20221792 Ver 1_DCM Permit_20231121

STATE OF NORTH CAROLINA
COUNTY OF Brunswick
IN THE MATTER OF:
PETITION FOR VARIANCE
BY BRIAN AND SUSAN SHUGART
BEFORE THE NORTH CAROLINA
COASTAL RESOURCES
COMMISSION
CRC-VR-23-05
FINAL AGENCY DECISION
On September 27, 2023, Petitioners Brian and Susan Shugart, through their
attorneys, submitted a request for a variance from the North Carolina Coastal Resources
Commission's ("Commission") rule at 15A N.C. Admin. Code 07H.0208(a)(2)(A) allowing
them to construct a three -slip addition to the existing access pier and platform, consisting of
the installation of two fixed finger piers for access to two proposed boatlifts flanking the
existing fixed platform landward of the Atlantic Intracoastal Waterway (AIWW) setback.
Petitioners also proposed the installation of a floating platform accessed by a piling -less, dual
hinge I-beam gangway from the existing fixed platform and supported by twelve wooden stop
legs (collectively, the "Dock Expansion").
Pursuant to N.C. Gen. Stat. § 113A-120.1 and 15A NCAC 7J .0700, et seq., this matter
was heard on oral arguments and facts stipulated to by Petitioners and Respondent
Department of Environmental Quality, Division of Coastal Management ("DCM") at the
regularly scheduled meeting of the Commission on November 9 2023 in Beaufort, North
Carolina. Assistant General Counsel Christine A. Goebel, Esq. appeared for Respondent
DCM. Mousa Alexander, Esq. appeared on behalf of the Petitioners.
When reviewing a petition for a variance, the Commission acts in a quasi-judicial
capacity. Riggings Homeowners, Inc. v. Coastal Resources Com'n, 228 N.C. App. 630, 652, 747
S.E.2d 301, 314 (2013) (Commission has "judicial authority to rule on variance requests 0
`reasonably necessary' to accomplish the Commission's statutory purpose."); see also

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Application of Rea Const. Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968) (discussing the
Board of Adjustment's quasi-judicial role in allowing variances for permits not otherwise
allowed by ordinance). In its role as judge, the Commission "balance[es] competing policy
concerns under CAMA's statutory framework." Riggings, 228 N.C. App. at 649 n.6, 747 S.E.2d
at 312.
The Petitioners and Respondent DCM are the parties appearing before the
Commission. The parties stipulated to facts and presented relevant documents to the
Commission for its consideration. See, N.C. Admin. Code 15A 07J .0702(a). If the parties had
been unable to reach agreement on the facts considered necessary to address the variance
request, the matter would have been forwarded to the North Carolina Office of
Administrative Hearings for a full evidentiary hearing to determine the relevant facts before
coming to the Commission. Id. 07J .0702(d). As in any court, the parties before the decision -
maker are responsible for developing and presenting evidence on which a decision is made.
If DCM and Petitioners had entered into other stipulated facts, it is possible that the
Commission would have reached a different decision. In this case, the record on which the
Commission's final agency decision was made includes the parties' stipulations of facts, the
stipulated exhibits provided to the Commission, and the arguments presented at the hearing.
FACTS STIPULATED TO BY PETITIONERS AND DCM
1. Brian and Susan Shugart (collectively, the "Shugarts" or "Petitioners") own
property at 2206 East Yacht Drive in Oak Island (the "Property"). Petitioners took title on
July 20, 2018 through a General Warranty Deed recorded in the Brunswick County Register
of Deeds, Book 4083, Page 721 and provided as a stipulated exhibit.
2. The Property is shown in aerial and ground level photos contained in a

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PowerPoint presentation. This is a stipulated exhibit and was shown at the hearing.
3. The Property is developed with an existing seventy-five long access pier with
sixteen foot square fixed platform permitted and developed in 2021, a 3,781 square foot three-
story house with associated deck and driveway, and a bulkheaded shoreline. A copy of the
2023 tax card is a stipulated exhibit.
4. The Property is adjacent to the AIWW to the north, 2204 East Yacht Drive
owned by the Rowells to the west, East Yacht Drive to the south, and NE 23rd Street and
then 2302 East Yacht Drive owned by the Fitzpatricks to the east.
5. At this location, the waters of the AIWW are classified as SA High Quality
Waters by the Environmental Management Commission. These waters are closed to the
harvest of shellfish by the N.C. Marine Fisheries Commission ("MFC").
6. The MFC has designated these waters as a Primary Nursery Area ("PNA"),
which are defined by this Commission in 15A NCAC 7H .0208(a)(4) as "those areas in the
estuarine and ocean system where initial post larval development of finfish and crustaceans
takes place. They are usually located in the uppermost sections of a system where populations
are uniformly early juvenile stages. Primary nursery areas are designated and described by
the MFC at 15A NCAC 03R .0130. The PNA designation for this area was made in 1977.
7. In 2007-2008, there was a Department of Environment & Natural Resources
(Predecessor to Department of Environmental Quality) workgroup which met to discuss
updates to the Docks and Piers CAMA General Permit including impacts to shallow bottom
habitat and impacts to Submerged Aquatic Vegetation. This Commission, in revising the
rules which were ultimately passed in 2013, included an amendment to 7H .1205(g) which
allows DCM to issue permits under this general permit authority for docking facilities in

