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.
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North Carolina Secretary of State
Account
http : / /www.secretary.state.nc.us / corporations /Corp.aspx ?Pitemld =64...
North Carolina
Elaine F. 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
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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
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