20120399 Ver 2_Major Variance_20150618

STATE OF NORTH CAROLINA
DEPARTMENT OF JUS17CE
ROY COOPER. P.0, Box 629 REPLY TO: JENNIE WILHF.L N HAUSER
ATTORNEY GFNERAL RALL•IGH, NC 27602 ENVIRONMENTAL DIVISION
TEL: [phone]
FAX: [phone]
jhauser @ncdoj.gov
June 18, 2015
Gwinn O. Hedrick, Registered Agent Certified Mail / Return Receipt Rea uested
Riverwinds Condominiums, LLC
401 Vandemere Street
Oriental, NC 28571
Gwinn Hedrick First Class Mail.
Riverwinds Condominiums, LLC
236 Blackwell Point Loop Road
Oriental, NC 28571
Re: Final Decision Denying Variance
Dear Mr. Hedrick:
At its May 13, 2015 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.
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 § 150B -45. A copy of the judicial
review petition must be served on the Commission's agent for service of process at the following
address:
Sam M. Hayes, 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.
Sincere ,
Jennie Wilhelm Hauser
Special Deputy Attorney General and
Counsel for the Environmental Management Commission

Riverwinds Condominiums, LLC
Page Z
cc: w/ encl.: Gerard P. Carroll, 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

STATE OF NORTH CAROLINA
COUNTY OF PAMLICO
}
IN THE MATTER OF: )
PETITION FOR VARIANCE FROM }
I SA NCAC 2B 0233 )
NEUSE RIVER RIPARIAN AREA }
PROTECTION RULES BY )
GWINN HEDRICK, LANDOWNER, }
FOR RIVERWINDS TOWNHOMES, )
LLC
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION DENYING
MAJOR VARIANCE
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. The above - referenced matter came before the
Water Quality Committee at its meeting on May 13, 2015, in Raleigh, North Carolina upon
Gwinn Hedrick's (the Applicant's) request, pursuant to 15A NCAC 02B .0233, for approval of a
major variance from the Neuse River Riparian Area Protection Rules to allow to be located
within the riparian buffer the construction of decking on five units of the Riverwinds
Townhomes, LLC, formerly Riverwinds Condominiums, LLC, (the Project) located at 236
Blackwell Point Loop Road in Oriental, North Carolina. The proposed development will impact
509 square feet of Zone 1 and 931 square feet of Zone 2 of the buffer.
Based on the information provided by the Applicant and the Division of Water Resources
(DWR), the DWR did not support the request for a major variance. The Applicant did not meet
the criterion of 15A NCAC 02B .0233. Jennifer Burdette, 401 /Buffer Coordinator, 401 and
Buffer Permitting Unit of the Division of Water Resources, presented the request for a major
variance to the Water Quality Committee, Mr. Hedrick did not appear.

2
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 Project, which is located at 236 Blackwell Point Loop
Road, Oriental, North Carolina, which is located along Smith Creek, a tributary of the Neuse
River near the Pamlico Sound.
2. According to Mr. Hedrick's request for a major variance (as documented on
FORM VAR 10 -213 signed by Mr. Hedrick on February 26, 2015), the property was purchased
in 2003, which was after the effective date of the Neuse River Basin Riparian Buffer Rules.
3, On August 20, 2012, the Applicant obtained a minor variance to construct two
decks at Units #1 and #2 of the Project, with 440 square feet of impact to Zone 2, upon
purchasing 660 square feet of riparian buffer mitigation credits from a private mitigation bank.
4, On March 2, 2015, the Director of the Division of Water Resources (the Director)
received the Applicant's request for a major variance from the Neuse River Basin Buffer Rules
pursuant to 15A NCAC 02B .0233 seeking permission "to build ADA accessible outside decks;
allow excess [sic] from the units or unit on the waterside of Riverwinds without going
downstairs to outside decks; to freely move from the units to the outside without any restrictive
barriers; fresh air and sunshine." The request indicates the Project was developed to be ADA
compliant, including an elevator to reach all three floors of the structure; therefore, the owner
would tike to make access to the waterside barrier free by construction of decks within Zone 1
and Zone 2 of the development for five additional decks (Units #347).

