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