20141148 Ver 3_Major Variance_20170526

Burdette, Jennifer a
From:
Shaw, Denise <[e-mail]>
Sent:
Friday, May 26, 2017 12:59 PM
To:
[e-mail]; [e-mail]; [e-mail]; Burdette,
Jennifer a; Higgins, Karen; Thomas, Lois; Weaver, Adriene; Zimmerman, Jay;
[e-mail]
Cc:
Hauser, Jennie; Shaw, Denise
Subject:
Petition for Major Variance with Conditions/Tar-Pamlico River Riparian Area
Protection Rules by Peter Warlick
Attachments:
2017-05-26_Ltr_Petition for Major Variance with Conditions for Peter Warlick.pdf;
2017-05-26_Final Decision -Petition for Major Variance with Conditions for Peter
Warlick.pdf
Attached is an electronic copy of the Cover Letter and Final Agency Decision which our office forwarded by US Mail
today. Please let Jennie Hauser know if you have any difficulty opening the attachments. Thank you

REPLY TO:
JOSH STEIN STATE OF NORTH CAROLINA JENNIE WILHELM HAUSER
DEPARTMENT OF JUSTICE ENVIRONMENTAL DIVISION
ATTORNEY GENERAL JHAUSERCO)NCDOJ.GOV
[phone]
May 26, 2017
Peter Warlick Certified Allaill Return Receipt Requested
6131 Boca Raton Drive
Dallas, TX 75230
Re: Final Decision Granting Variance with conditions
Dear Mr. Warlick:
At its May 10, 2017 meeting, the Water Quality Committee of the Environmental
Management Commission granted your request for a variance. 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:
William F. Lane, 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.
Sincerely,
Jennie Wilhelm Hauser
Special Deputy Attorney General and
Counsel for the Environmental Management Commission
cc. w/ encl.: Brian Rubino, electronically
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919,716.6600
P. 0. Box 629, RALEIGH, NC 27602-0629

Peter Warlick
May 26, 2017
Page 2
J.D. Solomon, Chair of the Commission, electronically
Julie Wilsey, Chair of the WQC, electronically
Jay Zimmerman, Director, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically
Lois Thomas, recording secretary for Commission, electronically
Adriene Weaver, Environmental Specialist, electronically
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602-0629

STATE OF NORTH CAROLINA
COUNTY OF HYDE
}
IN THE MATTER OF: }
PETITION FOR VARIANCE FROM }
15A NCAC 2B.0259 )
TAR-PAMLICO RIVER )
RIPARIAN AREA }
PROTECTION RULES BY }
PETER WARLICK }
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 May 10, 2017 in Raleigh, North Carolina upon Peter Warlick's (the
Applicant's) request for approval of a major variance from the Tar -Pamlico River Riparian Area
Protection Rules pursuant to 15A NCAC 02B .0259 to allow construction of a roof enclosure to
an existing home at 74 Northpoint Road in Ocracoke, NC (the Site). The proposed development
will impact 368 square feet of buffer Zone 1 and 104 square feet of buffer Zone 2. The
Applicant has agreed to provide mitigation for the proposed impacts and to direct discharge
runoff from the new roof away from surface water at the site.
Based on the information provided, the Division of Water Resources (DWR) supported
the request for a major variance. Jennifer Burdette, 401/Buffer Coordinator in the 401 & Buffer
Permitting Branch of DWR presented the request for a major variance to the Water Quality
Committee.

-2 -
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 the end of Northpoint Road in Ocracoke, Hyde
County, North Carolina. The Site is located adjacent to the Pamlico Sound.
B. The residence was constructed in the 1960's, prior to adoption of the Tar -Pamlico
Riparian Area Protection Rule (the Rule), and it was located in an area that became entirely
encompassed by the buffer designation in the Rule. The Applicant purchased the property on
September 18, 1979, which was before the effective date of the Rule.
C. The Site is located on a peninsula, it is surrounded by water on three sides and it
is within both the buffer zones and Coastal Area Management Act (CAMA) Area of
Environmental Concern (AEC's). The site has a coastal wetland area on the west side of the
property.
D. On February 20, 2017, DWR granted the Applicant buffer authorization and
approval to expand a deck, wood ramp, and steps to allow for handicap access to the residence.
(DWR #14-1148 VER.2)
E. The current buffer variance request is for the construction of a roofed enclosure
with handicap accessibility for a screened porch to allow continued use of the outside area of the
home on the Site within Zones 1 and 2 of the protected riparian buffer. The work proposed in the
current buffer variance request, if approved, is to occur within the footprint of existing or already
permitted improvements.

