20140566 Ver 1_Denial Letter_20141223

Burdette, Jennifer a
From: Shaw, Denise <Mshaw @ncdoj.gov>
Sent: Tuesday, December 23, 2014 1:35 PM
To: benne.hutson @gmail.com; stevewtedder @gmail.com; Reeder, Tom; Burdette, Jennifer
a; Thomas, Lois; Higgins, Karen
Cc: Hauser, Jennie; Shaw, Denise
Subject: Petition for Variance Request by Ernest Floyd Foster d /b /a Foster's Seafood
Attachments: 2014- 12- 23_1-tr from JH_EMC Major Variance for Foster Seafood.pdf; 2014 -12 -23
_EMC Major Variance Decision for Ernest Floyd Foster dba Foster Seafood.pdf
Attached is an electronic copy of the Cover Letter and Decision Denying Major Variance which our office forwarded by
US Mail today. Please let Jennie Hauser know if you have any difficulty opening the attachments. Thank you

Emest Floyd Foster
d/b/a Foster's Seafood
220 Loop Road
Belhaven, NC 27810
ST 71
P.O. Box 629
RAix-.icii, NC 27602
December 23, 2014
Re: Final Decision Denying Variance
Dear Mr. Foster:
REPLYTO: JrNNIE Wmimm HAUSER
FINVIRONMENTAL Dixisi ON
TEL: [phone]
rAx: [phone]
jbauser @nMoj,gov
Certified Maill Return Receipt
Requested
At its November 12, 2014 meeting, the Water Quality Committee of the Environmental
Management Commission denied your request for a variance. Attached is a copy of the Final
Agency Decision.
If 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 appropriate 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:
John C. Evans, 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,
Jennie Wilhelm Hauser
Special Deputy Attorney General and
Counsel for the Environmental Management Commission

Ernest Floyd Foster
M-M
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

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IN THE MATTER OF:
PETITION FOR VARIANCE FROM
15A NCAC 213.0259
TAR-PAMLICO RIVER RIPARIAN
AREA PROTECTION RULES BY
ERNEST FLOYD FOSTER, d/b/a
FOSTER'S SEAFOOD
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
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I k1r.11 I$) 11UL7.111,14 VVICLO 32
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 12, 2014, in Raleigh, North Carolina upon Ernest Floyd
Foster's d/b/a Foster's Seafood (the Applicant's) request, pursuant to 15A NCAC 02B .0259, for
approval of a major variance from the Tar-Pamlico River Riparian Area Protection Rules to
allow to be located within the riparian buffer two refrigerated tractor trailers for a commercial
blue crab operation at 70 Captain Tom's Road in Washington, NC. The proposed development
will impact 566 square feet of Zone I and 241 square feet of Zone 2 of the buffer.
Based on the information provided by the Applicant, and despite acknowledging to the
Committee that the Applicant did not meet the criterion of 15A NCAC 0214 .0259(9)(a)(i)(E), the
Division of Water Resources (DWR) supported the request for a major variance. Jennifer
Burdette, Senior Environmental Specialist, Buffer Permitting Unit of the Division of Water
Resources, presented the request for a major variance to the Water Quality Committee. Mr.
Foster did not appear.

N
Upon consideration of the record documents, the request and the staff recommendation,
and based upon the Water Quality Committee's decision to deny the variance request, the
Commission hereby makes the following:
FINDING OF FACTS
1. The Applicant owns the property at 70 Captain Tom's Road between Washington
and Belhaven, North Carolina which is located along Duck Creek, a tributary to Tar-Pamlico
River (the Site). The Site is also located adjacent to a man-made canal.
1 The property was purchased June 1, 2012, which is after the effective date of the
Tar-Pamlico Riparian Area Protection Rules.
November 16, 0 Applicant obtained approval to construct a dockirs
facility, bulkhead, and boardwalk at the property and to repair a boat ramp for a crab business.
4. On August 26, 2013, the Applicant requested a Coastal Area Management Act
(CAMA) minor permit modification to extend the boardwalk, build a 7' x 42' loading deck
perpendicular to the boardwalk, and locate two semi-trailers and loading deck in the buffer.
DWR objected to issuance of the permit unless the trailers and loading deck were removed from
the request.
5. The CAMA permit modification was approved on November 12, 2013, with the
condition that the trailers and loading deck were not permitted with the modification.
6. The Division of Water Resources issued a Notice of Violation on May 9, 2014,
when one semi-trailer and a 7x 36' loading deck were found within the buffer.
7. The Applicant has requested approval of a major variance from the Tar-Pamlico
River Riparian Area Protection Rules pursuant to 15A NCAC 02B .0259 to allow the proposed

Q
structures on the Site. The request indicates that the Applicant will not be able to complete the
expansion of his business without the variance.
8. In support of his variance request, the Applicant agreed to provide mitigation for
the proposed impact by purchasing 2,060 Ecosystem Enhancement Program (EEP) buffer
credits, to maintain diffuse flow of storrawater from the trailers and a house proposed to be
constructed on an existing footprint and, to increase stormwater infiltration, the Applicant has
brought in topsoil and planted grass to enhance areas of the riparian buffer that were
denuded by truck and trailer movement.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
I. The Site owned by Ernest Floyd Foster is subject to the Tar-Pamlico River
Riparian Area Protection Rule, 15A NCAC 2B .0259.
2. The purpose of Rule 15A NCAC 2B .0259 is to protect and preserve existing
riparian buffers and to maintain their nutrient removal functions in the entire Tar-Pamlico River
Basin.
3, 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 .0259 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, water quality has been protected and substantial justice
has been done,

