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HomeMy WebLinkAbout20121140 Ver 1_Approval Letter_20140205UED E NR North Carolina Department of Environment and Natural Resources Division of Water Resources Water Quality Programs Pat McCrory Thomas A. Reeder John E. Skvada, III Governor Director Secretary February 5, 2014 DWR # 12 -1140 Wake County LB j Cary Associates LLC Attn: Lyle Gardener - 7706 Six Forks Road Raleigh, NC 27615 Subject: Authorization of Neuse River Riparian Buffer Protection Rules Major Variance [15A d NCAC 02B .0233(9)(c)] with Conditions SW Cary Parkway Daycare Dear Mr. Gardener: You have our approval for the impacts listed below for the purpose described in your application received by the Division of Water Resources (Division) December 21, 2012, with subsequent information on February 12, 2013, April 15, 2013 and August 27, 2013. This letter shall serve as your Major Variance approval with conditions as authorized in 15A NCAC 02B.0233 (9)(c)(ii). Please note that you should get any other federal, state or local permits before proceeding with your project, including those required by (but not limited to) SeLdUr1 404/401 of the federai Clean Water Act, Sediment and Erosion Cuotrol, Non - Discharge, and Water Supply Watershed regulations. This approval requires you to follow the conditions listed below: 1. The following impacts are hereby approved. No other impacts are approved, including incidental impacts. Type of Impact I Amount Approved (units) I Amount Approved (units) Permanent Temporary Buffers — Zoe re 1 , 8,047 (square feet) 0 (square feet) , I Buffers —Zone 2 7,140 (square feet) 0 (square feet) 2. No additional imp=s other than exempt ;uses as identified within 15A ;JCAC. WS .:)2 33 shall occur within the protected riparian buffer runless approved by the Division. 3. Mitigation must be provided for the approved impacts as specified in the table below. The Division has received an acceptance letter from the Forrest Creek/Rudolph Mitigation Banks to meet this mitigation requirement. Until the Forrest Creek/Rudolph Mitigation Banks receives and clears your payment, and proof of payment has been provided to this Office, no impacts 401 & Buffer Permitting Unit 1650 Mail Service Center, Raleigh, North Carolina 27699 -1650 Location 512 N Salisbury St Raleigh, North Carolina 27604 Phone. 919. 807.63001 FAX 919 -807 -64941 Customer Service 1. 877. 623 -6748 Internet: www.ncwaterquality org I J LB1 Cary Associates LLC DWR# 12 -1140 Neuse Buffer Major Variance Page 2 of 3 specified in this Approval shall occur. For accounting purposes, this Approval authorizes payment to the Forrest Creek/Rudolph Mitigation Banks to meet the following compensatory mitigation requirement: 4. Written Stormwater Management Plan (Town of Cary Approval Required) You are required to provide one copy of the approved SMP, including plan details on full -sized plan sheets, with proof of Town of Cary's approval. The approved SMP shall be submitted to the DWR 401 & Buffer Permitting Unit (1650 Mail Service Center, Raleigh, NC 27699 -1650) -before any impacts authorized in this approval occur. After it is approved and submitted to the _ Division, the SMP may not be modified without prior written authorization from Town-of Cary. If the SMP is modified in the future, then you shall provide one modified SMP with proof of approval to the DWR 401 & Buffer Permitting Unit prior to the commencement of the modifications. 6. Protective Fencing The outside buffer, wetland or water boundary and along the construction corridor within these boundaries approved under this authorization shall be clearly marked with orange warning fencing (or similar high visibility material) for the areas that have been approved to infringe - within the buffer, wetland or water prior to any land disturbing activities to ensure compliance with 15A NCAC 2B. 0233. 7. This approval is for the purpose and design described in your application. The plans and specifications for this project are incorporated by reference and are an enforceable- part of this Approval. If you change your project, you must notify the Division and you may be required to submit a new application package. If the property is sold, the new owner must be given a.copy of this Approval and is responsible for complying with all conditions. R. The applicant and /or authorized agent shall provide a completed Certificate of Completion Form to the DWR 401 & Buffer Permitting Unit within ten days of project completion (available at: http: / /portal.ncdenr.org /web /wq /swp /ws /401 /certsand permits /apply /forms). 