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areas with depths two feet or greater without prior consultation with the Division of Marine
Fisheries ("DMF") or the North Carolina Wildlife Resources Commission. In areas with less
than two feet of depth, DCM will consult with the applicable sister -agency and if concerns
are raised about habitat impacts, DCM will require the applicant to proceed with a CAMA
major permit instead of the general permit.
8. The waters of the AIWW at the Property are Public Trust Areas and Estuarine
Waters Areas of Environmental Concern ("AECs"). Along the eastern -most approximately
forty feet of the Property's 120-foot shoreline there are Coastal Wetlands extending
approximately thirty -feet from the bulkhead waterward, though no development is proposed
in the Coastal Wetlands.
9. Pursuant to N.C.G.S. § 113A-118, any "development" within an AEC (Public
Trust Areas and Estuarine Waters AECs) must be authorized by the issuance of a CAMA
permit.
10. The Property is located adjacent to the U.S. Army Corps of Engineers (USAGE)
AIWW. Aerial photographs were provided as stipulated exhibits and are overlain with a
USACE GIS layer showing the AIWW channel and the AIWW right-of-way setbacks in the
area of the Property. In this area, the red setback lines span 250 feet in width which includes
both the eighty -foot rights -of -way and the ninety -foot AIWW channel in the middle. USACE
staff confirmed to DCM counsel on October 19, 2023 that in the area of the Property, the
setbacks have remained unchanged at eighty -feet on either side of the channel.
11. On November 13, 2013 the Wilmington District of the USACE revised their
Wilmington District Setback Policy. A copy of the Wilmington District's webpage
(saw.usace.army.mil/Missions/Navigation/Setbacksn describing this policy is a stipulated

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exhibit. This policy disallows any hardened or permanently fixed structures within the
setback. The policy indicates that if existing structures within the setbacks are destroyed
beyond repair, they "will only be replaced in accordance with the current Wilmington District
setback policy, as well as any USACE Regulatory and DCM permit requirements."
12. In the area of the Property, the AIWW is approximately 406 feet wide. This
leaves approximately 156 feet of waterbody width (some on the north shoreline and some on
the south shoreline including at the Property) outside the 250-foot wide channel/setback
areas. The quarter -width of the waterbody at the Property is approximately 102 feet
waterward of the bulkhead at the pier. Development proposed by Petitioners does not include
any permanently fixed structures within the setback.
13. Boat traffic in the AIWW in the area of the Property is heavy and the area is
not designated as a no -wake zone. Due to the presence of the AIWW, the use of the AIWW by
large boats and many bulkheads along this shoreline, wave energy is high in the area of the
Property.
14. Petitioner Mr. Shugart's sworn affidavit is a stipulated exhibit. While DCM
asserted that it has not determined if the statements are true, it acknowledges that the
affidavit is Petitioner's sworn statement. In the affidavit, Petitioner states that shortly after
purchasing the Property, Petitioners were told by the representative of the previous owners
of the Property whose name he does not remember, that they would be able to install a dock
similar to that of their neighbors at 2204 East Yacht Drive and 2302 East Yacht Drive.
15. Petitioners initially spoke with DCM District Manager Tara MacPherson in
2020-2021. Ms. MacPherson explained that the USACE policy limited fixed structures to
outside the setback and the General Permit rules required consultation with DMF when pier

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structures would terminate in less water less than two feet in depth when occurring over
PNA, submerged aquatic vegetation, or oyster reefs, and usually (but not necessarily) lead to
the need for a CAMA Major Permit application.
16. On February 4, 2021, DCM issued CAMA General Permit No. 77634D ("2021
Permit") to Petitioners authorizing the development of a seventy-five foot long access (no
slips) pier and a sixteen foot square fixed, covered platform built up to and not past the
USACE AIWW channel setback line. Petitioners developed this permitted structure in 2021.
A copy of this permit was provided as a stipulated exhibit.
17. Following the 2021 Permit and pier construction, Petitioners sought approval
through a General Permit in May 2022 for extensions with slips, but DMF continued to
express concerns about the shallow water depth. Petitioners communicated with the various
agencies to try and address stated concerns and proceed with a CAMA General Permit
application. On May 9, 2022, DCM Field Representative Patrick Amico emailed Petitioners'
agent that, after review, the request for proposed slips, lifts, and finger piers would need to
proceed through the CAMA Major Permit process "[d]ue to resource concerns with the
shallow water depths in Primary Nursery Area in the area of proposed constructed features."
A copy of this May 9, 2022 communication was provided to the Commission as a stipulated
exhibit.
18. Petitioners proceeded to prepare their major permit application, again
consulting with the Agencies, discussing revisions to the proposed development, and having
several meetings with various agency staff. DCM staff visited the Property on September 8,
2022 (Ms. MacPherson), November 8, 2022 (Mr. Amico), and November 17, 2022 (Mr. Amico).
19. On August 23, 2022, the Shugarts, through their CAMA agent Dana Lutheran,

