20120399 Ver 2_WQC or EMC Recommendation_20150513 (20)

+r • North Carolina Department of Environment and Natural Resourcl
NCDENR
Pat McCrory Donald R. vary der Vert
Governor Secretary
Request for Major Variance from the
Neuse River Riparian Area Protection Rules
Gwinn Hedrick
Riverwinds Condominiums, LLC
236 Blackwell Point Loop Road
Oriental, NC
May 13, 2015
Gwinn Hedrick has requested the Water Quality Committee (WQC) to grant a Major Variance from the
Neuse Riparian Area Protection Rules (15A NCAC 02B .0233) to obtain approval for construction of decks
on five units of Riverwinds Townhomes at 236 Blackwell Point Loop Road, Oriental, NC. The proposed
decks would impact 509 square feet of Zone 1 and 931 square feet of Zone 2 of the buffer.
Accordingly, pursuant to 15A NCAC 02B .0233 (9)(c), the Division of Water Resources makes the
preliminary finding that the major variance request demonstrates the following:
® Practical difficulties or unnecessary hardships are not present;
The harmony and spirit of buffer protection requirements are not met; and
The protection of water quality and substantial justice has not been achieved as required in 15A
NCAC 02B.0233 (9)(a).
15A NCAC 02B .0233 (9)(a)(i) states the following:
"There are not practical difficulties 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 purchase the property after the effective date of this Rule, and then
request an appeal.
E. 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
1617 Mail Smice Center, Raleigh, Noah Carolina 2769 9 -161'7 One
Location: 512 N. Salisbury St. RaEeigh, Nor# Carolina 27604 NofthCarofitiat
Phone: 9113 - 807..63001 FAK 919447 -6492 Aaturallw
Internet www.newaterrlual €ty org

5winnnedhck
236 Blackwell Point Loop Road
Majn,vaxanceRequeu- mwnpindimgsnfpact
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restriction, then granting o variance would beospecial privilege denied to others, and would
not promote equal justice,"
The Division finds the following:
There are practical difficulties that prevent compliance with the strict letter of the riparian
buffer protection requirements:
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 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 such as
deed restrictions or other factors. Application of the buffer rule does not prevent the
applicant from providingADA-accessib|e, outdoor recreational area.
C. The hardship is not due to the physical nature of the applicant's property. Although
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
E. The applicant purchased the property on May 2D,2003 which is after the effective date
nf this Rule. The lot was platted and recorded on August 2O,1997, which is
approximately one year after the effective date of the rule.
F. The hardship is not unique tothe applicant's property in that adjacent properties are of
similar size and also contain buffer adjacent tn Smith Creek.
"The variance is in harmony with the general purpose and intent of the State's riparian buffer protection
requirements and preserves its spir¢'"
The Division finds the following:
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 construction of
decks 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,
"In granting the variance, the public safety and welfare have been assured, water quality has been
protected, and substantial justice has been dme."
The Division finds the following:
The variance would not assure the public welfare, protect water quality and ensure substantial justice
has been done. Although the applicant proposed to discharge gutter downspouts outside the buffer,
the applicant reports that area to provide stormwoter treatment isnot available on the property, The
applicant has failed to establish that a variance for the proposed decks would assure the public welfare
and protect water quality as it is protected by strict application of the Neuse River Riparian Area
Protection Rules. Further, the applicant failed to establish that allowing placement of the decks within

Gwinn Hedrick
236 Blackwell Point Loop Road
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the riparian buffer would provide substantial justice when other property owners have been required to
comply with the rules.
This Major Variance as proposed is inconsistent with Major Variance approvals from the Water Quality
Committee.
Division of Water Resources' Recommendation:
Based on the information submitted, the Division of Water Resources does not sUpport this request for
a Major Variance from the Neuse Riparian Area Protection Rules because practical difficulties or
unnecessary hardships have not been demonstrated; the harmony and spirit of buffer protection
requirements have not been met; and the protection of water quality and substantial justice has not
been achieved as required in15ANCACO28.O233(9)/a\. |f the Water Quality Committee approves this
request for a Major Variance from the Neuse Riparian Area Protection Rules, the Division recommends
the following conditions [pursuant to 15A NCAC 02B .0233 (9)(c)(ii)].
Mitigation
�
The applicant shall provide mitigation for the proposed impacts by purchasing 2,924
square feet of buffer credits from the EBX Neuse Riparian Buffer Umbrella Mitigation
Bank as indicated in their application.
Stormwater Management Plan
=
The applicant shall direct roof drainage from Unit #3 through #7 to outlet in a vegetated
area outside the buffer