20151164 Ver 1_Final Decision Granting Variance_20160301

Burdette, Jennifer a
From: Keith Hackney <[e-mail]>
Sent: Tuesday, March 01, 2016 10:14 PM
To: Burdette, Jennifer a
Subject: FW: Certified Mail on Variance Ruling
Attachments: NC Dept of Justice Cover Letter and Certificate of Service - Certified Mail Dated
02-17-2016.pdf, NC Dept of Justice Final Decision Granting Variance with Conditions -
Certified Mail Dated 02-17-2016.pdf
Dear e ii e:
The attached was just served on Danny Whitford, I believe, today. My understandingits that this
should be corrected o reflect the required 780 credits.
I am also assumingo letter o e preparing will give more details about implementing thits
grant of variance.
Thankyou,
Keith Hackney
From: Danny Whitford[mailto:[e-mail]]
Sent: Tuesday, March 01, 2016 6:58 PM
To: Keith Hackney
Subject: Certified Mail on Variance Ruling
Hey, Keith,
I scanned the certified mail package into two separate PDF files (attached). The first is their cover letter and
certificate of service. The second is the decision granting the variance with conditions. It incorrectly stipulates
that 1,560 buffer credits much be purchased instead of 780.
Thank you,
Danny Whitford

ROY COOPER.
ATTORNEY GENERAL
Daniel E. Whitford
748 Down Shore Drive
Blounts Creek, NC 27814
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STATE OF NORTH CAROLINA
DEPARTMENT OF JUSTICE
11.0. Box 629 REPLYTOjEN\IE WII.IIEI1f HAUSER
1tk.IGx, NC 27602 R\11R0N mEx-rAI, DIVISION
"IT.i: [phone]
F.A.X. (919) 71&6767
jliauscr Oncdoj.gov
February 17, 2016
Certi red Mailt Return Receipt Resuested
Re: Final Decision Granting Variance with conditions
Dear Mr. Whitford:
At its January 13, 2016 meeting, the Water Quality Committee of the Environmental
Management Commission granted your request for a variance with conditions. Attached is a
copy of the Final Agency Decision. If for some reason you do not agree with the terms of the
variance as issued, you have the right to appeal the Commission's decision by filing a petition
for judicial review in the superior court of the county in which you reside within thirty days after
receiving the order pursuant to the procedure set forth in the North Carolina General Statutes §
15013-45. A copy of the judicial review petition must be served on the Commission's agent for
service of process at the following address:
Sam M. Hayes, General Counsel
Dept.. of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
If you choose to file a petition for judicial review, I request that you also serve a copy of
the petition for judicial review on me at the address listed in the letterhead. If you have any
questions, please feel free to contact me.
Sincerely.
Jennie Wilhelm Hauser
Special Deputy Attorney General and
Counsel for the Environmental Management Commission

Daniel E. Whitford
7ebruary 17, 2016
Page 2
cc: wf encl.. Steven J. Rowlan, Chair of the Commission, electronically
Steve 'Pedder, Chair of the WQC, electronically
Tom Reeder, Director, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically
Lois Thomas, recording secretary for Commission, electronically
Adriene Weaver, Environmental Specialist, electronically

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CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon the Applicant and the Division of Water Resources in the manner described
below as follows:
Daniel E. Whitford
748 Down Shore Drive
Blounts Creek, NC 27814
Keith D. Hackney
Attorney at Law
P,O, Box 1268
Washington, NC 27889-1268
Jennifer A. Burdette
401 Buffer Coordinator
401 & Buffer Permitting Unit
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
Karen Higgins, Supervisor
Division of Water Resources
1650 Mail Service Center
Raleigh NC 27699-1650
This is the 1 _ day of February, 2016.
Certified Mail/Return Receipt Requested
and Email: dannygearolinadata.com
US Mail and
Email. [e-mail]
E-mail: Jennifer.Burdette�7ancdenr.9-ov
E-mail: Karen,Hi;insla�ncdenr.gov
ROY COOPER
Attorney Genera
ennie Wilhelm Hauser
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602