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submitted a CAMA Major Permit application to DCM for a proposed 3-slip addition to the
existing access pier and platform, consisting of the installation of two fourteen -foot by four -
foot fixed finger piers for access to two proposed fourteen and one -half -foot by sixteen -foot
boatlifts (with six piling each) flanking the existing fixed platform landward of the AIWW
setback. Petitioners also proposed the installation of a twenty-two by eight -foot floating
platform (without pilings) accessed by a dual hinge I-beam gangway (also without pilings)
from the existing fixed platform and supported by twelve eight -inch square wooden stop legs
(collectively, the "Dock Expansion"). A copy of the application was provided as a stipulated
exhibit. Based on the site plan drawing, which is part of the application, the water depths
are -1.2 feet mean low water ("MLW") at the waterward end of the floating platform with
wooden stop legs, and -0.2 feet MLW at the boat lifts. The application was accepted as
complete by DCM on November 28, 2022.
20. The Shugarts indicated in their CAMA Major Permit application that the Dock
Expansion "will include permanent stops, to keep the structure from resting on the bottom,
during low tide," that "the lifts will be installed so they can only be used in water depths
greater than 18 inches ... by limiting the length of the cables," and that "[t]he floating platform
will be used for loading and unloading only and will not serve for overnight docking." DCM
acknowledged in its Field Investigation Report that the purpose of the piling -less, dual hinge
I-beam gangway from the existing fixed platform "is to provide access to a floating dock that
is past the USACE setback line (without driving pilings) and to have the proposed floating
dock located in deeper water to potentially lessen resource impacts to shallow bottom
habitat."
21. As required, Petitioners provided notice of the application to the adjacent

N.
riparian owners; specifically, the Rowells at 2204 East Yacht Drive and to the Town of Oak
Island (owner of NE 23rd Street). USPS tracking indicates that notice was delivered to the
Town on October 19, 2023 and to the Rowells on October 21, 2023. A copy of the certified mail
receipts and tracking was provided to the Commission as a stipulated exhibit. DCM did not
receive any concerns or objections from these owners during the permit review period.
22. As required, Petitioners posted notice of the permit application on the site.
Notice of the application was also published in the Wilmington Star News on December 23,
2022. DCM did not receive any comments about this project from the public.
23. As part of the CAMA Major Permit Process, DCM Field Representative Patrick
Amico completed a Field Investigation Report dated December 20, 2022, a copy of which was
provided as a stipulated exhibit. This report was sent with the application materials to the
other permit reviewing agencies.
24. No coastal wetland or shellfish are observed in the area of the dock expansion.
Additionally, Petitioners identified that, based on numerous on -site evaluations, submerged
aquatic vegetation does not typically grow within the area of Dock Expansion. To ensure
protection of the West Indian manatee, the Shugarts represented that the Dock Expansion
would be undertaken between November 1st and May 31st and, if not, that they would adhere
to the U.S. Fish and Wildlife Services' guidance on avoiding impacts to the species.
25. On January 26, 2023, the USACE issued Petitioners a permit authorizing the
dock expansion including the floating platform which extended waterward of the USACE
setback. A copy of the USACE permit is a stipulated exhibit. The USACE indicated it did not
have any comment on the Dock Expansion, so long as no pilings are installed waterward of
the USACE's Navigational Channel Setback line. Petitioners did not propose any pilings

waterward of that setback. The dock expansion design does not propose the use of any driven
pilings for the floating platform and gangway. Petitioners propose the use of wooden stops,
installed 18 inches above substrate, to be affixed to the bottom of the floating platform and
the use of stops on the boat lifts. The Shugarts indicated in their application that "[t]hese
measures ensure that the boat lifts and the floating platform will not rest on the bottom at
any time, and that the lifts will not be usable when water depths are less than 18 inches."
26. On January 30, 2023, DMF sent comments to DCM, wherein it raised concerns
about the siting of the Dock Expansion in waters less than 1.0 feet below the normal water
level and the potential impact to the shallow bottom fishery habitat and resources. A copy of
these comments was provided to the Commission as a stipulated exhibit. Specifically, DMF
expressed concerns that the proposed boatlifts would be sited in waters ranging in depth from
-0.2' to -0.3' NWL, and that the proposed floating platform would be sited in waters ranging
in depth from -0.5' to -1.2' NWL. DMF also expressed concerns that these boat lifts and
floating platform in shallow water result in repeated disturbance of the PNA substrate by
operation of the boat propellers and the floating platform "repeatedly resting on the bottom."
DMF further provided that "the large floating dock as proposed is a heavy structure" and
that "the substrate at this location is muddy" and, therefore, "more susceptible to
resuspension of sediment from bottom disturbance."
27. On February 21, 2023, DWR sent comments to DCM which echoed DMF's
comments in its January 30, 2023 objections to the Dock Expansion with concerns about the
potential impact to the shallow bottom habitat. A copy of DWR's comments was provided to
the Commission as a stipulated exhibit.
28. On February 21, 2023, based on the comments from DMF and DWR, DCM

