20140822 Ver 1_Major Variance_20140721

ROY COOPER
AT okNEY GENERAL
n fi 5TA7F °
STATE OF NORTH CAROLINA
DEPARTMENT OF JUSTICE
P.O. Box 629
RALEIGH, NC 27602
July 21, 2014
REPLY To: MARY L. LucAssE
ENVIRONMENTAL Dr"sIoN
'11L: (919) 716 -6962
FAH: (919) 716 -6767
mlucasse @ncdoj.gov
Jeff Hunter Certified Mail/ Return Receipt Requested
1349 -C South Park Drive
Kernersville, NC 27284
Re: Final Decision Granting Variance with conditions
Dear Mr. Hunter:
At its May 7, 2014 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 within thirty days after receiving the order pursuant to
the procedure set forth in the North Carolina General Statutes § 15013-45. 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, 111, 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.
/, 41.-Ul
)eputy Attorney General and
for the Environmental Management Commission

Jeff Hunter
July 21, 2014
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
Ana Jaramillo, Town of Kernersville, by US Mail
Jennifer Burdette, Senior Environmental Specialist electronically
Lois Thomas, recording secretary for Commission, electronically `
Adriene Weaver, Environmental Specialist, electronically

STATE OF NORTH CAROLINA
COUNTY OF FORSYTH
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
IN THE MATTER OF: )
BLUE DIAMOND INVESTMENT )
COMPANY, LLC's PETITION FOR A )
DECISION GRANTING MAJOR
VARIANCE FROM 15A NCAC 02B )
VARIANCE WITH CONDITIONS
.0250 THE RANDLEMAN LAKE )
RIPARIAN AREA PROTECTION }
RULES
This matter first came before the Water Quality Committee of the Environmental
Management Commission ( "Water Quality Committee ") at its meeting on March 12, 2014 in
Raleigh, North Carolina with Chairman Steve Tedder presiding. At the March 12, 2014 meeting,
the Water Quality Committee considered Blue Diamond Investment Company, LLC's (the
Applicant's) request for approval of a major variance from the Randleman Lake Riparian Area
Protection Rules ( "Randleman Rules ") for undeveloped property located at the intersection of
Kernersville Medical Parkway and Macy Grove Road in Kernersville, North Carolina.
Specifically, the Applicant sought to delay installation of a stormwater BMP to address diffuse
flow requirements until the property is developed. At the March 12, 2014 meeting, the
Committee moved to defer any decision on the variance request until additional information was
provided.
The variance request along with additional information came before the Water Quality
Committee again on May 7, 2014 in Raleigh, North Carolina with Chairman Steve Tedder
presiding. The Town of Kernersville (Town) has been delegated authority to administer the
Randleman Lake Riparian Area Protection Rules. Ana Jaramillo from the Town presented the
request for a major variance to the Water Quality Committee. Based on the information

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provided, the Town and the North Carolina Department of Environment and Natural Resources,
Division of Water Resources (DWR) supported the request for a major variance provided that
certain conditions were included in the variance.
Previously, on May 11, 2000 the North Carolina Environmental Management
Commission (Commission) had delegated to the Commission's Water Quality Committee all
decisions relating to requests for variances from the riparian buffer. Upon consideration of the
information submitted, the Town of Kernersville's and DWR Staff's recommendations, and
based upon the approval of the Water Quality Committee, the Commission hereby makes the
following:
FINDING OF FACTS
A. Prior to requesting this variance, the Applicant sold 39 acres (the "VA site ") to
Lend Lease (US) Healthcare Development LLC for the development of a new Veterans
Administration (VA) hospital. The VA site will have its own stormwater management system,
sized to treat runoff from its site only.
B. The Applicant retained an adjacent 28.8 acre area (the Property) upslope from the
VA site. The Property is part of a total basin drainage area of approximately 48 acres. Upslope of
the Property is 19.2 acres which is sparsely developed as large lot residential. The area upslope
from the Property currently has approximately 7% built upon area ( "BUA "). The Property has
0% BUA and is subject to a Low Density Residential designation under the Town of
Kernersville Land Use Plan. The aggregate BUA for the Property and the upslope area is 2.79 %.
C. The VA site is located between the Property and the West Fork of the Deep River.
The proposed VA facility will be constructed prior to development of a site plan for the Property.

