20071302 Ver 1_More Info Received_20080108

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State of North Carolina ,~,,y ~:
Department of Justice Donald W. Laton
ROY COOPER PO BOX Ei29 Environments} Division
ATTORNEY GENEFiAI.. 'Tel: [phone]
Raleigh, North Carolina Fax: (919}716-6766
27602 [e-mail]
MEMORANDUM ~ ~,~I~D~IG D
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To: Amy Chapman
Buffer Coordinator pENR-WATERQUALIIY
yy~TtANDS AND STORMWATER BRANCH
NC DENR, Division of Water Quality
From: Don Laton
Assistant Attorney General
Date: January 3, 2008
Subject: Inquiry By BRL Engineering
You will recall requesting an opinion from our office as to whether the current
Owners of Lot 23 in the Carriage Hills Subdivision have a vested right to develop that lot
without complying with 15A NCAC 2B.0233, Neuse River Basin: Nutrient Sensitive
Waters Management Strategy Protection And Maintenance Of Existing Riparian Buffers.
You made the request afer receiving a letter from BRL Engineering which set forth its
opinion that the current Owners of Lot 23 in Carriage Hills Subdivision have a vested
right in so far as application of the above-cited rule is concerned. In accordance with
standard procedure of the Department of Justice, I am offering my advisory
memorandum for your consideration. This advisory memorandum has not been
reviewed and approved in accordance with procedures for issuing an Attorney General's
Opinion.
With respect to Lot 23 in Carriage Hills the Owners have not shown a vested
right. Furthermore, I do not believe they can. Years ago, the Owners purchased
numerous lots - -zoned residential - - at a foreclosure sale. Since that time, appazently
Owners have sold numerous lots for residential use. On multiple occasions, the Owners
have admitted that the Neuse Buffer Rule applies to their property by requesting minor
variances to the buffer rule with respect to other lots they own.

Chapman Memorandum
January 3, 2008
page 2
The Owners have not offered sufficient proof of meeting the common law
criteria for vested rights. Accepting all statements of BRL Engineering in its letter of
April 25, 2007 to you as true, the claim of "vested right" has not been substantiated by
any independent, credible evidence.
Based upon information available from DENR and the above-referenced BRL
Engineering letter the expenditures with respect to Lot 23 are not substantial. The
Owners' reliance on a zoning determination, while in good faith, is not enough to relieve
the Owners from conforming to environmental regulations promulgated subsequent to the
purchase of the lots. Whatever reliance heretofore made by the Owners was nat because
of a DENR-issued water quality protection permit. Development of Lot 23 has not
proceeded to such a degree that imposition of the "Neuse Buffer Rule" would be
unreasonable.
Furthermore, Owners have failed to show that they will suffer any detriment.
While they contend that even a house of "minimum size" can not be built on this lot if the
Neuse Buffer Rule is applied, they have presented no convincing proof that the property
could not be used for residential purposes if whatever house was built thereon were of
such "minimum size". It should be noted that the Owners presumably have made
significant profit on other lots in this subdivision and have not shown that some profitable
use can not be made of Lot 23.
After considering this memorandum, please let me know what decision DWQ
makes. If you want to confer further about this matter, I will be glad to do so. Thank you
for your consideration in this regazd. ,