2022-09-20 Petition (emailed from OAH)

Filed Sep 22, 2022 4:23 PM Office of Administrative Hearings
PLEASE PRINT CLEARLY OR TYPE
STATE OF NORTH CAROLINA
COUNTY OF (1)Iredell
(2)Angela Garcia
(your name) PETITIONER,
V.
(3) North Carolina Department of Environmental Quality
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
PETITION
FOR A
CONTESTED CASE HEARING
RESPONDENT. )
(The State agency or board about which you are complaining) )
I hereby ask for a contested case hearing as provided for by North Carolina General Statute § 150B-23 because the Respondent has:
(Briefly state facts showing how you believe you have been harmed by the State agency or board.)
See attached statement of facts and grounds in support of petition for a contested case hearing
(4) Amount in controversy (if applicable)
(If more space is needed, attach additional pages.)
(5) Because of these facts, the State agency or board has: (check at least one from each column)
.x_deprived me of property; exceeded its authority or jurisdiction;
ordered me to pay a fine or civil penalty; or x acted erroneously;
x otherwise substantially prejudiced my rights; AND x failed to use proper procedure;
x acted arbitrarily or capriciously; or
x failed to act as required by law or rule.
(6) Date: 9f20f22 (7) Your phone number: ( ) [phone]
(8) Print your full address: Pope McMillan, P.A., P.O. Box 1776,
(street address/p.o. box) (city) (state) (zip)
(9) Print your name: Christian Kiechel, attorney and on behalf of Petitioner Angela Garcia.
(10) Your
You must mail or deliver a COPY of this Petition to the State agency or board named on line (3) of this form. You should contact the
agency or board to determine the name of the person to be served.
CERTIFICATE OF SERVICE
I certify that this Petition has been served on the State agency or board named below by depositing a copy of it with the United States
Postal Service with sufficient postage affixed OR by delivering it to the named agency or board:
(I 1) William F. Lane, General Counsel (12) Department of Environmental Quality
(name of person served) (State agency or board listed on line 3)
(13) 1601 Mail Service Center, Raleigh, NC 27699-1601
(street address/p.o. box)
(15) Thi the 22
of September
2022
(city) (state) (zip code)
` - (your signature)
When you have completed this form, you MUST mail or deliver the ORIGINAL to the Office of Administrative Hearings, 1711 New
Hope Church Road, Raleigh, NC 27609.
H-06 Instructions (06/21)

Amount Paid $
❑ Cash — receipt number
❑ Money Order 0 Certified Check 0 Attorney Trust Account
Check number
1 511 FV 110.16 10 iWl:111
❑ Indigent (must complete form HOI )
❑ Mandated federal cause of action
Received by:
H-06 Instructions (06/21)

STATE OF NORTH CAROLINA
COUNTY OF IREDELL
Angela M. Garcia
Petitioner,
V.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY
Respondent.
IN THE OFFICE
OF ADMINISTRATIVE HEARINGS
FILE NUMBER:
STATEMENT OF FACTS AND
GROUNDS IN SUPPORT OF
PETITION FOR CONTESTED CASE
PURSUANT TO 150B-22
PROCEDURAL HISTORY
1. , On or about October 27, 2021, the Division of Water Resources issued a notice of
violation of the Catawba Riparian Buffer Protection Rules to Petitioner Angela Garcia in relation
to certain alleged unauthorized impacts to the Catawba Riparian Buffer.
2. On or about November 15, 2021, the Division of Water Resources issued a
Continuing Notice of Violation.
3. Petitioner Angela Garcia, by and through counsel and other authorized agents with
specialized knowledge and training, communicated with and attempted to remedy the conditions
which led to the issuance of the notice of violation and continuing notice of violation.
4. Pursuant to such efforts, on or about June 2, 2022, Petitioner Angela Garcia, by and
through authorized agent Michael W. Burkhard, filed an after -the -fact buffer authorization
application. This application sought a Riparian Buffer Authorization Certificate related to the
conditions of the land which caused the issuance of the Notice of Violation and Continuing Notice
of Violation.
5. On or about July 28, 2022, Department of Environmental Quality, Division of
Water Resources issued a "DENIAL OF CATAWBA RIPARIAN BUFFER
AUTHORIZATION APPLICATION" that denied Petitioner Angela Garcia's request for a
Riparian Buffer Authorization Certificate.
6. Petitioner Angela Garcia brings this Petition for a Contested Hearing pursuant to
Chapter 150B of the North Carolina General Statutes.
ALLEGATIONS OF FACT

7. Petitioner Angela Garcia (hereinafter "Petitioner") is the owner of certain property
located at 126 Caraway Lane, Mooresville, NC 28115 (hereinafter the "Property") and more
particularly described at Book 2870, Page 314 of the Iredell County Register of Deeds. Such
property can additionally be found at Book 14 Page 83 in the Plat Index of the Iredell County
Register of Deeds.
8. The Plat Map was originally filed in 1976 and dedicated Caraway Lane to be a
sixty -foot public right of way that would expand into a cul-de-sac with a fifty -foot radius before
narrowing upon approach to the Property to a thirty-foot right of way.
egress.
9. The Property sits at the end of Caraway Lane with no other means of ingress or
10. Petitioner first purchased the property on or around July 14, 2016.
11. At the time Petitioner purchased the Property, Caraway Lane was less than fifteen
(15), and scarcely more than ten (10), feet in width for the entire length of Caraway Lane.
12. At the time Petitioner purchased the Property, at the end of Caraway Lane was a
gravel offset used for parking and turnaround.
13. The gravel offset was used by a variety of individuals including delivery drivers,
construction workers, and nearby neighbors.
14. The gravel offset provided the primary means of turn around for residents of
Caraway Lane that did not require using the property of one or more of the neighbors' properties
as a turnaround.
15. The gravel parking area was encased by petitioner in a wood encasement and paved
over to prevent gravel from washing off and eroding into Lake Norman.
16. A sediment fence was installed prior to the construction work and was maintained
throughout to minimize the impact of the construction.
17. This encasement and padding constitute the construction of the "parking pad"
which became the subject of the Riparian Buffer Authorization Certificate.
18. The parking pad occupies the same spot and size as the prior existing gravel parking
area and remains as the only means of turn around for the residents of Caraway Lane, for delivery
drivers, for construction workers, and for access and turnaround for emergency fire and rescue
services.
19. Petitioner is ready, willing, and able to supply mitigation credits through mitigation
banks and to plant trees in and around the affected area.

