20050732 Ver 01_Public Comments_20060324

March 24, 2006
TO: Mr, John Dorney nviro mental Supervisor, NC DENR, Divisio of - ~ ,'?
Water Quality ~? ~!
~,..~°
"rn~ ~ ~ %_~06
FROM: William S ~ , repre enting the Fearrington Homeowners
Associati n ( ), 26 Fearrington Post, Pittsboro, NC 27312` _ ' ~ ~ . } ~
Subject: Response and Comment on Newland/Briar Chapel papers submitted
in support of their Section 401 Application
I would first like to convey the thanks and appreciation of the FHA to you,
Rick Shiver and your staff for conducting the December 13, 2005 public hearing in a
professional manner, for paying close attention to both the spoken and written
commentary submitted during and after the hearing, and for making it possible to review
the pro and con material generated as a result of the hearing. We are most grateful.
The FHA's main concerns at this juncture in the certification process are twofold: the
establishment of a regularized meeting schedule by which FHA can be briefed on
construction progress and wherein it can also voice concerns and a resolution of the
problem of spray irrigation as it affects abutting residence in the development of the area
identified as "The Town Center" on the Briar Chapel master plan received by the DWQ
on February 24, 2006.
We will generally focus on the correspondences received from Kilpatrick Stockton LLP
on behalf of their client, Newland Communities and the tatter's application for Clean
Water Act, Section 401 Certification. These letters were dated December 9, 2005 and
February 28, 2006. The December letter responded to the comments of various
organizations, including the FHA, submitted on July 11, 2005 along with an addendum
from the HAW River Assembly submitted on September 21, 2005; the February letter
responded, for the most part, to oral and written commentary prompted by the December
13, 2005 meeting.
I. Issues of Information Interchange During Construction: We note at the outset that
Newland Communities, through its attorney, Kilpatrick Stockton, has responded to many
of the concerns raised during the course of the hearings, discussions and in the thoughtful
written commentary submitted by concerned citizens during and after the public hearing.
While we do not agree with the majority of Newland's conclusions, we are, nevertheless,
appreciative of their effort to be responsive.
Without delving into the multitude of concerns voiced by the public, neighborhood
organizations and environmental groups in the area, the letters underline one important
aspect of the interchange, namely, that Newland/Briar Chapel believes that every
precaution has been taken, every "t" has been crossed, every "i" has been dotted and
every legal step in the approval processes has been complied with. They persistently
conclude that their model development will be successful in all respects.

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But experience tells us that this will not happen, that mistakes will be made and that
calculations made on maps in a quiet office filled with CAD units are often confounded
by the reality of putting things in the ground. Briar Chapel, as everyone knows, is the
largest single development project undertaken in Chatham County and one of the largest
in the whole of the triangle area. It is difficult, nay, impossible to believe that many of
the crucial points defended on legal stationery will not fall into miscalculation or
redundancy in the course of construction. Human beings are still human beings and
neither Newland/Briar Chapel nor Kilpatrick Stockton can hope to eliminate all our
faults. Where then is our recourse?
Consistent inspections and detailed technical reviews is the common answer to such a
question. But who is going to do it? The two major authorities in issuing permits - the
US Corp of Engineers and the NC Division of Water Quality - do not have the staff to
provide objective, outside inspectors on a consistent time schedule for this extensive
project. The County of Chatham is hard pressed to do utility inspections much less
extensive soil sampling or road construction inspection. Thus we are faced with the five
year development of a substantial project whose design -from the perspective of the
designers - is near perfect and yet very little -almost nothing -has been said or indicated
on exactly how the "outside" inspections will be handled and under what circumstances
will completed sections of both the infrastructure and the homes themselves be given
both periodic inspections as well as overall inspection for final acceptance. The unvoiced
response seems to revolve around the validation of self-inspection and self-regulation.
When over 2,300 homes are to be built on nearly 1600 acres with miles of roads,
sidewalks, water lines, sewer and storm water carriers through the construction efforts of
a myriad of contractors, subcontractors, engineers and planners, reliance on self-
inspection may not be the answer!
In confronting this problem, Fearrington Homeowners Association has offered two
separate but related proposals; these may not "solve" the problems sketched above but
they aze, at least, a beginning, namely
a) that regular meetings, not less than once every quarter, be scheduled between
representatives of the FHA and Briar Chapel/Newland in order to review progress,
including briefings on inspections performed and the state of acceptance of sections
of construction. This could also serve as a forum by which the FHA could discuss its
concerns and suggestions during the course of construction. These meetings should
also include representatives of the Chatham Citizens for Effective Communities
(CCEC) and the Haw River Assembly. The FHA could serve as the "secretariat"
for these regular meetings.
b) that, with respect to the development of Briar Chapel's construction of its "Town
Center"on its eastern edge, part of which abuts Fearrington Village residences,
Briar Chapel/Newland meet with representatives of the FHA before it submits the
full "Town Center" development plan to the Chatham County Planning Board.
This would allow the developers and the FHA to exchange ideas and, particularly, to
discuss, face to face, the concerns which FHA has about this development and its
potential affect on abutting residents, including spray irrigation, storm drainage
and local ecology.

