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DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
July 9, 1993
IN REPLY REFER TO
Regulatory Branch
Mr. John Dorney
Water Quality Section
Division of Environmental Management
North Carolina Department of Environment,
Health and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Subject: 401 Certifications for Kitty Hawk Woods Development
Action ID. 198900495
Dear Mr. Dorney:
JUL_ 1 413
WETLANDS GROUP _ _ _
We have received a request from Mr. Starkey Sharp to review protective
covenants intended to be placed on what was formerly the Kitty Hawk Woods
partnership property. A copy of that correspondence is enclosed for your
review.
The U.S. Army Corps of Engineers, permit for the Kitty Hawk Woods project
incorporates by reference the conditions of the 401 certification for the
project issued by your office. Please advise whether condition 3 of the 401
certification has been satisfied, and, if not, what must be done to satisfy
that condition. We are particularly interested in knowing what property
condition 3 relates to, and whether the property covered by the attached
protective covenants comes within the terms of condition 3. If so, do the
attached protective covenants satisfy condition 3?
Please contact me at [phone] if you wish to discuss this matter
further.
Sincerely,
G. Wayne Wright
Chief, Regulatory Branch
Enclosure
Copy Furnished (without enclosure):
Mr. Starkey Sharp
Sharp, Michael, Outten & Graham
Post Office Drawer 1027
Kitty Hawk, North Carolina 27949

SHARP, MICHAEL, OUTTEN & GRAHAM
ATTORNEYS AT LAW
POST OFFICE DRAWER 1027
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
STARKEY SHARP
STEVEN D. MICHAEL
ROBERT L. OUTTEN
JOHN C. GRAHAM, III
June 21, 1993
Ms. Brooke Lamson
U.S. Army Corps of Engineers
Regulatory Branch
Wilmington District
P. O. Box 1890
Wilmington, NC 28402-1890
Dear Brooke:
STREET ADDRESS:
4820 N. CROATAN HIGHWAY
KITTY HAWK, NC 27949
FACSIMILE: [phone]
I have enclosed a copy of a declaration of protective
covenants. We had discussed the need to review the covenants to be
sure that development complies with the conditions of the Kitty
Hawk Woods permit. Please refer to paragraph 15.
You may be unaware that the Town of Kitty Hawk requires that
all wetland areas be shown on the subdivision map and that the
wetland delineation be approved by the Corps before the recording
of any subdivision map. This condition, coupled with the
restrictive covenant, should serve to meet that condition of the
permit. Please provide your comment to me at your convenience.
Sincerely,
[? u
Starkey Sharp
SS/jve
Enclosure
f, I it*
Prepared by Starkey Sharp, Attorney at Law
and return to: Kitty Hawk, North Carolina 27949
NORTH CAROLINA DECLARATION OF PROTECTIVE COVENANTS
DARE COUNTY
THIS DECLARATION is made and entered the day of ,
1993, by TULLIO BERTOLI being referred to as the "Declarant" within
this document.
WITNESSETH:
WHEREAS, the Declarant is the owner of certain land identified
on a plat recorded in Map Book at Page of the Dare
County Public Registry and known as Southern Woods Cottages, same
being located in Atlantic Township of Dare County, North Carolina,
and being a subdivision consisting of ( ) lots as shown on
the map or plat referred to above;
. AND WHEREAS, the Declarant intends to sell lots in the
subdivision described on the plat referred to above subject to
certain protective restrictions, reservations and covenants in
order to insure the most beneficial development of the said
subdivision as a residential subdivision and to prevent any such
use thereof as might tend to diminish the value or pleasurable
enjoyment thereof, and it is the purpose of this declaration to
declare and make known the covenants, conditions and restrictions
which shall apply to the lands shown on said plat.
NOW THEREFORE, Declarant hereby declares and makes known that
the following restrictions, reservations and covenants are hereby
imposed upon the said subdivision which shall run with the land in
the subdivision and shall be binding upon Declarant, its agents,
heirs and assigns, and upon all parties and persons claiming by,
through or under them.
1. Residential Use. No lot shall be used except for
residential purposes. No building shall be erected, altered,
placed or permitted to remain on any lot other than single-family
residences and garages. Only one family shall occupy the same main
dwelling and its accessory buildings, provided, however, that
servants' quarters or a guest suite may be erected, but such
facilities may not be rented, leased or sold separately from the
main premises. No business or business activity may be carried on
upon the property at any time, provided, however, that nothing
herein shall preclude the Declarant, its agents, affiliates and
employees from using all or part of the land or buildings owned by
them for the purpose of carrying on business directly related to
the development, sales and/or management of the subdivision by the
Declarant. Any lot or property dedicated to use for common
purposes, such as access or for other use, shall not be subject to
assessment or dues, as set forth hereafter in this declaration, so
4
long as such use is dedicated to the use and benefit of the
property owners association, its members and guests as defined in
this declaration.
2. Subdivision of Lots. No lot shall be subdivided, or its
boundary lines change except with the prior written consent of
the Declarant, however, it shall be permissible to combine two or
more adjacent lots, which have a common ownership, into one tract
of land for purposes of building a dwelling which would be
authorized on such lots individually. In the event of such a
combination, the setback requirements relating to the common
boundary between the lots will not prohibit building upon that
boundary so long as setback requirements relating to the outside
border of that tract are met. This provision does not reduce or
remove any other restriction which may exist as a result of this
declaration. In order that the purpose of this paragraph will not
be avoided, condominiums or other multiple family forms of
ownership are understood to be prohibited by the prohibition
against subdivision contained herein. Further, no property within
the subdivision shall be developed or used in a manner that would
constitute a "time-share" as defined in North Carolina General
Statutes Chapter 93A-41.
3. Plans No building, fences or other structure shall be
erected, placed, moved into, maintained or in any way altered on
any lot within the subdivision until the proposed building plans,
elevations, specifications, exterior color or finish, plot plan
(showing proposed location and elevation of such building
structure, drives and parking areas) shall have been submitted in
duplicate to Declarant in writing as evidenced by an approved copy
of the elevation plans left in the permanent possession of the
Declarant. The Declarant or its successor or designee may refuse
to approve plans, locations or specifications upon any ground,
including purely aesthetic considerations, which in the sole
discretion of the Declarant shall seem sufficient. No alterations
in the exterior appearance of any building or other structure shall
be made without like approval by Declarant. The minimum square
footage required shall be 900 square feet of living area, exclusive
of porches, patios, garages, unfinished areas and other protrusions
from the base dimensions of the residence. For all structures
within the subdivision, the roofs shall be constructed so that the
pitch shall not be less than six to twelve. The exterior of all
houses and other structures, after approval of the building plans,
must be completed within six months from the commencement of
construction, except where such completion is impossible, or
results in great hardship to the owner or builder due to strikes,
fire, national emergencies or calamities. Where more than six
months are required due to the size or type of structure, the owner
shall have the right to reasonably extend the time of completion.
Construction or erection of any television satellite dishes or
similar receiving apparatus shall occur only under the guidelines
approved by the Declarant or its successors and assigns which
guidelines shall be framed so as to limit the visibility of any
such structure by its location on the property and by the erection
of fences, screens or other devices to limit its visibility. At
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such time as sixty percent (60%) of the lots within the subdivision
are owned by persons or firms other than the Declarant herein, the
process of approval described in this paragraph shall become the
authority and responsibility of the owners association described in
this declaration (or its designated architectural review
committee), if it is at that time existing as an active entity or
organization; and, until the owners association is so activated,
the authority as described herein shall remain with the Declarant
or the designee of the Declarant. In addition to the foregoing, in
no event shall trees greater than four inches (411) in diameter be
removed within an area ten feet (101) from any side lot line.
4. Maintenance of Buildings. All buildings, structures and
their appurtenances shall be maintained in a suitable state of
repair; in the event of destruction or casualty, premises are to
cleared and debris removed within sixty days from the date of such
casualty. It shall be the responsibility of each lot owner to
prevent the development of any unclean, unsightly or unkept
condition of buildings and other structures or grounds on his lot
which shall tend substantially to decrease the beauty of the
neighborhood and of the subdivision as a whole. Upon the failure
of an owner to comply with this requirement, the Declarant reserves
the right at its option, within three weeks after written notice
has been mailed to such lot owner's last known address, to clean
such property up or remove same if such property has been destroyed
by fire or other disaster and Declarant's expense in so doing shall
constitute a lien upon such owner's lot and improvements thereof,
enforceable in the same manner as other liens described hereafter
in the sections of this declaration dealing with liens and
assessments.
5. Maintenance During Construction During construction of
improvements on the lots within the subdivision, the lot owner or
builder shall maintain facilities for or arrange for a portable
toilet on the premises. During construction, the owner or builder
shall maintain a trash or rubbish bin of a type and size sufficient
to avoid trash or debris from spreading from the building site and
shall cause such area to be maintained and cleaned periodically,
both during and at the end of construction.
6. Temporary Buildings. No trailer, double-wide modules,
tent, shack or other temporary building shall be erected or placed
on the lands within the subdivision* except for the storage of
materials or the convenience of workmen shall be permitted during
the erection of a residence upon said lands, and such temporary
structure shall be removed from said premises upon issuance of an
occupancy permit of such residence.
7. Signs. There shall be no signs, billboards or
advertising structures of any nature whatsoever placed on any lots
or lands, except that one sign per lot, according to approval
granted by the Declarant or the architectural review committee of
the property owners association, shall be allowed for
identification of the property owner and signs and notices of the

property for rent or sale provided such sign shall be no larger
than six square feet in size.
8. Animals. Property owners may keep dogs, cats or other
household pets, provided they are not kept, bred or maintained for
any commercial purposes. Property owners may also keep horses
provided not more than two horses are stabled on any one lot.
9. Easements. The Declarant reserves a perpetual,
assignable and releasable easement and right-of-way over, on and
under the ground to erect, maintain and use electric, cable
television and telephone poles, wires, cables, conduits, sewers,
water mains and other suitable equipment for the conveyance and use
of electricity, cable television, telephone equipment, gas, sewer,
water, drainage or other public conveniences or utilities on, in,
over or under the front ten (10) feet and the rear ten (10) feet.
10. Occupancy. No residence erected upon any lot shall be
occupied in any manner prior to completion of construction and the
connection of permanent utilities.
11. Driveway Access. Vehicle access for lots within the
subdivision shall be limited to the private driveways designated on
the plat of the subdivision. With the exception of the private
driveways intended for the common access between dwellings
constructed on lots and N.C.S.R. 1206 (Woods Road), no other access
for vehicle use will be permitted. It is the intention of these
covenants to limit driveway entrances on Woods Road in order to
minimize disturbance of wetland areas and reduce the total number
of driveway entrances within the subdivision.
a. No more than four dwelling sites shall be
served by any common driveway. The owners of lots
sharing common driveways, as shown on the plat, shall be
responsible to share in the maintenance of such
driveways. The property owners association shall be
empowered to levy assessments and to file claims of lien
in the same manner as other, common expenses of the
association in order to provide for the expense of
maintaining the common driveways discussed in this
section.
b. This declaration shall serve to establish an
easement for the purpose of access, ingress and egress
from each building site designated on the plat of the
subdivision to and from Woods Road. The easement so
established shall be appurtenant to the ownership of each
lot and shall run with the land and be conveyed along
with the conveyance of any lot conveyed by reference to
the subdivision plat. The description of the easement is
set forth on the subdivision plat. It shall not be
necessary to specifically refer to the easement or to
describe the same in any instrument of conveyance in
order to establish the access rights described in this
paragraph.