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placed the Shugarts' Application on hold in order for Petitioners to respond to DMF and
DWR's concerns regarding insufficient water depths and receive from DWR a Water Quality
Certification for the Dock Expansion. A copy of DCM's hold letter/email was provided to the
Commission as a stipulated exhibit.
29. On February 23, 2023, Petitioners' agent responded to the Agencies' concerns
about the potential impact to the shallow bottom fishery habitat and resources from the Dock
Expansion, noting that Petitioners addressed their concerns regarding the boat lifts and
floating platforms causing repeated disturbance of the substrate by incorporating wooden
stops into the design of the Dock Expansion, to be installed 18 inches above the substrate on
the boat lifts and the floating platform. Petitioners also proposed that they would perform
annual inspections, supported by photos," and submit the information and photos to DCM."
Petitioners also agreed to perform any required mitigative work if needed. A copy of this
response was provided to the Commission as a stipulated exhibit.
30. On April 18, 2023, DMF relayed to Petitioners' agent that a DEMLR engineer
would review the platform with stops design "if your client is willing to work with a structural
engineer to draft and sign a design, then we review it, with high probability it [the report]
will be accepted." A copy of this email was provided to the Commission as a stipulated exhibit.
31. On April 19, 2023, Petitioners' engineers David L. Winstead and Steven D.
Kelly, P.E. at RFTS, PLLC provided the Petitioners' other engineer E. B. Pannkuk, P.E. at
Stature Engineering, PLLC, with their estimation of the penetration of the proposed wooden
stops supporting the proposed floating platform at the Property, saying that "[f]or the given
load and sectional dimensions of the stop, our analysis indicated a predicted penetration for
this load and bearing dimension of 0.5 inches." A copy of the letter provided to DCM (and

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DMF and DWR) on May 10, 2023 was provided to the Commission as a stipulated exhibit.
32. Further, Petitioners' engineers disagreed with DMF and DWR's
characterization of the substrate as "muddy" and alleged that "[t]he soils on which the stops
will rest are expected to be medium dense clean fine sands."
33. Petitioners provided photographs of the substrate at the Property taken by
Petitioners' agent on August 12, 2022 and March 7, 2023, which are attached with a sworn
affidavit as a stipulated exhibit. Petitioners' agent states that she observed that in the area
of the proposed Dock Expansion (from the existing access pier to the proposed floating
platform), the substrate is sandy, rather than muddy. Specifically, she states that the
substrate in the area is comprised of a layer of compacted muck, overlain by a relatively thin
sand layer, with sparse shell matter.
34. Petitioners' agent further observed that a substrate of such composition is less
susceptible than a muddy substrate to the resuspension of sediment from bottom
disturbance.
35. On July 24, 2023, DMF submitted additional comments to DCM, a copy of
which was provided to the Commission as a stipulated exhibit. As part of these comments,
DMF indicated "if this project is approved, DMF recommends that the proposed floating dock
be required to have feet as physical stops."
36. On August 18, 2023, DCM denied the Application as inconsistent with 15A
N.C. Admin. Code 07H.0208(a)(2)(A), which states, in part, "that the location, design, and
need for development, as well as the construction activities involved shall be consistent with
the management objective of the Estuarine and Ocean System AEC" and "shall be sited and
designed to avoid significant adverse impacts upon the productivity and biologic integrity of

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coastal wetlands, shellfish beds, submerged aquatic vegetation as defined by the Marine
Fisheries Commission, and spawning and nursery areas."
37. Google Earth photographs of the area around the Property overlain with the
USACE's channel and setback line layer were provide to the Commission as stipulated
exhibits showing the relative location of piers near the Property and the setback line.
38. The property at 2302 East Yacht Drive received a permit on July 17, 2003, a
copy of which was provided to the Commission as a stipulated exhibit. The property at 2302
East Yacht Drive has an existing access pier, connected to a fixed platform connected by a
gangway to a floating platform, which appears to extend into the USACE setback based on
the Google Earth exhibit.
39. Water depths were shown on the site plan, and Mr. Amico visited the Property
and confirmed water depths. Ms. Kim Harding of DMF also visited the Property and found
depths similar to those in Mr. Amico's field report.
40. The property at 2204 East Yacht Drive received a permit on May 3, 1995, a
copy of which was provided to the Commission as a stipulated exhibit. It appears to extend
into the USACE setback based on the Google Earth exhibit.
41. The property at 2502 East Yacht Drive received CAMA General Permit
#38974D in 2004, a copy of which was provided to the Commission as a stipulated exhibit. It
appears to extend into the USACE setback based on the Google Earth exhibit.
42. Pursuant to 15A N.C.A.C. 07J.0701(a), Petitioners would have been required
to furnish to the Commission proof that a variance was sought from the local government.
However, the requirement does not apply since the Town of Oak Island does not have
requirements restricting the Dock Expansion.

