20160131 Ver 1_WQC or EMC Recommendation_20160713

PAT MCCRORY
DONALD R. VAN DER VAART
Ella S. Yorks
1415-1417 Woodland Drive
Durham, NC
July 13, 2016
Ella S. Yorks has requested the Water Quality Committee (WQC) to grant a Major Variance from
the Neuse Riparian Area Protection Rules (15A NCAC 02B .0233) for construction of a proposed
single-family home and three rain gardens within Zone 1 and Zone 2 of the buffer on an existing
lot at 1415-1417 Woodland Drive in Durham, NC. The proposed home and rain gardens will
impact 2,230 square feet of Zone 1 and 1,115 square feet of Zone 2.
Accordingly, pursuant to 15A NCAC 02B .0233 (9)(c), the Division of Water Resources makes the
preliminary finding that the major variance request demonstrates the following:
• Practical difficulties or unnecessary hardships are present;
• The harmony and spirit of buffer protection requirements are met; and
• The protection of water quality and substantial justice has been achieved as required in
15A NCAC 0213 .0233 (9)(a).
15A NCAC 0213 .0233 (9)(a)(i) states the followin
"There ore practical difficulties or unnecessary hardships that prevent compliance with the strict
letter of the riparian buffer protection requirements. Practical difficulties or unnecessary
hardships shall be evaluated in accordance with the following:
A. If the applicant complies with the provisions of this Rule, he/she con secure no reasonable
return from, nor make reasonable use of, his/her property. Merely proving that the
variance would permit o greater profit from the property shall not be considered
adequate justification for o variance. Moreover, the Division or delegated local authority
shall consider whether the variance is the minimum possible deviation from the terms of
this Rule thotsholl 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 os deed restrictions or other hardship.
C. The hardship is due to the physical nature of the applicant's property, such os 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.
State of North Carolina I Environmental Quality I Water Resources
1611 Mail service Center I Raleigh, North Carolina 27699-1611
919 707 9000

Ella S. Yorks
1415-1417 Woodland Dr Durham
Major Variance Request — DWR Findings of Fact
Page 2 of 4
E. The applicant did not purchase the property after the effective dote of this Rule, and then
request on appeal.
F. The hardship is unique to the applicant's property, rather than the result of conditions
that ore widespread. If other properties ore equally subject to the hardship created in the
restriction, then granting o variance would be o special privilege denied to others, and
would not promote equal justice;"
The Division finds the following:
There are practical difficulties that prevent compliance with the strict letter of the riparian
buffer protection requirements:
A. The applicant cannot make reasonable use of the property without impacting the
protected riparian buffer. Bisected by an intermittent stream that is subject to the
Neuse Riparian Buffer Rule, more than 80 % of the property is within the protected
buffer. The applicant minimized the proposed impacts to the stream and buffer by
planning the smallest feasible house footprint and locating the home as far away as
possible from the stream channel.
B. The hardship results from application of this Rule rather than from other factors. The
stream runs diagonally through the rectangular shaped property with a buffer on
both sides of the stream, which prevents development of this parcel without impacts
to the buffer.
C. The hardship is due to the physical nature of the applicants' property. An unnamed
tributary to Ellerbee Creek runs through the middle of the property leaving two
separate areas that are too small for any development, which is different from that of
neighboring properties.
D. The applicant has not violated this Rule.
E. The applicant purchased the property on March 14, 1960, which is before the
effective date of this Rule.
F. The hardship is unique to the applicant's property in that the stream channel bisects
the full length of the rectangular -shaped lot encumbering approximately 80 percent
of the property. This constraint is different from that of most of the other properties
in the neighborhood.
15A NCAC 02B.0233 (9)(a)(ii)
"The variance is in harmony with the general purpose and intent of the State's riparian buffer
protection requirements and preserves its spirit,"
The Divisions finds the following:
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 is proposing to purchase 5,591 buffer mitigation credits to offset the

