20230228 Ver 1_Response letter from W Carey Parker - Lawyer of The McClellands_20231002 (2)

HARBINSON
Statesville Office:
224 Davie Avenue
Statesville, NC 28677
[phone]
PARKER
To: North Carolina Department of Environmental Quality
Division of Water Resources
512 North Salisbury St.
1617 Mail Service Center
Raleigh, NC 27699-1617
Subject: NOV 2023-PC-0397
Project # 2023-228
McClelland Shoreline
201 Keats Rd, Mooresville, Iredell Co., NC
Dear Mr. Pitner,
Taylorsville Office:
PO Box 400
70 East Main Ave
Taylorsville, NC 28681
[phone]
I am writing on behalf of Mr. and Mrs. McClelland, who have retained me to assist them with this
matter. Below, I have addressed the required responses to your letter and Notice of Violation dated July
28, 2023. This matter has arisen as a shock to Mr. and Mrs. McClelland who relied upon their contractor,
Lancaster Custom Dock and Lift Systems, Inc. ("Lancaster") for their shoreline project. Mr. and Mrs.
McClelland were, unfortunately, not aware of the possibility of violations because of assurances they were
given by Lancaster. That said, they believe that the activities that are described as violations in the NOV
were or should have been authorized. However, Mr. and Mrs. McClelland intend to restore some of the
vegetation removal and otherwise are requesting a modification of their buffer authorization.
Required responses:
1. The site is stabilized with appropriate erosion and sediment control measures per our contractor
Lancaster Custom Dock & Lift Systems, Inc. (Lancasters).
2. Explanation of Impacts
a. Impacts occurred as explained by Lancasters in an email exchange with DEQ,
Environmental Specialist, Amie Hoy on June 28, 2023 (see attached hereto).
b. Tree removal that occurred on the property was necessary due to the condition of the
trees and in compliance with Shoreline Management Guidelines and 15A N.C.A.C.
2B.0614(10) Table of Uses subparts (h), (r), (aa), and (ss). See letters attached from
Nicholas Tropeano, Carolina Grading Services, and RJ Kearey.
c. Riprap and Catawba Sand fill impacting the Riparian Buffer was submitted by Lancaster in
its application to DEQ on February 9, 2023, and subsequently approved by DEQ on March
08, 2023. On Page 2 of 2 of the exhibits submitted by Lancaster there are both a digital
drawing and a hand drawing that show the diagonal portion of the riprap and Catawba
Sand fill that was applied to the project. (See attached p 2 of 2). These riparian buffer

modifications were clearly submitted as part of the application and were subsequently
approved.
3. See below request for modification to the Buffer Authorization DWR#20230228
4. See proposed Restoration plan below.
Request to Modify Buffer Authorization
As stated above, Mr. and Mrs. McClelland believe that all modifications to the riparian buffer had
been submitted by their contractor to DE Q and were approved. Mr. and Mrs. McClelland assert that all
riparian buffer modifications on their project comply with 15A N.C.A.C. 2B.0614(10) Table of Uses as
"Allowable Upon Authorization." Mr. and Mrs. McClelland request to modify the buffer authorization such
thattheir project is in compliance. Additionally, Mr. and Mrs. McClelland submit that they intend to comply
with the alternative proposal to restore impact as set forth below.
Alternatively— Proposal To Restore Impact
1. Restoration plan includes:
a. Planting 10 native shrubs in Zone 2 properly disbursed throughout the buffer.
b. Grading will not be applicable if modification is granted. Existing riprap and Catawba sand
will remain in place.
c. Restoration will begin in November or December of 2023 during the ideal planting period
for native shrubs.
d. Mr. and Mrs. McClelland will provide annual updates in 2024 and 2025 for the impact
restoration.
Thank you for your consideration of this letter and these proposed solutions to the issues related to the
Riparian Buffer and Surface Waters. Mr. and Mrs. McClelland, while they relied an their contractor for the
prior approval, are eager to address these issues and look forward to working with DEQ for a resolution.
By: Harbinson Parker
Attorneys for the McClelland's
W. Carey Parke