9. This approval grants permission to the director, an authorized representative of the Director, or DENR staff, upon the presentation of proper credentials, to enter the property during normal business hours. This approval and its conditions are final and binding unless contested. This Major Variance Approval can be contested as provided in Articles 3 and 4 of General Statute 1506 by filing a written petition for an administrative hearing to the Office of Administrative Hearings (hereby known as OAH) within sixty (60) calendar days. A petition form may be obtained from the OAH at http: / /www.ncoah.com/ or by calling the OAH Clerk's Office at (919) 431 -3000 for information. A petition is considered filed when the original and one (1) copy along with any applicable OAH filing fee is received in the OAH during normal office hours (Monday through Friday between 8:OOam and S:OOpm, excluding official state holidays). i "I Compensatory Mitigation Required River and Sub -basin Number Buffers 34,851 (square feet) 03020201 - Neuse 4. Written Stormwater Management Plan (Town of Cary Approval Required) You are required to provide one copy of the approved SMP, including plan details on full -sized plan sheets, with proof of Town of Cary's approval. The approved SMP shall be submitted to the DWR 401 & Buffer Permitting Unit (1650 Mail Service Center, Raleigh, NC 27699 -1650) -before any impacts authorized in this approval occur. After it is approved and submitted to the _ Division, the SMP may not be modified without prior written authorization from Town-of Cary. If the SMP is modified in the future, then you shall provide one modified SMP with proof of approval to the DWR 401 & Buffer Permitting Unit prior to the commencement of the modifications. 6. Protective Fencing The outside buffer, wetland or water boundary and along the construction corridor within these boundaries approved under this authorization shall be clearly marked with orange warning fencing (or similar high visibility material) for the areas that have been approved to infringe - within the buffer, wetland or water prior to any land disturbing activities to ensure compliance with 15A NCAC 2B. 0233. 7. This approval is for the purpose and design described in your application. The plans and specifications for this project are incorporated by reference and are an enforceable- part of this Approval. If you change your project, you must notify the Division and you may be required to submit a new application package. If the property is sold, the new owner must be given a.copy of this Approval and is responsible for complying with all conditions. R. The applicant and /or authorized agent shall provide a completed Certificate of Completion Form to the DWR 401 & Buffer Permitting Unit within ten days of project completion (available at: http: / /portal.ncdenr.org /web /wq /swp /ws /401 /certsand permits /apply /forms). 9. This approval grants permission to the director, an authorized representative of the Director, or DENR staff, upon the presentation of proper credentials, to enter the property during normal business hours. This approval and its conditions are final and binding unless contested. This Major Variance Approval can be contested as provided in Articles 3 and 4 of General Statute 1506 by filing a written petition for an administrative hearing to the Office of Administrative Hearings (hereby known as OAH) within sixty (60) calendar days. A petition form may be obtained from the OAH at http: / /www.ncoah.com/ or by calling the OAH Clerk's Office at (919) 431 -3000 for information. A petition is considered filed when the original and one (1) copy along with any applicable OAH filing fee is received in the OAH during normal office hours (Monday through Friday between 8:OOam and S:OOpm, excluding official state holidays). i "I r 1 0 LBJ Cary Associates LLC DWR# 12 -1140 Neuse Buffer Major Variance Page 3 of 3 The petition may be faxed to the OAH at (919) 431 -3100, provided the original and one copy of the petition along with any applicable OAH filing fee is received by the OAH within five (5) business days following the faxed transmission. Mailing address for the OAH: If sending via US Postal Service: Office of Administrative Hearings 6714 Mail Service Center Raleigh, NC 27699 -6714 If sending via delivery service (UPS, FedEx, etc): Office of Administrative Hearings 1711 New Hope Church Road Raleigh, NC 27609 -6285 One (1) copy of the petition must also be served to DENR: Lacy Presnell, General Counsel Department of Environment and Natural Resources 1601 Mail Service Center Raleigh, NC 27699 -1601 This letter completes the review of the Division under the Neuse Riparian Buffer Rules as described in 15A NCAC 2B .0233. Please contact Jennifer Burdette at 919 - 807 -6364 or iennifer.burdette @6cdenr.sov or if you have any questions or concerns. Sincerely, kUVA,) Karen Higgins, Supervisor 401 & Buffer Permitting Unit cc: Jay Keller, Keller Environmental, 7921 Haymarket Lane, Raleigh, NC 27613 Donald A. Sever, P.E., Hugh J. Gilleece, III & Associates, P.A., 875 Walnut Street, Suite 360, Cary, NC 27511 DWR RRO 401 files DWR 401 & Buffer Permitting Unit Filename: 1211 COSVJ%arvParkwayDaycare(Wake) _NOR_ rAIVI At - ! 