Ella S. Yorks
1415-1417 Woodland Dr Durham
Major Variance Request — DWR Findings of Fact
Page 3 of 4
buffer impacts from the home and driveway. To offset the buffer impacts from the proposed
rain gardens, the applicant proposes to enhance the riparian buffer on the property by removing
invasive vegetation and planting 23 native shrub and trees species.
15A NCAC 02B.0233 (9)(a)(iii)
"In granting the variance, the public safety and welfare hove been assured, water quality has
been protected, and substantial justice has been done."
The Divisions finds the following:
In granting the variance, water quality has been protected and substantial justice has been done.
The applicant is proposing to purchase 5,591 buffer mitigation credits and implement a
stormwater management plan for the property. The stormwater management plan consists of
three rain gardens to treat the impervious area proposed to be added to the buffer. This Major
Variance as proposed is consistent with past Major Variance approvals from the Water Quality
C1107171iiam--
Division of Water Resources' Recommendation:
Based on the information submitted, the Division of Water Resources supports this request for a
Major Variance from the Neuse Riparian Area Protection Rules because the harmony and spirit
of buffer protection requirements are met and the protection of water quality and substantial
justice has been achieved as required in 15A NCAC 02B .0233 (9)(a) provided the below
mentioned conditions or stipulations are required. If the Water Quality Committee approves this
request for a Major Variance from the Neuse Riparian Area Protection Rules, the Division
recommends approval with the following conditions or stipulations [pursuant to 15A NCAC 02B
.0233 (9)(c)(ii) & (iii)]:
• Mitigation
The applicant shall provide mitigation for the proposed impacts by purchasing 5,591
buffer credits from Resource Environmental Solutions, LLC as indicated in their
application.
• Stormwater Management Plan
The Division approves the SMP consisting of three rain gardens and all associated
downspout drains as depicted on plan sheets received May 6, 2016, which are
incorporated by reference and are enforceable by the Division. The following conditions
also apply:
■ Prior to sale of the lot, a declaration of compliance, which indicates the footprint
of each rain garden and all associated conveyances and ensures direct discharges
of stormwater runoff through the buffer do not occur, shall be recorded with the
Durham County Register of Deeds, run with the land and be binding on all future
lot owners.

Ella S. Yorks
1415-1417 Woodland Dr Durham
Major Variance Request — DWR Findings of Fact
Page 4 of 4
■ The SMP may not be modified without prior written authorization from the
Division. A copy of the approval letter and the modified SMP shall be submitted
to the DWR 401 & Buffer Permitting Branch prior to the commencement of the
modifications.
Maintenance activities for the rain gardens shall be performed in accordance with
the notarized 0&M agreement signed by Cathy S. Hamblen (Power of Attorney
for Ella S. Yorks) on April 21, 2016. The 0&M agreement shall transfer with the
sale of the land or transfer of ownership/responsibility for the BMP facility. The
Division shall be notified within 30 calendar days of every transfer.

PAT MCCRORY
DONALD R. VAN DER VAART
Ella S. Yorks
1415-1417 Woodland Drive
Durham, NC
July 13, 2016
Ella S. Yorks has requested the Water Quality Committee (WQC) to grant a Major Variance from
the Neuse Riparian Area Protection Rules (15A NCAC 02B .0233) for construction of a proposed
single-family home and three rain gardens within Zone 1 and Zone 2 of the buffer on an existing
lot at 1415-1417 Woodland Drive in Durham, NC. The proposed home and rain gardens will
impact 2,230 square feet of Zone 1 and 1,115 square feet of Zone 2.
Accordingly, pursuant to 15A NCAC 02B .0233 (9)(c), the Division of Water Resources makes the
preliminary finding that the major variance request demonstrates the following:
• Practical difficulties or unnecessary hardships are present;
• The harmony and spirit of buffer protection requirements are met; and
• The protection of water quality and substantial justice has been achieved as required in
15A NCAC 0213 .0233 (9)(a).
15A NCAC 0213 .0233 (9)(a)(i) states the followin
"There ore practical difficulties or unnecessary hardships that prevent compliance with the strict
letter of the riparian buffer protection requirements. Practical difficulties or unnecessary
hardships shall be evaluated in accordance with the following:
A. If the applicant complies with the provisions of this Rule, he/she con secure no reasonable
return from, nor make reasonable use of, his/her property. Merely proving that the
variance would permit o greater profit from the property shall not be considered
adequate justification for o variance. Moreover, the Division or delegated local authority
shall consider whether the variance is the minimum possible deviation from the terms of
this Rule thotsholl 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 os deed restrictions or other hardship.
C. The hardship is due to the physical nature of the applicant's property, such os 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.
State of North Carolina I Environmental Quality I Water Resources
1611 Mail service Center I Raleigh, North Carolina 27699-1611
919 707 9000