STATE OF NORTH CAROLINA
COUNTY OF BEAUFORT
IN THE MATTER OF.
PETITION FOR VARIANCE FROM
15A NCAC 2B .0259
TAR-PAMLICO RIVER RIPARIAN
AREA PROTECTION RULES BY
DANIEL E. WHITFORD
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION GRANTING MAJOR
VARIANCE WITH CONDITIONS
On May 11, 2000 the North Carolina Environmental Management Commission
(Commission) delegated to the Commission's Water Quality Committee all decisions relating to
requests for variances from the riparian buffer rules. This matter came before the Water Quality
Committee at its January 13, 2016 meeting in Raleigh, N.C. upon Daniel E. Whitford's (the
Applicant's) request for approval of a Major Variance from the Tar -Pamlico River Riparian Area
Protection Rules pursuant to 15A NCAC 2B .0259 for a shelter and storage shed at 748 Down
Shore Drive in Blounts Creek, N.C. (the Site). The development will impact 164 square feet of
Zone I and 194 square feet of Zone 2 of the riparian buffer. The Applicant has agreed to provide
mitigation for the proposed impacts, including purchasing mitigation credits and implementing a
Stormwater Management Plan for the Site.
Based on the information provided, the Division of Water Resources (DWR) supported
the request for a major variance. Jennifer Burdette, Senior Environmental Specialist, Buffer
Permitting Unit, Division of Water Resources, presented the request to the Water Quality
Committee. Mr. Whitford was represented before the Committee by Keith D. Hackney, Esq.

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Upon consideration of the record documents, including the request and the staff
recommendation, and based upon the approval of the Water Quality Committee, the Commission
hereby makes the following:
FINDING OF FACTS
1. The Applicant owns the property at 748 Down Shore Drive in Blounts Creek,
N.C. (the Site). The Site is located along the Pamlico River in an area where there are riparian
buffers.
2. The property was purchased by Mr. Whitford's company on .lune 26, 2013 and
then transferred to Mr. Whitford individually on November 24, 2014, and both dates are after the
effective date of the Tar -Pamlico Riparian Area Protection Rules.
3. In 2014 the Applicant applied for a building permit at the Beaufort County
Building Inspector's Office to build a shelter. Mr. Whitford was told the structure did not
require a building permit. He was not told that the buffer rule would not allow siting the
structure close to the water.
4. The Applicant was unaware that the Tar -Pamlico Riparian Buffer Rules do not
allow shelters and sheds within the riparian buffer.
5. The shelter and a shed were built on the Site within Zones 1 and 2 of the protected
riparian buffer.
6. On September 9, 2015, DWR issued a Notice of Violation to Daniel E. Whitford
for violations to the Tar -Pamlico Riparian Buffer Rules.
7. Since learning of the Rules, the Applicant has requested approval of a major
variance from the Tar -Pamlico River Riparian Area Protection Rules pursuant to 15A NCAC
02B .0259 to allow the shelter and shed to remain within the riparian buffer on the Site.

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8. The development impacts 164 square feet of Zone 1 and 194 square feet of Zone
2 of the Tar -Pamlico Riparian Buffer.
9. The Applicant's plan for mitigation includes purchasing 1,560 of buffer credits
from the N.C. Division of Mitigation Services and installation of a level spreader and vegetated
filter strip as part of a Stormwater Management Plan approved by DWR with conditions. The
approved Stormwater Management Plan is based on the Applicant's submission dated October
28, 2015, which proposes the installation of a level spreader outside the riparian buffer to treat
stormwater runoff from the existing shelter and storage shed. Additionally, the level spreader
installed by the Applicant will have sufficient capacity to capture runoff from a proposed home.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
1. The Site owned by Daniel E. Whitford is subject to the Tar -Pamlico River
Riparian Area Protection Rule, 15A NCAC 2B .0259.
2. The Environmental Management Commission is authorized to issue a final
decision granting the variance including riparian buffer mitigation conditions pursuant to a
request under 15A NCAC 213 .0259 upon a finding that:
(1) There are practical difficulties or unnecessary hardships;
(2) The variance is in harmony with the general purpose and intent of
the buffer protection and preserves its spirit; and
(3) In granting the variance, the public safety and welfare have been
assured and substantial justice has been done.
3. The Commission affirmatively finds that the Applicant has demonstrated the
following:

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First Factor. There are practical difficulties or unnecessary Hardships that prevent
compliance with the strict letter of the riparian buffer protection requirements.
In its assessment of whether the Applicant had made a showing of "practical difficulties
or unnecessary hardships," the Commission considered the following factors.
A. If the applicant complies with the provisions of this Rule, he/she can secure no
reasonable return from, nor make reasonable use of, his/her property. Merely
proving that the variance would permit a greater profit from the property shall
not be considered adequate justification for a variance. Moreover, the Division or
delegated local authority shall consider whether the variance is the minimum
possible deviation from the terms of this Rule that shall make reasonable use of
the property possible.
B. The hardship results from application of this Rule to the property rather than
from other factors such as deed restrictions or other hardship.
C. The hardship is due to the physical nature of the applicant's property, such as its
size, shape, or topography, which is different from that of neighboring property.
D. The applicant did not cause the hardship by knowingly or unknowingly violating
this Rule.
F. The applicant did not purchase the property after the effective date of this Rule,
and then requesting an appeal.
F. The hardship is unique to the applicant's property, rather than the result of
conditions that are widespread. If other properties are equally subject to the
hardship created in the restriction, then granting a variance would be a special
privilege denied to others, and would not promote equal justice;
15A NCAC 02B .0259 (9)(a)(i)(A) through (F).
The Commission finds that although the Applicant has not shown that there are practical
difficulties preventing compliance with the strict letter of the riparian buffer protection
requirements, the Applicant has shown that his lot is more narrow than most of the surrounding
lots. Specifically,
A. The Applicant could make reasonable use of the property without impacting the
protected riparian buffer.

