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Home My WebLink About20071184 Ver 1_More Info Received_20080516POYNERDSPRUILLLLP ATTORNEYS-AT-LAW ; 31 I tier ,+ I c°1 79t?'?!.? 4 SFF,,? ., c L4 ? s N1Y MAY 1 b 2008 ViS'1TcR. BRAN, May 15, 2008 Cyndi B. Karoly North Carolina Department of Environment & Natural Resources Division of Water Quality 401 Oversight/Express Review Permitting Unit 2321 Crabtree Boulevard, Suite 250 Raleigh, NC 27604 'Timothy P. Sullivan Attorney-at-Law Direct Dial: 919.783.2991 tsullivan@poynersprui ILcom www.poynerspruill.com Other offices: Charlotte, Rocky Mount, Southern Pines Re: Pieper Property, 105 Symphony Court, Cary, NC (the "Property"); DWQ Project # 07-1184 Dear Ms Karoly: This letter is on behalf of Chris and Shelley Pieper, owners of the subject property, regarding DENR's October 5, 2007 determination that the feature labeled "A" on the enclosed map initialed by Eric Kulz (Enclosure 1) is subject to the Neuse River Buffer Rules. We would greatly appreciate the opportunity to meet with you to discuss this matter. This matter is of critical importance to the Piepers because they purchased this platted residential lot as a buildable lot, and it appears that their lot is unbuildable if no portion of a residential structure can fall within a 50-foot buffer measured from Feature A. We believe that the following information demonstrates that the Piepers are entitled to utilize their property for its intended residential purpose. We would like to discuss with you options for reaching a mutually satisfactory resolution. Feature A is Not Approximately Shown on the NRCS Soil Survey Map or the USGS Topographic Map Pursuant to 15A NCAC .0233(3), a surface water is considered to be present for the purpose of applicability of the Neuse River Buffer Rules only if it is approximately shown on either the most recent version of the soil survey map prepared by the NRCS of the U.S. Department of Agriculture or the most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the USGS. Feature A is not approximately shown on either of these maps. Therefore Feature A is not subject to the buffer rules. We have enclosed a copy of a USDA soil survey map that is overlain with an aerial photograph of the pertinent portion of Regency Park Estates as developed, and which depicts lot lines (Enclosure 2). The Piepers' lot is outlined in red and the streams depicted on the map are 3600 Glenwood Avenue, Raleigh, NC 27612 9 P.O. Box 10096, Raleigh, NC 27605.0096 9 919.783.6400 Tel 9 919.783.1075 Fax POYNERPSPRUILLLLP ATTORNEYS-AT-LAW Cyndi B. Karoly May 15, 2008 Page 2 highlighted in green. There is a stream depicted crossing the back of Piepers' property at the southeast end. That stream is not in question and still exists. The map also depicts a stream (highlighted in yellow on Enclosure 2) which is no longer in existence ("Buried Stream"). The house located on the lot to the north of the Piepers' lot now sits directly over the location of that Buried Stream. The best evidence indicates that the Buried Stream was simply covered up in the 1980s when this portion of the subdivision was developed. Feature A is not the Buried Stream; rather, it is a stormwater ditch draining the surrounding road and lots. Regardless of Whether Feature A Appears on One of the Maps, it is Not Subject to the Buffer Rules Because it is a Manmade Conveyence That is Not a Modified Natural Stream As indicated above, Feature A is not approximately shown on the required map. The Buried Stream shown on the map flows from a different direction and cannot reasonably be determined to be a depiction of Feature A. Moreover, even assuming Feature A is depicted on a map (which is not the case), that feature is still exempt from the buffer rules because it is a ditch or manmade conveyance that is not a modified natural stream. See 15A NCAC 2B .0233(3)(a)(i). There is no evidence to indicate that Feature A is the result of the relocation of the Buried Stream. Feature A is not connected to and otherwise does not receive the flow from the Buried Stream. Feature A is clearly not a relocation of the Buried Stream. I am also enclosing a copy of a September 21, 2007 report by Rodak Engineering (Enclosure 3) that summarizes its investigation related to the Buried Stream and Feature A. The report concludes that there is no indication that the Buried Stream was relocated or otherwise exists in any form on the Piepers' property, and that there is no indication that the Buried Stream was diverted to flow into Feature A. The Rodak report also concludes that Feature A is an engineered structure designed to convey stormwater collected from surrounding properties to the natural stream bed referenced above that is located at the far southeast end of the Piepers' property. The enclosed photograph (Enclosure 4) shows the beginning of Feature A adjacent to Symphony Court. We believe that the available information demonstrates that the feature depicted in the enclosed map is a man-made ditch designed in conjunction with other stormwater control measures during the planning and development of Regency Park Estates to handle run-off from the Property and surrounding properties in the development. The only time the ditch ever contains water is when it receives sprinkler system runoff from nearby yards or during a rainfall event. We understand that this feature might exhibit some hydrological and geomorphalogical characteristics similar to an intermittent stream, but such characteristics do not make it subject to the Neuse River Buffer Rules if the feature is a man-made channel that is not a modified natural stream. Moreover, in order to constitute a "modified natural stream," in addition to being a POYNERDSPRUILLLLP ATTORNEYS-AT-LAW Cyndi B. Karoly May 15, 2008 Page 3 relocated stream, it "must have the typical biological hydrological, and physical characteristics commonly associated with the continuous conveyance of water" (emphasis added) (See 15A NCAC .0233(2)(h)). We are unaware of any substantial evidence that demonstrates that the feature at issue meets the definition of a modified natural stream. Lastly, the development where the Property is located was platted and approved in the late 1980s and infrastructure, including stormwater control measures, was then installed. We believe at that point the developer would have acquired a common law vested right that runs with the land to develop the Property as a residential lot. The Piepers purchased that platted residential lot in 2002 from another couple who had purchased it in August of 1997 from the developer, or related entity. The lot has always been valued and conveyed as a buildable residential lot. This matter is of critical importance to the Piepers because it appears that their lot is unbuildable if no portion of a residential structure can fall within a 50 foot buffer measured from feature A. As mentioned, we would greatly appreciate the opportunity to meet with you and discuss the information that we believe demonstrates the feature is not subject to the Neuse River Buffer Rules, and to hopefully reach a resolution that will enable the Piepers to utilize their property for its intended residential purpose. Thank you in advance for your consideration of this matter, and we look forward to hearing from you. Yours trul 9 Timothy P. Sullivan TPS:kam Enclosures cc: Chris Pieper Eric Kulz Amy Chapman