Ella S. Yorks
1415-1417 Woodland Dr Durham
Major Variance Request — DWR Findings of Fact
Page 2 of 4
E. The applicant did not purchase the property after the effective dote of this Rule, and then
request on appeal.
F. The hardship is unique to the applicant's property, rather than the result of conditions
that ore widespread. If other properties ore equally subject to the hardship created in the
restriction, then granting o variance would be o special privilege denied to others, and
would not promote equal justice;"
The Division finds the following:
There are practical difficulties that prevent compliance with the strict letter of the riparian
buffer protection requirements:
A. The applicant cannot make reasonable use of the property without impacting the
protected riparian buffer. Bisected by an intermittent stream that is subject to the
Neuse Riparian Buffer Rule, more than 80 % of the property is within the protected
buffer. The applicant minimized the proposed impacts to the stream and buffer by
planning the smallest feasible house footprint and locating the home as far away as
possible from the stream channel.
B. The hardship results from application of this Rule rather than from other factors. The
stream runs diagonally through the rectangular shaped property with a buffer on
both sides of the stream, which prevents development of this parcel without impacts
to the buffer.
C. The hardship is due to the physical nature of the applicants' property. An unnamed
tributary to Ellerbee Creek runs through the middle of the property leaving two
separate areas that are too small for any development, which is different from that of
neighboring properties.
D. The applicant has not violated this Rule.
E. The applicant purchased the property on March 14, 1960, which is before the
effective date of this Rule.
F. The hardship is unique to the applicant's property in that the stream channel bisects
the full length of the rectangular -shaped lot encumbering approximately 80 percent
of the property. This constraint is different from that of most of the other properties
in the neighborhood.
15A NCAC 02B.0233 (9)(a)(ii)
"The variance is in harmony with the general purpose and intent of the State's riparian buffer
protection requirements and preserves its spirit,"
The Divisions finds the following:
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 is proposing to purchase 5,591 buffer mitigation credits to offset the

Ella S. Yorks
1415-1417 Woodland Dr Durham
Major Variance Request — DWR Findings of Fact
Page 3 of 4
buffer impacts from the home and driveway. To offset the buffer impacts from the proposed
rain gardens, the applicant proposes to enhance the riparian buffer on the property by removing
invasive vegetation and planting 23 native shrub and trees species.
15A NCAC 02B.0233 (9)(a)(iii)
"In granting the variance, the public safety and welfare hove been assured, water quality has
been protected, and substantial justice has been done."
The Divisions finds the following:
In granting the variance, water quality has been protected and substantial justice has been done.
The applicant is proposing to purchase 5,591 buffer mitigation credits and implement a
stormwater management plan for the property. The stormwater management plan consists of
three rain gardens to treat the impervious area proposed to be added to the buffer. This Major
Variance as proposed is consistent with past Major Variance approvals from the Water Quality
C1107171iiam--
Division of Water Resources' Recommendation:
Based on the information submitted, the Division of Water Resources supports this request for a
Major Variance from the Neuse Riparian Area Protection Rules because the harmony and spirit
of buffer protection requirements are met and the protection of water quality and substantial
justice has been achieved as required in 15A NCAC 02B .0233 (9)(a) provided the below
mentioned conditions or stipulations are required. If the Water Quality Committee approves this
request for a Major Variance from the Neuse Riparian Area Protection Rules, the Division
recommends approval with the following conditions or stipulations [pursuant to 15A NCAC 02B
.0233 (9)(c)(ii) & (iii)]:
• Mitigation
The applicant shall provide mitigation for the proposed impacts by purchasing 5,591
buffer credits from Resource Environmental Solutions, LLC as indicated in their
application.
• Stormwater Management Plan
The Division approves the SMP consisting of three rain gardens and all associated
downspout drains as depicted on plan sheets received May 6, 2016, which are
incorporated by reference and are enforceable by the Division. The following conditions
also apply:
■ Prior to sale of the lot, a declaration of compliance, which indicates the footprint
of each rain garden and all associated conveyances and ensures direct discharges
of stormwater runoff through the buffer do not occur, shall be recorded with the
Durham County Register of Deeds, run with the land and be binding on all future
lot owners.

Ella S. Yorks
1415-1417 Woodland Dr Durham
Major Variance Request — DWR Findings of Fact
Page 4 of 4
■ The SMP may not be modified without prior written authorization from the
Division. A copy of the approval letter and the modified SMP shall be submitted
to the DWR 401 & Buffer Permitting Branch prior to the commencement of the
modifications.
Maintenance activities for the rain gardens shall be performed in accordance with
the notarized 0&M agreement signed by Cathy S. Hamblen (Power of Attorney
for Ella S. Yorks) on April 21, 2016. The 0&M agreement shall transfer with the
sale of the land or transfer of ownership/responsibility for the BMP facility. The
Division shall be notified within 30 calendar days of every transfer.