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43. Pursuant to 15A NCAC 07J .0701(c)(6), Petitioners stipulate that the proposed
project is inconsistent with the rule from which the Petitioners seek a variance.
44. Pursuant to 15A NCAC 07J .0701(c)(7), Petitioners sent notice of this variance
petition to the adjacent riparian owners. The notice to the Town of Oak Island by certified
mail was received on September 28, 2023. Notice to the Rowells by certified mail arrived at
their local post office and notice was given to them to claim it on pick it up on September 28,
2023. As of October 17, 2023 the letter was unclaimed and is being returned to sender. A
second attempt at delivery by UPS was attempted on October 26, 2023, with an expected
delivery of October 27, 2023. No comments were received prior to the variance hearing.
EXHIBITS PROVIDED TO THE COMMISSION BY PETITIONERS AND DCM
1. Petitioners' variance request
2. General Warranty Deed to Petitioners 4083/721
3. 2023 Tax Card for the Property
4. Copy of USACE website on Wilmington District's Setback Policy
5. Affidavit of Brian Shugart re: seller's representative
6. CAMA General Permit issued February 4, 2021
7. May 9, 2022 email from DCM to P's agent re: major
8. CAMA Major Permit Application materials
9. Notice to adjacent riparian owners including letters, certified receipts, and
tracking
10. DCM Field Investigation Report
11. January 26, 2023 USACE Permit
12. DMF January 30, 2023 comments
13. DWR February 21, 2023 comments
14. DCM's February 21, 2023 Hold Letter
15. Petitioners' Agent's February 23, 2023 letter to DCM
16. April 18, 2023 email from DMF to P's agent
17. April 19, 2023 letter from RFTS, PLLX with May 10, 2023 transmittal letter
18. Affidavit of Dana Lutheran with associated photos
19. July 24, 2023 DMF comments
20. August 18, 2023 Denial Letter
21. Google Earth photos with USACE setbacks overlain
22. 2003 Permit for 2302 East Yacht Drive
23. 1995 Permit for 2404 East Yacht Drive
24. 2004 Permit for 2502 East Yacht Drive
25. Notice to adjacent riparian owners of variance petition and tracking

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26. Powerpoint with ground and aerial photos of the Site and surrounding area
27. DCM's Staff Recommendation
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the parties and the subject matter.
2. All notices for the proceeding were adequate and proper.
3. Petitioners have met the requirements in N.C.G.S. § 113A-120.1(a) and 15
NCAC 07J .0703(f) which must be found before a variance can be granted as set forth below.
a. Strict application of the Commission's Rule will cause unnecessary
hardships.
The Commission affirmatively finds that strict application of 15A N.C. Admin. Code
07H.0208(a)(2)(A) would cause the Petitioners unnecessary hardship. The Commission's rule
in 7H .0208(a)(2)(A), which was the basis for denial in this case, states "that the location,
design, and need for development, as well as the construction activities involved, shall be
consistent with the management objective of the Estuarine and Ocean System AEC ... and
shall be sited and designed to avoid significant adverse impacts upon the productivity and
biologic integrity of coastal wetlands, shellfish beds, and submerged aquatic vegetation as
defined by the Marine Fisheries Commission, and spawning and nursery areas."
Without the variance, Petitioners would not be able to expand the existing structure
to install four fixed finger piers for access to two proposed boatlifts flanking the existing fixed
platform, and the installation of a floating platform accessed by a piling -less, dual hinge I-
beam gangway from the existing fixed platform and supported by twelve wooden stops
(collectively, the "Dock Expansion"). Therefore, the strict application of this rule would cause
Petitioners hardship.
The Commission affirmatively finds that Petitioners haves shown that the hardship

