20160131 Ver 1_WQC or EMC Recommendation_20160720

Burdette, Jennifer a
From: Warren, Beth <[e-mail]>
Sent: Wednesday, July 20, 2016 5:13 PM
To: [e-mail]; Thomas, Lois; Zimmerman, Jay; [e-mail];
Burdette, Jennifer a; Higgins, Karen; [e-mail]; [e-mail]
Cc: Hauser, Jennie
Subject: EMC Variance Ella Yorks
Attachments: 2016-07-20 Letter sending York FAD.pdf, 2016-07-20 FAD Yorks.pdf
All -
Attached is the Decision Granting Major Variance with Conditions re: Neuse Riparian Rules
Woodland Drive Durham Ella S. Yorks, heard July 13, 2016 at WQC.
Beth Warren, NC Certified Paralegal
NC Department of Justice
Environmental Division
[phone]

STATE OF NoR.TH CAPLOLIN
DEPAUMENT OF JUS-HCE I
R -0Y COOPEP, 11.0. Box 629 FIAI'SET
ATTORNEY GENERAL RA11,1GH, NC` 2761)2 ENVIRONNIENTAL DIVIS10\
11, i�:l .: (1) 19) 716-6962
FAX: (x) 19) 716-6767
JIMLISCTiP1Wd0.J,90%1
July 20, 2016
Ella S. Yorks Cerlired .Mail/Return Receipt uesteci
600 Laurel Springs Drive, Apt. 603
Durham, NC 27713
Cathy S. Hamblen Rq�gular U,�. Mail
9 Knollwood Road
Pinehurst, NC 28374
Re: Final Decision Granting Variance with conditions
Dear Ms. Yorks and Ms. Hamblen:
At its July 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.
Sin ,
Jennie Wilhelm Hauser

Ella S. Yorks
[insert date]
Page 2
Special Deputy Attorney General and
Counsel for the Environmental Management Commission
cc: w/ encl.-, Steven J. Rowlan, Chair of the Commission, electronically
Steve Tedder, Chair of the 'QC, electronically
Tom Reeder, Director, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically.
Lois Thomas, recording secretary for Commission, electronically
Danny Smith, RRC), electronically

STATE OF NORTH CAROLINA
COUNTY OF WAKE
INTHE MATTER OF:
PETITION FOR VARIANCE FROM
15ANCAC 213.0233
NEUSE RIVER RIPARIAN AREA
PROTECTION RULES BY
ELLA S. YORKS
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 July 13, 2016 in Raleigh, North Carolina upon Ella S. Yorks' (the
Applicant's) request for approval of' a major variance from the NCLISe River Riparian Area
Protection Rules pursuant to 15A NCAC 012E .0233 to allow construction of a single fiarnily
residence at 1415 — 1417 Woodland Drive in Durham, NC (the Site). The proposed development
will impact 2,2310 square feet of Zone I and 1,115 square feet of Zone 2. The Applicant has
agreed to provide mitigation for the proposed impacts and implement a Stormwater Management
Plan for the site.
Based on the information provided, the Division of Water Resources supported the
request for a major variance. Jennifer Burdette, 401 and Buffer Permitting Unit at the Division
of Water Resources presented the request for a major variance to the Water Quality Committee.
Upon consideration of the record documents, the request and the staff recornmendation,
and based upon the approval of the Water Quality Committee, the Commission hereby makes the
following:

M
FINDING OF FACTS
A. The Applicant owns the Site at 1415 — 1417 Woodland Drive in Durham., North
Carolina. The Site is undeveloped but it is located in an area that has been developed for homes
for many years.
B. The property was purchased on March 14, 1960, which is prior to, the effective
date of the Neuse Riparian Area Protection Rules,
C. There is an unnamed tributary (UT) to Ellerbee Creek (WS -IV NSW) which runs
through the middle of the property with riparian buffers on both sides of the stream. The buffer
encumbering more than. 80 percent of the property is unique to applicant's property.
D. The applicant has not violated the Neuse Riparian Area Protection Rule.
E. The proposed development is for the construction of a single family residence and
associated infrastructure, including grading, parking, and the installations of rain gardens on the
Site within Zones I and 2 ol'the protected riparian buffer.
F. The Applicant has 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.
G. The Applicant has requested approval of a major vat -lance 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.
H. The Applicant cannot make reasonable use of the property without impacting the
protected riparian buffer.

N
I. 'The proposed development will impact 2,330 square feet of Zone I of the Neuse
River Buffer, and 1,115 square feet of Zone 2 of the Neuse River Buffer.
J. The Applicant's plan for mitigation includes purchasing 5,591 square feet of
buffer credits. Applicant submitted a Statement of Availability from the EBB Riparian Buffer
Mitigation Bank dated June 1, 2016.
K. The Applicant's plan also includes enhancing the buffer by removing invasive
species and planting small trees and shrubs and by constructing 3 rain gardens and associated
downspout drains.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
A. The Site owned by Ella S. Yorks 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 tinder 15A NCAC 2B 0233 upon a finding that:
(I ) 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 tire practical i-lifficulties or unnecessary har(Iships that prevent
compliance )vith the strict letter of the riparian baf
.fer protection requirements.

