20150187 Ver 1_EMC Major Variance_20150807

Strickland, Bev
From:
Shaw, Denise <Mshaw @ncdoj.gov>
Sent:
Friday, August 07, 2015 1:53 PM
To:
gpcemc @gmail.com; stevewtedder @gmail.com; Zimmerman, Jay; Burdette, Jennifer a;
Thomas, Lois; Weaver, Adriene; Higgins, Karen
Cc:
Hauser, Jennie; Shaw, Denise
Subject:
EMC Major Variance Request by Mohamed Ali and Reem T. Darar for Tar - Pamlico
River Riparian Area
Attachments:
2015- 08- 07_EMC Major Variance Request Ltr_Mohamed Ali and Reem T. Darar.pdf,
2015- 08- 07_EMC Major Variance Request Final Decision-Mohamed Ali and Reem T.
Darar.pdf
Attached is an electronic copy of the Cover Letter and EMC Final Decision which our office forwarded by US Mail
today. Please let Jennie Hauser know if you have any difficulty opening the attachments. Thank you

ROY COOPEP,
ATTORNEY GENERAL
Mohamed Ali Darar
Reem T. Darar
1205 Kinsdale Drive
Raleigh, NC 27615
t_
STATE OF NORTH CAROLINA
DEPARTMENT OF JUSTICE
11.0. Box 629
RALEIGH, NC 27602
August 7, 2015
REPLY TO: JENNIE WILHELM HAUSER
ENMONMENTAI. Dn'ISION
TE.L: (919) 716 -6962
PAX: (919) 716 -6767
[e-mail]
Certified Mail/ Return Receipt Reauested
Re: Final Decision Granting Variance with conditions
Dear Mr and Mrs. Darar:
At its July 8, 2015 meeting, the Water Quality Committee of the Environmental
Management Commission granted your request for a variance with conditions. Attached is a
copy of the Final Agency Decision. If for some reason 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 superior court of the county in which you reside 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:
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.
Sincerely,
Jennie Wilhelm Hauser
Special Deputy Attorney General and
Counsel for the Environmental Management Commission

[Insert name]
[insert date]
Page 2
cc: w/ encl.: Gerard P. Carroll, Chair of the Commission, electronically
Steve Tedder, Chair of the WQC, electronically
Jay Zimmerman, Director, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically
Lois Thomas, recording secretary for Commission, electronically
Adriene Weaver, Environmental Specialist, electronically

STATE OF NORTH CAROLINA
COUNTY OF BEAUFORT
IN THE MATTER OF:
PETITION FOR VARIANCE FROM
15A NCAC 2B.0259
TAR - PAMLICO RIVER RIPARIAN
AREA PROTECTION RULES BY
MOHAMED ALI DARAR and
REEM T. DARAR
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION GRANTING
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 rules. This matter came before the Water Quality
Committee at its meeting on July 8, 2015, in Raleigh, North Carolina upon Mohamed Ali Darar
and Reem T. Darar's (the Applicants') request, pursuant to 15A NCAC 02B .0259, for approval
of a major variance from the Tar - Pamlico River Riparian Area Protection Rule to allow
development to be located within the riparian buffer at 734 Old Pamlico Beach Road in
Belhaven, NC. Commission member Kevin C. Martin was recused from the deliberation on and
decision of this matter.
Jennifer Burdette, the 401 Buffer Coordinator for the 401 and Buffer Permitting Unit of
the Division of Water Resources, presented the request for a major variance to the Water Quality
Committee. Based on the information provided by the Applicants, the Division of Water
Resources (DWR) supported the request for a major variance with conditions.

VA
Upon consideration of the record documents, the request and the staff recommendation,
and based upon the Water Quality Committee's decision to grant the variance request with
conditions, the Commission hereby makes the following:
FINDING OF FACTS
1. The Applicants own the .028 acre property at 734 Old Pamlico Beach Road,
Belhaven, North Carolina, which property is bordered by the Pamlico River (the Site).
2. The property was purchased September 27, 2013, after the effective date of the
Tar - Pamlico Riparian Area Protection Rule.
3. The Applicants have requested a major variance from the Tar - Pamlico Riparian
Area Protection Rule (15A NCAC 02B .0259) for the sunroom addition and deck constructed at
their single - family residence. Work on the addition and deck began in the fall of 2013 and
progressed until the owner was informed of the 50 -foot Tar - Pamlico Buffer by DWR regional
staff.
4. The DWR issued the Applicants a Notice of Deficiency on January 15, 2014,
when the addition was found within the buffer. The Applicants reported stopping their
development activity at that time. The development has impacted 587 square feet of Zone 1 of
the buffer.
5. The variance request indicates that the Applicants will not be able to complete the
expansion on their residence without the variance.
6. In support of this variance request, the Applicants have agreed to provide
mitigation for the proposed impact by purchasing buffer credits from the NC Division of
Mitigation Services (formerly the Ecosystem Enhancement Program (EEP)), to maintain diffuse