-3-
F. The Applicant has requested approval of a major variance from the Tar -Pamlico
River Riparian Area Protection Rules pursuant to 15A NCAC 02B .0259 to allow the proposed
development on the Site. The Applicant will not be able to build the proposed development
without the variance.
G. The proposed development will impact 368 square feet of Zone 1 of the Tar -
Pamlico River Buffer and 104 square feet of Zone 2 of the Tar -Pamlico River Buffer.
H. The Applicant has offered to provide mitigation, including purchase of 1,260
square feet of buffer credits. The Applicant submitted a Statement of Availability from the
NCDEQ Division of Mitigation Services (DMS) dated March 8, 2017.
I. In addition, the Applicant provided a preliminary plat site plan showing the
proposed covered roof area over decking that was permitted through DVi R's February 2017
Buffer Zone Authorization, and he committed to directing runoff from the covered enclosure, if
approved, away from the Pamlico Sound to allow for infiltration.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
A. The Site owned by the Applicant is subject to the Tar -Pamlico River Riparian
Area Protection Rule, 15A NCAC 2B .0259.
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 .0259 upon a finding that:
(i) There are practical difficulties or unnecessary hardships;
(ii) The variance is in harmony with the general purpose and intent of
the buffer protection and preserves its spirit; and

IS
(iii) In granting the variance, the public safety and welfare have been
assured, water quality has been protected and substantial justice
has been done.
C. The Commission affirmatively concludes that 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 applicant's 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 .0259 (9)(a)(i)(A) through (F).

51
The Commission affirmatively concludes 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 has been diagnosed with ALS and proposes to construct a roofed
enclosure with handicap accessibility to allow continued use of the home that he
has owned since 1979. Because the home was constructed entirely within the
protected buffer prior to adoption of the Rule, the Applicant cannot construct a
roofed enclosure without impacting the protected buffer.
B. The hardship results from the application of this Rule.
C. The hardship is due to the physical nature of the Applicant's property. The home
was built immediately adjacent to Pamlico Sound on a peninsula, which is
different from neighboring properties.
D. The Applicant has not violated this Rule.
E. The Applicant purchased the property on September 18, 1979, which is before the
effective date of this Rule.
F. The home's location is entirely within the buffer and the Applicant's need for a
handicap -accessible outdoor area is unique to the Applicant's property. Any
expansion to the home would require impacts to Zone 1 and/or Zone 2 of the
buffer. This constraint is different from that of 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 concludes that the Applicant has demonstrated he meets
the second factor required under 15A NCAC 02B .0259(9)(a)(ii). Specifically, the purpose of

H
the riparian buffer rules is to protect existing riparian buffer areas. However, the Applicant
cannot construct a roofed enclosure with handicap access without impacting the protected
riparian buffer. In addition to his offer to purchase 1,260 buffer mitigation credits to offset the
buffer impacts, the Applicant has agreed to direct runoff from the new roofed enclosure away
from surface waters to allow infiltration and to mitigate the impacts of the proposed
development. By granting the requested variance on the condition that the Applicant direct
runoff from the new roofed enclosure away from surface waters to allow infiltration, thereby
mitigating the impacts of the new roofed enclosure, 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 quality has been protected and substantial justice Inas been done.
The Commission affirmatively concludes that the Applicant has demonstrated he meets
the third factor required under 15A NCAC 02B .0259(9)(a)(iii). Specifically, in granting the
variance subject to the condition that the Applicant direct roof runoff from the proposed
development away from surface waters to allow for infiltration public safety and welfare have
been assured, water quality has been protected and substantial justice has been done. Under the
circumstances of this case, the Commission does not require on-site mitigation or payment of an
in -lieu of mitigation fee.
[THIS SPACE INTENTIONALLY LEFT BLANK]

-7 -
Based on the Findings of Fact and Conclusions of Law set forth above, IT IS HEREBY
ORDERED that the request for the variance is GRANTED pursuant to 15A NCAC 2B
0259(9)(c) as a major variance to the Tar -Pamlico River Riparian Area Protection Rule with the
following condition:
1. Stormwater. All stormwater from the new roof enclosure must be
directed and maintained as diffuse flow at non-erosive velocities through
the protected stream buffers such that it will not re -concentrate before
discharging into the sound.
This is the 26t1 day of May, 2017.
ENVIRONMENTAL MANAGEMENT COMMISSION
J. D. Solomon, Chairman

In
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:
Peter Warlick
6131 Boca Raton Drive
Dallas, TX 75230
Brian Rubino
Quible & Associates, PC
P.O. Drawer 870
Kitty Hawk, NC 27949
Jennifer A. Burdette
401 /Buffer Coordinator
401 & Buffer Permitting Unit
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
Karen Higgins, Supervisor
Division of Water Resources
1650 Mail Service Center
Raleigh NC 27699-1650
This is the 26t" day of May, 2017.
Certified Maill Return Receipt Requested
and electronicall.- peter. [e-mail]
US Mail and E-mail: brubin okyuible. conz
E-mail: Jennifer.Burdettenanedenngov
E-mail. Karen. Hi gginsgmcdenr. gov
JOSH STEIN
Attorney General,
Jennie Wilhelm Hauser
Special Deputy Attorney General
P. 0. Box 629
Raleigh, N, C. 27602