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Due to the limited area available on the VA site and the volume of anticipated future stormwater
runoff from the Property after development, the upslope stormwater runoff from the Property
cannot be incorporated into the VA site stormwater treatment plan.
D. Runoff from the Property flows overland through wooded areas and vegetated
conveyances to a point where the bypass system for the VA site will intercept the water. The
bypass line will route stormwater runoff from the upslope areas through the VA site and buffer.
The design of the storm drainage bypass line outlet consists of a rip -rap channel, energy
dissipater device that will directly discharge into the stream and is designed to protect the stream
bank and discharge point from erosion. There is an anticipated impact of 600 square feet in the
Zone 1 buffer and an anticipated impact of 400 square feet impact in the Zone 2 buffer.
E. The North Carolina Best Management Practices (BMP) Manual states that the
maximum flow from the contributing drainage basin that can be handled by a level spreader
under the diffuse flow per buffer rule application is two (2) cubic feet per second (cfs). The flow
coming from the Property following build -out is estimated to be 29 cfs during a one inch per
hour storm. The State BMP Manual also requires 50 linear feet of level spreader per cfs of flow
to provide diffuse flow from a drainage area. At a one inch per hour rainfall, more than 1500
linear feet of level spreader would be required for the flow from the bypass line and the
maximum length of a level spreader allowed by the BMP manual is 100 feet. With this
limitation, the flow from the bypass line would have to be split into multiple discharge points.
Considering the large flow coming from the contributing drainage area, both the required linear
footage of level spreader and the number of required discharge points make converting the flow
from the discharge pipe to diffuse flow impractical on the VA site.

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F. Building a single BMP sized to handle all runoff from the total basin drainage
area of approximately 48 acres upslope from the VA site would place a financial burden on the
VA facility due to the need to purchase more land to accommodate a larger BMP. Moreover,
managing a single BMP for the benefit of multiple property owners poses difficulties including
the equitable distribution of initial construction costs, maintenance costs, and liabilities.
G. Furthermore, using a single BMP sized to handle all the stormwater runoff from
the 48 acre drainage area could pose a greater threat to water quality in the event of a failure of
the BMP by releasing a greater volume of sediment into the Deep River and allowing discharge
into the Deep River at a higher flow rate and velocity and for a longer duration.
H. Smaller BMPs can be easier and less costly to maintain and therefore are more
likely to be maintained.
1. It would be impractical to postpone construction of a bypass channel for the
Property until after construction on the VA site is complete. Therefore the current runoff from
the Property will be drained to a bypass channel which will be built during the VA site
construction. The bypass system discharge point falls within the West Fork Deep River buffer
which is a tributary within the Randleman Lake Water Supply Watershed,
J. The Randleman Rules require that concentrated runoff from manmade
conveyances be converted to diffuse flow before the runoff enters Zone 2 of the buffer, unless a
stormwater management facility is installed to control nutrients and attenuate flow before the
conveyance discharges through the riparian buffer.
K. To date, a development plan has not been prepared for the Property. The
topography of the Property consists of two drainage areas. Providing stormwater management

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for the Property prior to development would either require that two BMPs be constructed or that
the property to be graded to drain to a central location. If BMPs are constructed at the current
drainage collection points or the property is graded prior to development, the installed
stormwater management system may not be consistent with the final development plan and may
have to be moved once the as yet unplanned development is in place. Either of these options,
mass grading or building BMPs, represents a significant financial burden to the developer prior
to development activity commencing.
L. Given the extremely low BUA of the property upslope of the VA site, including
the Property, and the length of the vegetated conveyances, it appears that adequate treatment is
already being provided within the natural system without having to build an engineered BMP
prior to the development of the Property. Untreated stormwater runoff from the Property
discharged into the buffer from the bypass system will have the same characteristics in terms of
quality as untreated runoff from the same area discharged into the buffer through the natural
system that existed prior to development of the VA site. Therefore, deferring implementation of
the stormwater management plan will not negatively impact surface waters.
M. Implementation of a stormwater management system prior to development is rare
and in this case would be required only of the Applicant and not the upslope residential property
owners who are also contributors of runoff to the bypass system. The Applicant understands that
a stormwater management plan will be required for any future development and has simply
asked for a variance allowing the final design and construction of the stormwater BMP to be
done at the same time as the planned development of the Property.