EXHIBIT
Prom: Mark Lancaster Inner:istc.,rclocl<[e-mail]
subject: Re: [External] Mcclelland / 201 Keats rd
Date: Jul 6, 2023 at 4:02:43 PM
To: John McClelland johri.nu:cic-�[e-mail], Amie Hoy
ami(.,.hoy@)decI.nr,.gav
Hello Amie
I know you're swamped. I can only imagine. If you could follow back up with me I
would really appreciate it. My number is .[phone].
Thank you, Mark
Sent from my iPhone
On Jun 30, 2023, at_12:42 PM, Mark Lancaster <Iancasterdock2@-is d.com>
wrote:
Read her response and call me at your convenience
Sent from my iPhone
Begin forwarded message:
From: "Hoy, Arnie" < e. oy@-d .nc.gov>
Date: June 30, 2023 at 12:02:56 PM EDT
To: Mark Lancaster <[e-mail]>
Subject: RE: [External] Mcclelland / 201 Keats rd
Mark,
Thank you for your patience as I have been in the field. I received your phone
calls and email below. Per the buffer rules and the document that you and the
land owner John McClelland signed (attached), "Beaches, impervious patios,
impervious walkways, etc. are not allowed in the buffer unless specifically
approved by the Division" No beaches are to be constructed or new sand (fill)
material in the buffer area. Your shoreline application did not include any

beaches within your sketch and therefore was not approved. No material should
be staged In the buffer area as well. According to pictures in your application
prior to site disturbance, it also seems as though grubbing was done all
throughout the buffer area and trees have been removed. If you had prior
authorization to remove those trees, please provide that to me as I do not have
documentation for the tree removal.
Please see the attached ruled at this link http://reports.oah.state.nc.us/ncac/
title%2015a%20-%20environmental%20quality/chapter%2002%20-
%20environmental%20management/subchapter%20b/
15a%20ncac%2002b%20.0614.pdf. ttp�//reports.oah.state.nc.us/ncac/
title%2015a%20-%20environmental%20quality/chapter%2002%20-
%20environmenta1%20management/3ubchapt r%20b
15a%20ncac%2002b%20.0614.pdf.
As for Catawba Creek sand, I can not speak for Duke Lake Services, but no sand,
including 'Catawba Creek' sand is allowed in the buffer area, that is from the 760'
contour landward 50'. 1 have reached out to Duke regarding this matter and will
follow up when I hear from them.
Best,
Amie Hoy
Environmental Specialist II
Division of Water Resources
Office: 704-235-2200 1 Cell: 984-789-0173
DWR website: ttp�//www.-Qq.nc.gov/about/divisions ater-resources

-----Original Message -----
From: Mark Lancaster <[e-mail]>
Sent: Wednesday, June 28, 2023 8:2C .AM
To: Hoy, Amie <a ie. oydW.nc.gov>
Subject: [External] Mcclelland / 201 Keats rd
CAUTION: External email. Do not click links or open attachments unless verified.
Report suspicious emails with the Report Message button located on your
Outlook menu bar on the Home tab.
Amie , good morning I understand you came by and said you were issuing a
violation for me putting catawba creek sand on this job. Please give me a call at
(704) 361-4g08 to discuss. We have been putting catawba creek sand in the
buffer if there was already natural sand in that area. Where we put it. I've been
told and allowed by Ncdenr and Duke. We were told as long as it's "native"
Catawba creek sand it was ok but not white imported sand. I would really
appreciate if you would give me a call to discuss if this has changed. I've been
working on this catawba river basin for thirty seven years and I've not had a
violation for this ever.
Thank you,Mark Lancaster
Sent from my iPhone
Email correspondence to and from this address may be subject to the North
Carolina Public Records Law and may be disclosed to third parties by an
authorized state official.
<Catawba Riparian Buffer Notification-signed.pdf>

EXHIBIT
August 16, 2023
North Carolina Department of Environmental Quality
512 North Salisbury Street
Raleigh, NC
27699
Re: NOV-2023-PC-0397
To Whom It May Concern:
In early 2022 our company was contracted to do lot clearing and grading at 201 Keats Road
Mooresville, NC 28117. As part of this work, we were asked to remove two trees near the brick
wall along the lake side of the lot. These two trees were, in our professional opinion, diseased
and dying.
On the east side of the southern tree there were open and exposed cavities at the ground level
and at about 8 feet up the tree. As we removed the tree, we noted that the cavities extended
up from ground level of the tree to about 10' high or higher.
The northern tree consisted of a single base which had three trunks extending from it. These
trunks joined with each other at about 6 feet from the ground at which point there was an open
cavity that extended down into the base. This cavity would allow for continued weakening of
the 3 trunks as was not repairable.
Both trees were approximately 80 feet tall and, due to their location, would have caused
significant damage to either the dock (30 feet away), house (45 feet away), detached garage (65
feet away) or swimming pool (25 feet away) if they were to have fallen.
We believe that it was necessary to remove these trees for the safety of the property, structures
and inhabitants.
Regards,
X7�`���Gril��'1/J
Carolina Grading Services