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B. The hardship results from the Applicant's lack of awareness of the Rule rather
than application of the Rule.
C. The hardship is not due to the physical nature of the Applicant's property.
Although the 50 -foot wide lot is more narrow than most of the surrounding lots,
the lot is of sufficient length for the Applicant to have located the shelter and
storage shed outside the riparian buffer had the Applicant known of the Rule.
D. The Applicant unknowingly violated the rule by building the structures after
contacting the Beaufort County Building Inspector's Office a building permit,
which resulted in the Applicant being told that he did not need a building permit.
The Applicant was not told that he could not build his proposed structures close to
the water.
E. The Applicant's company purchased the property on June 26, 2013, and
transferred the property to the Applicant on November 24, 2014, which
acquisitions are both after the effective date of this Rule.
F. The Applicant unknowingly violated the Tar -Pamlico Buffer Rule by locating the
shelter and shed in the riparian buffer prior to obtaining a variance from the Rule,
and the Applicant's hardship occurs from a lot that is exceptionally narrow and is
more narrow than most of the surrounding lots.
Second Factor: The variance is in harmony with the general purpose and intent of the
State's riparian buffer protection requirements and preserves its spirit.
The Commission affirmatively finds that the Applicant has demonstrated he meets the
second factor required under 15A NCAC 02B .0251(9)(a). Specifically, the purpose of the
riparian buffer rules is to protect existing riparian buffer areas. The Applicant has agreed to

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purchase 1,560 buffer mitigation credits from the N.C. Division of Mitigation Services and will
treat stormwater from the Site. By granting the requested variance with the conditions set out
below requiring the purchase of buffer mitigation credits and implementation a Stormwater
Management Plan that is approved by DWR, the development will be in harmony with the
general purpose and intent of the riparian buffer protection rules and will preserve their spirit.
Third Factor. In granting the variance, the public safety and welfare have been
assured, water quality has been protected and substantial justice has been done.
The Commission affirmatively finds that the Applicant has demonstrated he meets the
third factor required under 15A NCAC 02B .0259(9)(a). Specifically, in granting the variance
subject to the conditions that the Applicant purchase 1,560 square feet in buffer mitigation
credits and treat stormwater from the Site, the proposed development will protect water quality
and provide substantial justice.
Based on the Findings of Fact and Conclusions of Law set forth above, IT IS HEREBY
ORDERED that the request for the variance is GRANTED pursuant to 15A NCAC 2B .0259 as a
major variance to the Tar -Pamlico River Riparian Area Protection Rule with the following
conditions:
1. Mitigation. The Applicant shall provide mitigation for the development
impacts by purchasing 1,560 buffer credits from the N.C. Division of Mitigation
Services.
2. Stormwater Management Plan (SMP). The Applicant shall be
responsible for obtaining an approved Stormwater Management Plan for the Site
in accordance with the design for a level spreader and vegetated filter strip and all
associated stormwater conveyances, inlet and outlet structures, and the grading
and drainage patterns depicted on plan sheets dated October 28, 2015, which are
incorporated by reference and are enforceable by DWR.

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a. The limitations on drainage area and footprint of the diffuse flow
device contained in DWR's recommendation on this Applicant's variance request
are incorporated herein.
b. The approved diffuse flow device shall be constructed and
operational before any permanent building or other structure is occupied at the
Site.
c. The diffuse flow plan may not be modified without prior written
authorization from DWR, and, if modified, the Applicant shall provide one copy
of the approval letter and the modified SMP, including plan details on full-sized
plan sheets, to the Division of Water Resources 401 & Buffer Permitting Unit
(1650 Mail Service Center, Raleigh, NC 27699-1650) before the commencement
of any modifications.
d. Maintenance activities for the level spreader and vegetated filter strip
shall be performed in accordance with the notarized Operation & Maintenance
agreement signed by Daniel E. Whitford on October 29, 2015. The Operation &
Maintenance agreement shall transfer with the sale of the land or transfer of
ownership or responsibility for the BMP facility. The Applicant shall notify
DWR promptly of any transfer using the above -referenced mailing address.
This is the /(�, day of February, 2016.
ENVIRONMENTAL MANAGEMENT COMMISSION
Steven J.IT
wlan, Chairman