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caused by denying a permit for the proposed development is unnecessary insofar as the
proposed design addresses these concerns and monitoring will take place to confirm the
effectiveness of the design in avoiding impacts. Moreover, this Commission has at times
varied its own pier length limitation rules (quarter -width rule or rate of depth rule) to allow
a pier to be lengthened to reach deeper waters and avoid "significant adverse impacts" to
PNAs. However, this Commission cannot vary the USACE's right-of-way setback line.
Specifically, during its review of the permit application, DMF raised concerns that
"significant adverse impacts" to shallow bottom PNA habitat will result from the proposed
expansion, and their concerns were echoed by the NC Wildlife Resources Commission and
NC Division of Water Resources. The two lifts and the use of those lifts along with the floating
dock are opportunities for permanent or repetitive impacts to shallow bottom PNA habitat,
whereas the impacts from the existing pier and fixed observation platform were limited to
the initial pile driving.
Petitioners addressed the Agencies' concerns regarding the boat lifts and floating
platforms causing repeated disturbance of the substrate by incorporating wooden stops into
the design of the Dock Expansion, to be installed 18 inches above the substrate on both boat
lifts, and affixed to the bottom of the floating platform. "These measures ensure that the boat
lifts and the floating platform will not rest on the bottom at any time, and that the lifts are
not usable when water depths are less than 18 inches." To further assuage the Agencies'
concerns, Petitioners agreed that "docking at the floating platform will only take place when
loading and unloading." In addition, the Shugarts agreed to annual inspections, supported
by photos, submitted to DCM by December 31st of each year. The monitoring requirement is
for the life of the docking facility unless there is a change in circumstances confirmed by

DCM.
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In its Recommendation, DCM staff stated that with the proposed design and given the
short transit of vessels between the proposed lifts to the adjacent Intracoastal Waterway will
result in very limited impacts to the designated PNA. Moreover, the PNA along this shoreline
is already impacted by a large number of existing piers and docking facilities. Finally, DCM
agrees that a strict application of 7H .0208(a)(2)(A) results in unnecessary hardships for the
Petitioners where the proposed docking facilities are unable to extend into deeper water to
avoid impacts to shallow waters designated as PNAs due to the USAGE designated setback
from the federal channel.
The Commission agrees that strict application of its rule will result in unnecessary
hardships given that the proposed design for the Dock Expansion will limit impacts to the
PNA and the annual monitoring will provide confirmation that the design is working to limit
impacts. For these reasons, the Commission affirmatively finds that Petitioners have met the
first factor without which a variance cannot be granted.
b. Petitioners have demonstrated that the hardship results from
conditions peculiar to their property.
The Commission affirmatively finds that Petitioners haves demonstrated that the
hardship results from conditions peculiar to the property, specifically its location and
topography. Namely, the specific area within which the Dock Expansion would be located is
a relatively narrow stretch of the Atlantic Intracoastal Waterway, where boat traffic is heavy.
The area is not designated as a no -wake zone, and wave action from boat traffic has caused
the accumulation of sediment to take place, waterward of the existing bulkhead, resulting in
reduced water depths. Moreover, the Shugarts, through their consultant, identified that
coastal wetland species, such as smooth cordgrass, may be found under and east of the

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existing access pier, but not within the area of the Dock Expansion. Similarly, no shellfish
were observed within the area, which is closed to shell fishing. The Agencies' concerns that
gave rise to the denial of the Application centered on the water depths in the area of the Dock
Expansion. Thus, the peculiar conditions resulting from the wave action from heavy boat
traffic in this location, and lack of a no -wake zone designation is particularly consequential.
In its Staff Recommendation, DCM agreed that a hardship to Petitioners is a result
from conditions peculiar to the Petitioners' property. Specifically, numerous riparian
properties on the north side of Oak Island border the Atlantic Intercoastal Waterway where
the waterway is narrow enough to limit pier lengths due to the federal channel setback, and
have the same adjacent shallow water designated as PNA extending out to the setback line.
However, while not unknown along this particular shoreline, this combination of
circumstances is relatively uncommon in comparison with waterfront properties along the
coast of North Carolina.
The Commission agrees. Accordingly, the Commission affirmatively finds that
Petitioner has demonstrated that this hardship results from conditions peculiar to the
property and has met the second factor required for the grant of its request for a variance.
C. Petitioners have demonstrated that the hardship does not result from
their actions.
The Commission affirmatively finds that Petitioners have demonstrated that the
hardship does not result from their actions. Specifically, in their request, Petitioners assert
that the hardships result from the strict and imbalanced application of the development
orders, rules, or standards issued by the Commission, and conditions peculiar to their
Property, as described above. Throughout the entire process, from before construction of the
structure presently at the Property to this variance petition, the Shugarts have made a good