EXHIBIT
August 16, 2023
North Carolina Department of Environmental Quality
512 North Salisbury Street
Raleigh, NC
27699
Re: NOV-2023-PC-0397
To Whom It May Concern:
Our company, RJ Kearey Construction, has been hired by John & Debbie McClelland to serve as
the General Contractor for their new home build at 201 Keats Road.
As part of our work, it was necessary to prepare the lot for the build. As we were doing the
grading and lot preparation, we noticed there were two trees near the brick wall along the lake
side of the lot that were in poor condition. This observation is based on our 20+years of
experience as a General Contractor with both residential and commercial properties. Both trees
had exposed holes / rot and were dead, diseased and/or dying. The condition of these trees
significantly compromised their strength.
Due to the size of these trees (approximately 80 feet tall) and their proximity to various
structures (the dock is 30 feet away, house is 45 feet away, detached garage is 65 feet away and
swimming pool is 25 feet away) it is our professional opinion that these trees constituted a
hazard to the property, structures and inhabitants.
We believe that it was necessary to remove these trees for the safety of the property, structures
and inhabitants.
Regards,
RJ Kearey Construction

NICHOLAS TROPEANO
LANDSCAPE ARCHITECTURE
August 30, 2023
Mrs. Amie Hoy
Environmental Specialist at the
North Carolina Department of Environmental Quality
[e-mail]
[phone]
610 East Center Avenue,
Suite 301
Mooresville, North Carolina
Re: Tree Review Post Removal
John McClelland
201 Keats Road
Mooresville, North Carolina, Iredell County
Hello Mrs. Hoy,
At the request of the land owner, I have enclosed a letter commenting on the two trees
removed from the site/ lake buffer prior to my review and recommendations.
Trees Evaluated:
A. 20" DBH Tulip
a. Condition— Poor. Large cavity at the tree base/root flare. Approximately only 10-15%
of tree diameter has live tissue visible/present from cavity. Tree is, hollow at base.
Removal has been accomplished and I concur with the removal given the amount of
decay and proximity of dock and dwelling under construction.
B. 14" DBH Triple Oak
a. Condition —Poor. Poor branch union of the three large leaders. Bark tissue was not
compartmentalizing and would continue to decline. Removal would have been
recommended due to proximity of dock and dwelling.
Site Conditions:
The site is located on Lake Norman with the noted trees being within the buffer. The lot owner has
started construction on the approved dwelling and is concerned with the proximity to the trees given
the health and condition he observed. Additionally, with the dwelling and dock, the associated activities
create a safety issue with the trees noted above being within the fall zone.
531 Brentwood Road, PMB 126, Denver, North Carolina 25037
[phone] [e-mail]

Inspection / Evaluation Conducted:
A visual assessment based on site photos was conducted on the tree listed above. It is possible, the tree
may pose a risk to persons or property according to the most recent methodology approved by the
International Society of Arboriculture.
Many trees contain defects that are internal and cannot be seen or are hidden from aground level view.
No exploratory investigation nor aerial inspection was conducted as part of this assessment.
This report may include some options for mitigating risk, not eliminating risk. All management
recommendations are based on and should follow the industry standard ANSI A300 and Best
Management Practices published by the International Society of Arboriculture. The decision to exercise
these options (maintenance, ongoing inspections, prohibiting access around the tree and removal) is the
owners. The only way to eliminate all risk is to remove the tree entirely. Retaining and managing
mature trees are often desirable when the risks involved are acceptable. Any decision to mitigate risk
should consider the benefits provided by the tree, cost involved to maintain the tree and the degree of
risk you are willing to accept.
Management:
Those trees to remain shall be continual monitored, primarily for safety concerns, and is essential and
the tree owners shall be vigilant to maintain a "duty of care" until any concerning tree(s) is removed.
After significant wind loading, it is recommended a visual observation be performed.
Summary:
The dead trees noted above shall be removed as there is an inherent risk of trees failing and falling on
the present dock and people at the dock area. The remaining trees will pose a risk to the future dock.
Shoreline stabilization will be proposed soon and working in the area of the existing dead trees will to
pose a safety risk to those working in the fall zone.
Recommendations:
1. Plant (2) native tree species with a 3" caliper and at least 10' within the 30' Catawba River Buffer.
2. No heavy equipment is allowed within the buffer.
3. Any disturbed areas within the buffer should be stabilized with mulch or pre-existing
groundcover.

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EXHIBIT
Lake
(At Full Pond/Normal
Side Vies.
3 h, below full Pandwaterkwel
Existing bank
10 ft. bank
FORM: SSGP 02-2017
4 ft. ohm full pond water lays, 2 ft. additional clearing
a 'If nece ry
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