20151288 Ver 1_EMC Decision Granting Major Variance_20160420

Burdette, Jennifer a
From: Shaw, Denise <[e-mail]>
Sent: Wednesday, April 20, 2016 2:45 PM
To: [e-mail]; Higgins, Karen; Burdette, Jennifer a; Thomas, Lois;
[e-mail]
Cc: Hauser, Jennie; Shaw, Denise
Subject: EMC Decision Granting Major Variance w/Conditions for I.T.B. Holdings, LLC/Wake
County
Attachments: 2016-04-20_1-tr from JWH re I.T.B. Holdings, LLC -EMC Variance w Conditions.pdf,
2016-04-20_EMC Decision Granting Major Variance w Conditions for I.T.B. Holdings,
LLC.pdf
Attached is an electronic copy of the Cover Letter and EMC Final Decision granting Major Variance
with Conditions which our office forwarded by US Mail today. Please let Jennie Hauser know if you
have any difficulty opening the attachments. Thank you

STATE OF NORTH CAR-OLINA
DEPARTMENT OF JUSTICE
PLOY COOPEF, P.O. Box 629 Rrm.Y,ro:JF.NN1LW11,11E1-m HAUSER
ATToRNEY GENERAL RALEXA i, A1C 27602 LNVIRONMENTu.. Divisio.N,
Ti,?i.: [phone]
Fi. (91 9) 716-6767
j'li;iusei-@iicdo.).gov
April 20, 2016
Christopher M. Willett, Registered Agent Certified Maill Return Receipt Requeste
I.T.B. Holdings, LLC
1829 E. Franklin Street, Suite 800- B
Chapel Hill, NC 27514
Re: I.T.B. Holdings LLC -- Final Decision Granting Variance with Conditions
Dear Mr. Willett:
At its March 9, 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 meat the address listed in the letterhead. Ifyou have any
questions, please feel free to contact me.
Sincerel
'Ice
Jennie Wilhelm Hauser
Special Deputy Attorney General
Counsel for the Environmental Management Commission

I.T.B. Holdings, LLC
April 20, 2016
Page 2
cc: w/ encl.: Steven J. Rowlan, Chair of the Commission, electronically
Karen Higgins, Supervisor, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically
Lois Thomas, Recording Secretary for Commission, electronically
Bob Zarzecki, Soil and Environmental Consultants, electronically

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE MATTER OF: )
PETITION FOR VARIANCE FROM )
15A NCAC 2B.0233 )
NEUSE RIVER RIPARIAN AREA )
PROTECTION RULES BY )
I.T.B. HOLDINGS, LLC )
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. This matter came before the Water Quality
Committee at its meeting on March 9, 2016 in Raleigh, North Carolina upon I.T.B. Holdings,
LLC (the Applicant's) request for approval of a major variance from the Neuse River Riparian
Area Protection Rules pursuant to 15A NCAC 02B .0233 to allow construction of mixed-use
commercial development, including a retail shopping center and hotel (the Site). The proposed
development will impact 23,891 square feet of buffer Zone l and 13,686 square feet of buffer
Zone 2. The Applicant has agreed to provide mitigation for the proposed impacts and implement
a Stormwater Management Plan for the Site. Commissioner Tommy Craven was recused from
this matter.
Based on the information provided, the Division of Water Resources supported the
request for a major variance. Jennifer Burdette, 401 and Buffer Permitting Unit Coordinator at
the Division of Water Resources, presented the request for a major variance to the Water Quality
Committee.

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Upon consideration of the record documents, 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
A. The Applicant owns the Site, a former industrial/commercial facility in Raleigh,
North Carolina located at 2912 Wake Forest Road at the intersection of Six Forks and Wake
Forest Road. The Site was previously occupied by a single business, most recently a
telecommunications business. The Site is located in an area that has been developed for several
years. The area includes mixed-use commercial development
B. The property was purchased July 29, 2003, which is after the effective date of the
Neuse Riparian Area Protection Rules.
C. There is an unnamed tributary (UT) to Crabtree Creek (Stream Index No. 27-33-
(10); Water Quality Classification "C; NSW") on the property. Approximately 320 linear feet of
stream and a portion of the associated buffer remain on site.
D. The proposed development is for the construction of mixed-use commercial
development, including a retail shopping center and hotel and associated infrastructure, such as
parking and grading, on the Site.
E. The City of Raleigh requires the plan for this Site to (1) include an extension of
Wake Towne Drive to allow connectivity to Industrial Drive; (2) provide vehicular and
pedestrian access through the property to provide connectivity between the shopping center
developments and Wake Towne Drive extension; and (3) provide and in -and -out access road and
easement along Wake Forest Road to permit ingress and egress. Any development on the Site
will be restricted by these multiple easements, buffers, and roads.

