20081380 Ver 1_Other Agency Comments_20081017

LMG-
LAND MANAGEMENT GROUP INC.
Environmental Consultants
October 15, 2008
TO: Ms. Kim Garvey
U.S. Army Corps of Engineers
P.O. Box 1890
Wilmington, NC 28402-1890
RE: NWP 18 Application; Beamon's II Retail Shopping Center
Brunswick County, NC
Dear Kim:
a'rF og- 1380
Enclosed is the draft wetlands preservation map and draft Conservation Declaration for the
Beamon's II Retail Shopping Center located in Shallotte, NC. The applicant will record these
documents shortly after receiving the NWP from your office and before any wetland impacts occur.
Thank you for your assistance with this project.
Sincerely,
r r
Kim Williams
Environmental Scientist
Encl.
C: Dr. Christopher Moshoures
Mr. Michael Norton; Compass Pointe Engineering
Mr. Chad Coburn; DWQ
Mr. Ian McMillan; DWQ
'Q?7??'l
O C T 17 2008
i jENR 1 ti N
,NgL1k'QS AND www.lmgroup.net • [e-mail] • Phone: [phone] • Fax: [phone]
3805 Wrightsville Ave., Suite 15, Wilmington, NC 28403 • P.O. Box 2522, Wilmington, NC 28402
MODEL DECLARATION OF RESTRICTIONS
October, 2008
STATE OF NORTH CAROLINA
BRUNSWICK COUNTY
CONSERVATION DECLARATION
This DECLARATION of CONSERVATION COVENANTS, CONDITIONS, and
RESTRICTIONS ("Conservation Declaration") is made on this day of
, 2008, by Dr. Christopher J. Moshoures ("Declarant").
RECITALS & CONSERVATION PURPOSES
A. Declarant is the sole owner in fee simple of the certain Conservation
Property (Property) being approximately 1.24 acres, more particularly described in
Exhibit A (Wetland Preservation Plat) attached hereto and by this reference incorporated
herein; and
B. The purpose of this Conservation Declaration is to maintain wetland
and/or riparian resources and other natural values of the Property, and prevent the use or
development of the Property for any purpose or in any manner that would conflict with
the maintenance of the Property in its natural condition. The preservation of the Property
in its natural condition is a condition of Department of the Army permit Action ID #
SAW-2008-2779 issued by the Wilmington District Corps of Engineers (Corps), required
to mitigate for unavoidable impacts to waters of the United States authorized by that
permit, and this Conservation Declaration may therefore be enforced by the United States
of America.
NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that
the Property shall be held and subject to the following restrictions, covenants and
conditions as set out herein, to run with the subject real property and be binding on all
parties that have or shall have any right, title, or interest in said property.
ARTICLE I. PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purposes of this
Conservation Declaration is prohibited. The Property shall be maintained in its natural,
scenic, and open condition and restricted from any development or use that would impair
or interfere with the conservation purposes of this Conservation Declaration set forth
above.
Without limiting the generality of the foregoing, the following activities and uses are
expressly prohibited or restricted.
A. Disturbance of Natural Features. Any change disturbance, alteration or
impairment of the natural features of the Property or any introduction of non-native
plants and/or animal species is prohibited.
B. Construction. There shall be no constructing or placing of any building,
mobile home, asphalt or concrete pavement, billboard or other advertising display,
antenna, utility pole, tower, conduit, line, pier, landing, dock or any other temporary or
permanent structure or facility on or above the Property.
C. Industrial, Commercial and Residential Use. Industrial, residential and/or
commercial activities, including any right of passage for such purposes are prohibited.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal
husbandry, and horticultural use of the Property are prohibited.
E. Vegetation. There shall be no removal, burning, destruction, harming, cutting
or mowing of trees, shrubs, or other vegetation on the Property.
F. Roads and Trails. There shall be no construction of roads, trails or walkways
on the property.
G. Signage. No signs shall be permitted on or over the Property, except the
posting of no trespassing signs, signs identifying the conservation values of the Property,
signs giving directions or proscribing rules and regulations for the use of the Property
and/or signs identifying the Grantor as owner of the property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machinery or hazardous substances, or toxic or
hazardous waste, or any placement of underground or aboveground storage tanks or other
materials on the Property is prohibited.
1. Excavation, Dredging or Mineral Use. There shall be no grading, filling,
excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat,
minerals or other materials, and no change in the topography of the land in any manner
on the Property, except to restore natural topography or drainage patterns.
J. Water Quality and Drainage Pattern. There shall be no diking, draining,
dredging, channeling, filling, leveling, pumping, impounding or related activities, or
altering or tampering with water control structures or devices, or disruption or alteration
of the restored, enhanced, or created drainage patterns. In addition, diverting or causing
or permitting the diversion of surface or underground water into, within or out of the
easement area by any means, removal of wetlands, polluting or discharging into waters,
springs, seeps, or wetlands, or use of pesticide or biocides is prohibited.
K. Development Rights. No development rights that have been encumbered or
extinguished by this Conservation Declaration shall be transferred pursuant to a
transferable development rights scheme or cluster development arrangement or
otherwise.
L. Vehicles. The operation of mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited.
M. Other Prohibitions. Any other use of, or activity on, the Property which is or
may become inconsistent with the purposes of this grant, the preservation of the Property
substantially in its natural condition, or the protection of its environmental systems, is
prohibited.
