20130570 Ver 1_EMC Decision Docs_20131220

STATE OF NORTH CAROLINA
DEPARTMENT OF JUSTICE
R.OY COOPER P.O. Box 629 REPLY To: MARY L. LucAsSE
ATTORNEY GENERAL RALEIGH, NC 27602 ENVIRONMENTAL DIVISION
TEL: [phone]
FAX: [phone]
mlucasse @ncdoj.gov
December 20, 2013
Byron and Jessica Trimmer Certified Mail / Return Receipt Requested
8909 Oxbridge Court
Raleigh, North Carolina 27613
Re: Final Decision Granting Variance with conditions
Dear Mr. and Mrs. Trimmer:
At its November 2013 meeting, the Water Quality Committee of the Environmental
Management Commission granted your request for a variance with conditions. Attached is a
copy of the Final Agency Decision. If for some reason you do not agree with the terms of the
variance as issued, you have the right to appeal the Commission's decision by filing a petition
for judicial review in the superior court of the County in which you reside within thirty days after
receiving the order. A copy of the judicial review petition must be served on the Commission's
agent for service of process at the following address:
Lacy M. Presnell, III, General Counsel
Dept. of Environment and Natural Resources
1601 Mail Service Center
Raleigh, NC 27699 -1601
If you choose to file a petition for judicial review, I request that you also serve a copy of
the petition for judicial review on me at the address listed in the letterhead. If you have any
questions, please feel free to contact me.
Sincerely,
o / �. 1-- C
MP Lucasse
Special Deputy Attorney General and
Counsel for the Environmental Management Commission

Byron and Jessica Trimmer
December 20, 2013
Page 2
cc: w/ encl.: Benne C. Hudson, Chair of the Commission, electronically
Steve Tedder, Chair of the WQC, electronically
Tom Reeder, Director, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically
Lois Thomas, recording secretary for Commission, electronically'
Adriene Weaver, Environmental Specialist, electronically

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE MATTER OF: )
BYRON and JESSICA TRIMMER )
PETITION FOR VARIANCE FROM )
15A NCAC 2B .0233 )
NEUSE RIVER RIPARIAN AREA )
PROTECTION RULES )
AND MAINTENANCE OF RIPARIAN }
BUFFERS )
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION GRANTING
MAJOR VARIANCE WITH
CONDITIONS
On May 11, 2000 the North Carolina Environmental Management Commission
(Commission) delegated to the Commission's Water Quality Committee all decisions relating to
requests for variances from the riparian buffer. This matter came before the Water Quality
Committee at its meeting on November 13, 2013, in Raleigh, North Carolina upon Byron and
Jessica Trimmer's (the Applicants) request for approval of a major variance from the Neuse
River Riparian Area Protection Rules pursuant to 15A NCAC 02B .0233 to allow a deck
expansion to an existing single family residence located at 8909 Oxboro Court in Raleigh, North
Carolina. As part of their request, the Applicants proposed mitigation and installation of a rain
garden.
Based on the information provided, the Division of Water Resources supported the
request for a major variance. Jennifer Burdette, the Buffer Coordinator at the Division of Water
Resources presented the request for a major variance to the WQC.
Upon consideration of the record documents, the request and the staff recommendation,
and based upon the approval of the Water Quality Committee, the Commission hereby makes the
following:

doz
FINDING OF FACTS
A. The Applicants own an existing single family residence located at 8909
Oxboro Court in Raleigh, North Carolina (the Site).
B. The lot was platted and a house was constructed on the Site in 1994. The
Applicants purchased the property on June 15, 2006 after the effective date of the Neuse
Riparian Area Protection Rules.
C. The existing residence on the Site was constructed five to twenty feet from an
unnamed tributary to Hare Snipe Creek which runs along the back of the existing residence. The
back of the house is located within Zone 1, and most of the backyard is located in Zone 1 of the
buffer.
D. The existing deck on the single family residence is approximately forty percent
smaller than other decks in the subdivision. According to the Applicants, one seven -foot section
of the deck is too narrow for effective use. Any expansion to the deck would require impacts to
Zone 1 of the buffer. Most of the other properties in the subdivision do not have this constraint.
E. The Applicants have requested approval of a major variance from the Neuse River
Riparian Area Protection Rules pursuant to 15A NCAC 02B .0233 to allow construction of a
screened porch and an expansion to their deck. The Applicants will not be able to build the
screened porch and deck expansion if they cannot impact the buffer.
F. Moreover, although the applicant can make some use of the property without
additional impacts to the protected riparian buffer, the applicant has limited space for outdoor
recreation because the unnamed tributary is located so close to the existing deck.