4 /� W4EEN North Carolina Department of Environment and Natural Resources Division of Water Resources Water Quality Programs Pat McCrory Thomas A. Reeder John E. Skvarla, III Governor Director Secretary Request for a Major Variance from the Neuse River Riparian Area Protection Rules LBJ /Cary Associates, LLC Daycare facility at SW Cary Parkway /Old Apex Road Cary, NC January 8, 2014 LBJ / Cary Associates, LLC has requested the Water Quality Committee (WQC) grant a Major Variance from the Neuse Riparian Area Protection Rules (15A NCAC 026.0233) for a daycare facility at the intersection of SW Cary Parkway and Old Apex Road in Cary, NC. The proposed daycare facility will impact 8,047 square feet of Zone 1 and 7,140 square feet of Zone 2. Accordingly, pursuant to 15A NCAC 0213.0233 (9)(c), the Division of Water Resources makes the preliminary finding that the major variance request demonstrates the following: • Practical difficulties or unnecessary hardships are present; • The harmony and spirit of buffer protection requirements are met; and • The protection of water quality and substantial justice has been achieved as required in 15A NCAC 026.0233 (9)(a). 15A NCAC 028.0233 (9)(a)(1) states the following: "There are practical difficulties or unnecessary hardships that prevent compliance with the strict letter of the riparian buffer protection requirements. Practical difficulties or unnecessary hardships shall be evaluated in accordance with the following: A. If the applicant complies with the provisions of this Rule, he /she can secure no reasonable return from, nor make reasonable use of, his /her property. Merely proving that the variance would permit a ,greater profit from the property shall not be consider ect adequate justification for a variance. Moreover, the Division or delegated local authority shall consider whether the variance is the minimum possible deviation from the terms of this Rule that shall make reasonable use of the property possible. B. The hardship results from application of this Rule to the property rather than from other factors such as deed restrictions or other hardship. 401 & Buffer Permitting Unit 1650 Mail Service Center, Raleigh, North Carolina 27699 -1650 Location: 512 N. Salisbury St Ralegh, North Carolina 27604 Phone: 919-807 -63001 FAX: 919 -807.6494 Internet www.ncwatergualdy.org I LBJ / Cary Associates, LLC Major Variance Request — DWR Findings of Fact January 8, 2014 Page 2 of 3 C. The hardship is due to the physical nature of the applicant's property, such as its size, shape, or topography, which is different from that of neighboring property. D. The applicant did not cause the hardship by knowingly or unknowingly violating this Rule. E. The applicant did not purchase the property after the effective date of this Rule, and then requesting an appeal. F. The hardship is unique to the applicant's property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a variance would be a special privilege denied to others, and would not promote equal justice; The Division finds the following: There are practical difficulties that prevent compliance with the strict letter of the riparian buffer protection requirements: A. The applicant cannot make reasonable use of the property without impacting the - protected riparian buffer. The ownership group has attempted multiple designs for this project; however, prospective buyers have rejected those alternative designs. A recent real estate market analysis was conducted and these findings, along with new interest from potential buyers, have resulted in the current proposed site plan. B. The hardship results from the application of this rule rather than from other factors. The stream runs through the middle of the property with riparian buffers on both sides of the stream and around the origin, which greatly limits the ability to develop this parcel. C. The hardship is due to the physical nature of the applicant's property. The property has a stream running through the middle of the property with riparian buffers on both sides of the stream and around the