3
8. In support of his variance request, the Applicant agreed to provide mitigation for
the proposed impact by purchasing 2,923.50 square feet of riparian buffer mitigation credits from
a private mitigation bank.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
1. The Project owned by Gwinn Hedrick, currently the Riverwinds Townhomes,
LLC, and formerly the Riverwinds Condominiums, LLC, (the Project) is subject to the Neuse
River Riparian Area Protection Rule, 15A NCAC 213 .0233.
2. The purpose of Rule 15A NCAC 2B .0233 is to protect and preserve existing
riparian buffers and to maintain their nutrient removal functions in the entire Neuse River Basin.
3, The Environmental Management Commission is authorized to issue a final
decision denying the variance including riparian buffer mitigation conditions pursuant to a
request under 15A NCAC 2B.0233 upon a finding that:
Z) Practical difficulties or unnecessary hardships are not present;
2) The harmony and spirit of buffer protection requirements are not
met; and
3) The protection of water quality and substantial justice has not been
achieved as required in 15A NCAC 02B .0233 (9)(a).
4. The Commission determines the following:
First Factor: There are not practical dWiculdes or unnecessary hardships that
prevent compliance with the riparian buffer protection requirements.

4
In its assessment of whether the Applicant made a showing of "practical difficulties or
unnecessary hardships," the Commission considered the following factors.
0) There are practical dijficulties 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 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 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, 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 ofthis 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.
15A NCAC 02B.0233 (9)(a)
The Commission determines there are "practical difficulties or unnecessary hardships"
preventing compliance with the strict letter of the riparian buffer protection requirements;
however,
A. The applicant can make reasonable use of his property without the additional
impacts from constructing five additional decks. While the applicant would not
be able to build five open -air decks without these additional impacts, two units

5
have open -air decks and each unit has a ground level screened porch with optional
second and third floor decks.
B. The hardship results from the application of this Rule rather than other factors.
Application of the buffer rule does not prevent the applicant from providing
ADA- accessible, outdoor recreational area.
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, approximately
two - thirds of the property is located outside the buffer. The hardship was created
by planning seven townhouse units situated at the edge of and within Zone 2 of
the buffer and then requesting a major variance from the rule.
D. The applicant did not cause the hardship by knowingly or unknowingly violating
this Rule.
E. The applicant purchased the property on May 20, 2003, which is after the
effective date of this Rule. The lot was plated and recorded on August 20, 1997,
which is approximately one month after the effective date of the rule.
F. The hardship is not unique to the applicant's property in that adjacent properties
are of similar size and also contain buffer adjacent to Smith Creek.
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 it meets the second
factor required under 15A NCAC 02B .0233(9)(a)(ii). Specifically, the purpose of the riparian
buffer rules is to protect existing riparian buffer areas. The applicant could utilize the
townhomes without additional impacts to the riparian buffer. 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 it meets the third
factor required under i SA NCAC 02B .0233. Specifically, the Applicant purchased his property
along Smith Creek, a tributary to the Neuse River, after the effective date of the Neuse River
Riparian Buffer Rules, and the Applicant should have been aware of the limitations those rules

0
placed on activities within the riparian buffer of the Project at the time of his purchase of the
property. Although the applicant proposed to discharge gutter downspouts outside the buffer, the
applicant reports that area to provide stormwater treatment from these gutters is not available on
the property. The applicant has failed to establish that, if granted a variance, he can protect water
quality as it is protected by strict application of the Neuse River Riparian Buffer Rules. Further,
the applicant has failed to establish that allowing placement of the decks within the riparian
buffer would provide substantial justice because other property owners have been required to
comply with the rules. The hardship for the applicant is unique to the applicant's property, rather
than the result of conditions that are widespread or common to other property owners subject to
the Neuse River Riparian Buffer Rules. if other properties are not equally subject to the hardship
created in the restriction, then granting a variance to the applicant could be deemed a special
privilege to the applicant denied to others, and this would not promote substantial justice.
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 DENIED.
This is thef �y of June 2015.
ENVIRONMENTAL MANAGEMENT COMMISSION
Cdr+►" � v "" t'"
Gerard P. Carroll, Chairman

7
CERTIFICATE OF SERVICE
This is to certify that 1 have this day served the foregoing Decision Denying Major
Variance upon the Applicant and the Division of Water Resources in the manner described
below as follows:
Gwinn O. Hedrick, Registered Agent
Riverwinds Condominiums, LLC
401 Vandemere Street
Oriental, NC 28571
Gwinn Hedrick
Riverwinds Condominiums, LLC
236 Blackwell Point Loop Road
Oriental, NC 28571
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 they of June 2015.
Certified MaW Return Receipt Requested
Regular U.S. Mail
E -mail: Jennifer, Burdette a,nedenr.j�ov
E -mail: Karen. Hij�v-ins azcdenr.P-ov
ROY COOPER
Attorney General
1
i,�
/ ennie Wilhelm Hauser
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602