20110410 Ver 2_More Info Received_20150713

ei
Mairs, Robb L
From: Mathis, Stonewall D
Sent: Monday, July 13, 2015 11:19 AM
To: Mairs, Robb L
Cc: Law, Anthony W, Ray, Carl E; Thompson, Hugh; Collette, Karen E:, McCracken, Marty,
Hughes, Benjamin T; Mathis, Stonewall D
Subject: RE: Application for CAMA Major Permit, 202 Summer Rest Road, Wilmington, NC
Attachments: img- 713112130- 0001.pdf, img- 713112204- 0001.pdf
Hey Robb,
I am in receipt of the attached package (comprised of the two attachments to this email).
The Department's comments remain the same as stated in the May 26th email response below from Ben Hughes.
Thank you,
Stonewall Mathis
From: Hughes, Benjamin T
Sent: Tuesday, July 07, 2015 2:29 PM
To: Mairs, Robb L
Cc: Law, Anthony W; Ray, Carl E; Thompson, Hugh; Mathis, Stonewall D; Collette, Karen E.; McCracken, Marty
Subject: FW: Application for CAMA Major Permit, 202 Summer Rest Road, Wilmington, NC
Robb,
We've received the following re- submittal for comment (attachment 201507071410.pdf).
The Departments comments remain the same as stated in my May 26th email response below.
Thank you,
Benjamin To Hughes, PE
Senior Assistant District Engineer
North Carolina Department of Transportation
300 Division Drive, Wilmington, NC 28401
Office: (910) 251 -2655
From: Hughes, Benjamin T
Sent: Tuesday, May 26, 2015 1:29 PM
To: 'hairs, Robb L'
Cc: Anthony Law (alaw @ncdot.aov); Ray, Carl E; Thompson, Hugh; Mathis, Stonewall D
Subject: Application for CAMA Major Permit, 202 Summer Rest Road, Wilmington, NC
Mr. Mairs,
For the subject permit and request for comments (attachment 201505111120.pdp, the Department maintains that right
of way width of 150' projects over the AIWW and reiterates our previous comment that no encumbrances be allowed
within. Supporting documentation attached.

Please feel free to contact me if you have any questions.
Thank you,
Benjamin T. Hughes, PE
Senior Assistant District Engineer
North Carolina Department of Transportation
300 Division Drive, Wilmington, NC 28401
Office; (910) 251 -2655
Email correspondence to and from this sender is subject to the N.0 Public Records Law and may be disclosed to third parties.