_4_
lit its assessment of whether the Applicant had made a showing of "practical difficulties
or unnecessary hardships", the Commission considered the following factors.
A. ll'the applicant complies ivith the provisions oflhis Rule, helshe can secure no
reasonable rournfi-oin, nor make reasonable use of his/her property. Merely
proving that the variance would permit a greaterprofit./rom the property shall
not be considered adequaiejustificafionfbr a variance. Iforeover, the Division or
delegated local authority, shall consider whether the variance is the minimum
possible deviation from the terms ofthis Rule that shall make reasonable use Qf
the property possible.
B. The hardship results from application oj'this Rule to the property rather than
.1rom other factors such cis deed restrictions or other hardship.
C. The hardship is due to the physical nature ofthe aPPlicani's property, such as its
size, shope, or topography, which is dil
,jerentfi,oin that of'neighboringproperty.
D. The applicant did not cause the hardship by knowingly or unknoiving�y violating
this Rule.
E. The applicant did not purchase the property after the ef
-feetive date qfthis 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 suNect to the
hardship created in the restriction, then granting a variance would be a special
privilege denied to others, and would not promote equal.jusiice,-
15A NCAC 02B .0233 (9)(a)(i)(A) through (F).
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 rather than from other
factors. The stream runs through the middle of the property with riparian buffers
on both sides of the stream, which greatly limits the ability to develop this parcel.

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C. The hardship is dale to the physical nature of the applicant's property, The
property has a stream running through the middle of the property with riparian
buffers on both sides of the stream.
1). The applicant dict not cause the hardship by knowvingly or unknowingly violating
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. The property has a stream
running through the middle of the property with riparian buffers on bath sides of
the stream..
Second Factor: The variance is in hartnonj> with the general purpose and intent qf the
State's riparian buffer protection requirements and preserves its spirit.
The Commission affirmatively funds that Applicant has demonstrated she 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 5,591 buffer mitigation credits, to enhance exiting buffer by
removing invasive species and replanting shrubs and small trees, and to treat stormwvater From
the Site. Additionally, the Rain Carden Operations and Maintenance Agreement (O&M
Agreement) will require the Applicant to correct, repair or replace immediately any deficiencies
upon inspection of the three rain gardens. By granting the requested variance with conditions to
requiring the purchase of buffer mitigation credits and an approved stor nwater management plan

_6_
the proposed 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 we fare have been
assured, water quality has been protected and substantialjustice has been ([one.
The Commission affirmatively finds that Applicant has demonstrated she 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 5,591 square feet in buffer mitigation
credits and treat stormwater from the Site, the proposed development will protect water quality
and achieve substantial justice.
NOWNU
Based on the Findings of Fact and Conclusions of Law set forth above. IT IS FIE'REBY
Z:�
OR.Dl-','RE,D that the request for the variance is GRANT E'D 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 5,591 buffer credits from EBX Buffer Mitigation Banks or
an environmental mitigation bank approved by the Division of Water Resources.
2. Storm water 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, 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.
a. The Applicant shall record a declaration of compliance with the Durham
County Register of Deeds, which declaration will indicate the footprint of each
rain garden and all associated conveyances and ensure direct discharges of
stormwater runoff through the buffer do not occur,

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K The Stormwater Management Plan may not be modified without prior
written authorization from the Division of Water Resources.
c. Maintenance activities for the rain gardens shall be performed in
accordance with the notarized O&M agreement signed on. April 21, 2016 and
shall transfer with the sale of the land.
This is the 14"' day of July, 2016,
F,NVIRONME,'NTAL MANAGEM17NT COMMISSION
Steven J. Rowlan, Chairi-nan

In
CERTIFICATE OF SERVICE
This is to certify that 1 have this day served the foregoing recision Granting Major
Variance upon the Applicant and the Division of Water Resources in the manner described
below as follows:
Ella S. York
600 Laurel Springs Drive, Apt. 603
Durham, NC 27713
Cathy S. Hamblen
9 Knollwood Road
Pinehurst, NC 28374
Jennifer A. Burdette
401 /13uffer Coordinator
401 & Buffer Permitting Unit
Division of Water Resources
161.7 Mail Service Center
Raleigh NC 27699-1617
Karen Higgins, Supervisor
Division of eater Resources
1650 Mail Service Center
Raleigh NC 27699-1.650
This is the 1 day of July, 2016.
Certified 1'1✓ aill.Return Receipt Requested
US Mail and
E-mail. phcathl,sanc.rr.coin
E-mail. Jenni_[-e.r.Burdette(ivncdell tgo);
E-mail: Karen.HigginsLivncdenr.gov
Attorney Geil
Jennie Wilhelm Hauser
Special Deputy Attorney General
P. 0. Box 629
Raleigh, N. C. 27602