ s failure to review stream evaluations using consistent forms or seasonal conditions 25 • DWQ s failure to account for extreme differences in evaluation observations and scoring by various DWQ staff members • DWQ s relying on stream scoring by a DENR staff member who does not regularly perform similar stream evaluations under similar conditions • DWQ s failure to consider additional historic and topographical evidence of man made ditching presented prior to February 2011 evaluation • DWQ s determination that there was no evidence of an active /relic floodplain in August of 2010 while determining in February of 2011 that such evidence was strong • DWQ determination that there was only weak evidence of stream substrate sorting in August of 2010, while find strong' evidence of such in February of 2011 • DWQ has failed to take into account the low value of Feature A for stream conservation and water quality purposes given the surrounding topography the high spoil piles that prevent natural surface water flow into the Feature on -gomg erosion caused by the deep man made ditching of the feature, and the neighboring uses of property up- and down- slope of the Property Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 12 (Numbered 11 in original) What are your plans for the Property? I would like to pursue the lughest and best use of the Property that takes into account the uses of surrounding property, including but not limited to commercial development 13 (Number ed 12 in original) Who has approached you about purchasing the Property since 2007, and what have they required regarding Feature A9 I was been approached by the following Cecil Johnson, Hartwell Realty for AgnSupply (2008) They offered less than '/z of the tax value and offer was contingent upon securing contracts for adjacent lots because parcel was not large enough given restrictions presented by buffer issues • Lincoln Harris Real Estate They needed additional adjacent lots because of loss due to water features 26 Sperry Van Ness I Commercial Real Estate They needed additional adjacent lots because of loss due to water features • The Providence Group of the Carolinas for Aldi Supermarket Could not get a required footprint because of Feature A 14 (Number ed 13 in original) Identify all documents relied upon or consulted by you in preparing your responses to the above requests for admissions or interrogatories Objection Petitioner objects to the extent that the answer to tins Interrogatory may be derived or ascertained from an examination, audit, or inspection of the documents produced in response to Respondent's First Request for Production of Documents Petitioner also objects to this Interrogatory because it requests information which falls within the attorney work product privilege or the attorney -chent privilege Additionally, Petitioner objects to this Interrogatory because it is unduly burdensome and overly broad Finally, Petitioner restates all objections made to any respective Request for Admission Without waiving and subject to the foregoing objections, Petitioner provides the following answer to this Interrogatory The answer to this Interrogatory can be derived from a review of the documents produced herewith, the Complaint in this action, and from Petitioner's answers to these Interrogatories Petitioner reserves the right to supplement this answer and to make further objections thereto as additional information may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure MFl PRODUCTION OF DOCUMENTS Produce all documents identified in the above interrogatories or consulted in preparing your responses to the above requests for admissions and interrogatories Objection Petitioner objects to this Request for Production for the reasons stated in her answers to each corresponding Interrogatory, and Petitioner expressly incorporates herein the General Objections provided above Without waiving and subject to the foregoing objections, Petitioner provides the following response All non - privileged documents within Petitioner's possession, custody, or control that are reasonably calculated to lead to the discovery of admissible evidence and that are responsive to the above Interrogatories are produced herewith Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 2 Produce the resume of each expert witness identified in your response to the foregoing interrogatories Resumes for expert witnesses are not available at this time Petitioner reserves the right to supplement tins response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure Produce any and all reports prepared by expert witnesses that you intend to use at trial Objection Petitioner objects to this Request for Production to the extent that it requests information which falls within the attorney work product privilege or the attorney -chent privilege Petitioner also objects to this Request for Production because it requests documents which are not within the applicable scope of discovery as defined in Rule 26(b)(4) Additionally, Petitioner is in the process of making determinations regarding experts to be called as witnesses in the trial of this matter and/or the full extent of the subject matter on which each expert may testify, the substance of the facts and opinions to which they may testify, and/or a summary of the grounds of each opinion Without waiving and subject to the foregoing objections, Petitioner responds as follows 28 All non - privileged documents that are responsive to this request, within Petitioner's possession, custody, or control, and reasonably calculated to lead to the discovery of admissible evidence are produced herewith, or will be made available for inspection and copying at a mutually convenient day and time Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure Produce all data and reports not already submitted to Respondent relating to whether Feature A is subject to the Buffer Rule Objection Petitioner objects to this Request for Production on the grounds that it requests information which falls within attorney work product privilege and within the attorney - client privilege Petitioner also objects to this Request for Production on the grounds that it is unduly burdensome, overbroad, unreasonably vague, and seeks information that is already in the possession, custody, or control of Respondent, and/or is otherwise as readily available to Respondent as to Petitioner Without waiving and subject to the foregoing objections, Petitioner responds as follows All non - privileged documents that are responsive to this request, within Petitioner's possession, custody, or control, and reasonably calculated to lead to the discovery of