c. The terms of this paragraph shall not limit
pedestrian access by walkways, sidewalks or paths.
12. Water and Sewage. All wells and toilets and sewage units
installed on the property shall be in accordance with the rules and
regulations of the North Carolina Department of Health and the Dare
County Environmental Health Department or the successor agency to
such agencies or departments and shall be located on such lands in
positions approved by such departments. No outside toilets will be
permitted under any circumstances; except temporary toilets used
during construction.
13. Setbacks. No building shall be located or constructed
closer than 25 feet from any street or roadway, nor closer than 15
feet from the side lines of any lot, nor closer than 25 feet from
the rear property line. Where different provisions for setbacks
are shown on the recorded plat of the subdivision or on the plat of
any section of the subdivision, those setbacks shown on the plat
shall be deemed to control over the setbacks set forth in this
paragraph and are adopted herein by reference in lieu of those
setbacks set forth herein.
14. Variances and Modifications. As long as it owns three
(3%) percent or more of the lots in the subdivision, Declarant
reserves the right to include in any declaration, contract or deed
thereafter made or entered into, such modifications and additions
to these protective covenants, which will, in the sole opinion of
Declarant, raise the standards or enhance the desirability of the
subdivision as a residential area. Such reservation shall not be
construed as authorizing Declarant to relieve any purchaser of any
lot in the subdivision, in whole or in part, from any of the
protective covenants set forth. Declarant, or the property owners
association acting through its appropriate boards or committee, may
allow reasonable variances and adjustments of these covenants.in
order to overcome practical difficulties and prevent unnecessary
hardships in the application of the provisions contained herein;
provided, however, that such is done in conformity with the intent
and purposes hereof and provided also that in every instance such
variance or adjustment will not be materially detrimental or
injurious to other property or improvements in the subdivision.
15. Protection of Wetland Areas. Certain areas are
designated on the plat or plats of the subdivision as areas
consisting of wetlands as defined by Section 404 of the Clean Water
Act. No activity shall be permitted within the subdivision which
results in disturbance, filling, draining or alteration of such
areas from their natural state.
16. Violations. If the owners or occupants of any lot, or
all of them, or their successors and assigns, shall violate any of
the covenants and restrictions herein, it shall be the right of the
Declarant herein, or its successors and assigns, or any lot owner
in the subdivision, to institute proceedings at law or in equity
against the person or persons violating or attempting to violate
any such covenant or restriction for the purpose of preventing him
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or them from so doing, or to recover damages for such violation, or
both.
17. Severance. The failure of Declarant or any of such party
entitled to enforce any protective covenant contained in this
Declaration, however long continued, shall not be deemed a waiver
of the right to do so thereafter as to the same breach or as to a
breach occurring prior or subsequent thereto and shall not bar or
affect its enforcement. Any provision of this declaration shall be
deemed severable from the other provisions and in the event that
any provision or portion of a provision or condition set forth
within this declaration shall be deemed unenforceable, void, or
unlawful, such a decision shall not affect the remainder of the
covenants and conditions set forth within this declaration.
18. Continuation and Terminations. The foregoing conditions,
reservations, declarations, covenants and easements shall be run
with the lands and be binding upon all purchasers of lands or lots
in said properties covered by these restrictions, and upon all
persons or entities claiming under them through the day of
2013, after which time the same shall be extended for
successive periods of ten (10) years each, unless an instrument
signed by a majority of the then owners of the lots subject thereto
has been recorded, agreeing to change the restrictions and
covenants in whole or in part. For the purpose of such vote, the
owners will be entitled to one (1) vote per lot regardless of the
number of persons or entities owning any one lot.
19. Rules. Declarant reserves the right to promulgate rules
as to the use of the common areas and amenities in the subdivision.
As such time as the administration and upkeep of such properties
shall become the responsibility of the property owners association
as described hereinafter, the rule making authorities shall then
pass to the property owners association.
20. Property Owners Association. Each lot owner shall
automatically become a member of the property owners association.
It is acknowledged that the association shall consist of the owners
of all lots within the subdivision and that each lot shall be
entitled to equal voice or vote in the affairs of the association.
The association shall have the right to assess the owners of lots
within the subdivision for prorata shares of various costs, based
upon the number of lots within the subdivision (excluding lots
dedicated entirely to common uses). Such costs will include the
costs of maintenance of common properties, the streets and water
lines within the subdivision and other common expenses in the sole
discretion of the owners association. The association shall
maintain the sign advertising and identifying the subdivision, the
common garbage can disposal site, the bulkhead adjacent to the road
right of way, the gate for the subdivision, the lighting systems on
the bulkhead and sign, and any other common facilities erected on
the property. Any delay on the part of the Declarant herein, or by
the owners of lots within the subdivision or additional sections of
the subdivision, to formally organize the owners association or to
exercise rights belonging to such association or to otherwise cause
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such association to function as a legal entity, shall not
invalidate or effect the right to form the association. Until such
time as the association shall be formally incorporated under the
laws of the State of North Carolina, it shall exist as an
unincorporated association. Until such time, the Declarant and its
successors and assigns shall act on behalf of the association. The
name of the association shall be Owners
Association, Inc. or such other name as may clearly designate the
nature and existence of the organization.
21. Dues and Assessments. In order to provide for payment of
dues and assessments for the association referred to hereinabove
and in order to provide a means of collecting funds for the common
expenses within the terms of this declaration, each lot within the
subdivision shall be subject to the obligation for the payment of
dues and assessments according to the terms of this declaration.
The association shall have the right to place a claim of lien
against any of the lots within the subdivision to collect unpaid
dues or assessments and to maintain a civil action for collection
of such sums. The following paragraphs set forth the guidelines,
rules and regulations for the purpose of allocating such
assessments and dues and the collection thereof.
Section 1. Creation of the lien and personal obligation of
assessments. Each subsequent owner other than the Declarant, by
acceptance of a conveyance for a lot within the subdivision,
whether or not it shall be expressed in any such deed or
conveyance, regardless of the method of conveyance and regardless
of whether such subsequent owner is a direct purchaser from the
Declarant or a successive purchaser, shall be deemed to covenant
and agree to pay to the Association: (1) annual assessments or
charges; (2) special assessments for capital improvements, such
assessments to be fixed, established, and collected from time to
time as hereafter provided. The annual and special assessments,
together with such interest thereon and costs of collection thereof
as hereinafter provided, shall be a charge on the land and shall be
a continuing lien upon the property against which each such
assessment is made. Each such assessment together with such
interest thereon and cost of collection thereof as hereinafter
provided, in Section 9 of these provisions, shall also be the
personal obligation of the person who was the owner of such
property at the time when the assessment fell due.
Section 2. The assessments levied by the association shall be
used exclusively for the purpose of promoting the recreation,
health, safety and welfare of the residents in the subdivision and
the property owners, and in particular for the improvement and
maintenance of properties, services, and facilities devoted to this
purpose and related to the use and enjoyment of the common
properties and of the homes situated upon the lots within the
subdivision, including but not limited to, the payment of taxes and
insurance on common properties, and repair, replacement and
additions thereto, and for the cost of labor, equipment, materials,
management and supervision thereof. Specifically included within
these purposes shall be the extension of such maintenance, services
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and similar matters to additional properties and subdivisions which
are included within the Declarant's plan of development and
subjected to these covenants at a later date.
Section 3. The annual assessment shall be $200.00 per lot.
The board of directors of the association may, after consideration
of current maintenance costs and future needs of the association,
fix the actual assessment for any year at a lesser amount or
greater amount, from time to time.
Section 4. In addition to the annual assessments authorized
by Section 3 hereof, the association may levy in any assessment
year a special assessment, applicable to that year only, for the
purpose of defraying, in whole or in part, the cost of any
construction or reconstruction, unexpected repair or replacement of
a described capital item or improvement upon the common properties,
including the necessary fixtures and personal property related
thereto, provided any such assessment shall have the assent of
three-fifths (3/5) of the votes of all voting members who are
voting in person or by proxy at a meeting duly called for this
purpose, written notice of which shall be sent to all members at
least thirty (30) days in advance and shall set forth the purpose
of the meeting.
Section 5. Subject to the limitation of Section 3 hereof, and
for the periods therein specified, the association may change the
maximum and basis of the assessments fixed by Section 3 hereof,
prospectively for any such period provided that any such changes
shall have the assent of three-fifths (3/5) of the voting members
who are voting in person or by proxy at a meeting duly called for
this purpose, written notice of which shall be sent to all members
at least thirty -(30) days in advance and shall set forth the
purpose of the meeting, provided further that the limitations of
Section 3 hereof shall not apply to any change in the maximum and
basis of the assessments undertaken as an incident to a merger or
consolidation in which the association is authorized to participate
under its articles of incorporation.
Section 6. The quorum required for any action authorized by
Section 4 and 5 hereof shall be as follows: At the first meeting
called, as provided in Sections 4 and 5 hereof, the presence at the
meeting of members or of proxies, entitled to cast sixty percent
(60%) of all the votes of the membership shall constitute a quorum.
If the required quorum is not forthcoming at any meeting, another
meeting may be called, subject to the notice requirement set forth
in Sections 4 and 5, and the required quorum at any such subsequent
meeting shall be one-half (1/2) of the required quorum at the
preceding meeting, provided that no such meeting shall be held more
than sixty (60) days following the preceding meeting.
Section 7. The annual assessments provided for herein shall
commence on.the 1st day of January, 1994. The assessment for each
succeeding year shall become due and payable on the 1st day of
January of each year. No adjustment or prorations of assessments
shall be made by the association. For purposes of levying the
t !A "k
assessment, assessments shall be considered to be paid in advance
and shall be levied against any property which is subject to the
declaration or any supplemental declaration. The due date of any
special assessment under Section 4 hereof shall be fixed in the
resolution authorizing such assessment.
Section 8. The board of directors of the association shall
prepare a roster of the properties and assessments applicable
thereto at least thirty (30) days in advance of such assessment due
date. Such assessment roster shall be open to inspection by any
owner. Written notice of the assessment shall thereupon be sent to
every owner subject thereto. The association shall, upon demand at
any time, furnish to any owner liable for said assessment a
certificate in writing signed by an officer of the association,
setting forth whether the assessment has been paid. Such statement
shall be conclusive evidence of payment of any assessment therein
stated to have been paid.
Section 9. If an assessment is not paid on the date when due
(being the date specified in Section 7), then such assessment shall
become delinquent and shall, together with interest thereon and
costs of collection thereof, including attorney's fees, as
hereafter provided, thereupon become a continuing lien of the
property which shall bind such property in the hands of the then
owner, his heirs, devisees, personal representative and assigns.
The personal obligation of the then owner to pay such assessment,
however, shall not pass to his successors in title unless expressly
assumed by them.
If the assessment is not paid within thirty (30) days after
the due date, a penalty fee not to exceed $5.00 shall be added
thereto and from that date interest at the then legal rate as
established by law may be added to the delinquent balance and
penalty and the association may bring an action at law against the
owner personally obligated to pay the same or to foreclose the lien
against the property. There shall be added to such assessment,
delinquent fee and interest, the cost of preparing and filing a
complaint in such action and in the event that judgment is
obtained, such judgment shall include interest on the total amount
as above provided and reasonable attorney's fees to be fixed by the
court together with the costs of the action. The Declarant or
association shall establish a registered office where determination
may be made of the amount of any unpaid fees and charges hereunder
and the failure so to do within ten (10) years from the date of
this instrument shall terminate the obligation, if any, of the
purchaser for value of a lot in said subdivision from being
encumbered by such delinquent fee.
Section 10. The lien of the assessments provided for herein
shall be subordinate to the lien of any mortgage or mortgages now
or hereafter placed upon the properties subject to assessment;
provided, however, that such subordination shall apply only to the
assessments which have become due and payable prior to a sale or
transfer of such property pursuant to a decree of foreclosure, or
any other proceeding in lieu of foreclosure. Such sale or transfer
t 464%,.
shall not relieve any property owner from liability for any
assessment thereafter becoming due, not from the lien of any such
subsequent assessment.
Section 11. The following property subject to this
declaration shall be exempted from the assessments, charges and
liens created herein: (a) all property to the extent of any
easement or other interest therein dedicated and accepted by the
local public authority and devoted to public use; (b) a-11 common
properties referred to in the declaration or set forth on the plat
of the subdivision referred to above; (c) all properties exempted
from taxation by the laws of the State of North Carolina, upon the
terms and to the extent of such legal exemption. No property or
improvements devoted to dwelling use shall be exempt from said
assessments, charges or liens.
IN WITNESS WHEREOF, the Declarant has caused this instrument
to be executed in its name and in the capacity as set forth below,
this the day of , 1993.
TULLIO BERTOLI
STATE OF
COUNTY/CITY OF
(SEAL)
I, a Notary Public for the aforementioned State and County do
hereby certify that TULLIO BERTOLI personally appeared before me
this day and acknowledged the execution of the foregoing
instrument. Witness my hand and seal, this the day of
1993.
My commission expires:
Notary Public
NORTH CAROLINA
DARE COUNTY
The foregoing Certificates of
is/are certified to be correct. This instrument and this
certificate are duly registered at the date and time and in the
Book and Page shown on the first page hereof.
REGISTER OF DEEDS BY: DEPUTY/ASSISTANT-REGISTER OF DEEDS
kq
State of North Carolina
Department of Environment, Health, and Natural Resources`
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Marlin, Govemor George T. Everett, Ph.D.
W Mam W. Cobey. Jr., Secretary February 14, 1991 Director
4
Mr. Jerry Wright, Jr.
Managing Partner
Kitty Hawk Woods Partnership
Post Office Box 749
Kitty Hawk, North Carolina 27949
Dear Mr. Wright:
Subject: Certification Pursuant to Section 401 of the Federal
Clean Water Act,
.Proposed Kitty Hawk Woods Development
Kitty Hawk Woods Partnership
Currituck Sound
Dare County
Attached hereto are two (2) copies of Amended Certification
No. 2420 issued to Kitty Hawk Woods Partnership dated April 9
1990. This amendment replaces Condition No..2 in Certification' #
2420. All other conditions are still applicable.
If we can be of further assistance,'do not hesitate to
contact us
Sincerely,
G?.CIZ.-.
George T. Everett
Director
Attachments
cc: mington District Corps of Engineers
Washington Regional Office
Mr. John Dorney
Mr. John Parker
Central Files
Pollution Prevention Pays
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone] ?M?
RTH CAROLINA
' Dale Countv
CERTIFICATION
THIS CERTIFICATION is issued in conformity with the
requirements of Section 401 Public Laws 92-500 and 95-217 of the
United States and subject to the North Carolina Division of Envi-
ronmental Management Regulations in 15A NCAC 2H, Section .0500 to
Kitty Hawk Woods Partnership pursuant to an application filed on
the 11th day of February, 1991 to place fill material in wetlands
in conjunction with construction of the Kitty Hawk Woods Develop-
ment.
The ApplicatiVn provides adequate assurance that the.dis-
charge of fill material into wetland areas that are not-connected
to the surface water system and into wetland areas adjacent to
waters of tributaries to Currituck Sound in conjunction with the
proposed development in Dare County will not result in a viola-
tion,of applicable Water Quality Standards and discharge guide-
lines. Therefore, the State of North Carolina* certifies that this
activity will not violate Sections 301, 302, 303, 306,-307 of PL
92-500 and PL 95-217 if conducted in accordance with the Certifi-
cation # 2420 and this condition which replaces condition No. 2
in that Certification:
Condition(s) of Certification:
2. No sale of land or construction activities shall
occur under the Army Corps of Engineers Permit.on
the 455 acre tract of maritime forest in the center
of Kitty Hawk Woods discussed in the negotiations
between the developer and State agencies and
referred to in the memorandum dated February 11,
1991, as shown on the composite 404 permit applica-
tion map as the 135 acre donation tract and the 320
acre proposed sale tract until such time.as a con
servation easement.has been conveyed to.the State
of North Carolina, a development plan for the prop-
erty has been approved by the Resolution Trust Cor-
poration (RTC) or the individual lots have.been
released by the RTC, and the State of North Caro-
lina has approved the deeds and restrictive cove-
nants for the lots to ensure that the conservation
easement is enforceable.
Violations of any condition herein set forth shall result in
revocation of this Certification.
This Certification shall become. null and void unless the
above conditions are made conditions of the Federal Permit.
This the 14th day oT February, 1991.
DIVISION OF ENVIRO NTAL MANAGEMENT
?` George T. Everett, Director
WED
C:m
? 9990 ? 40
APR 1
..?.?. ,
REGULATORY BRANCH
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Environmental Management
51L :',urth Salisbury Scree - Ralr..n, ,,4orth Carolina 2761,
James G.. Martin, Governor George T Everett, Ph.D.
William W. Cobey, Jr., Secretary April 9 , 1990 Director
Mr . Jerry Wrig;ElJr .
Managzng_Parib
Ratty Hawk Wooda-Partnership
Past of adei' Box ' 7 49
Kitty Hawk, `:North Carolina 27949
..Dear Mr. Wright:
Subject:- Certification Pursuant to Section 401 of the Federal
Clean Water. Act,
Proposed °Kitty' Hawk Woods :Development
Kitty Hawk`Woods Partnership
Currituck Sound
Dare County
Attached hereto are two (2) copies of Certification No. 2420
issued to Kitty Hawk Woods Partnership dated April 9, 1990.
.If we. Can be of further assistance, do not hesitate to
contact us.
Sincerely,
Original Signed Sy
George T. Everett
George T. Everett
Director
Attachm is
cc: ilmington District Corps of Engineers
Washington Regional Office
Mr. William Mills
Mr. Stephen Benton
Po11,7tian Prevention Pays
P.O Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Enual Onnortunity Affirmative Action Emnlover

