20160566 Ver 1_Meeting Note_20160511

Division of Water Resources
DWR
State of North Carolina
Department of Environment and Natural Resources
Division of Water Resources
15A NCAC 02B .0233 (8)(b), .0243 (8)(b), .0250 (11)(b), .0259 (8)(b), .0267 (11)(c), .0607 (e)(2)
Protection and Maintenance of Riparian Areas Rules - Variance Application
FORM: VAR 10-2013
PLEASE IDENTIFY WHICH RIPARIAN AREA PROTECTION RULE APPLIES:
❑ Neuse River Basin (15A NCAC 02B.0233)
❑ Major Variance ❑ Minor Variance
❑ Catawba River Basin (15A NCAC 02B.0243)
❑ Randleman Lake Water Supply Watershed (15A NCAC 02B.0250)
❑ Major Variance ❑ Minor Variance
❑ Tar -Pamlico River Basin (15A NCAC 02B.0259)
❑ Major Variance ❑ Minor Variance
❑ Jordan Lake Water Supply Nutrient Strategy (15A NCAC 020.0267)
❑ Major Variance ❑ Minor Variance
❑ Goose Creek Watershed (15A NCAC 02B.0606 & 15A NCAC 02B.0607)
A. General Information
1. Applicant's Information(if other than the current property owner):
Name: Patterson Custom Builders LLC.
Title: Tonv Patterson
Street Address: 817 New Bern A
City, State & Zip: Raleigh, NC 27601
Telephone: [phone]
Email: [e-mail]
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2. Property Owner/Signing Official (person legally responsible for the property and its compliance):
Name: Capital City Property Solutions, Inc
Title: Kristi Thayer, President
Street Address: 3200 Glen Royal Rd, Suite 104
City, State & Zip: Raleigh, NC 27617
Telephone: [phone]
Email: kristi.@thayercustomhomes.c_o_m
FORM: VAR 10-2013

3. Agent Information
3a. Name: Terry Thayer
Company Affiliation: Vice President
Street Address: 7823 Cape Charles Dr
City, State & Zip: Raleigh, NC 27617
Telephone: [phone]
E-mail: terry_@thayercustomhomescom
3b. Attach a signed and dated copy of the Agent Authorization letter if the Agent has signatory authority for the owner.
4. Project Name (Subdivision, facility, or establishment name):
611 N. Elizabeth New Construction SFD
5. Project Location:
5a. Street Address: 611 N Elizabeth St
City, State & Zip: Durham NC 27701
5b. County: Durham
5c. Site Coordinates (in decimal degrees): 35.998153 N Latitude 78.890806W_ Longitude
5d. Attach an 8 % x 11 excerpt from the most recent version of the USGS topographic map indicating the location of the site.
5e. Attach an 8 % x 11 excerpt from the most recent version_ of the published County NRCS Soil Survey Map depicting the
project site.
6. Property Information:
6a. Property identification number (parcel ID): 110654
6b. Date property was purchased: November 20 2015.
6c. Deed book 7828 and page number _ 224
6d. Map book 1 and page number 155
6e. Attach a copy of the recorded map that indicates when the lot was last platted.
7. Is your project in one of the 20 Coastal Counties covered under the Coastal Area Management Act (CAMA)?
❑ YES X NO
7a. if you answered yes above, in which AEC do you fall (30 ft or 75 ft)?___n/a_ _
7b. If you answered yes above, what is the total percent of impervious cover that you have proposed within the AEC? _nLa
FORM: VAR 10-2013 Page 2 of 8