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G. The proposed screened porch/deck expansion and rain garden would impact 349
square feet of Zone I and 60 square feet of Zone 2. Applicants have minimized the proposed
impacts to the buffer from those included in the original application by 96 square feet.
H. The Applicants' plan for mitigation includes restoring thirty -seven square feet of
Zone 1 riparian buffer and purchasing 1,100 square feet of buffer credits from Restoration
Systems, LLC.
I. The proposed variance request including the proposed conditions is consistent
with past major variances which have been approved by the Water Quality Committee.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
A. Byron and Jessica Trimmer are subject to the Neuse River Riparian Area
Protection Rule, 15A NCAC 2B .0233.
B. The Environmental Management Commission is authorized to issue a final
decision granting the variance including riparian buffer mitigation conditions pursuant to a
request under 15A NCAC 2B .0233 upon a finding that:
(1) There are practical difficulties or unnecessary hardships;
(2) The variance is in harmony with the general purpose and intent of
the buffer protection and preserves its spirit; and
(3) In granting the variance, the public safety and welfare have been
assured and substantial justice has been done.
C. The Commission affirmatively finds that Applicants have demonstrated the
following:

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15A NCAC 02B .0233(9)(aiii): There are practical difficulties or unnecessary hardships that
prevent compliance with the strict letter of the riparian buffer protection requirements.
1. The Applicants would not be able to build the screened porch and deck expansion
without impacting the buffer. Without the proposed addition, Applicants have limited space for
outdoor recreation as their existing deck is approximately 40 percent smaller than other decks in
the subdivision and the unnamed tributary is located approximately five to twenty feet from the
existing deck.
2. The hardships result from application of the Rule to the property rather than from
other factors.
3. The hardship is due to the physical nature of the Site which includes an unnamed
tributary. The back of the house is located within Zone 1 and most of the backyard is located in
Zone 1 of the buffer.
4. The hardship is unique to the Site in that the existing residence was constructed
with an inadequately sized deck five to twenty feet from the unnamed tributary prior to the
implementation of the buffer rules. Any expansion to the deck would require impacts to Zone 1
of the buffer.
5. The Applicants purchased the existing house after the lot was platted and the after
the existing house was constructed on the Site.
6. The Applicants did not cause the hardship by knowingly or unknowingly
violating this Rule.

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15A NCAC 02B .0233(9)(a(ii): The variance is in harmony with the general purpose and intent
of the State's riparian buffer protection requirements and preserves its spirit.
7. Applicants have agreed to purchase 1,100 square feet of buffer mitigation credits.
8. Applicants have agreed to restore thirty -seven square feet of Zone 1 buffer.
9. Applicants have agreed to construct a bio- retention area designed to treat more
than twice the amount of impervious surface added in the buffer by the proposed development.
10. Applicants have agreed to place protective covenants on the lot.
It. By granting the requested variance with the conditions proposed by Applicants,
the proposed development will be in harmony with the general purpose and intent of the riparian
buffer protection Rules and preserves their spirit.
15A NCAC 02B .0233(9)(a(ii): In granting the variance, the public safety and welfare have
been assured, water quality has been protected and substantial justice has been done.
12. There will be an improvement of the nutrient load to the unnamed tributary to the
Hare Snipe creek from this property once the rain garden is installed as the proposed rain garden
is designed to treat approximately 900 square feet of existing roof drainage and the proposed
development will include restoration of 37 square feet of Zone 1 buffer. In addition, the purchase
of the buffer mitigation credits and the placement of protective covenants on the Site will protect
water quality and assure the protection of public safety and welfare.
13. Since the requested variance including conditions is consistent with other major
variances approved by the Water Quality Committee, granting the request will provide
substantial justice.

IRI
M 9 1101 '
Based on the Findings of Fact and Conclusions of ,Law set forth above, IT IS HEREBY
ORDERED that the request for the variance is GRANTED pursuant to 15A NCAC 2B
.0233(9)(c) as a major variance to the Neuse River Riparian Area Protection Rule with the
following conditions:
1. Mitigation. The Applicants shall provide mitigation for the proposed
impacts by restoring 37 square feet of Zone 1 riparian buffer and purchasing
1,100 square feet of buffer credits from an approved environmental mitigation
bank.
2. Stormwater Management Plan. The Applicants shall construct a bio -
retention area to provide treatment for 900 square feet of existing impervious
surface.
3. Protective Covenants. The Applicants shall place protective covenants
on the Site. The protective covenants shall specifically state,
a. That an unnamed tributary and the protected Neuse River
riparian buffer exist on the property;
b. That any new direct discharges of stormwater runoff through the
buffer to the stream are prohibited;
c. That Applicants and their successors -in- interest are prohibited from filling,
draining, creating impacts to the existing riparian buffer vegetation, and/or
altering the rain gutters and bio- retention area without approval;
d. That the Site is required to have rain gutters and a bio - retention area and
these shall remain in place and be used and maintained on a regular basis;
e. The Division of Water Resources (or its successor -in- interest) shall
be given written notification of any proposal to remove or modify
the Stormwater Management Plan.
This is the 20`h day of December, 2013.
ENVIR ENTAL MANAGEMENT COMMISSION
Be C. Hutson, C rman

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CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon the applicants Byron and Jessica Trimmer and the Division of Water Resources in
the manner described below as follows:
Byron and Jessica Trimmer Certified Mail/ Return Receipt Requested
8909 Oxbridge Court_
Raleigh, NC 27613
Jennifer Burdette, E -mail: Jennifer.burdetteae,ncdenr.gov
Environmental Senior Specialist
Division of Water Resources
1601 Mail Service Center
Raleigh NC 27699 -1601
This is the 20`h day of December, 2013
ROY COOPER
Attorney General
Mary L. Lucasse
Special Deputy Attorney General
P. CY BOX 629
Raleigh, N. C. 27602