NORTH CAROLINA
Dare County
CERTIFICATION
. THIS CERTIFICATION is issued in conformity with the
requirements of Section 401 Public Laws 92-500 and-95-217 of the
United States and subject to the North Carolina Division of
Environmental Management Regulations in 15 N,..,-,C 2H, Section .,?506
to Kitty Hawk: Woods.Partnership pursuant to an application
ild&466 ;the i6th.day af'October 19.89 and; amended on the 16th
day s o€ ?iovember, 19 89 to <place fmat NIA1 ri wetland in
mss- 7T s :-'? tw 4d a
?w?with construct-lon' d.- "theRitty Ha?,i3s Woods
Deae?i
ati.arn ?pr©a?cY a ;a s ce that the
_d?.sc '11 ?.a to :'thatlare not
= x4 '
co efa a, ?Qethnds areas
-ad ot?theNiaeo
- r aaeW .11 not
res ' ` Xo a ion'??f . x 1st : r- raL?.ty to et'd9 'and
,
d?.sei idelnes 't'h rore, ° the to?€ `Nord"Carolina
-77
.
t
pert terms t this activititwill not4? o iect ons 3Q1, 302,
303, zf?6, 307 ;af PL 92 50b anti Pv 957zf conducted In
acc©rdance with 'the_:applcation and;candtions hereinafter set
forth.
Co?idtion (s') ' of Certi-f icatioii c
1. That the activity be conducted in such a'manner as
to prevent ;significant increase in turbidity
outside the_area of construction or construction
related discharge.nc=eases &tfdh 'that-tie
turbidity in the Stream is 25 NTU's or less are not
'considered -significant) .
2. The 455 acre tract ` of :mariti.me . forest in the
center of Kitty'Hawk Woods diseussed -in
negati.atios between the developer,:cind r State
age?icies ans3A. eferrec to n the memorandum from
Sharp, Michael and Oufn dahed `anuary `22 1990,
and as -shown on` the" composite 404 permit
application' mag as : ,tha ,13 S acre : donatio.n tract and
the 320 acre proposed sale tract, must be donated
n'fee simple';:to 'the State of North Carolina :'before
any sale of land or`constructio*n activities occur
in the area covered, by'the Army Corps"of Engineers
permit
3. Conservation easements sufficient to protect in
perpetuity.al.l wetlands aocated within the
residential portions of. ahe ; `, 400 'acre tract and
those uplands lccatdd jw t$in- Section II of the
project as designated in the permit application,

Certification (cont.)
April 9, 1990
r-

STARKEY SHARP
STEVEN D. MICHAEL
ROBERT L. OUTTEN
JOHN C. GRAHAM, III
SHARP, MICHAEL, OUTTEN & GRAHAM
ATTORNEYS AT LAW
POST OFFICE DRAWER 1027
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
October 4, 1993
John Dorney
Division of Environmental Management
North Carolina Department of Environment,
Health and Natural Resources
Post Office Box 27687
Raleigh, NC 27611-7687
Re: Kitty Hawk Woods
Dear John:
We spoke by telephone on Friday,
the proposed restrictive covenants for
for certain changes to the draft set of
the relevant paragraphs and enclose a
October 1,
Kitty Hawk
covenants.
lJl
OCT - 51993
STREET ADDRESS:
4820 N. CROATAN HIGHWAY
KIM HAWK, NC 27949
FACSMILE: [phone]

1993 concerning
Woods. You asked
I have reworded
copy for your review.
In reviewing my file, I noticed that the Corps had also asked
you whether the property covered by the protective covenants was
property that fell within the requirements of condition 3 of the
401 certification. We did not discuss this issue. To assist you
in responding to that question, I have identified the residential
tracts below that will eventually come out of the Kitty Hawk Woods
development.
1. Southern Woods. This parcel is located on the east side of
NCSR 1206, and was shown on the permit maps as a series of
approximately 26 lots. Each lot backs up to the main conservation
easement parcel. For a number of reasons, a wetland delineation
was not performed on this tract during the KHW 404 permit
application process. We intend to submit this property to the same
type of protective covenants as will be used for the other
residential parcels. As I mentioned to you in our telephone
conversation, the covenants will be imposed on this parcel in the
next few days because the property has been sold.
2. Southern Woods Cottages. This parcel, when completely
developed, will consist of approximately 20 lots. The property was
shown on the permit maps as Section 8 or as Project VIII (sheet 9
of the Stroud Engineering maps). The permit would have allowed a
development of approximately 60 lots in this area. Instead, the
interior road will not be installed and all lots will front on the
west side of NCSR 1206. The same basic protective covenant scheme
will be used in this section.
N Yli
'i
AN
3. Soundfront Tract. The acreage on the Currituck Sound
consisting of approximately 110 acres was shown on the permit maps
as Phase Five or Project IX (Sheet 11 of 12 - Stroud Maps). This
area will be developed as shown in the permit maps, with very
little change. The same covenant scheme will be used.
4. Tract South of Eckner Street. Known as Section 10 or Project
IV on the Stroud maps, this section will be developed using a plan
similar to that shown on the permit maps. The same covenant scheme
will be used.
Although other provisions of the protective covenants may
change between the residential subdivisions mentioned above, each
document will include a version of the same language attached to
this letter. It is my understanding that the language will meet
the conditions of the 404 permit or 401 certification.
Please call if you have any changes to make to the language or
if I have misstated our conversation. I will provide Brooke Lamson
with a copy of this letter and the attachment.
Sincere yours,
Starkey Sharp
SS/jve
cc: Brooke Lamson
.•

15. Protection of Wetland Areas. Certain areas are
designated on the plat or plats of the subdivision as areas
consisting of wetlands as defined by Section 404 of the Clean Water
Act. No activity shall be permitted within the subdivision by the
developer which results in disturbance, filling, draining or
alteration of such areas from their natural state. However, this
will not prohibit the developer or the owners of individual lots in
the subdivision from making application for permits from the
appropriate agencies of the State of North Carolina or the United
States of America for impacts or fill activity in areas of wetlands
that are isolated and where the proposed fill or other activity
relates to the construction and occupation of a single family
residence and related structures and improvements. In such event,
the restrictions set forth in this paragraph will not prohibit the
issuance of such a permit if other criteria are met, as established
by the permitting agencies.
The provisions of this paragraph of this declaration shall be
enforceable by the State of North Carolina, acting through the
Division of Environmental Management or such other state agency as
may be appropriate. Enforcement options shall include but shall
not be limited to actions through the regulatory provisions of the
Administrative Code or through the General Court of Justice, Civil
Division.
18. Continuation and Terminations. The foregoing conditions,
reservations, declarations, covenants and easements shall be run
with the lands and be binding upon all purchasers of lands or lots
in said properties covered by these restrictions, and upon all
persons or entities claiming under them through the 1st day of
October, 2013, after which time the same shall be extended for
successive periods of ten (10) years each, unless an instrument
signed by a majority of the then owners of the lots subject thereto
has been recorded, agreeing to change the restrictions and
covenants in whole or in part. For the purpose of such vote, the
owners will be entitled to one (1) vote per lot regardless of the
number of persons or entities owning any one lot.
Notwithstanding the foregoing provisions, the terms of this
declaration providing for protection of wetland areas and
particularly those provisions of paragraph 15 of this declaration
shall not be altered or terminated in their applicability to the
property subject to this declaration unless through the written
action of the State of North Carolina, acting through the Division
of Environmental Management or its successor agency.
V J? J s . i ? v .? v v
FAX Nth: 9.19- 733-2622 DATI,- May 30, 1990
TO ;
ATTN
SUBJECT: EPA Letter
SENDER Quentin Bell
PAGCS 4
OUR FAX NO: (919) 2(23.-1979
Ni
?` Sa fir faA Q4' cc .
fill t i ?.-?jvi?"??tr? ?
- .?--RtKfrt?•??Jlnl /'vrth?ca
1105'I ()ITICF BOX 749 --- -- KI I TY 1 IAWK, No )R1I I c AI?f )1 INN 2 7-t I'? 2 .? _ 18
5/30/1990 14:03
x,10 s1
4'4c o*MEV
FROM KITTY HAWK WOODS TO 19197332622"-
/fit
UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
REGION IV
349 COURTl.AND STREET. N.E.
ATLANTA. GEORGIA 30365
M4 2 4 1990
RE r t WQMB
Lt. Colonel Thomas C. Suermann
District Engineer
V.S. Army Corps of Engineers, Wilmington
P. 0. Box 1890
Wilmington, NC 29402-2890
ATTSNTION: Dr. Wayne Wright
SUBJECT! Kitty Hawk Partnership
(P/N a#89N-028-0495)
Alternative Site Analysis
Dear Colonel suermanni
I.1E Ei ED
MAY 3 0 i990
BE-QUTATQRf, BRANCH
The Lnvironmental Protection Agency (EPA) has reviewed the subject
report comparing the Kitty Hawk Woods Shopping Center site with other
potential alternate locations can the Outer Banks Road development as
a shopping center,
The subject report concludes that the abundant upland locations.
available on the mainland of Curtituck County across the Wright
Brothers Memorial. Bridge cannot be considered a practicable
alternative. This conclusion is based on the concept that the bridge
represents a "psychological and physical barrier" that will prevent
the tourists of the Outer Hanks from utilizing a Currituck County
upland location. As a result, this site will not be an economically
viable alternative shopping center location.
This Agency has evaluated the applicant's justification in con-
sidering the Curri,tuck County alternative an unacceptable. it is
our opinion that the analysis does not support the determination
that the Kitty Haws Moods Shopping Center site is the only available
site within the market area. Consequently, we have determined that
the proposed project does not represent the least environmentally
damaging practicable alternative and consider it contrary to Section
230.30(a) of the Section 404(b)(1) Guidelines.
EPA recognizes that considerable mitiVAtion has been offered by. the
applicant. However, compensatory mitigation may not be used as a
method td,reduce environmental impacts in the evaluation of the least
environmentally de.mdging practicable Alternatives for the purpose of
requirements under Section 230.10(8).
05/30/1990 14:04

FROM KITTY HAWK WOODS
-2-
TO 19197332622 P.03

Based on these conclusions, we have determined that our
recommendation of denial on the subject permit applical:i.on by letter
dated October 27, 1989 should remain.
I have recently met with the applicant and further discussed the need
to provide additional, information and doc=entatlon of the
alternatives analysis. Upon receipt of axpected forthcoming
information from the applicant, we will reconsider our position and
provide same to your office.
sincerely yours,
Pa"
Robert F. McGhee, Chief
Water Quality Management Branch
05/30/1990 14:03 FROM KITTY HAWK WOOD
TO 19197332622
P.01
fl
SYT-

X 1?r,: X19-- 733-2622
TO
Ma-,. 30, 1990
. ,
Ta'hi¢j4,,t> _ iiUl-'i.i..-?..i1 r l., ..i
P A i t
1 -7
1114 Y 7990
C,,)
? ?111l TFie t 1 c:.
i'(751 (1I'Flt'i BOX 719 KII tY I IAWK, No )R1I I (;1I?C?I INN ? ?1'? _ ?)is?.7tr1 22';A
4 05/30/1990 14:03 FP,r_M KITTY HAWK lJfi,OCO;
TO;
R

A%A?iTA. G,F0 ,,7,iA i'.7 Fi

`%Ec . ED
etc" 1, a 'fti s,; '? 13
Lt. Colonel Thomae C . Suer ann,
District Shginoer
U.9. .may Corps of Engineers, Wilmington
P. 0. Box ibs90
Wilmington, NC 284021-1890
ATTENTION: Dr. Wayne Wright
SUBJECT: Kitty Hawk Partnership
;rP/N #899-028=0495)
Alternative Site &Ialyals
Dear Colonel Suarmann;
MAT ? o 1990
E4UATCRY BRANCH
They Lnviro=ental Protection Agency (EPAI has reY vowed the subject
report. comparing the bitty Hawk Woods Shopping Center site with othor
Potential alternate locations ora the outer Bax E Road development as
a shopping co ter
The sub?eot report conclud?a that the abindant u&-I unld locations
available on the ma.laland, of Curri t-ac County aCron- the wrlght
Brothers Memorial Bridge oa.nnot be consid,erp-d a practiQabla
alternative. This o nciusiony?is hized can the concept that the br.1dge
x?}?resents a "psychological and 'ib??ws".?cal ba •wiqr. tl-hat will prQvo.f
the tourists of the Cute- S-?n s fryrt citil zin.g a Cuxx?lt ac k lounty
upland location. As a result, bw.. a.-Me will not bc4 an economically
viable alternative shopping center .location,
This Agency has evaluated the applicant's lin con-
sidering the Curri,t` ok County alternative as unacc' ptabl . It is
our opinlon that the analysis does not support the determination
that the Xitty Hawk Woods Shopping Center site is thaws only available
site within the market area. Consequently, we have determined that
the proposed project does not represent the least ermi.ronmental.l.y
damaging practicable alternative and consider it contrary to Section
230.10(a) of the Section 404(b)(1) Guidelines.
SPA recognizes that considerable mitl5ation has been offered by. the
applicant. Ho vor, compenga,to mitigation may not be used as a
method to, reduce environmental impacta in the ova,l.uati on of the least
environmentally damaging practicable Alternatives for tha purpose of
requirements under Section 230.10(a).
TO 191977_32622 P.02
I/ ? r4
.? ? ?vS . 00 / 'J " 11