faith effort to devise a site plan in line with the existing structures of neighboring properties,
to involve the Agencies, and to revise their plans so as to accommodate the Agencies' concerns
and to ensure consistency with management objectives.
The denial of the Application by DCM is based upon concerns raised by DMF and,
then, DWR as to the siting of the Dock Expansion in waters less than 1.0 feet below the
normal water level. Within the area within which the Dock Expansion would be located is a
relatively narrow stretch of the Atlantic Intracoastal Waterway, where boat traffic is heavy.
The area is not designated as a no -wake zone, and wave action from boat traffic has caused
the accumulation of sediment to take place, waterward of the existing bulkhead, resulting in
reduced water depths relative to other areas along the waterway.
In its Staff Recommendation, DCM asserts that on balance, any hardships faced by
Petitioners do not result from their actions. DCM Staff acknowledges that Petitioners have
designed their proposed structures to meet the USACE's setback by proposing a floating dock
with "table -top" stops and no driven pilings within the setback as allowed by the USAGE.
These "table legs" would still impact the bottom during the lower part of the tidal cycle, but
less so than if the entire floating dock were resting on the bottom. The proposed boat lifts
would include stops designed to prevent vessels and bunks from resting on the bottom at low
tide.
For the reasons provided by Petitioners and DCM, the Commission affirmatively finds
that Petitioners have demonstrated that they have met the third factor required for a
variance.

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d. Petitioners have demonstrated that the requested variance is
consistent with the spirit, purpose, and intent of the Commission's
rules, will secure public safety and welfare, and will preserve
substantial justice.
The Petitioners have demonstrated that (a) the requested variance is consistent with
the spirit, purpose, and intent of the Commission's rules, (b) it will secure public safety and
welfare, and (c) it will preserve substantial justice.
The Commission concludes that the requested variance if granted with conditions is
consistent with the spirit, purpose, and intent of the Commission's rules. The Commission's
rule at 15A N.C. Admin. Code 07H.0208(a)(2)(A) requires "that the location, design, and need
for development, as well as the construction activities involved shall be consistent with the
management objective of the Estuarine and Ocean System AEC" and "shall be sited and
designed to avoid significant adverse impacts upon the productivity and biologic integrity of
coastal wetlands, shellfish beds, submerged aquatic vegetation as defined by the Marine
Fisheries Commission, and spawning and nursery areas." The management objective of the
Estuarine and Ocean System AEC is set forth in 15A N.C. Admin. Code 07H.0203 states, the
Commission shall "conserve and manage estuarine waters, coastal wetlands, public trust
areas, and estuarine and public trust shorelines, as an interrelated group of AECs, so as to
safeguard and perpetuate their biological, social, economic, and aesthetic values and to
ensure that development occurring within these AECs ... [will] minimize the likelihood of
significant loss of private property and public resources." Furthermore, it is the objective of
the Commission to protect "common-law and statutory public rights of access to the lands
and waters of the coastal area."
The requested variance, with conditions, is consistent with the intent, purpose, and
spirits of both 15A N.C. Admin. Code 07H.0208(a)(2)(A) and the management objective of the

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Estuarine and Ocean System AEC set forth in 15A N.C. Admin. Code 07H.0203 for the
following reasons.
First, the requested variance balances protection of the resources within the Public
Trust Areas and Estuarine Waters AECs with Petitioners' riparian rights. As conditioned,
the variance provides flexibility by allowing the Dock Extension which is designed to include
a floating platform, but no pilings, in the USACE setback. In addition, the short distance
between the proposed slips and the Intercoastal Waterway limits PNA impacts.
Second, the Petitioners' design using "tabletop" stops on the floating platform and boat
slips addresses concerns expressed by DMF, WRC and DWR about impacts to the substrate
and is intended to keep this development off the bottom. The annual monitoring plan provides
accountability and will alert Petitioners, DCM, and DMF of any impacts resulting from the
Dock Expansion. Furthermore, to ensure protection of the only coastal wetland species that
may be impacted by the Docks Expansion, the West Indian manatee, the Dock Expansion
construction may only be undertaken between November 1 and May 31. If not constructed
during that time frame, the Petitioners are required to adhere to the U.S. Fish and Wildlife
Service's guidance on avoiding impacts to the species.
Third. a variance from the foregoing regulations subject to conditions, allowing the
Dock Expansion would enable the conservation and management of "estuarine waters,
coastal wetlands, public trust areas, and estuarine and public trust shorelines," given the
required annual inspections, supported by photos, and Petitioners commitment to take
mitigative measures for the life of the docking facility to address impacts.
Finally, the grant of a conditioned variance protects the Petitioners' "present common-
law and statutory public rights of access to the lands and waters of the coastal area" while