8. Directions to site from nearest major intersection:
From Highway 47 Exit 12k take Fayetteville street north until it turns into N Elizabeth Street, continue north, and property will
be on the left near the intersection of Canal Street and N Elizabeth Street
9. Stream associated with riparian buffer to be impacted by the proposed activity:
Name Water Quality Classification
At least Intermittent
Unnamed Tributary to Ellerbe Creek
9a. For Goose Creek only: Is the buffer in the 100 -year floodplain? ❑ YES ❑ NO
10. List any permits/approvals that have been requested or obtained for this project in the past (including all prior phases).
Date Applied: Date Received: Permit Type:
1/2_ L2016 ____2/18/16 Single f_a_mily_dwelling new construction permit
B. Proposed Activity
1. Project Description
1a. Provide a detailed description of the proposed activity including its purpose:
Intention to build a single family dwelling for private one family_ residential use. Obtained buildingpermits that were
approved and issued by the City of Durham, however during the _course of construction it was brought to ourand their
attention that the creek next to the Propertywas an intermittent stream and that there were buffers that had to be
implied and_w_e_were in violation of the area required. This was brought to our attention after numerous site visits by
Durham storm water division to the site without response_ to the creek as well. I don't believe anyone working ion_this
project knew this was an identifiable stream_,_ and _applicant _was not informed by_the City of Durham of this
_being_an
identifiable stream or creek when the survey of the parcel was submitted to the City of Durham as a part of the building
permit applicationprocess.
1b. Attach a site plan showing the following items as applicable to the project:
Q Development/Project name
Q Revision number & date
Q North arrow
Q Scale (1" = 50' is preferred)
Q Property/project boundary with dimensions
Q Adjacent streets and roads labeled with names and/or NC State Road numbers
Q Original contours and proposed contours
Q Perennial and intermittent streams, ponds, lakes, rivers and estuaries
Q Mean high water line (if applicable)
Q Wetlands delineated, or a note on plans that none exist
Q Location of forest vegetation along the streams, ponds, lakes, rivers and estuaries
Q Extent of riparian buffers on the land including Zone 1 and Zone where applicable
Q Location and dimension of the proposed buffer impact (label the area of buffer impact in ft' on the plan)
Q Details of roads, parking areas, cul-de-sacs, sidewalks, and curb and gutter systems
Q Footprint of any proposed buildings or other structures
FORM: VAR 10-2013 Page 3 of 8

Q Discharge points of gutters on existing structures and proposed buildings
Q Existing drainage (including off-site), drainage easements, and pipe dimensions
Q Drainage areas delineated
C. Proposed Impacts and Mitigation
1. Individually list the square footage of each proposed impact to the protected riparian buffers:
Buffer Impact
Number'— Reason for Impact
Buffer Zone 1 Impact Zone 2 Impact
Permanent (P) or
Mitigation (square feet) (square feet)
Temporary (T)
Required
B1 - ®P ❑ T Building construction
X Yes ❑ No 230 660
B2 -❑P ❑T
❑ Yes ❑No
B3 -❑P ❑T
❑ Yes ❑No
3
Total Buffer Impacts 2
'Label on site plan
2. Identify the square feet of impact to each zone of the riparian buffer that requires mitigation from the table above. Calculate
the amount of mitigation required.
For projects in the Goose Creek Watershed, list all riparian buffer impacts as Zone 1
and use Zone 1 multiplier.
3. Provide a description of how mitigation will be achieved at your site pursuant to the mitigation requirements of the applicable
river basin/watershed.
Applicant_shall submit _alandscape and revegetation plan that uses a mix of species, regardless of whether less than 20 trees are
determined to be necessary on the -subject parcel. Applicant shall use as a guideline that Unified Development Ordinance for the
City of Durham as its foundation, and include any and all required elements oer Title_15A NCAC 02B et. seq., remedial measures
to maintain diffuse flow of runoff by dispersing concentrated flow. Applicant's plan is set forth in the attached Mitigation Plan,
which includes a_ Planting- Plan.
3a. Is buffer restoration or enhancement proposed? X Yes ❑ No
If yes, attach a detailed planting plan to include plant type, date of plantings, the date of the one-time fertilization in the
protected riparian buffers, and a plan sheet showing the proposed location of the plantings. (SEE ATTACHED PLANTING
PLAN)
3b. Is payment into a buffer restoration fund proposed? ❑ Yes ❑ No
If yes, attach an acceptance letter from the mitigation bank you propose to use or the NC Ecosystem Enhancement
Program stating they have the mitigation credits available for the mitigation requested.
FORM: VAR 10-2013 Page 4 of 8
Required
Zone
Total Impact
Multiplier
Mitigation
(square feet)
(square feet)
Zone 1'
230
3
690
(2 for Catawba only)
Zone 2
660
1.5
990
Total Buffer Mitigation Required:
1680
For projects in the Goose Creek Watershed, list all riparian buffer impacts as Zone 1
and use Zone 1 multiplier.
3. Provide a description of how mitigation will be achieved at your site pursuant to the mitigation requirements of the applicable
river basin/watershed.
Applicant_shall submit _alandscape and revegetation plan that uses a mix of species, regardless of whether less than 20 trees are
determined to be necessary on the -subject parcel. Applicant shall use as a guideline that Unified Development Ordinance for the
City of Durham as its foundation, and include any and all required elements oer Title_15A NCAC 02B et. seq., remedial measures
to maintain diffuse flow of runoff by dispersing concentrated flow. Applicant's plan is set forth in the attached Mitigation Plan,
which includes a_ Planting- Plan.
3a. Is buffer restoration or enhancement proposed? X Yes ❑ No
If yes, attach a detailed planting plan to include plant type, date of plantings, the date of the one-time fertilization in the
protected riparian buffers, and a plan sheet showing the proposed location of the plantings. (SEE ATTACHED PLANTING
PLAN)
3b. Is payment into a buffer restoration fund proposed? ❑ Yes ❑ No
If yes, attach an acceptance letter from the mitigation bank you propose to use or the NC Ecosystem Enhancement
Program stating they have the mitigation credits available for the mitigation requested.
FORM: VAR 10-2013 Page 4 of 8