M 05/30/1990 14:04
FROM KITTS' HAWK ilionDS
z?m
Tn 19197332622
P.03
Aasod on 90 have detar ined that our
recd endatiQn of dgniai on' the subject pe ini4 applicatlon by letter
crated October 27® 1989 shouid
I have -recently met with the app1Lc7aWt and further d%scussed the need
to provide additional info a.tion and doc=entatjon of the
alternatives analysis. Upon receipt of expoeted forthcoming
informations from- the applicant, we will reconsider our position and
provide same to i our off is e .
Robert F, McGhee, C-higf
dater Quality Nanageme:at 1;tanctj
V& ,..*v"'
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box 33726
Raleigh, North Carolina 27636-3726
7;?VjP5OA)
Ift . (_`oiGnei Thomas C. Suermann
dsT,rlct r.n?lnee_Z'
Wii_minr•ton Distr r- .
L'.5. :army :ores of -:n-ineers
1890
,.Viimington. _ 2'310__1 n 'vC )r t:1 aI'oi:.na C rJ
Near ;.t. Coionel Suerma.nn:
This responds to Dr. G. 1"a,;-:e ivr' ?4ht' S : p-rli -2, : 90, c C`CI' _eC(i"ieS =111 Ilc
t' ' i1if e Service ? (vervlce) comments on suppiemental
l:. S . ls'il and i
maTe-ia1S nrovlde(L by the apT?ilcants in reference (_o : ibii: otic°
-049-). '"he app11Ca11tS, :iltt:' t Woods iaWK oods jartnersndiD. prol-ose `o
pierce fill in wet.iands to construct a si.rppin ' (--enter, resi(_ient iall. roads and
driveways, multlfamll:- ;lousing anct -;ar;Iing; In a 1.4010-acre tract :Ln
Hw,AK, Dare ColII1T.y, `or?,tl .:err Ciina. This Y'eport Sl:;?1?iemeiiLS :?1.;Y' 1' '.'ioi.iS
report-- of ?,ovemoer 30, 1989. and is sub-mit`.ed in accordance «lti'1 provisions
Ot i ie Fish and ii:Alife, Corc.ina?ion .pct ( iJ t . S 6E -(?v t e } and SeCr_4 Lo - 17 1
71 C. 1:.
as amended ; 11 15 U. S. f J 3 1- 543) It
of -Ile n i1;-,gered Species Ac i' of 19
1S C be used in your Cleterminat ion of iU (b) I:! ; (ti T:la
Y0:.ir pi.; _ic interest revie-- (33 1 J?(i. ) as t7e? =elCi.c I Lile pl'CLec--ion
C;,. - I. i ;:i_C 4 ' dl ?'e resources.
L _L
The suppiemental mat rlai5 prGV 4E e a i ??r 5ei'?• i Ce re,,` ew are ) ei loraYi!_ii.LT
Dare .'?ort41 "'arollna
on ti-le- It - I'i'awi? ?tioo(s 'ro.ie<' :iemor3'l. w ) ,
'
presYdr" by Sharp, `ichaeL and ()Ut eYl Attorneys at iai , ?atE'(i ianuar7
i990; 21 ',iltlgatlon Prospectus For illt,t ; Hawk t oods (t : ospectus \ , prep reci
by Tilan--le Wetiand COnSU.LtantS. C'.ated .Ta.nUar:' 2J, 1990) ) A' ternaL; Site
Analysis for Kitty Hai-&, Wood's Sho.°eside. `_;noppina Centre _analysis) , Ciatec,
i) pit!,
rebruar:- 28, 1990 and prepared b?- Sauter Phe_Lan r& Associate-,; and
riat ii Woods: Wetland Evalua.t.ion Tec lnique I & Brie" J:_nnmt:il, s
Permit to Fill weti nas (Cvai_1.1a: _ 4 021) , _'')arch , 1990, preparE'd l•'; GY:?"i :. Ji::li t`:Cl? i
Services ,nC.
Gene ra i Comments
The Service has care uii1 re?'le( <j. the suppiemen*al mater_-liS b.
thfF- appilcaYlts and heir _onsuicanT3 and fiilCcs no subs t:;ntil.7e neg.
information ( j-1 Ch 1,CU.Ld hal't';: Y:t a _i1a11,-?C' In l:1 pre".lol"i5 i)CSi 1..,_.. ter
:1 ' ei!_ J.6?- -7iot1 of a•._•. '(_l rer ention '..; ill p _,pose(_i
apprec.....tr 4-
ir7r c- ? .., [I] 1 ... .1"1 a..ancls iln aE7 SilOppl:._
1E'E 1 1_. :1 La11(i? im* ',,.?ts at `:,at - rl: OLi
.! a rage 1-l.li .1!?r C';_ ilC'tlol ti ?'r" ^ ?.._.,: ..
V- .Ylt tni
((''i 1si - .:.
L .,t 1eY E.leS i; Ti 'Lla7l! -- l E3 a ) J1
u
:=stoic-a . } t-L'S
t. .,t.nt: S1
t ilk i i;, r 3S t r:31"1 o m7 t 1 , . cl
ancj.s ,1Y'E='
!E m'. 11 2l.tr• .1:]t 1,:e-`L
,. NO*
"ids C'Js Orii
l' ;?i'..-.rnal '. sis t3mG'1 L.t 11a Upl zlld sites of the
:.i.,.,. '-
size fequl;'ed b?7 the applicants are ncl?t presently available, rather than the
La.i_'.C rhaL there are no feasible upla.na sites for retail shoppln::; C-Xvallaole.
Th'e IaLter 1xAnt appears to the Service to be Lhe central issue required for
,aiC-s1?. The we-r?land evaiuaC,ion is of interest frGiD mill 1L'??it:ITil
Stclllapo nt; however, t i1P forms are impossible t0 il)terpl'e :vl_th out tiie
clues iorls be mg pro. ° ded, :ind the e, -icr has air( ad;, or:cedect "t!:e ilatici:al,
if nuC, irltt-?rnatlonal, Si.CM121C;-tnce oC ' ;e entire '-ii1O-ac-l-e ir£iCt 'r c.^,1 a f--sh
atld wl.l(?].:LCe i'esour.=t• starld.polnL.
The Service's posit"Lon is based _n ---he adverse impact Lish and T,iluiIie
resources *.chich would occur on adJacent to the proposed shopping center
site, and on the facr, that the proposed deg. elo;)men appear'a c! earl y
prohibited by The Section 404 (b)(i_) i:uideiines. The Guide ines prohibit
discharges for -hich " ... ther;: is a practicable alternat it: e to /e : roposed
dischar,se which would have 'Less adverse impact on the aquatic ecosvstem.....
(40 Cr2i 23C. 10(a) ; . The proposea .. ject also is non
therefore, a practicable alternative thar, aces not involve :.'etlzlax 1s
"...presumed to be available, m-dess ,_learl?- emonstrat:ed ot!iei7:ise.... " 10
CFP 230.10(a,' (3)). The Service encourages t,e Corps to care,L'uliv weigh
these criteria during deliberations on whether a permit should - issued
the proposed shopping center.
Spec i. f is Comments
`lemor,a,ndum, p. 1: Based on the deletion of the proposed u. ;3-acL'e re-;;enti :ll
pond from the project plans, we. have re=.-ised our assessment of ?--he i;llpacts
accordingly- to a total of 1 , .12 acres of nL oposed oreste(:i wetlands f i 1 l and
0.9 acres of e=avation. These figures do not coincide with the tonal
19.11-.-acre impact ;?s stated in the Evaluation.
?,'lemorand.um, p. 2, paragraph 3: The Service disagrees that wetlands impacts
have been avoided to the e:;tent possible. Additional avoidance of impacts
at the proposed shopping center site are possible through design
modification of the plans, such as rotating the proposed design to '.,coup
the upland portions of the site, or through scaling down the proposed center
to fit the available upland.
emorandim, p. _, paragraph ' The Service believes the alte native whit h
?
should be analyzed is what hat upland sites are suitable for restden u-Lal
shopping development, rather than Limiting alternative sites based soiel?- on
the applican=ts' CieS_Lre_d tract s. - for shoppln Center deveio{)IRent. Zoning
Cr:_terl:l w1i.1Cn affeCt the deve-:-opmt=nr of any" sLiCl si- res it _c:IIliiEi"=Idl
:(:'velopmrnt are appropriately Ollsi.i:(er':'(:'t (,irlll sUCh :,.n anal` : =.15 since t.het%
would ,1f feet tYle apps i.cants' use )tL' an`,. c.onsidereri .
Ile-moralaxt-un, j). pa':'a;rauh 7-. Fer`.'ice does not. (.-k--recur the
appt..,eamIts that ae,.-e_'.>pment. o t.ht- siCE: t;i l .L'l lbene:flt ..ie alfeCLedi SvE?t!;.iI1t7
th!"'c;l'<=?: ^1'O? .sl.Ons of i,ater ,,nere 1, 'one
(?I.II: ( y!". Ilte2 t"W' SitL' i58;
I • -4
c)Tr
surface rLL Off from the nighw,A -L, adjacent rigi:t-Qf-i,*az and Ls tere-z
thr olll-n the weti anas present on the. site. C-nversion of tilt- ur,1ai1Ci5 1LU
i:e r lands on the '3nepping tenter s i !P to impervious surface, even i th the
rt'CiulL'i G stormwater runoff ccnt?- ., s , i.; L ' resui .. in an 'weL' l-i. it t:. LCL't'a5e
iJf L-'Li-off and midesi-able onnst .tue: tts into the 'adjacent 1,et,.:.arK..s,.
MemorandLlm, ?. L;aragyraph 'i1:? ?ei"'.lt t3 commends tfle a-1)pl1_am:.:- ,)n L:ii?
1ens /j I
and desi-n of pro--Dosed Ingle-i'amil, r._ i e.. -7ay areas. IT, en tfle
Limited development, proposed, ii(-Ii.-ever, can 0c' e? (cCtCC to 1,1'. d -E'rse
environmental impacts upon toe affected -lo ,a_L- " si?nlf ICaI1t i`,czUltat?'
throu--h : increased rune - :rem imp _r . iu>_:s surfaces uch as ll;,i ices ,
dr _v Pwa;: s and oath a s , incr,_ a ed Boise and dirt sbance , a:.?. de-nes in
ivateL' ua•-qty L'-_-veS,.ilting from in it... ,.ion paL ial1,- - dt2.-° 'aSte d
'•Iem a dum, -i,. 4, Sara ranhs 22 The applicant is to '.,e 'cols rued or
f u e y
assetmiiilg a mi,.l_ation p?,ckaoe :i i is an,L i it e r; c _ ..= ;
however l ? premature to CQL1Sider _L __L a.tiOn prior tc eStat: ,.3hme ::.. of
r,• -,t ' r
..
the Cac; t -, hat t:e proposed imNac_ s , c t t.i-:3 pro.; ec ._ are._ Le -.hat
no -c,rac_icable alternatives are a-,-ailable.
pros-pec_tus, pp. 1-'r The ervic_- agrees witf: the afpl.icants' -nsul-._a1-its
tfie restoration of fc;rested :,:rtiands on the Tr 2-e11 Cotnzty ----e is
1,et,h111cally feasible; i'Ctivev-r, the prospectus contai is pr_,naril,' gene.-al
inf:,rmati:,n ,,7iiich i,ould be provided for any site e`."aluat.e-a, ilot spe-2111
reasons as t( ; why this site is pre't rre:"? Qt why i'- is L:p,ei'si tes
-Located closer to the impacted wetiai:cis, for -_-.ample. tinile the figure
a±± ached to the Prospectus represents a speci..?c planting plan fc,r he site,
the document fails to address: certain species are proposed for certain:
areas; where ex-Lsting water-controlling i,I' i.ater-management strurcti.ires are
located; and, what capabilities e%ist for iSater table regulation and to what
degree. Further, as noted a,o e, consideration: of any mitigatiol: plat: i s
premature at this time.
Analysis, pp. 1-'_. ' The Ser,-ice bei.ieves the :Analysis is inappropriaAnalysis, that the applicants' consultants did not consider sites avaiiable for
provision of a retail shoppir:g eN-oerience_; rather, the analysis C oi1?1.+: E L'E cl
only the availability of sites '•:fiich meet the size criteria specified 'L)S- the
applicant for the particular shopping center design desired. T- is
understandable, given the constraints employed, that no other sites are
a:.'li.labie. If the :Analysis detei-inination {p. -f) that a legitima-e marl-let
P?:i sts for additional retail deg eloy meat is correct, then it is incumbent'-.
upon the .appli.cant ,-.o demonstrate that practicable alte r:..`i:.." icC
a`:aL1aC,i e_ , indeed, a site i,;as . ec"11t "_ appro.-ed foi^ a 17:1T.1. -,nwidc
t11e corps t r??fc rence „1Sv2G-'ai; foi the `.?ri.*l.t C'onipany, .-.:;cat:.'-:i
i,:hi( '. ha-%-t- _.,.x---en ?-.he applic,arits a11Q. -FIT'.' .1 ..S MUC.-Ii ; MU( .. a? _r:g aulrelre:.ts caf t - ,F,:':.:
_s
C? "Ilia.l?-sib , E_ :]:?1" _ ,e )e ie\
fiQ, ._Il • i ai ;L' Site 7011dC' '« ?
1 T. li.h.
??,dj,(Sf
_ 1 arao-r( h i The .-aiuat.ion _nt-icates 7.he ..;)cai- :-crea,
of wetlands prcposed for ai terat.i )n as i9. 11 acres, TvhiCh does not agree
with the Service's estimate of IT .32 acres wh ch was derived EL-om :materials
provided to the applicancan, The app" icants , consul t.aI: t should ?:'_'Gv1C iE a
derailed breakdoc•;n for the impacted acreal;e T?hicl. i':ii1
t4cr.-vaticn ?_ tt:is value.
7`''1Lja on, paragraphs ;ff. Til,-? _=.'aluacion staties Uha': file •?etland
,-aluacion Technique iWET) was to be a plied to pile site t.o compare the
Value of %h i c?t1a1.;"S proposed iOr Hi' nq J'i nose pro%(?osat ... donaon'
but, that after evaiLation of the =retire tract _.;e cc.mparison -vas determined
pointless since the vait.ies of` a.ii wetlands witl;in the ti-act are assen Lai .I
tti SL-"Ile. The Service Stron°gl'._ agrees with t::e app_ilcant.'s' consultant I i
this re._ard.
, a(Uation p. 1 paragraph (; TY1?' 4vE1 I? answer and evalua-,icn sileet.s
of no use ",ithout provision !--f the questions uquestions ti] Cvn_L .. le consultant 'gas
responding. CUpleS Of the (_LleS t_(1, S should be pro•,"1(aed t0 r:' :"rein a' e '..C1Gs
as we i l as an interpretation of the results of _.le ana.i:= sis .
Evaluation, p. 2, 2aragraph 3: The Service agrees witil the L'.'altc tiUl
conclusion that the individual wetlands areas within the tract, together
comprise tree tor-al wetland 3Ssteim and have °enera.id simllar ?'aiues:
no?never, we do not concur t.l:e implication that the small, disconnected
palust"ine, forested 5?ascnally and temporarily-floode::. wetlands Gn -:Ie
sl-on pll center site nai'e less value than wetlands in the remainder of the
tract, as implied. As the Evaluation notes, such :oc2:E- =. pr '`, s c. a: ues
which are absent from the Lae 'er wetland s,, ales connected to the sotalids .
Specifically", they provide reproduction and nurse'.- area labi .at f':,r species
which require temporary waters wrilcn are rely ively pre&,tor-free -,,hen
compared to the permanent maters of the scales. The beneficiaries of •:.uch
systems are t;--pically amphibians ; however, such systems mia,? also support
brood-rearing migratory, waterfowl species such as wood ducks, and ::?ndem:ic
species of aquatic insects, dependine cn their extent, flooding duration and
frequency and degree and duration of isolation from nt,,jacent systeli s .
.-although the Evalua ion states that the percentage of such pockets filled
re_lal.ive to those present on the entire tract is smaL-i an1.:1 tha nUimr- 'o US
such nOC k2tS occur elSe[vI: ere In i.i ttHawk Woods, l.Ilc : ud; _ tree i_r ty ;OSed
donation tract, Service biolG •i-StS have not. observed such L_:ocitets e?.ce ;t ill
the northern portions of the tract. The Evaluation states on pa e 6 that
such pockets are f(?w in Sections VI and VII. Statements .regarding the
relative abundance wid distributioi of sich wetlands throughout the tract
should bo supporteci with data from a comprehensive we t, land de l roar i(_m cil t'. le
entire trac`..

