20081132 Ver 1_DCM Comments_20080819

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North Carolina Department of Environment and Natural Resources
Division of Coastal Management
Michael F. Easley, Governor James H. Gregson, Director William G. Ross Jr., Secretary
August 14, 2008
CERTIFIED MAIL
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NC Department of Environment and Natural Resources ~° - `~ E
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Mr. David Griffin
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3125 Poplarwood Court
Suite 160
Raleigh, NC 27604
Dear Sirs:
This letter is in response to your application for a Major Permit under the. Coastal Area
Management Act (CAMA), in which authorization was requested to construct an ocean pier, pier
house and associated aquarium, bathhouse, utility/pump house, parking area and associated
amenities in Dare County, North Carolina. Processing of the application, which was received as
complete by the Division of Coastal Management's Elizabeth City office on July 11~, 2008, is
now complete. Based on the state's review, the Division of Coastal Management has made the
following findings:
1) The new ocean pier will replace the original Jennette's pier and pier house.
2) The long-term average annual erosion rate at the project site is 2 feet per year,
resulting in a small structure setback of 60 feet and a large structure setback of 120
feet, both measured from the first line of stable natural vegetation. A plat dated
July 10, 2008 depicting the first line of stable natural vegetation and the resulting
small and large structure setbacks was submitted with the original permit
application.
3) The proposed bathhouse and pump/utility buildings proposed within the Ocean
Erodible Area and High Hazard Flood Area AECs are considered to be small
structures by the Division of Coastal Management and therefore are subject to the
setback requirements set forth in NCAC T15A:07H.0306(a)(1). Both structures are
proposed to be located waterward of the small structure setback. Additionally, a
portion of the parking lot and pavilion will also be located waterward of the small
structure setback.
400 Commerce Avenue, Morehead City, North Carolina 28557
Phone: [phone] \ FAX: [phone] Internet: www.nccoastalmanagement.net
An Equal Opportunity 1 Affirmative Action Employer - 50% Recycled \ 10% Post Consumer Paper

NC Department of Environment and Natural Resources
Aquarium Division
August 14, 2008
Page 2
4) The proposed parking areas and plaza area will cover approximately 114,000 square
feet of the Ocean Erodible Area and High Hazard Food Area AECs. The N.C.
Division of Coastal Management has traditionally considered "parking areas" as a
non-residential structure. The Division of Coastal Management has determined that
the proposed parking area and connected plaza area is a large structures (>5,000
square feet) and therefore subject to the large structure setback requirements set
forth in NCAC T15A:07H.0306(a)(4). The parking area and connecting plaza area
is proposed to be located waterward of the large structure setback.
5) The proposed pier house will be located within the same footprint of the previously
existing Jennette's pier house, however the proposed pier house will be 2-1/2
stories, a vertical increase of 1-1/2 stories from the previously existing 1-story
Jennette's pier house.
6) The Division of Coastal Management has received comments from the Town of
Nags Head indicating that the proposal has been deemed to currently be
inconsistent with the Code of Ordinances of the Town of Nags Head.
7) Based upon the above referenced findings, the Division has determined that the
proposed project is inconsistent with the following rules of the Coastal Resources
Commission:
a) NCAC T15A:07H.0306(a)(1), which states, "If neither a primary nor
frontal dune exists in the AEC on or landward of the lot on which the
development is proposed, the development shall be landward of the
erosion setback line. The erosion setback line shall be set at a distance
of 30 times the long-term annual erosion rate from the first line of stable
natural vegetation or measurement line, where applicable. In areas
where the rate is less than two feet per year, the setback line shall be 60
feet from the vegetation line or measurement line, where applicable."
b) NCAC T15A:07H.0306(a)(4), which states in part that "Because large
structures located immediately along the Atlantic Ocean present
increased risk of loss of life and property, increased potential for
eventual loss or damage to the public beach area and other important
natural features along the oceanfront, increased potential for higher
public costs for federal flood insurance, erosion control, storm
protection, disaster relief and provision of public services such as water
and sewer, and increased difficulty and expense of relocation in the
event of future shoreline loss, a greater oceanfront setback is required
for these structures than is the case with smaller structures. Therefore,
in addition to meeting the criteria in this Rule for setback landward of
the primary or frontal dune or both the primary and frontal dunes, for all
multi-family residential structures (including motels, hotels,
condominiums and moteliminiums) of more than 5,000 square feet total
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,~ NC Department of Environment and Natural Resources
Aquarium Division
August 14, 2008
Page 3
floor area, and for any non-residential structure with a total area of more
than 5,000 square feet, the erosion setback line shall be twice the erosion
setback as established in Subparagraph (a)(1) of this Rule, provided that
in no case shall this distance be less than 120 feet.
c) NCAC T15A:07H.0309(e)(3), which states, "(e) Where application of
the oceanfront setback requirements of Rule .0306(a) of this Section
would preclude replacement of a pier house associated with an existing
ocean pier, replacement of the pier house shall be permitted if each of
the following conditions are met: (3) The pier house shall not be
enlarged beyond its original dimensions as of January 1, 1996." The
proposal is inconsistent with this rule due to the fact that the proposed
pier house will expand beyond its original vertical dimension by
increasing from 1 story to 2-1/2 stories.
d) 15A NCAC 07H.0601 which states "No development shall be allowed
in any AEC which would result in a contravention or violation of any
rules, regulations, or laws of the State of North Carolina or of local
government in which the development takes place."
Given the preceding findings, it is necessary that your request for issuance of a CAMA
Major Permit under the Coastal Area Management Act be denied. This denial is made pursuant
to N.C.G.S. 113A-120(a)(8) which requires denial for projects inconsistent with the state
guidelines for Areas of Environmental Concern or local land use plans.
If you wish to appeal this denial, you are entitled to a hearing. The hearing will involve
appearing before an Administrative Law Judge who listens to evidence and arguments of both
parties and then makes a recommendation to the Coastal Resources Commission. Your request
for a hearing must be in the form of a written petition, complying with the requirements of
§ 150B of the General Statutes of North Carolina, and must be filed with the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, within twenty
(20) days from the date of this letter. A copy of this petition should be filed with this office.
Members of my staff are available to assist you should you desire to modify your
proposal in the future. If you have any questions concerning this matter, please contact Mr.
Doug Huggett at [phone], extension 212.
Sincerely,
1 ~...
es H. Gregson

NC Department of Environment and Natural Resources
Aquarium Division
August 14, 2008
Page 4
cc: Colonel Jefferson Ryscavage - U.S. Army Corps of Engineers, Wilmington, NC
David Kennedy, Director - OCRM/NOAA, Silver Spring, MD
Raleigh Bland, ACOE
DCM -Morehead City
DCM -Elizabeth City
George Hemingway, BMS Architects, 514 Market Street, Wilmington, NC 28401