20140727 Ver 1_Vested Rights_20150407

Higgins, Karen
From: Mary Penny Kelley <mpkelley @styerskemerait.com>
Sent: Tuesday, April 07, 2015 11:21 AM
To: Reeder, Tom
Cc: Bromby, Craig A; Mills, Katie E; Davis, Tracy; Smith, Danny; Higgins, Karen
Subject: RE: Description of Project and conformed vested rights letter
Attachments: Conformed Vested Rights Letter for use by NC DENR (SK01523lxBEB38).docx
Importance: High
Tom,
In order to assist with issuing a vested rights letter today, I have conformed the Wake Stone approval
to the Crabtree Quarry facts and project description. Please let me know if you need anything else to
issue the letter today.
If you would email me a copy of the letter after it is signed, I would very much appreciate it.
Thanks for your attention to this matter,
Mary Penny Kelley
Of Counsel, Styers & Kemerait, PLLC
From: Mary Penny Kelley
Sent: Monday, April 06, 2015 5:53 PM
To: Reeder, Tom Reeder; Tracy Davis; Danny Smith; karen.hig_ginsCa)ncdenr.gov
Cc: Craig Bromby; Katie E Mills
Subject: Fwd: Description of Project
Tom, Tracy, Danny and Karen,
After our February 13th meeting, the attorneys continued to mull over case law and evidence until March 20th
when we concurred that there is enough documentation to support vested rights at the Crabtree Quarry
site. Katie Mills has a draft letter ready for Tom Reeder's signature and only needs a description of the project
to complete it. Unfortunately, both Craig and Katie are out of the office today and tomorrow, so I have
obtained permission from Craig to reach out to you directly to help move the letter through the administrative
process.
Although I have not seen Katie's draft letter, I am guessing it is very similar to other vested rights letters. A
sample exists in the Wake Stone materials that I provided during our February 13th meeting in case you want to
see how this project description would be used. Typically, the first paragraph identifies the submissions made
to NC DENR supporting the vested rights claim and notes that the letter reflects an opinion of NC DENR's
attorneys that could be challenged in court by third parties. The second paragraph includes a project description
to tie the vested rights with the land to which they apply.
Conforming the descriptions from Wake Stone to Crabtree Quarry would create the following project
description:
Subject Property: Neuse River Riparian Buffer Confirmation — Vested Right Determination

Road, Raleigh, Wake County, NC
Hanson Aggregates Southeast, LLC; Crabtree Quarry, Duraleigh
Tributaries to Crabtree Creek
The body of the letter would then use the description to limit the vested rights by saying that, "Based upon our
attorneys' legal opinion, NC DENR acknowledges that a vested right exists to complete your plans to mine
without imposition of the Neuse River Riparian Buffer Rules, limited to the confines of the Crabtree Quarry as
delineated by the mining boundary of NC DENR Mining Permit No. 92 -03."
Thank you all for working through this vested rights issue,
Mary Penny Kelley
Of Counsel, Styers & Kemerait, PLLC

[NC DENR Letterhead]
April 7, 2015
Mr. Alan Burnette
Director of Resource Development
Hanson Aggregates Southeast, Inc.
2310 Parklake Drive, Suite 550
Atlanta, GA 30345
Subject Property: Neuse River Riparian Buffer Confirmation — Vested Right Determination
Hanson Aggregates Southeast, LLC; Crabtree Quarry, Duraleigh
Road, Raleigh, Wake County, NC
Tributaries to Crabtree Creek
Dear Mr. Burnette:
This letter is to inform you that the Office of General Counsel has completed its review of your
request for a vested right determination for the subject property from the Neuse River Riparian
Buffer Rules (15A NCAC 213.0233). A property or development is only "grandfathered" when it
can establish in court that it has acquired a "vested right" to continue development as planned.
Although only the courts can make a final determination, the Division of Water Resources
(DWR) can inform you of its position with respect to the question of "vested rights" for a
project. In forming its position, the DWR requested the assistance of the Office of General
Counsel.
The Office of General Counsel has advised that Hanson Aggregates' Wake County Crabtree
Quarry has a "vested right" to complete its plans to continue to mine without imposition of the
Neuse River Riparian Buffer Rules, limited to the confines of the Crabtree Quarry as delineated
by the mining boundary of NC DENR Mining Permit No. 92 -03 (Department of Environment
and Natural Resources; Division of Energy, Mineral and Land Resources; Land Quality Section;
Permit for the operation of a mining activity). Therefore, your proposed project will not have to
comply with the Neuse River Riparian Buffer Rules. If you change your project, you must notify
us and you may be required to send us a new request for approval and possibly comply with the
Neuse River Riparian Buffer Rules.
Thank you for your attention to this matter and if this office can be of any assistance or if you
have additional questions, please do not hesitate to contact me or the staff in the DWR.
Sincerely,
Tom Reeder
Assistant Secretary for the Environment
{SK015231.DOCX }

cc: File Copy
Central Files
Tracy Davis, DEMLR
Danny Smith, DWR Raleigh Regional Office
Karen Higgins, DWR Wetlands Unit
Craig Bromby, Assistant General Counsel, Office of General Counsel
Katie Mills, Legal Intern, Office of General Counsel
Mary Penny Kelley, Attorney for Hanson Aggregates
Kevin Martin and Bob Zarzecki, Consultants for Hanson Aggregates
{SK015231.DOCX }