1. Provide a description of how diffuse flow will be maintained through the protected riparian buffers (e.g., re -planting vegetation
or enhancement of existing vegetation, gutter splash pads, level spreader to control of runoff from impervious surfaces, etcl
la. Show the location of diffuse flow measure(s) on your site plan.
1b. Attach a completed Level Spreader Supplement Form or BMP Supplement Form with all required items for each proposed
measure.
lc. Attach anOperation and Maintenance (O&W1)Form for each proposed level spreader orBIVIP.
2. For Major, Catawba, and Goose Creek variance requests, provide a description of all best management practices (BMPs) that
will be used to minimize disturbance and control the discharge of nutrients and sediments frnmstormwater.
2a. Show the location of BIVIPs on your site plan.
2b. Attach a Supplement Form for each structural BIVIP proposed.
Zc. Attach an Operation and Maintenance (O&M) Form for each structural BMP proposed.
E. Demonstration ofNeed for aVariance
The variance provision of the riparian buffer rules allows the Division or the Environmental Management Commission to grant a
variance when there are practical difficulties or unnecessary hardships that prevent compliance with the strict letter of riparian
buffer protection.
1. Explain how complying with the provisions of the applicable rule would prevent you from securing a reasonable return from
mrmake reasonable use ofyour property. Merely proving that the variance would permit agreater profit from the property
shall not beconsidered adequate justification for avariance. The Division will consider whether the variance isthe minimum
possible deviation from the terms of the applicable Buffer Rule that shall make reasonable use of the property possible.
The subject parcel had a pre-existing residential home located thereon, and the neighborhood is a densely populated district
within the city limits of Durham, and within 1.5 miles of the central business district of the City of Durham. There are
residential homes located on all lots surrounding the subject parcel. The pre-existing home on the subject lot is located
within Zone 2 of the Neuse Riparian Buffer and its construction appears to have pre -dated the creation of the Neuse Buffer.
The issue in this request is not about whether the applicant will be able to secure the greatest financial return on its financial
investment, but instead is whether the applicant will be able to secure any return on its investment without approval of a
Major Variance. Applicant is a small, family run business and has operated within neighboring areas of 611 N. Elizabeth St.
within the city limits of Durham on more than 20 prior projects (get exact # building permits issued to CCPS). On each
project, applicant orders a lot survey with house location located thereon, and surrounding streams, creeks, lakes or other
FORM: VAR me13 Page sof8

