20160566 Ver 1_Re-issued WQC Decision Document_20161025

Burdette, Jennifer a
From: Shaw, Denise <[e-mail]>
Sent: Tuesday, October 25, 2016 3:51 PM
To: [e-mail]; [e-mail]; Zimmerman, Jay; Burdette,
Jennifer a; Thomas, Lois; Weaver, Adriene; Higgins, Karen;
[e-mail]; [e-mail]
Cc: Hauser, Jennie; Shaw, Denise
Subject: Capital City Property Solutions, Inc.'s Petition for Major Variance w/Conditons before
the EMC
Attachments: 2016-10-25_Ltr_EMC Major Variance with Conditions-Capital City Property Solutions,
Inc..pdf, 2016-10-25_EMC Major Variance w Conditions Decision-Capital City Property
Solutions, Inc..pdf
Attached is an electronic copy of the Cover Letter and Decision Granting Major Variance w/Conditions which our office
forwarded by US Mail today. Please let Jennie Hauser know if you have any difficulty opening the attachments. Thank
you.
1

SMIZ
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STATE OF NORTH CAROLINA
DEPARTMENT OF JUSTICE
ROY COOPER P.O.Box 629 HAUSIT
ATTORNEY GENERAL HALFRA i,NC 27602 E.NVIRONMENTAL DIVISION
Tt%u(9 19)716-6962
F,vx:(1151)7 16-6767
jhauscr C1P11(-doj.g0%-
October 25, 2016
Capital City Property Solutions, Inc. Certified Mail/Return Receipt Requested
Attn: Kristi Thayer
3200 Glen Royal Rd., Ste. 104
Raleigh, NC 27617
Ile: Final Decision Granting Variance with Conditions, 611 N. Elizabeth Street,
Durham North Carolina
Dear Ms. Thayer:
On September 14, 2016 we sent by certified mail the enclosed Final Decision to Forrest
Firm, P.C., which is listed with the North Carolina Secretary of State's Office as the registered
agent for Capital City Property Solutions, Inc. This mailing was returned to our office by the
U.S. Postal Service. Accordingly, we are resending the Final Decision to your attention as
]"resident of Capital City Property Solutions, Inc.
At its September 7, 2016 meeting, the Water Quality Committee of the Environmental
Management Commission granted your request for a variance with conditions. Attached is a
copy or 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

October 25, 2016
Page 2
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.
Sincerely,
c
Jennie Wilhelm Hauser
Special Deputy Attorney General and
Counsel for the Environmental Management Commission
cc: wl encl.: Steven J. Rowlan, Chair of the Commission, electronically
Julie Wilsey, Chair of the WCC, electronically
Jay Zimmerman, Director, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically
Lois Thomas, recording secretary for Commission, electronically
Adriene Weaver, Environmental Specialist, electronically
Karen Higgins, Supervisor 401 & Buffer Permitting Branch, electronically
Kristi Thayer, President, Captial City Property Solutions, Inc., US mail and
electronically
Tony Patterson, Patterson Custom Builders, LLC, US mail and electronically

STATE OF NORTH CAROLINA BEFORE THE
ENVIRONMENTAL MANAGEMENT
COUNTY OF DURHAM COMMISSION
}
IN THE MATTER OF: )
PETITION FOR VARIANCE FROM )
15A NCAC 213 .0233 } DECISION GRANTING MAJOR
"NEUSE RIVER RIPARIAN AREA ) VARIANCE WITH CONDITIONS
PROTECTION RULE"BY }
CAPITAL CITY PROPERTY )
SOLUTIONS,INC. )
)
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 September 7, 2016 in Raleigh, North Carolina upon Capital City
Property Solutions, Inc.'s (the Applicant's) request for approval of an "after-the-fact" major
variance from the "Neuse River Riparian Area Protection Rule" (the Rule) pursuant to 15A
NCAC 02B .0233 to allow construction of a new single family residence at 611 N. Elizabeth
Street in Durham, N.C. (the Site). The proposed development will impact 640 square feet of
Zone 1 of the riparian buffer (the buffer) and 771 square feet of Zone 2 of the buffer. The
Applicant has agreed to purchase mitigation credits and to implement a recorded stormwater
management plan to address the existing and proposed impacts to the Site.
Based on the information provided and the Applicant's proposed actions to mitigate
impacts to the riparian buffer,the Division of Water Resources supported the Applicant's request
for a major variance. Jennifer Burdette, 401/Buffer Coordinator in 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 at 611 N. Elizabeth Street in Durham, N.C., which is
adjacent to the intersection of Canal Street and N. Elizabeth Street. The Site is located in an area
of the city of Durham that has been developed for a number of years, and the previous home on
the lot was constructed in 1944.
B. The property was purchased November 20, 2015, which is after the effective date
of the Rule.
C. There is an unnamed tributary (UT) to Ellerbe Creek (Ws-1V; nsw) that runs
through the northwestern corner of the Site and along the northern property boundary with
riparian buffers on both sides of the stream, encumbering approximately two-thirds of the lot.
D. The development is for the construction of a single family residence and
associated infrastructure, including parking and grading on the Site within Zones 1 and 2 of the
protected riparian buffer.
E. On April 14, 2016, DWR staff issued the Applicant a notice of violation for
building the two-story house within the riparian buffer, where construction was complete to the
point that the house was "under roof,"without having obtained a variance from the Rule.
F. The Applicant has now requested approval of a major variance from the Rule
pursuant to 15A NCAC 02B .0233 to allow continuation of the development on the Site that has
already begun. The Applicant will not be able to complete the proposed development without
the variance.