M
N. The Town of Kernersville's (Town's) Watershed Review Committee met on
January 21, 2014 to review the variance request. In accordance with the Town's Code of
Ordinances (Chapter C- Environmental Ordinance, Article VI- Riparian Buffer Protection
Ordinance For Lands Within the Randleman Lake Watershed, Section 6 -1.9B, Numeral 1 and
15A NCAC 02B .0250(12) the town prepared preliminary findings about the compliance with
the variance requirements and submitted them to the Water Quality Committee along with its
recommendation in support of the request for a major variance from the Randleman Riparian
Area Protection Rules. The Town affirmatively found that practical difficulties or unnecessary
hardships are present; the harmony and sprit of buffer protection requirements are met; and the
protection of water quality and substantial justice will be achieved as required in 15A NCAC
02B .0205 (12) provided that certain conditions are included in the variance.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
A. The Property owned by Blue Diamond Investment Company, LLC is subject to
the Randleman Lake Water Supply Watershed Riparian Area Protection Rules, 15A NCAC 2B
0250(12).
B. The Environmental Management Commission is authorized to issue a final
decision granting the variance including conditions pursuant to a request under 15A NCAC 2B
.0250(12) 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

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(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 Applicant has demonstrated the
following:
FIRST FACTOR: There are practical difficulties or unnecessary hardships that prevent
compliance with the strict letter of the riparian buffer protection requirements.
In its assessment of whether the Applicant had made a showing of "practical difficulties
or unnecessary hardships," the Commission considered the following factors.
A. If the applicant complies with the provisions of this Rule, he /she can secure no
reasonable return from, nor make reasonable use of hislher property. Merely
proving that the variance would permit a greater profit from the property shall
not be considered adequate justification for a variance. Moreover, the local
government 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.
C. The hardship is due to the physical nature of the applicant's property, such as its
size, shape, or topography, such that compliance with provisions of this rule
would not allow reasonable use of the property.
D. The applicant did not cause the hardship by knowingly or unknowingly violating
this Rule.
E. The hardship is rare or unique to the applicant's property.
15A NCAC 02B .0250(12)(a)(i).
The Commission affirmatively finds that the Applicant has made the required showing
that there are practical difficulties preventing compliance with the strict letter of the riparian
buffer protection requirements. Specifically,

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A. Although the applicant can make reasonable use of and secure a reasonable return
for the property without a variance from the diffuse flow requirements of the
Randleman Riparian Buffer Rule, there are practical difficulties and unnecessary
hardships related to meeting these requirements prior to development of the Blue
Diamond site. The proposed Veterans Administration (VA) Hospital site will be
constructed prior to development of a site plan for the Blue Diamond site and
separates the Blue Diamond site from the West Fork of the Deep River. Due to
the size of the drainage area of the Blue Diamond site and its location upslope of
the VA site, the volume of stormwater runoff draining to the proposed bypass
channel is too large to incorporate its treatment with that of stormwater from the
VA site or to diffuse using a level spreader. Therefore, separate stormwater
BMP(s) must be installed on the Blue Diamond site to comply with the Buffer
Rule. Because the predevelopment topography of the Blue Diamond site consists
of two drainage areas, significant site grading or two BMPs would need to be
constructed in order to treat stormwater runoff prior to development of the site.
B. The hardship results from the application of this rule due to the sequence in which
these two specific properties will be developed rather than from other factors.
C. The hardship is due to the physical nature of the applicant's property. Because the
VA Hospital site separates the Blue Diamond site from the nearest receiving
stream, development of the VA site impacts the development options for the Blue
Diamond site. Although the BMP for the VA site could be re- designed to include
the predevelopment stormwater runoff from the upslope properties, a high flow
bypass channel would become necessary once the property is developed for a
commercial use. However, it would be impractical to construct a bypass channel
for the Blue Diamond property after the VA Hospital construction is complete.
D. The Applicant did not cause the hardship by knowingly or unknowingly violating
this Rule.
E. The hardship is unique to the applicant's property. Lack of an existing stormwater
conveyance for such a large drainage area combined with high- density
development of the downslope property prior to the applicant's property situated
upslope is a unique situation. A stormwater bypass system must be constructed to
convey stormwater runoff from the Blue Diamond property through the VA site
for consideration of earthwork operations and to provide a high flow bypass
channel that will be necessary for the development of the Blue Diamond property.

me
SECOND FACTOR: The variance is in harmony with the general purpose and intent of the
State's riparian buffer protection requirements and preserves its spirit.
The Commission affirmatively finds that Applicant has demonstrated its meets the
second factor required under 15A NCAC 02B .0250(12)(b). Specifically, the Randleman Rules
require that concentrated runoff from manmade conveyances be converted to diffuse flow before
the runoff enters Zone 2 of the buffer, unless a stormwater management facility is installed to
control nutrients and attenuate flow before the conveyance discharges through the riparian
buffer. Converting the by -pass flow coming from the Property to diffuse flow is impractical.
Therefore, a stormwater BMP must be installed outside the buffer to comply with the Randleman
Riparian Buffer Rules. The Applicant has requested a variance allowing it to delay installation of
the BMP until such time as development of the Property begins. Runoff from this area flows
overland through wooded areas and vegetated conveyances to the point where the bypass system
through the VA site would collect this water. The shortest flow path of stormwater from the
nearest BUA is through approximately 700 feet of vegetation in an undeveloped area.
The design of the storm drainage bypass line outlet consists of a rip -rap channel, energy
dissipater device that will tie into the stream to protect the stream bank and discharge point from
erosion. Given the characteristics of the Property and other upslope properties and the design of
the storm drainage bypass line outlet, the Commission affirmatively finds that water quality will
not be compromised and the intent of the Randleman Rules will be satisfied by deferring
installation of the stormwater management BMP until development of the Property occurs.
Therefore, the variance is in harmony with the general purpose and intent of the State's riparian
buffer protection requirements and the Town's Ordinance and preserves its spirit.