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F. The Applicant has requested approval of a major variance from the Neuse River
Riparian Area Protection Rules pursuant to 15A NCAC 02B .0233 to allow the proposed
development on the Site. The Applicant will not be able to build the proposed development
without the variance.
G. The Applicant cannot make reasonable use of the property without impacting the
protected riparian buffer.
H. The previous development resulted in stormwater runoff being piped directly to
the stream, removing much of the buffer function at this site.
1. The Applicant's plan for mitigation includes purchasing 92,202 square feet of
buffer credits. The Applicant submitted a Statement of Availability from the Wildlands
Holdings (Wildlands) dated February 1, 2016, indicating that Wildlands currently has 63,435
square feet of riparian buffer credits in the WEI-Neuse 01 Nutrient Offset and Buffer Umbrella
Bank -Buck Swamp Parcel and/or Caraway Creek and with the opening by the end of 2016 of a
Neuse 01(not Falls) bank to be called the Falling Creek Nutrient and Buffer Bank, Wildlands
will have the necessary credits available for the full buffer requirement.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
A. The Site owned by I.B.I. Holdings, LLC is subject to the Neuse River Riparian
Area Protection Rule, 15A NCAC 2B .0233.
B. 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 2B .0233 upon a finding that:

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(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.
C. The Commission affirmatively finds that Applicant has demonstrated the
following:
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. ff the applicant complies with the provisions of this Rule, helshe 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 d fferent from that of neighboring property.
D. The applicant did not cause the hardship by knowingly or unknowingly violating
this Rule.
E. 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 .0233 (9)(a)(i)(A) through (F).

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The Commission affirmatively finds that the Applicant has made the required showing
that there are practical difficulties preventing compliance with the strict letter of the riparian
buffer protection requirements. Specifically,
A. The Applicant cannot make reasonable use of the property without impacting the
protected riparian buffer.
B. The hardship results from the application of this rule as well as other factors. The
location of the stream near and running parallel to Wake Forest Road prevents the
property from being utilized to its full potential. Additionally, the City of Raleigh
requires the Applicant to extend Wake Towne Drive, which will require
substantial regrading and fill in the area of the impacted stream segment. Other
factors include the required parking associated with retail space, necessary
pedestrian and bicycle connectivity, and set -back requirements.
C. The hardship is due to the physical nature of the Applicant's property. The
property drops approximately 44 feet in elevation from east to west, necessitating
location of smaller commercial shops, and associated parking, closer to Wake
Forest Road and within the stream buffer so that larger anchor stores can be
located to the rear of the property at higher elevation with greater visibility.
There are no other similarly situated properties in this vicinity.
D. The Applicant did not cause the hardship by knowingly or unknowingly violating
this Rule.
E. The Applicant purchased the property on July 29, 2403, which is after the
effective date of this Rule.

-b -
F. The hardship is unique to the Applicant's property. The property has two stream
segments and areas around these stream segments were developed prior to
implementation of this rule resulting in stormwater runoff that is piped directly to
these stream segments. The previously culverted portions of the tributary already
remove much of the riparian buffer function.
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 Applicant has demonstrated it meets the second
factor required under 15A NCAC 02B .0233(9)(a)(ii). Specifically, the purpose of the riparian
buffer rules is to protect existing riparian buffer areas. However, the Applicant cannot make
reasonable use of the property without impacting the protected riparian buffer. The Applicant
has agreed to purchase 92,202 buffer mitigation credits and will treat stormwater from the Site.
By granting the requested variance with the conditions to require the purchase of buffer
mitigation credits and a stormwater management plan reviewed and approved by the City of
Raleigh, the proposed development will be in harmony with the general purpose and intent of the
riparian buffer protection rules and preserves 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 Applicant has demonstrated it meets the third
factor required under 15A NCAC 02B .0233(9)(a)(iii). Specifically, in granting the variance
subject to the conditions that the Applicant purchase 92,202 square feet in buffer mitigation
credits and treat stormwater from the Site the proposed development will protect water quality
and ensure 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
0233(9)(c) as a major variance to the Neuse River Riparian Area Protection Rule with the
following conditions:
1. Mitigation. The Applicant shall provide mitigation for the proposed
impacts by purchasing 92,202 buffer credits from Wildlands Holdings, LLC or an
environmental mitigation bank approved by the Division of Water Resources.
2. Stormwater Management Plan. The Applicant shall be responsible for
providing an approved stormwater management plan (SMP) for the Site. The
Applicant shall provide one copy of the approved SMP, including plan details on
full-sized plan sheets, with proof of the City of Raleigh's approval to the Division
of Water Resources, 401 & Buffer Permitting Unit (1650 Mail Service Center,
Raleigh, NC 27699-1650) before any impacts authorized by the approved Major
Variance with conditions occur.
This is themtb
day of r, , 2016.
ENVIRONMENTAL MANAGEMENT COMMISSION
Steven J. Rowlan, Chairman

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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:
Christopher M. Willett, Registered Agent
I.T.B. Holdings, LLC
1829 E. Franklin Street, Suite 800-B
Chapel Hill, NC 27514
Bob Zarzecki
Soil and Environmental Consultants, P.A.
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 Z -V day of 2016.
Certified MaillReturn Receipt Requested
E-mail.- bzarzecki0a sandec.com
E-mail: [e-mail]
E-mail: Karen. Hi ggi nsgncdenr. go v
ROY COOPER
Attorney Gener;
Wilhelm Hauser
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602