waterways, which is sent to the City of Durham as a part of their building permit application. This is more than the City of
Durham requires, and in this case, the survey and plot plan provided to the city with the building permit application showed
the creek/stream location. The survey and plot plan were reviewed by the City of Durham along with the application, and a
building permit was issued without warning or notice of the Neuse Riparian Buffer zones located on the lot. Applicant was
not aware that the lot contained such a buffer and was never informed by any third party or city employee prior to receipt of
a letter and Notice of Violation dated April 14, 2016 from the State of North Carolina Water Resources and Environmental
Quality Department. W.C. Blalock, Chief Building Inspector,
Durham City -County Inspections Department, informed counsel for the applicant that "newer employees had reviewed this
permit application, and they paid more attention to the structure than to the creek located on the survey, and they missed
it." In addition, Mr. Blalock also stated that he had received more information from the lot owner than he normally receives
in the building permit application process, and that normally the City would not be provided enough information to be able
to determine whether there was an existing stream, creek waterway or a state mandated buffer zone; however, in this case,
the survey and plot plan provided to the City of Durham did, in fact, clearly show the path of the stream along the rear
property boundary of the subject parcel. Which put the city on notice of the stream prior to issuing a building permit. Mr.
Blalock's comment indicates that his staff should have determined the existence of the Neuse Riparian Buffer and that the
proposed structure would be violative of both Zones 1 and 2 thereof. Thus, the commencement of construction, to the point
of framing the structure in its entirety and installing a roof on the two story home had been completed prior to issuance of a
stop work order on this project. Oddly, photos attached to the letter were date stamped April 6, 2016, and the photos show
only the I" story framed at the time, and would the lot owner have been provided with notice of an anticipated violation on
or before the time when the photograph was taken, there would have been significantly less expense involved in moving the
structure to a location within the footprint of the previous structure. At this time, the estimate of the cost to move the home
to another location on the lot is approximately $20,000.00, although the home would still be located within Zone 2, and
would require relief from the State of North Carolina in the form of a variance, to proceed with construction. As a result, the
applicant, which secured a mortgage loan to acquire the parcel and for construction of the residence to be located thereon,
and the lender, who has invested capital in this project and anticipated investing additional funds into future projects located
in the City of Durham, will lose money on this project and potentially impact the continued viability of the applicants ability
to continue in its current business — money that we believe would not have been lost had the City of Durham reviewed the
survey and plot plan submitted in the permit application process. It is the desire of the applicant to continue with this
project, with the understanding that it will undertake remediation measures to disperse flow of runoff and also to re -
vegetate the lot in a manner that complies with both ISA NCAC 02B, et seq., and the City of Durham Unified Ordinance.
Absent a major variance being issued, the subject parcel will not be a buildable parcel. With the area where the subject
parcel is located already being a densely populated city neighborhood, the best use of the parcel is for a single family
residential home, which is what the lot has always been used for, prior to the acquisition of the lot in November 2015 by the
applicant. Furthermore, the quality of construction that has been approved by the City of Durham for this lot is above that
which previously existed on the lot, and will benefit the neighborhood and the city in a significant manner, if a major variance
is approved and the project is completed, as planned, with remedial measures added to the project scope that will re -
vegetate the land in the affected zones and disperse concentrated flow of runoff to the stream.
2. Explain how the hardship results from application of the Buffer Rule to the property rather from other factors such as deed
restrictions or other hardships (e.g. zoning setbacks, floodplains, etc).
Thep has always been_used_for residential purposes, with a pre-existing home being located_ thereon when the current
owner purchased the lot in used
2015. Residential use in a city_ neighborhood that is densely populated, with residential
homes on all sides of the lot make such continued use the b_ est possible use for the lot._Not only is there an extreme financial
hardship that would be created should_ a major variance not be granted but there is not other location on the lot where_a
residential home could be constructed_wthout_issuance of a variance. There _are also no_other detriments to building on the
subject parcel but for the existence of the Neuse Ri ap rian Buffer.
Explain how the hardship results from physical nature of the property, such as its size, shape, or topography, which is different
from that of neighboring property.
The stream running through the back corner and adjacent_proper_ty_limits our. building_envelope. To the point where we can't
provide_a desired dwelling footrint._ The require city setbacks in conjunction with the state required buffers were not compliant
on the previous dwelling either. We attempted to turn in anv and all pertinent data/information to the city_for plan review,
including a watershed map that didn't alert anybody at that time on the placement of the home on this lot. In conclusion we
could have done_a better_ compliant placement of the dwelling had the city_p�rovideclanyknowledge_of ap_o_ssible intermitted
FORM: VAR 10-2013 Page 6 of 8