E< <?.>.tta , .? par•.:t 'r;3p t: _ -- ..
' t.:>>."-

tscnZa
e

t? ,n n 'r act
act i.? =s
' ,ripe
ent:/r? 1T r` ?. `ae ?i ;-acre -,it'
- ?--- --
t_t .u-?
----
j emphasis added j of c » Z a2 i 21(;
Sil:i;, '988 rl _lc 1 I:a
i •? rl, i ?i'rt ,:c"'t ':. ;.!-)1'-r ''(.E-,c Cli;' _.' a'.2? .... ..;;C'
C,

t _.it.i0-.:?2
i
j?i~Ci C v+_CX don: _ i7 01 101 li• ` ._ rest
inar?l;:tllle Crest site, Cni,'" _Is ,m isturbed reiatL*,.e_ to the -est o? '::,he

i l,?at
Tile periptierai porrIon __. char cter , zed ,s Ilan in,.:? ,.au. ...a ilist o.L of
faces identlf;-
cerltCai pUrt-Un as i1.it _ :1C:i\ Yoods in Lie _isr u
olf?sts _n `dorta rf:)i;.na. i ?(_rld:;.: s, hicil _stabiisnes prior(.r
pro tec..;.orl, __s : Pict, Haim: :ocas gas .lumber r )ro : _(_ .? :I am , ?.7.es

acl _ e : s i ?._ .
Greater than iG,; r _._ arcs ;A,,, ; _ e's -ict pe+:, i an
Evaiuatlorl, Da C1 -'-ah ...._ 5e2 1C C- a, 1 r(_' is .. a =u, C1
ppOT't r2llt;' eSltits to .^eT a.li7 near_?- prL_tlne ,rater UiiQiT uiiS iil inlicit
OJ C:he aT"'ea... , ii: .:hP_ op0 5 _d 0p men' . StC L'I1C•';.lC.'2:' il:V: f ,
t ; verit..Iali ?,

_
:::isrosal , nest ;? .?unaeme it ?s d ..ai':1 ::lai :teiarice a_. ; a

-
c: unui_ati°,e effect _:n the sire' their e?;ivte. ce alh:. .."ter qua, -1

13 e "I, Sel~ : i-e agree-, that For
?vaiuat sn, 2 , na ' gr:api
tLie -'r":r.iT':? i!00-acre :r aCt 1::, ?Il01'E: b.Le than ,. .J `.::' iii-: • -...., ?.
Lil ?1? L. T?- of aeve_ 1 opei - '.fir -':C 1?'1ul u_ _prOT ert - Gi.,:BrS . irC-_
nOwez.'el', that nOtenti .l i aLli"e „pment sc_-nar-Lus, 2h _ iiJSeii'.`? L
appro% for the present project, are, as .:leai? as the pi', ure pa:iitec:i iii ..:he
Evaluation. The C.'orps has det,-=iiie(.; that no -,,eriands ?::ii t :e tract are
al ib'.e For riing throus4h Nationw de General Permit here: - ?

is,: iae general y,ermity . -zuch as .:-umber
?,-n , • ' _ Ot'nel ii?.. ?t .Gi
? i.; S uS e . 'f4.1 1.
1.1 'or :,,nor Road ,.rossings, could be employed, even they rer ' _
Sef,tiun ±vl a-% er QuaiiO- CerT f icat?_)ns from the v01"-_1 .:1?_: .?F - - i~ m-'nt
f vi me , Hea_ h n _.at..I..., nes(l u:•-_f_.s, anmw ;v te^ o 1'_v _
Division of
E iluatLurr, p. .5, -oara,•ra7pi " t.:rrj-^.enr.s in tiie a_uat.ion 5necu-La i2i=4 ha _
i:et.lancls acreage deTermiiie(. present, on the sit-- could ,ieciir:e in ti.e ft_ Cure
due to chances in dielineation procedures appear unjustito tiie Service.
The Seri. i_ce, Corps, L . S . Env irormienCal Protection .agent,; , avid t Soi :.
Conservation Service jointly _)repared and disseminated the new : ederai
Manua or 1c.__nt2 L• t. _an(1. L LMest..:mg jlur • sdi l.icnal 4ei1aTat 5 :liC :i
standardizes methodoloi?4iE?s user iJ those agenci(-m?s and l'ec1aires Their '_se Lor
an,., project requiring a Fedierri per;nit or i(--erlse. ..he time and
effort spent i.rl deve-LOoment of this cocurient, it _ = doubtfui there 'viii be
aria major cilan'es in tiie near f" ltu Comments arC.I :1 , ti°
expertise of the Corps represent. iiiinion -aid shouic be c_:ei?-twig from the
L•vaiuation.
Suminary Comments
-I he Ser% ice
f ia'r11er ia`. U._(xan tC ar;F:x ;)i.; nim' z° . i.1 f r: o l LOSS ,.lil'f ii: `r? m0(ai L . ....zr
11F IE s ijli f)L ,:(? 1 C)_)(:ti lw pi.(
(goes no `. a.npe::r• tU s ,!„:,<-1 t IF_ ;rh' rI i `hlt t.lp.i:anc; ..2 -. :lrc is l f
It)1'
•C't s11O
)"
",
a:
-IL -Pi ome r t a ' ..at. i1( d1,:(1.,.., _
.
- j
t
..
_
C(I ; A r o' 1 f _ Ii)!- 1,U„ ai'T'f' e' ill --•C'rii. `:IIE' {iU .- , - i ., . nr-
fC.r..;ll? c=' tl) U;-,.... I<i:il.

impact avoidance, and that the ;proposed t,;ori?l would be contrar,: to the
,guidance provided in the U.S. Environmental Protection Agency Guidelines for
Specifications of Disposal Sites for Dredged or Fill Materiai (Federal
Register 15(219):85314-85351, December 21, 1980) which state that fill shall
not be placed in wetlands when alternatives e:-zist. practical alternative
is presumed to be available since the proposed actilviLes are non-.-ater
dependent and the project can be scaled dots `.o lit witizin ti,.e upland which
exists on the site. Should the an Hcant. be able to successfully
demonstrate that the impacts of the .ropose,.i pr?.?,;ect avoid and mitii:nize
wetlands impacts ti7 the ma`>iin--Wn ano... -Iia S'UIf1Clent
information is presented to ovE-rco:ne the E?reslmption that _JraCTlcabie
alternatives are available, then oni % at time woLl-Athe Service -
willin-- to consider mitigation for remaining ',ITlat"OitXabie losses. There:.ore,
in order to effect fish and wi.idii fe resource :_onse rva on and to fulf _ii
the public trust in this matter, the Ser-.°ice colltil:ues reconunend ti.at a
Department of the Army permit not be issued.
The Service appreciates the op" " -u-1tT to prop icie comments on tills
supplemental information for the proposed project. the taoula be piease-
sleet with you, your staLf, or the applican`,s y.o c:tiscuss our concerns.
Sincereij,
L .1i . i'Tilee Gantt
Sure °-,,isor
3 T A'a E EpA RT11 nEjMT OF :0=111ERC2
x_-< Naz4cnai ``c2anic and Atrnasaheric dministra%. an
lAii(INd L .\IAF.irJL- iSr _RIES ERVi
"Its
Southeast Reaional Office
9450 Koger Boulevard
St. Petersburg, Florida 33702
April 19, 1990 F/SER111/RSS
919/728-5090
Lt. Colonel Thomas C. Suermann
District Engineer, Wilmington District
Department of the Army, Corps of Engineers
P.O. Box 1890 REGULATORY
Wilmington, North Carolina 28402-1890
Attention Ernest Jahnk.e
Dear Colonel Suermann:
This responds to your April 12, 1990, letter requesting our
comments on additional information submitted by Kitty Hawk Woods
Partnership (PN 89-N-028-0495) concerning their proposal to fill
16 acres of forested wetlands. The proposed action involves
construction of a commercial and residential development on a 1400
acre tract of mixed wetlands and maritime forest in Kitty Hawk,
Dare County, North Carolina.
The National Marine Fisheries Service (NMFS) has reviewed the
evaluation of alternatives, wetland value analysis, and mitigation
prospectus submitted by the applicant. Based on this review, it
appears that of the 16 acres of forested wetlands that would be
impacted by the project, only 3.81 acres have surface connections
to Kitty Hawk Bay. To compensate for the loss of the 16 acre
wetland tract, and to avoid a net-reduction in wetlands, the
applicant proposes to construct a 23-acre forested wetland
mitigation site near Columbia, North Carolina. In addition, the
applicant, proposes to donate approximately 455 acres of high
quality mixed forested wetlands and maritime forest to public
ownership. This area consists of a dune and swale system of which
approximately 70 percent is comprised of forested wetland swales
with connections to Kitty Hawk Bay.
Based on our analysis of the proposed mitigation and other
considerations, we believe that project authorization, with strict
enforcement of all provisions of the issued permit, may be possible
without undue harm to fishery resources. This determination is
based on the view that, although removed from the project area, the
wetland creation mitigation site is located in an area that should
benefit fishery resources in the estuarine waters of Albemarle
Sound. Also, because of the overall distance between wetlands
found on the project site, and Kitty Hawk Bay (approximately 2.5
miles), and the intermittent nature of the wetland hydrology in
this headwaters area. these wetlands are of limited value to
fishery resources for which we are responsible.

-7) -
L
In view of the above, the NMFS does not object to Department of the
Army authorization of this project provided the following
conditions are contained in the issued permit:
1. Wetland losses shall not exceed the 16 acres loss described
in the total plan of development for the 1400-acre project;
?. A final wetland mitigation plan shall be submitted for agency
approval prior to initiating project construction. The attached,
List of Information for Wooded Wetland Mitigation Plans is provided
as guidance for the applicant;
3. Transfer of title for the 455 acres wooded wetlands and
maritime forest tract to public ownership or acceptable
environmental organization (i.e., The Nature Conservancy), shall
be accomplished prior to initiation of project construction; and
4. No wetlands, other that those included in the 16 acre area
identified in the public notice, shall be excavated or filled in
association with other aspects of the project. This includes
construction on individual lots and common lands. This restriction
shall exist as a condition of all deed transfers to individual and
commercial property owners.
Finally, concern has been expressed that the wetland donation
aspect of this project will establish a precedent whereby public
trust wetlands will be conveyed to public ownership as compensation
for avoidable wetland losses. The NMFS shares this concern in
those situations where regulatory jurisdiction is clear, and it is
reasonable to conclude that the mitigation site would not otherwise
be adversely impacted. We do not believe that wetlands associated
with the 455-acre tract involved here have that level of
protection. Accordingly, we believe that the proposed action
provides a level and form of mitigation that is in keeping with our
goals of preserving and protecting marine fishery resources.
Further, all future projects, no matter how similar to this, will
be reviewed on a case-by-case basis and in accordance with
applicable regulations and resource management policies in effect
at that time.
We appreciate the opportunity to provide these comments.
Since 1y, o rs
Andreas Mage } Jr.
Assistant R ional Director
Habitat Conservation Division
Attachment

Information Reauirements
for Mitiaation of Forested Wetlands
Site specific mitigation requirements may affect use of the
elements outlined below. However, in most cases the mitigation
plan should include the following information:
1. A description of the location, acreage, and type of forested
wetlands affected, and a brief description of known or anticipated
functional values to fishery resources. Also, a map of the project
area and site-specific design drawings or overlays.
2. A description of the location, acreage, and types of
replacement wetlands. Also, a map of the mitigation site along
with site-specific design drawings or overlays. Note: Mitigation
should be in-kind and onsite. If not, justification should be
provided.
3. A description of the elevation, slope, and/or contours to be
constructed at the mitigation site. Note: The site should be
excavated to an elevation 6 inches lower than adjacent forested
wetlands and backfilled with organic material from the impacted
site to establish an elevation and substrate equivalent to the
desired habitat.
4. The location and dimensions of
adjacent wetlands or open water.
should maximize "edge effect" tc
with adjacent waters.
the hydrological connection with
The design of the mitigation site
promote biological interaction
5. A description of replacement habitat construction techniques
and limitations on construction alternatives needed to avoid
impacting adjacent wetlands.
6. A description of transplanting techniques, including species,
spacing and schedule (time of year). Also, the source of seedlings
(ie, from adjacent natural wetland or greenhouse stock) should be
identified. If obtained from natural sources, techniques, sites
and other information needed to assure impact minimization should
be provided. If planting on 10-foot centers or less,is proposed,
a mitigation ratio of 1:1 is usually acceptable. If natural
revegetation is proposed, a mitigation ratio of 2:1 will usually
be required.
7. Plans for stabilization of any disturbed wetland/upland
interface to prevent. erosion of sediments onto the mitigation site.
Also, plans for needed stabilization of the mitigation site.
8. A plan to monitor the mitigation site at the time of completion
and at 1.5-years and 3-years after completion. Transects with
fixed stations should be established, and at each time interval,
documentation, using color photography, should be provided.
AG , .*4f#
9. A monitoring plan for evaluating success. Note: Mitigation
will generally be regarded to be successful with attainment of 75
percent survival and growth of the seedlings. A random sample of
seedling height should be taken immediately after planting and at
each monitoring interval.
10. Identifcation of remedial measures (e.g., regrading the site
to adjust the elevation and/or replanting) that will be taken to
meet established performance criteria.
11. Measures to ensure that the mitigation site will remain in
perpetuity as forested wetland.
12. Plans showing that the mitigation site and associated planting
will be completed prior to or concurrently with project
construction.
Review agencies will be provided with the results of each
monitoring effort and will make recommendations, as needed, to
assure attainment of the desired mitigation. At the end of the
three year monitoring period, the applicant's responsibility for
creation of replacement wetlands will be completed, pending
approval by the review agencies and the Corps of Engineers.
Finally, the mitigation plan should be attached to and incorporated
by reference in the issued permit so that the permit is revocable
if the requirements of the plan are not met.