20. The entirety of the "parking pad" is not within the buffer and only approximately
eight feet, in terms of width, are located within the riparian buffer. The remainder is located within
the platted right of way.
21. The affected area is designed in accordance with the guidelines and requirements
in 15A NCAC 02B .0615(8).
22. The dirt road sitting directly adjacent to the "parking pad" was paved over by
Petitioner and by Pete Grekusis.
23. Petitioner further incorporates by reference the allegations contained within the
Buffer Authorization Application Form, including all attachments, as if fully set forth herein.
24. Subsequent to the Notice of Violation and the Continuing Notice of Violation,
Petitioners neighbors, including Pete Grekusis, executed a Declaration Withdrawing Dedication
of Undeveloped Portions of Roadway Pursuant to NCGS 136-96 (hereinafter the "Withdrawal
Declaration") purporting to withdraw the dedication of Caraway Lane for public use.
25. Petitioner's neighbors filed such Notice of Withdrawal upon learning that if
Petitioner's attempts to cure her notice of violation was unsuccessful, then she would intend to
take all legal steps necessary to build out the right of way to its width, including the cul-de-sac, to
ensure vehicles, and especially emergency vehicles, are able to safely access and service her
property and her neighbors' properties.
26. The Notice of Withdrawal, along with a maintenance agreement
contemporaneously filed, is subject to ongoing litigation for a declaratory judgment as to the
validity of such agreements. Such lawsuit is identified as Garcia v. Fowler et al. 22 CVS 1835
(Iredell County).
27. The listed reason for denial was that the petition described a use that was "not a use
listed as deemed allowable, allowable upon authorization, or allowable with mitigation upon
authorization in the Catawba Riparian Protection Rules Table of Uses."
28. The denial characterizes the application as a "after -the -fact authorization request
for fill, wooden encasement, and concrete associated with a parking and turn -around pad in Zone
1 of the regulated riparian buffer."
29. The proposed "parking pad" provides complete utility as a turn -around for the
safety of Petitioner and the other residents of Caraway Lane and constitutes the least intrusive
method of doing so.
GROUNDS FOR REVIEW
30. Petitioner restates the above allegations as if fully set forth herein.

31. Petitioner alleges that Respondent acted erroneously by denying its application for
the stated reason that the use was "not a use listed as deemed allowable, allowable upon
authorization, or allowable with mitigation upon authorization in the Catawba Riparian Protection
Rules Table of Uses." In particular, Petitioner alleges that the alleged use, in no particular order,
is one listed as deemed allowable, allowable upon authorization, or allowable with mitigation upon
authorization as:
a. Petitioner's property, and the affected area, is included on a recorded subdivision
plan prior to June 30, 2001, the use is in Zone 1, and the use complies with the
requirements of 15A NCAC 02B .0614(8). This use is allowable with mitigation
upon authorization under 15A NCAC 02B .0614(10)(p).
b. The change was necessary to the protection of existing structures and facilities
under 15A NCAC 02B .0614(10)(r).
c. The activity, at least in part, consisted of removal of previous fill or debris under
15A NCAC 02B .0614(10)(u).
d. As a road, driveway or railroad that impacts other than perpendicular crossings of
surface waters subject to this rule under 15A NCAC 02B .0614(10)(w).
e. Road relocation of existing private access roads associated with public road projects
where necessary for public safety with less than or equal to 2,500.00 square feet of
riparian buffer impact as set out in 15 NCAC 02B .0614(10)(y).
32. Petitioner alleges and further assigns as error that the failure to issue a Riparian
Buffer Authorization Certificate was arbitrary and capricious and that the decision maker failed to
use proper procedure. In particular, in addition to the grounds and facts above, Petitioner alleges
that, upon information and belief, respondent had unauthorized and irrelevant communications
with Petitioner's neighbors and that such communications inappropriately impacted the decision
to deny Petitioner's application.
WHEREFORE, Petitioner requests the following relief:
1. That Petitioner's be granted a Catawba Riparian Buffer Authorization Certificate
for the purposes outlined in Petitioner's application and in this petition;
2. That, alternatively, the Administrative Law Judge find that grounds exist for
granting a Catawba Riparian Buffer Authorization Certificate and remand to the agency to conduct
appropriate fact finding as to whether one should be issued;
3. For any further relief just, equitable, and available under law.
This the day of September, 2022.
[signature line to follow]

POPE McMILLAN, P.A.
Christian Kiechel
N.C. Bar No.: 56800
Attorneys for Petitioner
113 North Center Street
P.O. Drawer 1776
Statesville, NC 28687-1776
[phone]