stream and buffer zone requirements__We would have been able rectify ­the situation at that time by providing a more compliant
o|ucementofthe structure.
4. Explain whether the hardship was caused by the applicant knowingly or unknowingly violating the applicable Buffer Rule.
Unknowingly. An initial survey and- plot-, Ian was prepared prior -to requesting a building� rom the.Citv of Durham,
permit from the
which showed the location of a creek runningthrou
was unaware of the existence of the Neuse Buffer bein app lot plat and
dicable to the creek referenced on the survey t_p_ �
after submission to the City of Durham,_the building -permit was issued, also without reference to the Neuse Buffer Zones and -
the location of thepro osed structure. The approved building ermit was provided to the ap-plicant after full disclosure of
the creek location,, parcel identification information and survey-/ plot plan, but the City of Durham also failed to identify,the
Neuse Buffer in their review. Applicant would have reques ed a varianceorchanged the location of the structure had it
known of the Buffer location in advance of being issued a building permit,_or after ther ue t f r a uil ing I W s
made by applicant. However, Applicant proceeded with construction uporybein granted its bui ding ermit ill without an
knowledge of the Neuse Buffer zones located on the subject property
5. For Neuse, Tar-Pam|ic4Jordan Lake and Goose Creek only: Did the applicant purchase the property after the effective date of
the applicable Buffer Rule and then request avariance?
Yes. However, and as -specifically stated above in -Paragraph 4, an initial surveyand plot plan was _prepareicl _prior torequesting
a bukd�-permit from the City of Durham, which showed the locationolf a creek running throug"_ rear-propert)t boundary
and corner of the subject parcel. Applicant was unaware of the existence of the Neuse Buffer being app-ricable to the creek
referenced on the survey / plot pla-t and after submission to the City of Durham, the buildin permit was issued,, also without
reference to the Neuse Buffer Zones and the loc tion of the pr posed structure. The approvedbuilding_permit was provided
to the applicant after full disclosure of the creek location, parcel identification information and su eyl,
-ry -plot plan. bpi the
Cit of Durham also failed to identify the Neuse Buffer in their review. Applicant would have requested a variance or changed
the location of thestructure had it known of the Buff er-lo.c.ation in advanceof beingissued a building permit— or afterthe
requestfora buildirlg,perm�it was -made bya er -ppUcant proceeded with construction upon being granted its
building permit, still without
-144��nowledge of thle-Ne-use Buffer zones located on the subject prop rty.
6. Explain how the hardship is rare or unique to the applicant's property, rather than the result of conditions that are widespread.
There was a prior residential structure located at 611 N. Elizabeth Street at the time when applicant purchased the parcel in
November 2015. Applicant hasexha sted significant financial resources in the beautification of the neighborhood where the
subject - parcel is locate - d in D - urha,m, by purchasing old homesan-cleither re -building or tearing down and building a new
structure on site, allsingle fam#y residences. This has resulted in entire neighborhoods being re
juvenated by aRRH� in the
subject area. lnthlis� since a home was located on site that applicant has later learned was also situated within the
Neuse -Buff er, and since applicant was not informed by the City of,purbarn of the existence of the Buffer at the time of
requesting their building,permit with an attached Riot plan ancl­Wrvey, the issue raised in this request for a Major Variance is
uniquetothis parcel,and applicant does not believe that ab ilding-permit should have been issued, since sufficient
identifying information and surveyswereprovided to the City in advance of issuance of the building per it..Ap
m' ­ plicant has
previously been denied building -permits on other parc Is where th-e-Q-ty of -Durham finds such Buffer zones or other matters
a dght prevent a structure to be located on the parcel, and such did not occur for this parcel and would have -prevented
the violation from-occ rin
F. Deed Restrictions
By your signature in Section G of this application, you certify that all structural stormwater BMPs required by this variance shall
be located in recorded drainage easements, that the easements will run with the land, that the easements cannot be changed
or deleted without concurrence from the State, and that the easements will be recorded prior to the sale of any lot.
G. Applicant's Certification
1, (print n/type name ofperson listed inSection A,Item 2),certify
that the information included on this permit application form is correct, that the project will be constructed in conformance
FORM: VAR 10-2013 Page 7 of 8

with the approved plans and that the deed restrictions in accordance with Section F of this form will be recorded with all
required permit conditions.
Signature:
Date
FORM: VAR 10-2013 Page 8 of 8

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