C

n

I
0

2301 Executive Park West . P.O. Box 3396
Greenville, NC 27835-7123 Sauter Phelan 111 Carlton Avenue
758-7000
2 Devil Hills,
Kill NC
4
A (9
19) 830-5128 919)4
1-3400
& Associates
FAX-[phone]
F Bruce Sauter, MAI Real Estate Appraisers and Consultants
James G. Leach John M. Phelan, Jr.
B. Porter Stokes Richard P. Greenlee, Jr.
Melvin L. Hoot Otis G. Culpepper
Dexter G. Moore Gregory L. Bourne
February 28, 1990
Dr. Wayne Wright
Chief Regulatory Branch
Department of the Army
Wilmington District Corps of Engineers
P.O. Box 1890
Wilmington, N.C. 28402-1890
Peggy C. Self
Leslie F Gilbert
Re: Alternative Site Analysis for Kitty Hawk Wood's Shoreside
Shopping Centre
Dear Dr. Wright:
The following analysis was prepared at the request of Kitty
Hawk Woods Partnership, applicant under a proposal for certain 404
permits (Exhibit A). The Kitty Hawk Woods Partnership was asked
by the Corps of Engineers to provide a written report comparing the
above referenced site with other potential alternate sites on the
Outer Banks for development as a shopping center.
As requested, we have conducted an extensive survey of all the
potential shopping center sites within the Towns of Nags Head, Kill
Devil Hills and Kitty Hawk. It is our understanding, that the
"basic purpose" of this analysis is to examine any other sites
which might serve as a "practical alternate" to the Kitty Hawk
Woods Shoreside Shopping Centre site, since it will require the
filling of wetlands.
The developers contend that their "basic purpose" in
developing the Shoreside Shopping Centre, as proposed, is to
increase their net return on assets owned, and minimize the filling
of and degradation to the existing wetlands by mitigation. They
contend, and we agree, that there is no practical alternative site
available in any of the three aforementioned beach towns due to
zoning (legal) and size (feasibility).
In order to examine any practical alternatives to the proposed
Kitty Hawk Woods Shoreside Shopping Centre site, certain local land
use requirements were reviewed since they dictate both the legality
and feasibility of any potential site. Accordingly, we met with
Bruce Bortz, Nags Head Town Planner and Dan Hardy, Assistant
Planner, in order to discuss any possible shopping center sites
within the Town. One such site located at Whalebone Junction (24
acres) has more wetlands than the Kitty Hawk Woods site and adjoins
an under construction 80,000 square foot Outlet Mall. The other

1
' site behind the Nags Head Post Office was approximately the same
size with only a. small amount of wetlands but it would require a
' rezoning from Residential to C-2 Commercial. According to Bruce
Bortz, the adjoining property owner to the south recently requested
such a change in zoning and was turned down by the Town.
' In addition to these sites we examined two other possible
sites. One is a ten (10) acre parcel owned by Albemarle Hospital
which is being held for a future hospital. The other is a hotel
' and commercial office site within the Village of Nags Head, Planned
Unit Development. This site is actually split into two sites ( 12
and 16 acres) by a public street and is located opposite the
existing Outer Banks Mall which still has six (6) acres available
' for expansion. However, due to open space requirements neither the
existing Roses or Belks Department Store were able to expand or
build on this site. Both Roses and Belks are building new stores
' in the Dare Centre, located at the 7 mile post in Kill Devil Hills.
Our firm served as a consultant to the owner of the Dare
Centre in his negotiations with the developer, Roses and Belks.
' We also appraised the two acre site the developers subsequently
were required to purchase for mitigation purposes. As part of our
assignment for the owner, we evaluated every possible competing
' shopping center site from Kill Devil Hills north to Currituck. At
that time (10/88) we could only find three other possible sites.
One being the newly proposed K-Mart site, the second, the newly
' proposed Regional Post Office Facility and the other was the
subject's Kitty Hawk Woods site.
In order to substantiate our earlier finding, we interviewed
t Greg Loy, the Kill Devil Hills Town Planner, and his Assistant
Ralph Allen. We reviewed the Town's Land Use Plan, zoning map and
discussed various sites. In particular, we discussed the Lowes
' site, the Coastland Times site and the site south of the proposed
K-Mart (over 50% wetlands). None of these sites had sufficient
size, frontage and were deemed unsuitable for anything other than
a less intense strip commercial usage. Lowes store recently
decided to sell a site they acquired in 1986 since they now feel
it is not economically feasible to build any stores with less than
60,000 square feet.
' We also met with David Monroe, Kitty Hawk Town Planner. The
largest parcels he could identify besides the Kitty Hawk Woods Site
' were a four (4) and seven (7) acre tracts. We recently appraised
the seven (7) acre site for the U.S. Post Office Department. They
are negotiating a contract to purchase on this property in order
to build a new regional post office. The four (4) acre tract is
' in multiple ownerships and lacks sufficient size and depth.
Our discussions with Mr. Monroe then focused on the actual
' zoning requirements for shopping centers, in particular, open space
and parking requirements, since these are critical factors in
determining size and, therefore, what would constitute a practical
' alternative. We are not attempting to concoct a critical mass

C
theory (size) or a contiguous block concept. However, we are, in
our opinion, advancing a question of fact arising from both the
public (zoning) and economic (market) requirements.
One of the market facts considered, is that the developer is
not the owner of this land and would locate elsewhere if possible
(see Exhibit # C). Logic and reason should dictate that the
developer faced with the sites wetland problems and possible costly
delays would simply look elsewhere. The facts are, he cannot due
to the open space requirements required by the Towns of Kitty Hawk,
Kill Devil Hills and Nags Head.
At the present time it would not be economically feasible to
' assemble enough smaller parcels of commercially zoned land to
create a site of sufficient size to support a Wal-Mart and the
required ancillary stores. Wal-Mart stores require a minimum size
' building of 89,612 square feet with room for 30,000 square feet of
expansion area and a parking area of 6.5 spaces per 1,000 square
feet of store.

Both Wal-Mart and the developers lenders require additional
stores for support. It is now typical of lenders to require a
shopping center to have at least two anchors. They do this in
order to protect the economic integrity of the center due to the
possible unforeseen closing of a lone anchor. The proposed
Shoreside Shopping Centre will also include a major food chain type
grocery store as its second anchor. Our research indicates any
major grocery store will require at least 20,000 to 30,000 square
feet of building in order to be competitive in the Outer Banks
market. A shopping center must also have: ease of access from a
major traffic artery, line of sight visibility from this artery and
ample parking in front of its stores. In this case Shoreside
Shopping Centre would require access visibility and frontage from
158 Bypass. These are industry wide standards and those who deviate
from them usually pay the price by failing. Off-site parking and
parking in the rear has been tried and proved unsuccessful in any
number of shopping centers. As discussed these requirements,
above, translate into a site with a minimum size of 30 acres.
Summary and Conclusions
Therefore, with a size requirement of 30 acres it is not
practical to assemble an alternative site since typical commercial
frontage along the 158 Bypass connector within the Towns of Kitty
Hawk, Kill Devil Hills, Nags Head or more sells for $8.00 to $11.00
per square foot. For commercial land located 300' or more off the
Bypass it sells for $4 to $6 per square foot.
As stated above, the assemblage of enough alternative small
parcels would not be economically feasible, without even
considering the delays and costs associated with time, attorney's
fees, rezoning and uncooperative sellers. The proposed site is
only five miles across the Wright Bros. Memorial Bridge from
thousands of acres adjacent to the 158 Bypass in Currituck County.

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However, our research indicates that the bridge serves as a wall.
This is illustrated by the fact that the price of its commercial
zoned lands sell for only $1.00 to $1.50 per square foot versus the
$8.00 to $11.00 per square foot (see Exhibit E) in the Kitty Hawk
area. The reasons for such a large variance are complex, yet
simple, basically the Outer Banks is a tourist driven economy. To
a tourist on vacation, who has only a week or a weekend, time is
extremely important. Accordingly, the bridge to them represents
a wall both psychologically and physically that they will not go
back over until it's time to leave.
Therefore, based upon our research, experience, and the above
aforementioned facts, we feel that the Kitty Hawk Woods Shoreside
Shopping Centre site is the only available site within the local
market area for a shopping center. As stated, our research,
indicates there is a legitimate market for additional retail
development and, in our opinion, there exists no practical
alternate of this site.
Respectfully Submitted,
F. Bruce Sauter, MAI
-S?jl " )v (Z- -
C-7 M. Phelan, Jr.
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A. Kitty Hawk Woods Partnership Application for
404 Permit
B. Addendum to Joint Application
C. Capital Centre Development Site Analysis
D. Kitty Hawk Woods Partnership Memorandum
E. Land Sales
F. Resumes

t

EXHIBIT "A"
Dr. Wayne Wright
Chief, Regulatory Branch
DEPARTMENT OF THE ARNY
Wilmington District, Corps of Engineers
Post Office Box 1890
Wilmington, North Carolina 28402-1890
CESAW-CO89-N-028-0492
September 28, 1986
PUBLIC NOTICE
KITTY HAWK WOODS PARTNERSHIP, Post Office Box 740, Kitty Hawk, North
Carolina 27949, has applied for a Department of the Army (DOA) permit TO
PLACE FILL MATERIAL IN WETLAND SWALES TO EFFECT CONSTRUCTION OF A SHOPPING
CENTER; RESIDENTIAL ROADS AND DRIVEWAYS, MULTIFAIIILY HOUSING AND PARKING ON
1,400 ACRES OF MARITIME FOREST IN KITTY HAWK, Dare County, North Carolina.
' The following description of the work is taken from data provided by the
applicant and from observations made during an onsite visit by a
representative of the Corps of Engineers, the U.S. Fish and Wildlife Service,
the Nature Conservancy, the North Carolina Wildlife Resources commission, the
' North Carolina Natural Heritage Program, the North Carolina Division of
Coastal Management (NCDCM), the North Carolina Division of Environmental
Management (NCDEM) and the Town of Kitty Hawk. Pl.atts submitted with the
application show the proposed construction of a shopping center (Project I),
' portions of which would fill 4.15 acres of wetlands secondarily connected to
Kitty Hawk Bay, and 4.46 acres of wetlands which are hydrologically separated
from adjacent wetlands. The fill is to be used for parking, access roads attd
building foundations. An additional 0.63 acre of adjacent and separate 0'? 3)
' wetlands is to be excavated to provide runoff retention basins. Accornpnni.np,
Project I (sheet 2) is a commercial out parcel that would fill 1.01 acres of
separate wetlands.
' In addition to the proposed commercial development two types of
residential development are platnted. The first, a multifamily community
positioned on a 97-acre parcel (Project II) would fill 0.29 acre of adjacent
' wetlands and 3.98 acres of separate wetlands; 1.53 acres of wetlands would be
excavated. The second, a low density residential development, would be sprc.ad
over 300 acres of mixed maritime forest (Projects 1V, Vil, IX, & X). A total. Z
of 119 lots would require 1.65 acres of adjacent wetlands and 0.88 acre of
' separate wetlands to be filled to provide access roads and driveways for for
owners. No wetlands in these parcels are to excavated.

If completed as proposed, 4.44 acres of adjacent wetlands (swales) and
11.54 acres of separate wetlands (swales separated from adjacent system by
relic dunes) would be filled. An additional 1.7 acres of adjacent wetlands
and 0.84 acres of separate wetlands would be altered, either through
excavation, bridging or structures on pilings.

1 ?
2
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No wetlands located within Projects III, V & VI, would be filled.
No development is planned for Project V which is set aside for purchase by the
State or an environmental organization interested in preserving ttte natural
integrity of the site.
This permit application reflects the development of all areas (wetlands &
uplands) owned or controlled by the Kitty 11awk Woods Partnership. Tills
proposed development also contains a mitigation plan, which proposes to
compensate for the wetlands lost to development. The owners plan to convey to
the Nature Conservancy 135 acres of the dune-swale maritime forest (see "135
acre donation"). This donation is to be in fee simple, interest free and
clear of any liens. An additional 124 acres of the same system is to be
placed under conservation easements and conveyed to the Nature Conservancy (a
fee simple interest can be conveyed if the parcels are released from the bank
deeds of trust). A 320-acre tract of maritime forest (section V) located
adjacent the 135-acre donation, is to be offered to the Natural Heritage Trust
Funds for purchase. Tilts parcel is to be sold for the balance on ttte Lein; tto
profit is to be made from the sale. Additionally, conservation easements are
to be placed on all wetlands located within the residential portions of the
1,400-acre tract and a few selected uplands located within Section It. These
areas are also to be restricted through ttte Town of Kitty 11awk's land use
plan. Finally, a 26-acre farm tract near. Columbia, Tyrrel County, is to be
reclaimed as a wetland. After filling the artificial drainage system attd
restoring the hydrology, the site is to be planted with wetland trees (cypress
and black gum at the lowest contours, overcup and swamp chestnut oak at higher
elevations). It is proposed that the reclamation area can be conveyed to a
public agency for study.
Plans showing ttte work are included with this public notice.

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The applicant has determined that the proposed work is consistent with the
North Carolina Coastal Zone Management Plan and has submitted this
determination to the NCDCM for their review and concurrence. This proposal
shall be reviewed for the applicability of other actions by North Carolina
agencies such as:
A. The issuance of a Water Quality Certification under Section 401 of the
Clean Water Act by ttte NCDEM.
b. The issuance of a permit under the North Carolina Coastal Area
Management Act (CAHA) by the North Carolina Division of Coastal Management or
their delegates.
C. The approval of an Erosion and Sedimentation Control Plan by the Land
Quality Section, North Carolina Division of Land Resources, pursuant to the
State Sedimentation Pollution Control Act of 1973 (NC G.S. 113 A-50-66).
The requested DOA permit will be deni.ed if any required State or local.
authorization and/or certification is denied. No DOA permit will be issued

i
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until a State coordinated viewpoint is received and reviewed by this agency.
Recipients of this notice are encouraged to furnish comments on factors of
concern represented by the above agencies directly to the respective agency,
with a copy furnished to the Corps of Engineers.
The District Engineer has consulted the latest published version of the
National Register of Historic Places for tiie presence or absence of registered
properties, or properties listed as being eligible for inclusion therein, and
this worksite is not registered property or property listed as being eligible
for inclusion in the Register. Consultation of tiie National Register
constitutes the extent of cultural resource investigations by'the District
Engineer, and he is otherwise unaware of the presence of such resources.
Presently, unknown archaeological, scientific, prehistorical, or historical
data may be lost or destroyed by work under the requested permit.
The District Engineer, based on available information, is not aware that
' the proposed activity will affect species, or their critical habitat,
designated as endangered or threatened pursuant to the Endangered Species Act
of 1973.
' The decision whether to issue a permit will be based on all evaluation of
tiie probable impacts, including cumulative impacts, of the proposed activity
and its intended use on the public interest. Evaluation of the probable
' impacts which the proposed activity may have on the public interest requires a
careful weighing of All those factors which become relevant in each particular
case. The benefits which reasonably may be expected to accrue from the
proposal must be balanced against its reasonably foreseeable detriments. The
' decision whether to authorize a proposal, and if so the conditions under which
it will be allowed to occur, are therefore determined by the outcome of the
general balancing process. That decision should reflect the national concern
for both protection and utilization of important resources. All factors wiiicii
' may be relevant to the proposal must be considered including the cumulative
effects thereof. Among those are conservation, economics, aesthetics, general
environmental concerns, wetlands, cultural values, fish and wildlife values,
flood hazards and flood plain values (in accordance with Executive Order
' 11988), land use, navigation, shore erosion and accretion, recreation, water
supply and conservation, water quality, energy. needs, safety, food and fiber
production, mineral needs, considerations of property ownership, and, in
' general, the needs and welfare of the people. For activities involving the
placement of dredged or fill materials in waters of the United States, a
permit will be denied if the discharge that would be authorized by such permit
would not comply with the Environmental Protection Agencies' 404(b)(1)
' guidelines. Subject to the preceding sentence and any other applicable
guidelines or criteria, a permit will be granted ucil.ess tiie District Engineer
determines that it would be contrary to the public interest.
1
This application Is being considered pursuant to Section 404(b) of tl,e
' Clean Water Act (33 U.S.C. 1344). Any person may r_e(piest, in writing within
the comment period specified in the notice, that a public hearing be held to
1 `•

C
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consider this application. Requests for public hearing shall state, with
particularity, the reasons for holding a public hearing.
' Generally, the decision whether to issue tills Department of the Army
permit will not be made until the NCDEM issues, denies, or waives Starve
certification required by Section 401 of the Clean Water Act. The DEh1
considers whether orinot the proposed activity will comply with Sections 301,
302, 306, and 307 of the Clean Water Act. The application and this public
notice for the DOA permit serve as application to the DEM for certification.
Additional information regarding the Clean Water Act certification may be
' reviewed at the offices of the Environmental Operations Section, North
Carolina Division of Environmental Management, Salisbury Street, Archdnle
Building, Raleigh, North Carolina. Copies of such materials will be furnished
to any person requesting copies upon payment of reproduction costs.
' The NCDEM plans to take final action in the issuance of the Clean Water
Act certification on,or after October 20, 1989.
' All persons desiring to make comments regarding the application for Clean
Water Act certification should do so in writing delivered to the North
Carolina Division of Environmental Management, Post Office Box 27687, Raleigh,
' North Carolina 27611-7687, on or before October 16, 1989, Attention:
Mr. William M111s.
Written comments pertinent to the proposed work, as outlined above, will
' be received in this office, Attention: Mr. James Poteat, until 3:45 p.m.,
October 16, 1989, or telephone [phone].