origin, there is an access road and easement on the eastern side of the property and there are existing sanitary and drainage easements on the property. D. The applicant did not cause the hardship by knowingly or unknowingly violating this Rule. E. The applicant purchased the property on June 1, 2004, which is after the effective date of this Rule. F. The hardship is unique to the applicant's property. The property has a stream running through the middle of the property with riparian buffers on both sides of the stream and around the origin, there is an access road and easement on the eastern side of the property and there are existing sanitary and drainage easements on the property. � • r LBJ / Cary Associates, LLC Major Variance Request — DWR Findings of Fact January 8, 2014 Page 3 of 3 15A NCAC 026.0233 (9)(a)(H) 'The variance is in harmony with the general purpose and intent of the State's riparian buffer protection requirements and preserves its spirit ;" The Divisions finds the following: The purpose of the riparian buffer rules is to protect existing riparian buffer areas. However, the applicant cannot make reasonable use of the property without impacting the protected riparian buffer. The applicant is proposing to purchase 34,851 buffer mitigation credits and will treat stormwater. The stormwater management plan will be reviewed and approved by the Town of Cary. 15A NCAC 028.0233 (9)(a)(ill) "In granting the variance, the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done." The Divisions finds the following: In granting the variance, water quality has been protected and substantial justice has been done. The applicant is proposing to purchase 34,851 buffer mitigation credits and treat stormwater. Recommendation: Based on the information submitted, the Division supports this request for a Major Variance from the Neuse Riparian Area Protection Rules because practical difficulties or unnecessary hardships are present; the harmony and spirit of buffer protection requirements are met; and the protection of water quality and substantial justice has been achieved as required in 15A NCAC 02B .0233 (9)(a) provided the conditions listed below are required. If the Water Quality Committee approves this request for a Major Variance from the Neuse Riparian Area Protection Rules, the Division recommends approval with the following conditions or stipulations [pursuant to 15A NCAC 026.0233 (9)(c)(ii)]: • Mitigation o Provide mitigation for the proposed impacts by purchasing 34,851 buffer credits from EBX -EM, LLC. + Stormwater Management Plan (SNIP) o Provide one copy of the approved SMP, including plan details on full -sized plan sheets, with proof of the Town of Cary's approval. The approved SMP shall be submitted to the DWR 401 & Buffer Permitting Unit (1650 Mail Service Center, Raleigh, NC 27699 -1650) before any impacts authorized in the Major Variance approval occur. LL LL 1 1 \ ? LL /` /N . v� /f b �• - -/ _I /� a • _ _ r i BKBM2005PGO0501 f IaOmD aLTUSLMIN oal- MmmmaAltalernm ®- sanacD3u"6 .rN tm• 11lV OOIM rAN -IfNAL � ! /O -Omid VAT ��1 IWM.SOlsdW16 �I Co. 3•o aT. 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Marshall DEPARTMENT Ol= THE Secretary SECRETARY OF STATE PO Box 29622 Raleigh, NC 27626-0622 (919)807 -2000 Date: 2/18/2013 here to: Document Filings I File an Annual Report I I Print a Pre - populated Annual Report Fillable PDF Form I Amended A Previous Annual Report I Corporation Names Name Name Type NC LBJ / CARY ASSOCIATES, LLC LEGAL Limited Liability Company Information SOSID: 0721029 Status: Current- Active Effective Date: 4/14/2004 Annual Report Due Date: Citizenship: DOMESTIC State of Inc.: NC Duration: 01/01/2054 Annual Report Status: CURRENT Registered Agent Agent Name: GARDNER, LYLE D Office Address: 7706 SIX FORKS RD., STE. 202 RALEIGH NC 27615 Mailing Address: 7706 SIX FORKS RD., STE. 202 RALEIGH NC 27615 Principal Office Office Address: 7706 SIX FORKS RD., STE. 202 RALEIGH NC 27615 Mailing Address: 7706 SIX FORKS RD., STE. 202 RALEIGH NC 27615 Officers Title: MANAGER / MEMBER Name: LYLE D GARDNER Business Address: 7706 SIX FORKS RD., STE. 202 RALEIGH NC 27615 Title: MEMBER Name: HUGH J GILLEECE 1 of 2 2/18/2013 10:14 AM North Carolina Secretary of State http: / /www. secretary. state. nc. us / corporations /Corp.aspx ?Pitemld =64... Business Address: 875 WALNUT STREET CARY NC 27511 Title: MEMBER Name: COLE CREEK ASSOCIATES,LLC Business Address: P 0 BOX 4158 CARY NC 27511 This website is provided to the public as a part of the Secretary of State Knowledge Base (SOSKB) system. Version: 4169 2 of 2 2/18/2013 10:14 AM k -1 -0, .k b 000- 4d lk Al t ik