3
flow of stormwater from the proposed sunroom and deck to be constructed on the existing
footprint, and to increase stormwater infiltration.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
1. The Site owned by the Applicants 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.
15A NCAC 2B .0259(9)(a).
4. The Commission determines the following:
First Factor: There are practical difficulties or unnecessary hardships that prevent
compliance with the riparian buffer protection requirements.
In its assessment of whether the Applicants made a showing of "practical difficulties or
unnecessary hardships," the Commission considered the following factors.

4
A. I 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 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. Y 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 .0259(9)(a)(i).
The Commission determines that the Applicants have made the required showing that
there are "practical difficulties or unnecessary hardships" preventing compliance with the
riparian buffer protection requirements. Specifically,
A. The Applicants were unaware of the Tar - Pamlico Riparian Buffer Rule, and
the sunroom addition and deck were constructed partially over an existing
concrete patio and over the location of a former deck. The Division believes
that the applicants could make reasonable use of their property without the
additional impacts to the protected riparian buffer; however, the Applicants
would not be able to construct any structure that would provide views of the
water without impacting Zone 1 of the buffer.
B. The hardship results both from the application of this Rule and other factors.
In addition to the protected riparian buffer, the building envelope on this lot

5
is further restricted by the requirement that Applicants reserve an area on the
property for a septic repair system.
C. The hardship is due to the physical nature of the Applicants' property. The
lot has a riparian buffer on two sides. The home was in existence prior to the
effective date of the buffer rule, and any additions made to the home on the
south and east sides would be within the buffer. The repair area for the
septic system prevents construction of an addition to the west side of the
home. These constraints are different from those applicable to most of the
surrounding properties.
D. The Applicants unknowingly violated this Rule. The Applicants purchased
the property on September 27, 2013. Work on the addition and deck began
in the fall of 2013 and progressed until the Applicants were informed of the
50 -foot Tar- Pamlico Buffer by Division's regional staff.
E. The Applicants purchased the property on September 27, 2013, after the
effective date of this Rule.
F. The hardship is unique to the Applicants' property in that (1) the existing
residence was constructed prior to the effective date of the Rule; (2) two
sides of the property are within the buffer for the Pamlico River; and (3) the
location of the new addition and deck included a portion of an existing
impervious patio area, a former deck, and a heavily trafficked lawn area.
Such conditions do not exist on every property subject to the Rule.
Second Factor: The variance is 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 Applicants have demonstrated they meet 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. Although the Applicants are currently
making reasonable use of their property, they will not be able to construct any structure that
would provide views of the water without impacting Zone 1 of the buffer.

R
Applicants are proposing to purchase 1760 buffer mitigation credits from the NC
Division of Mitigation Services (formerly the Ecosystem Enhancement Program (EEP) and to
maintain diffuse flow on the property. Allowing the proposed development by granting the
request for a major variance under these conditions is in harmony with the general purpose and
intent of the riparian buffer protection rules and preserves their spirit.
Third Factor: The variance would assure the public welfare, protect water quality, and
ensure substantial justice has been done.
The Commission determines that the Applicants have demonstrated they meet the third
factor required under 15A NCAC 02B .0259. Specifically, the Applicants are proposing to
purchase 1760 buffer mitigation credits and to maintain diffuse flow on the property. Under
these conditions, the Applicants have established that water quality will be protected and
substantial justice will be done.
71_O_.
Based on the Findings of Fact and Conclusions of Law set forth above, IT IS HEREBY
ORDERED that the request for the variance is GRANTED with the conditions that Mohamed
Ali Darar and Reem T. Darar purchase 1760 buffer credits from NC Division of Mitigation
Services (formerly NC Ecosystem Enhancement Program) and ensure that all stormwater from
both the existing home and the addition shall be discharged as diffuse flow.
This is the 7th day of August 2015.
ENVIRONMENTAL MANAGEMENT COMMISSION
6e-4-� "PC,
6I
Gerard P. Carroll, Chairman

7
CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon the Applicant and the Division of Water Resources in the manner described
below as follows:
Mohamed Ali Darar and Reem T. Darar
1205 Kinsdale Drive
Raleigh, NC 27615
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 7`h day of August 2015.
Certified Mail/Return Receipt Requested
E -mail: Jennifer.Burdette(a),ncdenr.gov
E-mail: Karen. Hi uins(ibmcdenr. vzov
ROY COOPER
Attorney General
Jennie Wilhelm Hauser
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602