admissible evidence are produced herewith, or will be made available for inspection and copying at a mutually convenient day and time Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 4 Produce any and all photographs, drawings, maps, plans or other graphical representations of the Property between January 1, 2008 and today s date Objection Petitioner objects to tins Request for Production on the grounds that it requests information which falls within attorney work product privilege and within the attorney- client privilege Petitioner also objects to this Request for Production on the grounds that it Is unduly burdensome, overbroad, unreasonably vague, and seeks information that is already in the possession, custody, or control of Respondent, and/or is otherwise as readily available to Respondent as to Petitioner Without waiving and subject to the foregoing objections, Petitioner responds as follows 29 All non - privileged documents that are responsive to this request, within Petitioner's possession, custody, or control, and reasonably calculated to lead to the discovery of admissible evidence are either produced herewith in digital form Full sized hard copies of certain maps and surveys can be made available for inspection and copying at a mutually convenient day and tune Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and /or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 5 Produce any and all data and reports prepared by your past or present consultants engineers or contractors relating to Feature A Objection Petitioner objects to this Request for Production on the grounds that it requests information which falls within attorney work product privilege and within the attorney- client privilege Petitioner also objects to thus Request for Production on the grounds that it is unduly burdensome, overbroad, unreasonably vague, and seeks information that is already in the possession, custody, or control of Respondent, and/or is otherwise as readily available to Respondent as to Petitioner Without waiving and subject to the foregoing objections, Petitioner responds as follows All non - privileged documents that are responsive to this request, within Petitioner's possession, custody, or control, and reasonably calculated to lead to the discovery of admissible evidence are produced herewith Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 6 Produce all aerial photographs of the Property in your possession, custody or control Objection Petitioner objects to this Request for Production on the grounds that it requests information which falls within attorney work product privilege and within the attorney- client privilege Petitioner also objects to tlus Request for Production on the grounds that it is unduly burdensome, overbroad, unreasonably vague, and seeks information that is already in the possession, custody, or control of Respondent, and/or is otherwise as readily available to Respondent as to Petitioner Without waivmg and subject to the foregoing objections, Petitioner responds as follows 30 All non - privileged documents that are responsive to this request, within Petitioner's possession, custody, or control, and reasonably calculated to lead to the discovery of admissible evidence are produced herewith in digital form Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and /or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 7 Produce the 2007 version of the Wake County soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture A digital copy will be produced together with a table from USDA confirming that the 2007 it is the current data are produced herewith in digital form Produce the 2002 version of the Lake Wheeler 124,000 scale (7 5 minute) quadrangle topographic map prepared by the United States Geologic Survey A copy will be produced herewith in digital form A full -sized hard copy will be made available for inspection and copying at a mutually convenient date and time 9 Produce any documentation evidencing that you have an ownership interest in the Property Objection Petitioner objects to this Request for Production on the grounds that it requests information which falls within attorney work product privilege and within the attorney- client privilege Petitioner also objects to this Request for Production on the grounds that it is unduly burdensome, overbroad, unreasonably vague, and seeks information that is already in the possession, custody, or control of Respondent, and/or is otherwise as readily available to Respondent as to Petitioner Without waiving and subject to the foregoing objections, Petitioner responds as follows All non - privileged documents that are responsive to this request, within Petitioner's possession, custody, or control, and reasonably calculated to lead to the discovery of admissible evidence will be produced herewith 10 Produce all exhibits you intend to introduce into evidence or use at hearing Objection Petitioner objects to this Request for Production on the grounds that it requests information which falls within attorney work product privilege and within the attorney- client privilege Petitioner also objects to this Request for Production on the grounds that 31 it is unduly burdensome, overbroad, unreasonably vague, and seeks information that is already in the possession, custody, or control of Respondent, and/or is otherwise as readily available to Respondent as to Petitioner Without waiving and subject to the foregoing objections, Petitioner responds as follows Petitioner is in the process of making determinations regarding exhibits to be introduced into evidence or use in the hearing of this matter Petitioner will identify and produce and/or make such exhibits available for inspection prior to hearing as required by any pre - hearing order, or as mutually agreed to Petitioner reserves the right to supplement this response and to make further objections thereto as additional information and/or documents may become available and pursuant to Rule 26(e) of the North Carolina Rules of Civil Procedure 32 CERTIFICATE OF SERVICE This is to certify the foregoing PETITIONER S RESPONSES TO RESONDENT S FIRST SET OF REQUESTS FOR ADMISSION, INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS was served on the Respondent electronic mail and by United States Mail, First Class and addressed as follows Brenda E Menard, Esq Assistant Attorney General North Carolina Department of Justice Environmental Division Post Office Box 629 Raleigh North Carolina 27602 -0629 BMenard @ncdoJ gov Attorneys for Respondent This the jj �day of May, 2011 Law Office of F Bryan Brice, Jr 1 By Catherine W Cralle Jones Attorneys for Petitioners 33