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G. Due to the location of the unnamed tributary to Ellerbe Creek on this Site,and the
fact that much of the lot outside of the buffer is within the lot setbacks, the Applicant cannot
make reasonable use of the property without impacting the protected riparian buffer.
H. The proposed development will impact 640 square feet of Zone I of the Neuse
River Buffer and 771 square feet of Zone 2 of the Neuse River Buffer.
1. The Applicant's proposed mitigation for riparian buffer impacts includes
purchasing 3,077 square feet of buffer credits from the North Fork Little River Nutrient Offset
and Buffer Bank. The Applicant has submitted a Statement of Buffer Mitigation Credit
Availability from the Wildlands Holdings 11, LLC dated August 10, 2016, securing these credits
for the Applicant.
J. in addition, the Applicant has provided a stormwater management plan, which
includes the plan for one rain garden and all associated downspout drains and a signed Rain
Garden Operation and Maintenance Agreement.
K. As specified in the Application, the Applicant has provided a plan to plant trees
within the buffer restoration area during November 2016 to achieve a density of 260 trees per
acre in order to restore the buffer that the Applicant cleared.
Based upon the foregoing Findings of Fact, the Environmental'Management Commission
makes the following,
CONCLUSIONS OF LAW
A. The Site owned by Capital City Property Solutions, Inc. 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 the 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. If 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 applicants property, such as 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.
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. Constructed in 1944, the previous home on this lot was located partially within
Zone 2 of protected buffer. 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 have occurred without additional impact to Zone 2 of the riparian
buffer; however,Zone 1 impacts could have been avoided.
B. The hardship results from the application of the Rule rather than from other
factors. The riparian buffer occupies approximately two-thirds of the lot with
much of the area outside of the buffer lying within the lot setbacks.
C. The hardship is due to the physical nature of the applicant's 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 a different situation from that of neighboring properties.
D. The Applicant unknowingly violated the buffer Rule by constructing a new home
within the protected buffer outside the footprint of the previous home that was
constructed on the lot in 1944, 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.

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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 imposed on most of the other properties in the neighborhood.
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. The Applicant cannot matte reasonable
use of the property without impacting the protected riparian buffer. The Applicant has agreed to
purchase 3,077 buffer mitigation credits, will treat stormwater from the Site, and will plant trees
in the buffer area that was cleared. By granting the requested variance with the conditions to
require the purchase of buffer mitigation credits, implement a stormwater management plan with
rain garden, and plant trees in the buffer area that was cleared, the proposed development will be
in harmony with the general purpose and intent of the riparian buffer protection rules and
preserve their spirit.
Third Factor: In granting the variance, the public safety and welfare have been
assured, water duality has been protected and substantial justice has been done.
The Commission affirmatively finds that the 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 3,077 square feet in buffer
mitigation credits, treat the stormwater from the Site with a rain garden, and plant trees in the
buffer that was cleared, the proposed development will protect water quality and ensure
substantial justice has been done.

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ORDER
Based on the Findings of Fact and Conclusions of Law set forth above, IT 1S 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 subject to the
following conditions:
1. Mitigation. Prior to the sale of the Site, and in no event later than
December 31, 2016, the Applicant shall provide mitigation for the development
impacts by purchasing 3,077 buffer credits from the North Fork Little River
Nutrient offset and Buffer Bank or an environmental mitigation bank approved by
the Division of Water Resources.
2. Buffer Restoration. In November 2016, the Applicant shall plant a total
of eight trees within the buffer restoration area to achieve a density of 260 trees
per acre. The number and species of trees to be planted shall conform to the
Applicant's variance application received by the Director of DWR on June 16,
2016. Trees that do not survive shall be replaced.
3. Stormwater Management Plan (SMP). DWR has approved the SMP
consisting of one rain garden and all associated downspout drains as depicted on
plan sheets received by DWR on August 14, 2016, which are incorporated into
this decision granting the Applicant a major variance to 15A NCAC 2B .0233 and
are enforceable by DWR. The following conditions also apply:
a. Prior to sale of the Site, and in no event tater than December 31,
2016, the Applicant shall record with the Durham County Register of
Deeds a declaration of compliance, which shall run with the land, that
indicates the footprint of the rain garden and all associated conveyances
and ensures direct discharges of stormwater runoff through the buffer do
not occur.
b. The SMF shall not be modified without prior written authorization
from DWR. To request a modification, a copy of the approval letter and
plans/calculations for the proposed SMP as modified shall be submitted to
the DWR 401 & Buffer Permitting Branch for approval. DWR approval
shall be obtained BEFORE beginning any modification,
c. Maintenance activities for the rain garden shall be in accordance with
the Rain Garden Operation and Maintenance Agreement signed by Kristen
Thayer, President, Capital City Property Solutions, Inc. on June 17, 2016.
The Operation and Maintenance Agreement shall transfer with the sale of
the land or transfer of ownership/responsibility for the BMP facility.
DWR shall be notified within 30 calendar days of every transfer.

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If' the Applicant fails to meet any of the conditions set out above, the grant of variance is
automatically rescinded.
This is the LIL
th day of September,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.
Kristi Thayer, President
Capital City Property Solutions, Inc. Certified MaillReturn Receipt Requested
3200 Glen Royal Road, Suite 104
Raleigh, NC 27617
Jennifer A. Burdette E-mail. Jennil`er.Burdette( nccleilr.gov
401 & Buffer Permitting Branch
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
Karen Higgins, Supervisor E-mail; Karen.l-ligginsa.mcderin
401 & Buff'er Permitting Branch
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
This is the 25`a' day of October, 2016.
ROS'' COOPER
Attorney Gen ral
Jennie Wilhelm Hauser
Special Deputy ,Attorney General
P. O. Boy 629
Raleigh, N. C. 27602