21
protecting the AEC. Specifically, the Dock Expansion is in keeping with the structures in the
area and will be in line with and not oceanward of the immediately adjacent structures on
each side of the Property. The Dock Expansion "will include permanent stops" on the boat
lifts and floating platform to keep them "from resting on the bottom, during low tide." See
Finding of Fact No. 29; February 23, 2023 letter from the Petitioners' agent to the agencies.
In addition, "the lifts will be installed so they can only be used in water depths greater than
18 inches ... by limiting the length of the cables," and that "[t]he floating platform will be used
for loading and unloading only and will not serve for overnight docking." Id. The floating dock
is located in deeper water to potentially lessen resource impacts to shallow bottom habitat.
Id. The estimated penetration of the wooden stops supporting the floating platform is only a
half inch. See Finding of Fact No. 31.
The second assessment to be made is whether the variance proposed by the Petitioners
will impact public safety and welfare. The parties submit, and the Commission agrees, that
the proposed development will have no adverse effect on public safety and welfare. The
modified design and avoidance of pilings in the USACE setback will protect public safety and
welfare. The USACE did not have any comment on the Dock Expansion, given that no pilings
will be installed waterward of the USACE's navigational channel setback line. The annual
inspection and mitigative measures taken by the Petitioners during the life of the docking
facility (assuming the Site conditions are unchanged) will also promote public safety and
welfare.
Finally, the Commission agrees that a variance will preserve substantial justice by
allowing reasonable riparian access using the modified design while avoiding the USACE
setback. The USACE issued the Petitioners a permit authorizing the Dock Expansion on

22
January 26, 2023. The USACE did not have any comment on the Dock Expansion, given that
no pilings will be installed waterward of the USACE's navigational channel setback line. By
granting the variance with conditions, the Petitioners are allowed to develop a three -slip
structure similar to numerous other docking facilities along the same shoreline. The
Commission agrees that this will preserve substantial justice.
For these reasons, the Commission affirmatively finds that Petitioner has met the
fourth factor required by N.C.G.S. § 113A-120.1(a) as long as the permit for the proposed
development includes the condition in the variance granted below.
ORDER
THEREFORE, the requested variance from 15A N.C. Admin. Code 07H.0208(a)(2)(A)
is GRANTED with the following CONDITIONS:
(1) To prevent causing repeated disturbance of the
substrate, the design of the boat lifts and floating
platform shall be as proposed by the Petitioners in their
CAMA variance request. Specifically, both the boat lifts
and the floating platform will incorporate permanent
wooden table top stops installed 18 inches above the
substrate, to keep the structures from resting on the
bottom during low tide; the length of the cables for the
boat lifts will be installed so that the lifts can only be used
in water depths greater than 18 inches; and the floating
platform will be used for loading and unloading only and
will not serve for overnight docking.
(2) The purpose of the piling -less, dual hinge I-beam
gangway from the existing fixed platform is to provide
access to a floating dock that is past the USACE setback
line (without driving pilings) and to have the proposed
floating dock located in deeper water to potentially lessen
resource impacts to shallow bottom habitat.
(2) To ensure protection of the only coastal wetland species
that may be impacted by the Docks Expansion, the West

23
Indian manatee, the Dock Expansion construction may
only be undertaken between November 1 and May 31. If
not constructed during that time frame, the Petitioners
are required to adhere to the U.S. Fish and Wildlife
Service's guidance on avoiding impacts to the species.
(3) To assess impacts, the Petitioners shall provide an
annual inspection report, including photographs, to DCM
by December 31 of each year. In addition, DCM and DMC
will be allowed to access the Site annually for five years
in order to inspect the impacts from the Dock Expansion.
The granting of this variance does not relieve the Petitioners of the responsibility for
obtaining any other required permits from the proper permitting authority. This variance is
based upon the Stipulated Facts set forth above. The Commission reserves the right to
reconsider the granting of this variance and to take any appropriate action should it be shown
that any of the above Stipulated Facts is not true.
This the 21st day of November, 2023.
4. 1660WO �;XIIA�
M. Renee Cahoon Chair
Coastal Resources Commission

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CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing FINAL AGENCY
DECISION upon the persons listed by the methods indicated below:
Attorneys for Petitioner:
Mousa Alshanteer
Alexander Elkan
Brooks Pierce
P.O. Box 26000
Greensboro, NC 27420
Petitioners
Brian and Susan Shugart
1880 Woodstock Road
Clemmons, NC 27012
Method of Service
Electronically:
[e-mail]
aelkan@brookspierce. com
Electronically: [e-mail]
Petitioners CAMA Agent Electronically: [e-mail]
Dana Lutheran
Southern Environmental Group, Inc.
5315 South College Road, Suite E
Wilmington, NC 28412
Attorngy for NC DCM
Christine A. Goebel
Assistant General Counsel
NC Dep't of Environmental Quality
217 West Jones Street
Raleigh, NC 27603
Braxton C. Davis, DMC Director
Angela Willis, Assistant to DCM Dir.
Division of Coastal Management
400 Commerce Ave.
Morehead City, NC 28557
Electronically: [e-mail]
Electronically:
[e-mail]
[e-mail]

Courtney Milliron, CAMA LPO
Town of Oak Island
4601 E. Oak Island Dr.
Oak Island, NC 28465
This the 21st day of November, 20223.
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Electronically: [e-mail].
Mary L. Lucasse
Special Deputy Attorney General & Commission Counsel
N.C. Department of Justice
P.O. Box 629
Raleigh, N. C. 27602