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WETLANDS SITE DATA CIIARY
DESCRIPTION CONIECTED
TOTAL AREA OF 404,WETLANDS
a) Shoreside Shopping Centre
b) Residual Commercial/Sewage Disposal
c) Multi-Family/Sewage Disposal
.d) Section 10;,.,
el Section 8
E) Covered Bridge Road
gl Phase 5 1
h) Radcliff Cou r.t
f
WETLANDS AREA TO,BE FILLED
a) Shoreside Shopping Centre
b) Residual Commercial/Sewage Disposal
c) Multi-Family/sewage DI.spnsal
d) Section 10
e) Section 8
f) Covered Bridge Road
91 Phase 5 4
h) Radcliff Court
WETLANDS VOLUME OF FILL
a) Shoreside Shopping Centre
b) Residual Commercial/Sewage Disposal
c) Multi-Family/Sewage Disposal
d) Srectinn 101
e) Section 8
f ) Cove r!-d Bridge Road
gI Phase 5
h) Radcliff Court
WETLANDS IMPACTED
a) Shoreside Shopping Centre
b) Residual Commercial/Sewage Disposal
c) Multifamily/Sewage Disposal
d) Section 10•
e) Section 8
f) Covered Bridge Road
g) Phase 5
h) Radcliff Court
TOTALS
Total Area of 404 wetlands
Wetlands To Be Filled
Wetlands Volume of Flll
Wetlands Impacted
5.72! AC
6.51E AC
35.85-+ AC
45.5! AC.
15.7It AC
51. P E AC
1 .39! AC
4. l5-+ AC.
-0-
0.29t AC
-U-
-0-
-0-
1.42 1 AC
0. 23! AC
24,0001 CY
-0-
1400` Cy
-0-
-0-
-0-
5390 ! CY
075' CY
0. 25-+ AC
-0-
1.53 AC
-0-
-0-
-0-
•-0-
-0-
162.46 + AC
6.09 , AC
31,665! CY
1.78 * AC
NON-CONNECTED
6 . 70! A(-
2.87• AC
9.56- AC
21 .2t A('
13.73- AC
6.91 AC
-0-
4.46! AC
1.011 AC
3.9Ri Ac
0. 1)! AC
0.00! AC
0.62 AC
0.071 AC
-0-
2,500- CY
40C- CY
20,000! C",
200
380' 1'•i
2,500t CC r
170 1 17Y
-n-
0.38' . Ac
0.014- A(--
0.66 t A(;
-0-
-0-
-0-
-0-
-0-
60.96! AC
10.33 t: AC
26,2301 CY
1.0541 AC
%
..may=^? ?? ':!?
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' INDEX
' PRO?£CT NO. T/TL£ SHEET NO.

'

' COMPOS/ TE MAP......... , •
70TAL WETLANDS SITE DATA CHART...
/• • • .. • • . SHORESIDE SHOPPING CENTRE.. , . , , , , .
I•' • •:•• .:.'.:::MUL RESIDUAL COMM£!7C/AL TRACT.... , ,•, ,
• • T/-FAM/L Y TRACT.. •
/V . SECT/ON /O ... ..: . . . . . ... . . . . . . .
V///..... SECT/ON B.....
IX, , , , .... COVERED BRIDGE ROAD . , , ,
X......... RAOCL?IFF COURT. ... • ......
STREET It DR/VEWAY SECTIONS. , . /
.2
3
r4
5
6
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ILL "i .i _,[_ •.i Y TYPICAL EXISTING GRADE OVER 404 WETLANDS-
0 fi' ABC STONE BASE
• 2' TYPE 1- 2 ( WITH LIOUIO ASPHALT PRIME COAT
TYPICAL STREET SECTION
(ROADWAY FILL OVER 404 WETLANDS

20,
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X y----v -sC?_ t
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DRIVEWAY OVER 404 WETLANDS
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II{;•S
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I
EXHIBIT "B"
ADDENDUM TO JOIN'T' APPLICA'T'ION
TABLE OF CONTEN'T'S
INTRODUCTION
GENERAL INFORMATION
WETLAND IMPACTS/DEFINITIONS
1. Connected vs. Non-Conrected.
2. Wetlands Impacted.
3. Wetland Area to be Filled.
4. 't'otal Area of 404 Wetlands.
ECONOMIC AND FINANCIAL StATUS
INDIVIDUAL PROJECTS
1. Commercial Shopping Center Project.
II. Multifamily Site.
III. Residential Subdivision Lots.
IV. Eckner Street Ridge.
V. Maritime Forest.
VI. East Side of Bitty Hawk Woods Main Road.
VII. Teri Acre Lot Subdivisions (Kitty !Hawk Woods, Phase I
and I I) .
VIII. Kitty Hawk Woods, Section 8.
IY. 100 Acres of Sound Front Property.
X. Radcliff Court, Old Subdivision Project.
MITIGATION PLAN
1. Donation of a 135 Acre Tract
II. Conveyance of 3 Parcels Totaling 100 Acres
III. Offer to Sell 320 Acres
IV. Restoration of 23 Acres of Wetlands
V. Restrictive Covenants, Conservation Easements
ADDITIONAL INFORMATION
t+i
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' I NTRODUC'1'ION :
Kitty Ilawk Woods Partnership owns or controls approximaLely
' 1,100 acres of property located ill the Town of Bitty hawk, NorLh
Carolina. A large portion of this property consists of
undisturbed maritime forest. The forest areas cover a relic
ridge system and extend from areas fronting on the Currituck
' Sound eastward to a present day durie litre located in the Town of
Kitty Hawk. Throughout the maritime forest area, property is
characterized by high ridges and low swales between the ridges.
' Most ridges run in a north/south direction. Most of the swale
areas between the ridges consist of areas of wetlands. Some of
these wetland areas are connected thro?.tgl?out an entire swale area
and some are isolated with no surface water connections.
' For the purpose of this application, the partnership fins
acltnowledged the jurisdiction of the U. S. Army Corps of
' Engineers and further jurisdiction of certain agencies of the
State of North Carolina relative to the development of wetland
swales and pockets.
' To understand this permit application, it is necessary to he
ftuniliar• with the steps that have taken place leading up to the
completed application itself. These steps are ouLlir?ed in the
' following paragraphs.
Primarily for economic reasons, the partnership began to
' form plans for the development of a commercial area of' property
located in the northeaster?t corner of t1?e 1,100 acre Lracl:. The
commercial development proposed was the construction of a retail
shopping area. The most logical method of developing the
' commercial area (which was already zoned properly for commercial
development) called for direct filling of certain areas of
wetlands.
' The partnership had already explored se 1)araLe13- the
possibility of developing a large area of maritime forest
' consisting of approximately 150 acres located- in the center of
the Kitty. Ilawk Woods. Because of zoning requirements applicable
to this property and because of the topography and the ridge and
swale systen? that exists within the woods, opLions for
' development of this area were more limited. 'T'ile parLnership
conceived of a proposal under which the lame central area of the
maritime forest would be protected from development and placed
' into public ownership. The original concept called for this
conveyance or dedication to occur to offset or to mit.igaLe the
fill that might be required for the development of the commercial
' area.
In order to determine whether this concept, wouI(I be
' acceptable, a preapplicatJon meetit?g• was held oil Mai t(i, 1989.
The purpose of the mcetit?g was to review Lhe areas of the
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' proposed project and the impact on wetlands and forest, areas.
Among others who were present at the May 16th meeting were
representatives of the U. S. Army Corps of Engineers, Lite U. S.
Dish and Wildlife Service, The Nature Conservancy, North Cr.tr•olltm
' Wildlife Resources Commission, North Carolina Natural. Heritage
Program, North Carolina Division of Coastal Management and the
Town of Kitty Hawk. The meeting included a physical tour of Lite.
' property, consisting of a field trip to the center of the main
area of maritime forest and trips to Lite area proposed for
commercial development.
' As a result of this first meeting, a direcLiotr was
established for proceeding with the permit application. First,
it was clear that the agencies represented at this meeting felt
' that conditional approval could be obtained for some of the
proposed development based on the concept, of mitigaLiott proposed
by the partnership. This initial approval was very tentative and
' would require considerable attention to detail in order to
address all of the concerns that were expressed by Lite agencies
represented. Second, it was clear that Lite permit application
' would need to address all wetland impacts throughout Lite entire
1,100 acre project controlled by the Kitty Hawk Woods Partnership.
In this way, the application would be all inclusive and would
scrVe several purposes. Future piecemeal. development,
' applications could be avoided by single application. III
addition, control of the entire mitigation area at a time when
the area is owned and controlled by one developer would allow the
' mitigation concept to be adopted as broadly as possible and
prevent future reductions in size or scope of the mitigation
proposal.
' The meeting established three underlying concepts:
1. Avoid impact on wetlands where possible.
2. Restore and create wetlands to result in no net, loss
where impacts are required.
' 3. Donate a significant portion of Lite maritime forest to
preserve the maritime forest habitat.
' Due to an oversight in scheduling, representaLi.ves of the
Division of Environmental ManagemertL for the North Carol ina
Department of Natural Resources and Community Development were
' not present at the May 16th meeting. A separate meeting was held
with those representatives on July 12th.
' A final meeting occurred on the 19th of July in which all of
the affected agencies were represented as listed above. Prior to
this meeting, the partnership had arranged for extensive
surveying and engineering work on Lite entire 1400 acre parcel .
' Based on this work, the represented agencies were able to review

' physical surveys showing the location of wetland areas in crli of
the properties and the nature of the impact that was proposed for
each of these areas. Each of the major impacted areas were
reviewed in considerable detail with comments provided from each
' agency as to the proposed development. These comments resulted
in changes to the proposed method of development for the
commercial and multifamily sections of the project. In addition,
' the continents and questions presented at the meeting of July 19th
resulted in compilation of additional information concerning all
areas of the project so that the full nature of impact oil wetland
' and forest habitat could be shown as a part of the permit
application.
The entire permit application has now been refined to the
extent that it includes all areas owned or. controlled by the-
partnership, explains the nature of any wetland impacts and other
impacts as a result of the proposed development, sets forth the
' details of mitigation and attempts to incorporate the comments
and' requirements of the various reviewing agencies. Compromises
that were reached in the July, 19th ?meeting between the reviewing
agencies and conflicting concerns of those agencies have been
' incorporated into the details of the development platy and are
shown within the application.