ARTICLE II. ENFORCEMENT & REMEDIES
A. This Declaration is intended to ensure continued compliance with the
mitigation condition of authorizations issued by the United States of America, U.S. Army
Corps of Engineers, Wilmington District, and therefore may be enforced by the United
States of America. This covenant is to run with the land and shall be binding on all
parties and all persons claiming under the Declarant.
B. Corps, its employees and agents and its successors and assigns, have the
right, with reasonable notice, to enter the Property at reasonable times for the purpose of
inspecting the Property to determine whether the Declarant, Declarant's representatives,
or assigns are complying with the terms, conditions and restrictions of this Conservation
Declaration.
C. Nothing contained in this Conservation Declaration shall be construed to
entitle Corps to bring any action against Declarant for any injury or change in the
Conservation Property caused by third parties, resulting from causes beyond the
Declarant's control, including, without limitation, fire, flood, storm, and earth movement,
or from any prudent action taken in good faith by the Declarant under emergency
conditions to prevent, abate, or mitigate significant injury to life, damage to Property or
harm to the Property resulting from such causes.
ARTICLE III. PUBLIC ACCESS
A. This Conservation Declaration does not convey to the public the right to
enter the Property for any purpose whatsoever.
ARTICLE IV. DOCUMENTATION AND TITLE
A. Conservation Property Condition. The Declarant represents and
acknowledges that the Property is currently undeveloped land, with no improvements
other than any existing utility lines, Declarations and rights of way.
B. Title. The Declarant covenants and represents that the Declarant is the
sole owner and is seized of the Property in fee simple and has good right to make the
herein Declaration; that there is legal access to the Property, that the Property is free and
clear of any and all encumbrances, except Declarations of record.
ARTICLE V. MISCELLANEOUS
A. Conservation Purpose.
(1) Declarant, for itself, its successors and assigns, agrees that this
Conservation Property shall be held exclusively for conservation purposes.
B. Entire Agreement. This instrument sets forth the entire agreement of
the parties with respect to the Conservation Declaration and supersedes all prior
discussions, negotiations, understandings or agreements relating to the Conservation
Declaration. If any provision is found to be invalid, the remainder of the provisions of
this Conservation Declaration, and the application of such provision to persons or
circumstances other than those as to which it is found to be invalid, shall not be affected
thereby.
C. Recording. Declarant shall record this instrument and any amendment
hereto in timely fashion in the official records of Brunswick County, North Carolina,
and may re-record it at any time as may be required to preserve its rights.
D. Environmental Condition of Conservation Property. The Declarant
warrants and represents that to the best of its knowledge after appropriate inquiry and
investigation: (a) the Property described herein is and at all times hereafter will continue
to be in full compliance with all federal, state and local environmental laws and
regulations, and (b) as of the date hereof there are no hazardous materials, substances,
wastes, or environmentally regulated substances (including, without limitation, any
materials containing asbestos) located on, in or under the Property or used in connection
therewith, and that there is no environmental condition existing on the Property that may
prohibit or impede use of the Property for the purposes set forth in the Recitals.
IN WITNESS WHEREOF, Declarant has hereunto set his hand and seal, the day and
year first above written.
i
(SEAL)
NORTH CAROLINA
COUNTY OF BRUNSWICK
a Notary Public in and for the County and
State aforesaid, do hereby certify that , Declarant,
personally appeared before me this day and acknowledged the execution of the
foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and Notary Seal this
the day of , 200
Notary Public
My commission expires:
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5 34°33'08" W I I .60'
W-3 39°52'20" W
5 14.76'_
W-4 °34'33" W
41
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W-5 V
5 36°29'29" W _20.73'
W-6 1 2°02' 18" W
5 5.66'
W-7
W-8 _
5 44°43'03" E
N 61°31' 19° E 79,40'
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W-1 N 571018" E _ 24.93'---
W- 12
W-1 3 5.18°2443'E
5 10°20 1 7" E_ _ 25.96'
21.47'__
W- 14 5 22°3652" E 37.88'
W- 15 5 3342'25"W_ 31.7W
W-16
W- 17 5 06°01 09" W
5 05145 1 V E 39.5 1'
35.54
W- 15
W-19 5 30-20-17" E
5 34°1022" E 2 1 .65
26_.91'
W-20
W-21 5 46°28 25" E
5 57°0734"E 27.50'
4T73'--
W-22
W-23 5 33°3655 E _
5 10°0930" W _ I -43.15'-
27.48'__
W-24
W-25 5 2G'25-12- E
5 28'52'15" E _ 34.27
23.69'
W-26
W-27
W-28 5 04'1 G1 2' W
5 09°3_625' W__j
5 2529139"W_ 20.90' _
_ 46.13'
26.57
W-29 5 22'14'37" E_ 1 1.9Z
W-30 577°1846 E 24.39'
W-31 N 22°0458' E 32.77'
W-32 N_4_5°40 1 1" E _ 32.50'
W-33 N 53°3743" E 29.34'
W-34 5 18°57' " E _ _47.61'
W-35 507°2231 F 45.65'
W-36
W-37 5 30°03 52' E _
530-1336" W 30.95'
_44.34'
W-38
W-39 5 0 1 °42 20" W
5 34°3000" E 1 1 .03'
61 .24'
W-40 5 30°2 I' 19" E 25.39'
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