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THIRD FACTOR: In granting the variance, the public safety and welfare have been assured,
water quality has been protected and substantial justice has been done.
The Commission affirmatively finds that Applicant has demonstrated its meets the third
factor required under 15A NCAC 02B .0250(12)(c). Specifically, it is usually impractical for
multiple owners to manage a single BMP. Even if a satisfactory agreement can be achieved
initially, if ownership of a property changes the agreement may be lost. In addition, managing
stormwater close to the source where it is generated helps to reduce the impacts of built -upon
areas on the environment. Dispersing BMPs throughout a large drainage area reduces the size of
the conveyances needed to carry stormwater, which reduces the risk of erosion and can also
reduce costs. Smaller BMPs can be easier and less costly to maintain and therefore are more
likely to be maintained. Also, using more BMPs reduces the risk of failure of a single, large
BMP. If one component of a BMP network fails, the remainder of the BMPs would still provide
stormwater treatment. Also, a single, large BMP presents a greater risk to public safety from
potential drowning and dam failure.
The variance is a minor deviation from the requirements of the Randleman Rules, since it
only requests that implementation of the stormwater management plan be deferred until
development of the Property occurs. The requirement for implementation of stormwater
management prior to development of property is rare and could involve a high cost without
representing improvement to water quality. Therefore, in granting the variance, the public safety
and welfare have been assured, water quality has been protected, and substantial justice has been
done.

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ORDER
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 with the following conditions
pursuant to 15A NCAC 2B .0250 (12) as a major variance to the Randleman Lake Riparian Area
Protection Rules:
1. This major variance shall only apply to the Applicant for the Property specificed
in the variance request for the specific uses identified in the application and supporting
information.
2. The BMP to be designed and built when the development of the Blue Diamond
property takes place shall treat the runoff for the total basin area for the Property which drains to
the bypass system (approximately 28.8 acres) for the maximum built upon area allowed under
the Town of Kernersville Environmental regulations. Blue Diamond Investment Company, LLC
may design and build the BMP structure to consider the existing runoff from the drainage area
upslope of their property or by -pass that flow.
3. Prior to issuance of any watershed (Low density or High Density) or /and building
permit for the Property (or part of the Property), Blue Diamond Investment Company, LLC or its
successors and assigns forever shall submit to the Town of Kernersville a Stormwater
Management Plan including the design of any structural BMP for review and approval by the
Engineering Division. No certificates of occupancy shall be issued for any structure within the
Property until the construction, completion and approval of each structural BMP. Prior to
submittal of the Stormwater Management Plan, the drainage easement for the 48 -inch bypass line

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shall be recorded. A copy of the recorded easement shall be submitted to the Town of
Kernersville.
4. Blue Diamond Investment Company, LLC, owner of the Property and the
applicant for this Major Variance request, shall submit to the Town of Kernersville for review
and approval a recorded agreement or other legal mechanism to ensure that the above described
three (3) conditions are binding on each and every portion of the Property and subsequent owner
of the Property or part of the Property even if the Property is subdivided and /or sold in the future.
Y
This is the 2,l day of July, 2014.
ENV ONMENTAL MANAGEMENT COMMISSION
Benue C. Hutson, Chairman

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CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance with Conditions upon the Applicant, the Town of Kernersville, and the NC Division of
Water Resources in the manner described below as follows:
Jeff Hunter
1349 -C South Park Drive
Kernersville, NC 27284
Ana Jaramillo
Town of Kernersville
PO Box 728
Kernersville, NC 27285
Jennifer A. Burdette
401 /Buffer Coordinator
401 & Buffer Permitting Unit
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699 -161
This is the2( day of July, 2014
Certified Maill Return Receipt Requested
US Mail
E -mail: Jennifer [e-mail]
ROY COOPER
Attornev General
Mary casse
Spe
' Deputy Attorney General and Commission Counsel
1P. . Box 629
Raleigh, N. C. 27602