ATTORNEYS AT LAW
POST OFFICE BOX 1049
WILMINGTON, NORTH CAROLINA 28402 -1049
Join. C. WESSELL, III
[e-mail]
W1LL7Am A. RANEY, JR.
[e-mail]
July 2, 2015
Mr. Braxton Davis
400 Commerce Avenue
Morehead City, NC 28557
Mr. Doug Huggett
400 Commerce Avenue
Morehead City, NC 28557
Mr. Robb Mairs
127 Cardinal Dr. Ext.
Wilmington, NC 28405
Re: CAMA Major Permit Application
Bailey & Associates, Inc., Applicant
Grandview Community Marina
202 Summer Rest Road
Dear Messers Davis, Huggett and Mairs:
STREET ADDRESS:
107 -8 NORTH 2� STREET
WILMINGTON, NC 28401
TELEPHONE: [phone]
FACSIMILE: 910 - 762 -7557
We represent the Town of Wrightsville Beach ( "Town "). This letter is written to express the
objection of the Town to issuance of a CAMA Major Development Permit to Bailey & Associates, Inc.
for a proposed marina project called Grand View Community Marina at 202 Summer Rest Road,
Wilmington, NC. The application is dated June 8, 2015. The cover letter with the application is dated
June 9, 2015. The application provided to the Town by the applicant contains copies of letters to adjacent
riparian owners dated June 18, 2015.
The Town is adamantly opposed to issuance of a permit for this proposed project. The Town's
opposition has been expressed several times in the past when other proposals have been made for changes
to the existing facilities at this site. The Town's opposition is based primarily on the fact that the
proposed facilities are located on, over and around the Town -owned sanitary sewer force main which
carries all of the raw sewage from the Town to a wastewater treatment plant on the mainland owned and
operated by the Cape Fear Public Utility Authority. The sewer line is known as the Northeast Interceptor
or NEI.
The Town commented on a prior proposal by the applicant in a letter dated October 1, 2008.
Excerpts from that letter are as follows: RECEIVED
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July 2, 2015
Page 2
111. Unreasonable danger to Town of Wrightsville Reach server line -
There is a main sewer line known as the Northeast Interceptor which carries all
of the sanitary sewage from the Town of Wrightsville Beach to a regional
wastewater treatment) plant. If this line were to be damaged during pier
construction, pier maintenance, dredging or operation of vessels, the damage to
public health and the environment would be catastrophic. The plan discloses
many reasons why this concern is real and immediate.
1.3. Maintenance — The need to periodically maintain, repair or
replace the sewer line I will be made impossible by the existence of the pier and
docks.
1.4 Em I rgency Repairs — The need .f or emergency repairs g Y is even
more problematic as every minute that repairs are delayed could result in
hundreds of gallons of I raw sewage entering the water. Removal of the vessels
and structures would surely take hours to accomplish before repairs could begin.
Recent experience with other portions of the Northeast Interceptor sewer line in
the vicinity of Hewlett's Creek shows that sewer lines of this vintage have a real
possibility of failure.
2. Violation of Town's easement rights - The Town obtained an easement
from the State of North Carolina to locate this sewer line on state owned
submerged lands. The Town also acquired a CAMA Major Permit with renewals
and modifications for installing the sewer line...
The permit a li I tion in paragraph X.D. indicates that all work was to
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be done in DOT right -of -Tway and waters owned by the State of North Carolina.
The current application of Bailey & Associates shows that the sewer line crosses
the high water mark at a, point on the DOT right -of way. The sewer line then
proceeds into the riparian area of the DOT-right-of-way property. The DOT
(State of North Carolina,) Iriparian area is established by extending the riparian
line from the high water mark perpendicular to the channel of Motts Creek.
The easement from Me State of North Carolina to the Town of Wrightsville
Beach gives the Town property rights in the area over which the pier[is] built. It
is fundamental real estate law that the owner of the land over which an easement
is granted cannot "use his land in such a way as to obstruct or interfere with the
exercise of the easement or inconsistent with its purposes... ". Webster's Real
Estate Law in North Carolina, 5`h Edition, Hedrick & McLaughlin, x'15.23. The
construction of piers and docks within the easement granted by the State of North
Carolina to the Town of Wrightsville Beach obstructs and interferes with the
Town's exercise of its easement rights and should not be allowed. "
(copy of 2008 letter is enclosed) ; �GrIVED
sD At I! E� 11NGTr }iii, 1Rsb'
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July 2, 2015
Page 3
The Town would like to elaborate on those objections and draw attention to certain rules and legal
principles that the Town believes require denial of the application.
The principal objections relate to property rights and public safety and can be summarized as
follows:
1. The applicant is proposing to do work in a riparian area to which it has no rights.
2. The applicant is infringing on the easement rights granted by the State of North Carolina to
the Town for construction of the NEI.
3. The construction and use of the marina will increase the risk of damage to the sewer line
and the existence of the pier and dock and docked vessels will delay emergency response to a catastrophic
spill caused by damage or normal deterioration.
The Town would like to supplement its prior comments regarding riparian area and easement
rights as follows:
Riparian Area
The applicant's ownership extends only to the mean high water line. A Declaration of Final
Resolution of Claim to Submerged Land recorded in Book 2317 at Page 398 of the New Hanover County
Registry denies the applicant's claim to any areas below mean high water. At the eastern end of the
applicant's property where applicant's property line intersects the North Carolina DOT right of way
property line the applicant's shoreline faces Motts Creek. A line perpendicular to Motts Creek channel is
the appropriate delineation of the riparian area allocated to the applicant. The issuance of prior permits
and permit modifications allowing construction of a pier and docks in the NCDOT riparian area were
made in error. This error should not be compounded by a significant enlargement of these structures and
the allowance of dredging in areas that are not within the applicants riparian corridor.
Encroachment on Town Easement
The Town was granted an easement by the State of North Carolina "to construct, install, improve,
replace, inspect, repair and maintain a sanitary sewer pipeline" as depicted on drawings attached to the
easement. The easement was approved by the Governor and Council of State on May 4, 1982 and signed
by the Governor on May 27, 1982.
This easement grants rights that are superior to any rights purportedly conferred by a CAMA
Permit for construction of a pier and docks in the same location. The State has no right to grant an
easement or other authorization for any person to utilize the same easement area already conveyed to the
Town if the additional use impairs the authorized use by the Town. (See US v. Seagate, Inc., 397 F Supp.
1351 (EDNC 1975). An owner can grant easements to third parties allowing third parties to use an
easement area previously granted, but only if "such additional easements do not unreasonably interfere
with the original easement holders usage of the original easement." Webster's Real Estate Law in North
p �.GEiutir ;.
i;

July 2, 2015
Page 4
Carolina. 6"' edition, Section 15.23. The location of pier and dock structures within the Town's easement
constitutes an unreasonable interference with the Town's right to construct, maintain and repair its sewer
line.
In addition, the Town asks that DCM carefully consider the following CRC rules that the Town
believes require denial of the permit application:
7H.0207(c) & (d)
7H.0208(a)(2)(G)
7H.0208(b)(5)(A)
7H.0208(b)(5)(D)
7H.0208(b)(5)(F)
7H.0208(b)(5)(H)
7H.0208 (b)(6)(G)(ii)
7H.0208(b)(6)(I)
The Town would welcome the opportunity to discuss these concerns with appropriate
representatives of DCM. Thank you for your consideration of these comments.
Yours very truly,
WESSELL & RANEY, L.L.P.
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JohnWessell, III
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