3
Newland, through its attorney and in the letters attached, has emphasized its general
acceptance of these ideas. In its February 28 letter, page 2, for example, "Newland agreed
to meet with the FHA, and reiterates that commitment here." In response to a request that
Newland provide periodic information on erosion and sedimentation control data, the
attorney replied in that same letter that "Newland is happy to makes these records
available to members of the public," but demurred from additional reporting saying that
such "...is unnecessary and would be unduly burdensome." In a follow-up to the FHA
request for these meetings Newland again accepted the idea noting that "Newland is
happy to meet with citizen groups on a regular basis as needed." This general statement
is, however, modified as Newland also noted that it "...does not believe such meetings
should be subject of a 401 certification condition."
FHA generally welcomes these statements since they are closely aligned to the proposals
spelled out in a) and b) above. However, we disagree with Newland's caveat that such
meetings not be included as a condition of the proposed 401 certification. The reason for
our disagreement is simple. If Newland were to sell all or part of its holdings, either in
Briar Chapel generally or in the "Town Center" area in particular, the agreement set out
in these letters would not necessarily be binding on the new owner. Moreover, if
Newland were to decide later on that these meetings were, from its viewpoint,
unproductive or unnecessary it could unilaterally cancel its participation.
We have, therefore, attached our draft of a proposed condition on the 401 Certification
which follows the ideas set out in a} and b) above. We also underline the fact that
Newland has agreed, in principal, to the substance of these proposals even though it
demurs on the matter of their implementation.
II The Issue of Spray Irrigation near Fearrington Residences: The FHA has
consistently raised, in negative tones, the issue of spray irrigation close to abutting
residences before the US Corp of Engineers (July 20,2005 & September 7, 2005) and
before the DWQ in written remarks dated July 2, 2005, Statement of December 13, 2005
& January 11, 2006. In response to this issue, Newland, through Kilpatrick Stockton,
addressed FHA concerns on. page 3 and pp 17-19 in their February 281etter.
The FHA's position is that spray irrigation should not be allowed in the Town
Center buffer area which abuts established Fearrington residences. Our opposition
is based on opinions expressed by experienced environmental experts, one of whom has
noted that spray irrigation "...cannot be relied upon when population densities increase
and there is too little Land to serve as a buffer." Moreover, spray irrigation comes with
"...uncertainties in establishing an accurate water balance to design storage facilities,
relatively low treatment technology and relatively little oversight of the entire treatment
and disposal process." A full statement of these concerns was included in the written
testimony presented at the December 13~' hearing. The Briar Chapel responses on pp. 17-
19 noted above disagree, noting that everything will be nearly perfect since "...Newland
has performed exhaustive analysis and produced voluminous information document that
no such (adverse) impacts will occur..." But Briar Chapel did not respond in detailed
specifics to the statements noted above which was part of the testimony submitted by Dr.
DiGiano, a member of the University of North Carolina, Department of Environmental

4
Sciences and Engineering for 25 years. In short, we have found nothing in Newland's
rather "heraldic" statement to change our opinion.
However, realizing that the DWQ has granted permission, albeit incorrectly, for the
spray irrigation and knowing that our own Chatham Board of Commissioners did not act,
at least in this instance, in the best interests of the citizens of Chatham County, we
suggest an alternative solution. We would request that DWQ, in issuing Briar Chapel a
certificate under Section 401, specifically restrict the use of spray irrigation, in so far as
the 60 acres of the Town Center section is concerned, to that portion of the 60 acres that
runs parallel to and abuts US 15-501 and that the extreme eastern border of the property
of some 3,750 feet remain clear of any spray irrigation system.
To effect this proposal we have attached a proposed statement to be included in any
Section 401 certificate issued by the DWQ in response to Newland/Briar Chapel Section
401 application.

ATTACHMENT ONE
SUGGESTED CONDITIONS TO BE ATTACHED TO THE PROPOSED DWQ'S
SECTION 401 CERTIFICATE FOR NEWLAND/BRIAR CHAPEL
1. Pre-Submission Meeting with Fearington Homeowners Association (FHA)
Regarding Briar Chapel development of the Town Center
It is a condition of this permit that in the development of the proposed Town Center
phase of Briar Chapel that Briar Chapel planning & engineering staff meet with the
Fearrington Homeowners Association to discuss all aspects of design and construction
and to take into consideration the FHA's concerns prior to any plan submission to the
Chatham County Planning Board and/or the Chatham County Board of Commissioners.
2. Establishment of Public Information Exchange Sessions during construction of
Briar Chapel Development
It is a condition of this permit that in the construction of Briar Chapel/Newland
Communities the latter, in cooperation with the Fearrington Homeowners Association,
will establish an ongoing series of public information exchange meetings which would
include appropriate members of the Briar Chapel development staff and representatives
of the Fearrington Homeowners Association. Such meetings will be held at least
quarterly and should focus on development progress, inspection results, development
concerns and related issues. Provision may be made for the attendance of representatives
of the Chatham Citizens for Effective Communities (CCEC) and the Haw River
Assembly.
3. Restriction on the Use of Spray Irrigation Respecting Briar Chapel's Town
Center
It is a condition of this permit that the use of spray irrigation within the Town Center
portion of Briar chapel shall be confined to that portion of the Town Center project which
abuts US 15-501. No spray irrigation shall be allowed on the 3,750 foot eastern border of
Town Center. The Town Center reference is based on the Briar Chapel Master Plan as
filed with the DWQ on February 24, 2006.