4
15A NCAC 2B .0259(9)(a).
4, The Commission determines the following:
First Factor: There are not practical difficulties or unnecessary hardships that
prevent compliance with the riparian buffer protection requirements.
In its assessment of whether the Applicant 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, helshe 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 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 qf 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, 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 request an appeal.
F. The hardship is unique to the applicant's property, rather than the result
of conditions that are widespread. rother 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.
I SA NCAC 02B .0259(9)(a)(i),
The Commission determines that the Applicant has not made the required showing that
there are "Practical difficulties or unnecessary hardships" preventing compliance with the
riparian buffer protection requirements, Specifically,
A. The applicant can make reasonable use of the property without an
expansion of structures that would impact the protected riparian

buffer. Mr. Foster's request contends operation of a blue crab business on
the property requires refrigerated trailers and decking located adjacent
to the existing docks and boardwalk to grade and store crabs and to roll
pallets of crab baskets to refrigerated trucks for shipping. Accepting this
as true, Mr. Foster's request does not establish that the structures could not
be located elsewhere on the property.
B. The hardship results from the application of this rule rather than from
other factors. Application of the buffer rule does not prevent Mr. Foster
from locating the refrigerated trailers elsewhere on the property to allow
operation of the seafood business.
C. The hardship is not due to the physical nature of the applicant's property.
Although a portion of the property is located within the buffer, there
is a large area of the property located outside of the buffer that could
be used for the structures.
D. The applicant violated the Tar-Pamlico River Buffer Rule by locating the
trailers in the riparian buffer prior to obtaining a major variance.
E. The applicant purchased the property on June 1, 2012, which is after the
effective date of this Rule.
F. The hardship regarding location of structures is not unique to the
applicant's property, even though use of these structures is proposed to
be part of the operation of this blue crab seafood business.
Second Factor: The variance is not in harmony with the general purpose and intent Of
the State's riparian buffer protection requirements and preserves its spirit.
The Commission determines that the Applicant has not demonstrated he meets the second
factor required under 15A NCAC 02B .0259(9)(a)(ii). Specifically, the purpose of the riparian
buffer rules is to protect existing riparian buffer areas. Allowing the proposed development by
granting the request for a major variance would not be in harmony with the general purpose and
intent of the riparian buffer protection rules and does not preserve their spirit.
Third Factor: The variance would not assure the public welfare, protect water quality,
and ensure substantial justice has been done.
The Commission determines that the Applicant has not demonstrated he meets the third
factor required under 15A NCAC 02B .0259. Specifically, the Applicant purchased his property
along Duck Creek, a tributary to Tar-Pamlico River, approximately twelve years after the
effective date of the "liar- Pamlico River Riparian Area Protection Rules, and the Applicant should

M
have been aware of the limitations those rules placed on activities within the riparian buffer of
the Site at the time of his purchase of the property and certainly through the CAMA permitting
process, in which his request to locate the trailers and loading dock were objected to by DWR
and were not allowed under the modified CAMA permit. Moreover, the Applicant located these
structures within the riparian buffer despite being denied a CAMA permit for the construction
and without seeking a variance to the Tar-Pamlico River Riparian Area Protection Rules prior to
constructing the structures. The Applicant only requested a variance after being issued a Notice
of Violation by DWR for violation of these rules, Under these circumstances, the Applicant has
failed to establish that a variance for his construction would assure the public welfare and protect
water quality as it is protected by strict application of the Tar-Pamlico River Riparian Area
Protection Rules, and the Applicant has failed to establish that allowing placement of these
trailers within the riparian buffer would provide substantial justice when other property owners
have been required to comply with these rules, including participating in the administrative
process to obtain a variance from this Commission prior to undertaking an activity that would
violate the buffer rules.
Based on the Findings of Fact and Conclusions of Law set forth above, IT IS HEREBY
ORDERED that the request for the variance is DENIED,
This is the 23rd day of December 2014.
ENVIRONMENTAL MANAGEMENT COMMISSION
Benne C. Hutson, Chairman

This is to certify that I have this day served the foregoing Decision Denying Major
Variance upon the Applicant and the Division of Water Resources in the manner described
Ernest Floyd Foster
d/b/a Foster's Seafood
220 Loop Road
Belhaven, NC 27810
Jennifer A. Burdette
401 /Buffer Coordinator
401 & Buffer Permitting Unit
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
Karen Higgins, Supervisor
Division of Water Resources
1650 Mail Service Center
Raleigh NC 27699-1650
This is the 23'd day of December 2014.
Certified Maill Return Receipt Requested
E-mail: Jennifer.Burdette ac
,ncdenr.gov
E-mail: Karen.Hi "insrZ)ncdenr-Lov
ROY COOPER
Attorney General
Wilhelm
14211,
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i -. n ��'i 'r
Jennie Wilhelm Hauser
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602