20160566 Ver 1_WQC or EMC Recommendation_20160815

PAT MCCRORY
DONALD R. VAN DER VAART
Capital City Property Solutions, Inc.
611 N. Elizabeth Street
Durham, NC
September 7, 2016
Capital City Property Solutions, Inc. has requested the Water Quality Committee (WQC) to grant
an after -the -fact Major Variance from the Neuse Riparian Area Protection Rules (15A NCAC 02B
.0233) for a single-family home currently under construction and one rain garden within Zone 1
and Zone 2 of the buffer on an existing lot at 611 N. Elizabeth Street in Durham, NC. The
proposed home and rain gardens will impact 640 square feet of Zone 1 and 771 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 following:
"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

Capital City Property Solutions, Inc.
611 N. Elizabeth Street 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. Constructed in 1944, the previous home on this lot was located partially within Zone
2 of protected buffer and setback of the southern property line. The applicant
purchased the property for redevelopment and was not aware that the Neuse
Riparian Buffer Rule applied to the stream channel on the property. The stream
channel was depicted on the survey submitted to the City of Durham in support of
their request for a building permit, which was issued. Only after the two-story home
was under construction was the applicant made aware of the riparian buffer.
Redevelopment of the lot could not occur without additional impact to Zone 2 of the
riparian buffer and comply with the setbacks for the lot. However, Zone 1 impacts
could have been avoided had the applicant been aware of the riparian buffer on the
I ot.
B. The hardship results from application of this Rule in that the riparian buffer occupies
approximately two-thirds of the lot with much of the nonbuffered area within the lot
setbacks.
C. The hardship is due to the physical nature of the applicants' property. An unnamed
tributary to Ellerbee Creek runs across the northwestern corner and along the
northern property boundary encumbering approximately two-thirds of the lot, which
is different from that of neighboring properties.
D. The applicant unknowingly violated the buffer rule by constructing a new home
within the protected buffer outside of the footprint of the previous home that was
constructed on the lot prior to implementation of this Rule.
E. The applicant purchased the property on November 20, 2015, which is after the
effective date of this Rule.
F. The hardship is unique to the applicant's property in that the riparian buffer occupies
approximately two-thirds of the lot. 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,"

Capital City Property Solutions, Inc.
611 N. Elizabeth Street Durham
Major Variance Request — DWR Findings of Fact
Page 3 of 4
The Divisions finds the following:
The purpose of the riparian buffer rules is to protect existing riparian buffer areas. However, the
applicant was not aware of the riparian buffer on the lot. The applicant is proposing to purchase
3,077 buffer mitigation credits to offset the buffer impacts from the home and proposed patio
and rain garden and restore the buffer that was cleared outside the sanitary sewer easement
that runs across the lot.
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 3,077 buffer mitigation credits and implement a
stormwater management plan for the property. The stormwater management plan consists of
one rain garden to treat the impervious area from the home. This Major Variance as proposed is
consistent with past Major Variance approvals from the Water Quality Committee.
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 3,077
buffer credits from the North Fork Little River Nutrient Offset and Buffer Bank as
indicated in their application.
• The applicant shall restore 1,136 sf of buffer by planting 8 trees as shown on the site plan
received August 14, 2016 and indicated in the application. Restoration must be
completed by November, 2016. Trees that do not survive will need to be replaced.
Stormwater Management Plan (SMP)
The Division approves the SMP consisting of one rain garden and all associated
downspout drains as depicted on plan sheets received August 14, 2016, which are

Capital City Property Solutions, Inc.
611 N. Elizabeth Street Durham
Major Variance Request — DWR Findings of Fact
Page 4 of 4
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 the 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.
■ The SMP may not be modified without prior written authorization from the
Division. To request a modification, a copy of the approval letter and
plans/calculations of the modified SMP shall be submitted to the DWR 401 &
Buffer Permitting Branch for approval 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 Kristen Thayer on June 17, 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.