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In summary, it is important to no Le HmL this appl icalAon is
a result of a series of meetings and that the impact on wetlands
for the entire 1400 acre project will be controlled under one
permit process.. In addition, the development, plans for each
portion of the 1,100 acre project have been adapted Lo accommod<lLe
the comments obtained from each of the reviewing agencies in the
on-site meetings.
GENERAL INFORMATION:
Tire 1,100 acre ownership is located generally to the west of
Lhe. Sea Scape Golf Course crud to the cast of, Lhe Curr•i Lucy Soluid
and souLh of U.S. Highway 158 as it divides the towns of Kitty
Hawk and Southern Shores. Town zoning categorizes the properLy
into four classes:
1. Commercial - approximately 60 acres.~
2. Multifamily - approximately 97 acres.
3. Single family residential lots - approximately 300
acres.
4 Single family residential lots low density (80,000
square feet minimum) - approximately 937 acres.
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' (Acreage figures shown above are approximate. Reference
should be made to each individual project later, in this
permit application arid the exact acreage figures which are
computed for all wetland impacts.)
' Most of the acreage involving this project is included
within a large area of maritime forest. This area has been
' designated by the State of North Carolina as one of the largest
contiguous maritime forests existing on the barrier islands. The
unique aspect of this application is the fact that so many acres
are controlled by one developer. This has allowed the permit
' process to affect the total. acreage referred to which includes
all or substantially all of the Kitty Hawk Woods maritime forest
area. The opportunity to control the affect on this maritime
fot•est arid to prevent fragmentation or development of the central
' area of the forest is fairly unique.
The maritime forest area consists of forested ridge swale
' systems with a north-south orientation. The ridges ha%•e
elevations of 5 feet to 25 feet above sea Ierel. The
depressiorral swales lie between the 2 and 4 foot contours and are
' designated 404 Wetlands by the U.S. Army Corps of Engineers. AlI
wetlands are flagged, surveyed and certified by Corps
representatives. The ridge flora contains mostly loblolly pine,
' oak, hickory, dogwood, beech and holly. The plant composition of
wetlands is largely red maple, red bay and sweet gum except the
deeper wetlands which have cypress arid black willow.
' WE'T'LAND IMPACTS/DEFINuIONS:
The focus of this application is the impact of proposed
' development on wetland rheas. Initially, the developer viewed
these impacts in two general categories. The first category r:<rs
the direct creation of new land by filling wetland areas. The
' second category was the incidental filling of wetland areas for-
crossing systems using culverts to allow water flow between
divided wetland areas.
' All affected wetlands within the project err•e ar•eris
designated as forested wetlands. There are no ocean hazard
areas, no coastal wetlands such as marshes arid all wetlands
' impacts, whether by direct fill or by crossings involve the
maritime forest or wooded areas of the project.
' As a result of the different meetings involving this
project, it has become clear that different agencies interested
in the project define wetlands in differeiiL ways. In addition,
the nature of the impact on wetlands and the type of wetlands may
' be viewed differently by different agencies. For this reason, we
have developed a set of definitions relating to the wetlands that
will apply in the narrative arid maps- for this permit.
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' 1. -ot?nected vs. N ti-,gotinected. Early in Lhis permit
process, the Corps of Engineers took the position that no
isolated wetlands exist-. The developer has chosen not to argue
or contest that point as a part of this application. llowever•,
' certain areas within the project which are designated as 4014
Wetlands are clearly riot connected with adjacent bodies of water
by any surface water connection. These would include, by way of
' example, areas in the center of the woods consisting of pockeLs
within ridge systems in which water sometimes sLands during
periods of heavy rainfall. Without attempting to label such
areas as isolated or adjacent wetlands, due to the jurisdictional.
' affect of such a label, the developers have nevertheless needed
to separately identify those wet areas. For this reason, we have
identified certain acreage as connected wetlands and certain
acreage as rion-connected wetlands. It has been clear from the
conferences with the various agencies that a distinction between
such wet areas needed to be made and this is the method we have
used for that purpose.
' 2. Wc?t_.latids Inl?cicted (Not Fille.(TJ. For the purlmse of Lhi ;
permit, acreage calculations are shown labeling the area of
' wetlands thaL are impacted by the proposed development but not
filled. The term "impacted" includes areas that are excavated,
cleated and those areas on which buildings or other sLructures
' are to be constructed, including buildings on pilings.
3. Wetland Area to be Filled. Areas in this cnt.egory would
be directly filled by fill material and could be distinguished
' from those areas "impacted" as defined in the preceding
definition.
' 4 . Total Area of _104 WeLlatids.. 'T'hese areas are Lhose
computed using Lhe definition of wetlands in accordance with the
review of the property by representatives of the U. S. Army Corps
' of Engineers. Wetland areas where construction is proposed have
beeii.located and idenLirled by a private consultant, flagged and
surveyed and the resulting information has been or will be
certified by the U. S. Army Corps of Engineers.
' All affected wetlands within the project are areas
designated as forested wetlands. There are t?o ocean hazard
' areas, rro coastal wetlands such as marshes and all wetlands
impacts, whether by direct fill or by crossings involve the
maritime forest or wooded areas of the project.
' The composite map accompanyirig this permit contains a
wetlands site data ch art. In addition, each individual Inap shows
lt?fVr'IIIatlUrl Settlnt, f orth affected wetlands mid wet-land s
! L(, da?tr?
' as it applies to each individual project. .
'T'hose ?naps are coded
to identify the different projects a IphabeLica11.y. The
corresponding; project numbers are set forth below.
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a) Project I
'
b) Project I
c) Project II
d) Project IV
' e) Project VIII
f) Project IX
g) Project IX
' h) Project X
ECONOMIC AND FINANCIAL STATUS:
' The Kitty Hawk Woods partnership acquired title to the
majority of the acreage by purchase from F. Roger. Page. The
partnership has owned the property since 1987. There are two
l.ehders holding mortgages on the property composing this project.
The first is a purchase money mortgage covering areas of the
commercial section and certain acreage adjacent to the Currituck
Sound which is held by Roger Page. The remaining property is
encumbered by mortgages held by Great Atlantic Savings Bank.
The basic cotice1) t behind the permit app IicaLioit is Le
request permits to fill certain acreage in the commercial section
and to obtain crossings in other sections of the project. T1ie
areas affected and the details are described !it the rest of Lhis
narrative and in the maps that are attached. As part- of the
mitigation proposed for the area to be filled, the developer has
proposed a method of protecting the maritime forest known as
Kitty Hawk Woods.' This protection is accomplished in several
ways. First, the developer will convey a,large amount of acreage
directly to the State of North Carolina or to the designated
agency or authorities of the state. An additional central area
within the woods is proposed for sale directly to the SLaLe of
North Carolina, thereby placing in public ownership the large
central core of the Kitty hawk Woods.
Certain surrounding areas which presenLly serve its buffees
or dividing areas between developed sections will either he
conveyed into public ownership or will be subjected Lo
conservation easements sufficient to proLecL in perpeLulLy these
areas from any disturbance. The acreage within Lhis category is
significant and can be noted by reference Lo the plats
accompanying the permit. (See Section II of the Mitigation
Plan.)
A large amount of acreage is proposed for development for
use in single family residential subdivisions. Most of these
sections are proposed for development with a very low density.
In addition, restrictive covenants affect these areas so that
residential development which does occur can be limited and
controlled in respect to its impact on wetlands and on the
ecosystems. Considerable zoning protection is already in effect
for large areas of Lhis property.
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' If the project is riot successful because the pern?its are riot
obtained, it is very likely that ownership will. be fragmented
throughout the KItLy llawk woods area. Even assuming that
' protections are 'available through legislation and zoning for the
central area of the woods, the surrounding areas that are
included within the maritime forest would clearly be fragmented
' through forced sales, foreclosures and other meLhods r) f
developmenL. Through the permit process described In Ll?ese
applications, control is available for the entire acreage
' affected and controlled by the Kitty Hawk woods partrrership.
Assuming the permits are obtained as requested within the
application and assuming that documentation is required as a part
of the permit; process, these protections can be in place in a
' manner that would leave the protections enforceable, regardless
of future fragmentation or division of ownership. Simply put.,
the opportunity to provide this much control over this large an
' area of maritime forest is unique to this particular application.
Throughout this application, references are oc:casiot?al l y-
' made to the economic reasons for the proposed plan of
development. The developer is willing to provide detailed
information concerning the existing mortgages affecting the
property, anticipated property values, release provisions and
' other pertinent information (if any reviewing agency desires such
information, contact should be made with Starkey Sharp, SHARP,
MICHAEL AND OUTTEN, Attorneys at Law, Post Office Drawer 1027,
' Kitty Hawk, North Carolina 27949 - 919-261-2126.)
Without providing in the body of this permit application
' additional details about the developer's finattcia.l status, it. is
sufficient to state that. development and sale o1• the proper Ly
under this plan would produce sufficient funds to pay the
outstanding debt against the property. The developer's objective.
' in continuing with this project is to obtain enough funds to pay
the.debt. Rased on the projections that have been made at this
time, the developer does not anticipate any substantial profit
' from sale and development of the property.
In summary, there are two significant points that should be
' considered as a part of the review of this project. The first
point is the fact that the developer expects, if the permits are
obtained as a result of this application, to be able to obtain
sufficient funds from stile and development of the property to pay
' the outstanding debt does riot anticipate arty substantial profit.
The second point is the fact that, if permits are riot obtained,
the 11lie1y result for this property will be fragmentation and
' piecemeal development. Development of this kind will lack any
central control or direction. Individual lot. owners will present
continuous applications for development of the properties. That
' will be I-)revenLed through the oontrols established by this
application. The central area of the maritime forest will be
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divided into different ownership and would probably be subject to
the threat of some type of development.
INDIVIDUAL PROJECTS:
The following paragraphs described the different portions of
the entire 1400 acre project. Each individual section is
identified as a separate project with an explar?aLion of the
nature of Lite proposed development and the wetlands impacts.
I. Commercial Shopping Center Prosect.
This project is located in the northeastern cattier of the
1,100 acre project and is generally south of U.S. 158 and west of
the Sea Scape Golf Course. Zoning covers all area of
approximately 60 acres zoned for commercial development by the
'I'owa of Bitty Hawk. Within the commercial zone, Lite
characteristic ridge system exists so that the western side of
the 60 acres contains most of the high ground along with a
separate ridge on the eastern side and generally wet areas
located in the center. In addition, several smaller separated
areas exist that are riot directly connected with the large wet
area in the center of the property.
The developer proposes to create a commercial shopping
center on this site. 'The maim portion of the center would be
located in the existing high ridge systems with supporting
parking acrd roadways also located on the ridges. However, in
order to accommodate access to the property find to allow for
sufficient parking to meet town requirements, and to provide the
most economical development of the property, it is rtecessatry to
fill certain wet areas. Approximately 1.01 acres would I,e F111c!d
for- Lhe-purpose of providing access roads leading south from U.S.
158 at or near the intersection with Juniper Trail. The roadway
would be filled for a width of 40 feet to a height of 1-5 feel,
with a right of way of 60 feet. A second category of fi.ll
consists of 8.61 acres of wetland which would be filled to a
height of 1-5 feet for parking and building adjacent, to Lite major,
development on the higher elevation areas. 'Fite tol,al esl,imated
fill area for the 60 acre project is 9.62 acres. The area
impacted but riot filled is approximately 0.64 acres.
Because of tl?e nature of the commercial parcel , e :tens the
mapping was required for this permit. HosL other projects
addressed by this application did riot require as much information
to be shown oil maps and surveys. The commercial project (lid
require it storm water plan. Application for approval of Lhe
storm water plan is i.rr progress and will be filet) prior Lo
completion of the 404 permit application process with the NorLh
Carolina Division of Environmental Management. Only the
commercial project required a de-Len I:ion pond sysLem. CerLa in
ponds are shown oil the information attached with this
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' application, although the entire storm water treatment acid runoff
plan is riot shown. However, as a result of the July meeting, Lite
large area for a storm water pond was relocated out of Lite
wetlands areas to the extent that relocation was possible.
' Approximately 0.63 acres could riot be relocated.
This commercial site contains the hig)rest market value
' property within the entire 1,100 acre site. For economic reasons,
Lite developer needs to be in a position to develop Lite acreage
specified including those areas with fill in order to be able to
pay the obligations to creditors outstanding for the entire
' project.
As a result of the last on-site meeting, Lite location of Lite
' rohds within the commercial section has been rearranged so that
the southern 800 feet does not require fill in connected
wetlands.
' As mentioned in other parts of this applicsiLion, the
commercial site contains the only significant area of direct fill
to create property for development use (as opposed to areas of
' fill for wetland crossings.) It is important in this context to
recognize Lite location of the commercial area within Lite entire
1.100 acre project as well as its location with refer•enr--e to Lite
' maritime forest and other areas surrounding this project.
Bordering the commercial area on the north is a main access
' highway providing'approach to the Outer Banks. This highway is
already developed and improved for six lane traffic. To Lite east
of the commercial area is the western edge of the du??e system
that continues easterly to the Atlantic Ocean shoreline. This
' area has already been developed with a combination of roadwfry
intersections, residential development and commercial
development. The western side of the commercial site is bounded
' by a large (95 feet in width) power line easement providing; power'
service to Lite central portion of the Outer Banks. Or? the
opposite side of the power line, easement is a residential
' subdivision that has already been developed.
A review of all. of these adjoining rheas will show that Lite
commercial site itself is already isolated from the largest areas
' of ecological concern.
SHORESIDE SHOPPING CENTRE:
' CONNECTED NUN=CONNECTED
Total Are a of 404 Wetlands 5.72 +AC 6.70 +AC
Wetlands Area to be Filled 4.15 +AC 1.46 +AC
Wetlands Volume of Fill 24,000 CSC' 2500 CY
'
Wetlands l?npacted 0.25 +AC 0.38 +AC
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RESIDUAL COMMERCIAL TRACT:
CONNECTED NON-CONNECTED
Total Area of 404 Wetlands 6.51 ±AC 2.87 +AC
Wetlands Area to be Filled 0 1.01 +AC
Wetlands Volume of Fill 0 480 CY
Wetlands Impacted 0 0.014 +AC
II. Multifamily Site.
The multifamily site is located to the south of the
commercial site described in Project I above and is generally
bounded by the Sea Scape Golf Course on its eastern boundary and
the North Carolina Power right of way for a main transmission
line on the west. The property is presently zoned for
multifamily use and existing high ground within the multifamily
site. would allow a density of approximately 225 townhouse or
condominium units on a total of 97 acres. Wetland fill for t.•ond
crossings totals approximately 0.84 acres of roadway. Roads in
this area would be constructed with 40 feet of width and 28 feet
of ARC stone base and 2 -inches of 1-2 asphalt paving. The
largest portion of the crossings are required to connect the
eastern and western areas of high ground presently divided by a
large swale containing standing water. Attached hereto is a
wetland description prepared by John Fussell. Reference is made
to this description.
The initial proposed
site had contained it number
acceptable to the reviewing
meeting, the development
undergone major revisions.
below:
development plan for the mult.ifami.ly
of characteristics that, were not
agencies. As a result of the Jttl.y
plan for the multifamily site has
Some of these changes are emphasized
a. The original proposal called for excavation of
a large central area of wetlands to create a large pond
or lake. Tile developer has abandoned this aspect of
the pt;oject. The only large area of this kind is the
existing open waterway located in the southeastern
corner o•f the multifamily project.
h. The developer had originally intended to
Provide two main wetland crossings and create a loop
system through the wetland area. The developer has
reduced the crossings to one single crossing area and
has abandoned the loop roadway.
C. Representatives of the reviewing agencies in
the July meeting felt that a relocation of the roadways
and buildings in the project would be desirable if it
would save the ridge systems. The consensus at the
meeting was to concentrate development in those areas
containing separate wetlands, including ponds, in order
to avoid development in areas surrounding the central
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wetland that domitrates the project. As a result, the
developer has relocated the buildings and parking lots
to allow for that type of arrangement. This has
resulted in a higher impacL on wetland areas than
called for in the original developer's plan. However,
it should be noted that most of these impacts are riot
as a result of fill and that much of the impact has
been shifted from connected wetlands to non-connected
wetlands. Rather, a considerable part of the Impact is
the result of locating buildings on pilings and other
structures over the 404 Wetland areas all(] some areas of
fill in the separate pockets. All of these relocations
were the result of the attempt on the part of the
developer to comply with the comments made at the last
• .review session in July.
A sewage treatment plant is proposed to provide service to
the multifamily area as well as to the adjacent commercial
sections to the north. The sewage treatment plant is addressed
under this section because the main area for locaLion of tire
plant is contained within the multifamily zone. It is important
to note - that the sewage disposal will not result in any
deforestation or wetland fill or impacts. This is accomplished
by locating the underground drain lines wiLhin the area of the
power line right of way. Since this right of way is already
cleared, it will not be necessary to clear new areas in order to
provide the sewage disposal system. In addition, the right of
way follows all existing high ridge sysLetit.
CONNECTED NON-CONNECTED
Total Area of 404 Wetlands 35.85 +AC 9.56 +AC
Wetlands Area to be Filled 0.29 AC 3.98 AC
Wetlands Volume of Fill 1,100 CY 20,000 CY
Wetlands Impacted 1.53 +AC-bl.dgs 0.66 ±AC-pond
III. Residential Subdivision Lots.
This area is already developed with roads and central water
sysLem in place. The development consists of residrnLi.ttl loLs
located immediately adjacent to Lhe Sett Scat)v (,o1 f Course. No
permits are required for development wiLltin Lhis section. The
properties in tine section are identified as Kitty bawl: Woods,
Sections 6 arid i. Tile purpose of including these properties
within the permit narrative is to provide an example of a method
of development whereby wetland impacts are minimized. Within the
two sections of residential subdivided lots, all lots con Lain at
least 15,000 square feet, exclusive of wetlands. 1n :addition,
all lots have been designed so that no weLlrand impact; will occur
upon creation of driveways to the residential building sites. In
some cases this has required the creation of lots in excess of
30,000 square feet. Approximately 50 acres fire .included within
these two residential subdivisions which are characteristic of
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' other areas within the ridge and swale systems of the N i L L y Hawk
Woods project. Development of these arefts occurred during the
past two years preceding the application and is referenced as an
example of the type of developmennL sponsored by Lhe Ki LLy Hawk
' Woods Partnership. The development of property in Project IV
would be similar to this type of development.
' IV. Eckner Street Ridge.
This area is a. small ridge system located to the sotrtlr of
Eckner Street, east of tile North Carolina Power line Lr•atismission
right of way and west of the project described in Project II1.
It is separated front Kitty hawk Woods, Sections 6 and 7 (Project
III above) by a large swale area containing extensive water
systems. Development of this ridge into single fftmily lots,
designed in the same manner as Project III, would result in
approximately 20 residential lots. This development cnnnoL occur
without a zoning change presently under discussion wiLlr the Town
' of Kitty Hawk. Present zoning allows for single family
residential but requires a much lower density and would not
permit the development into as many lots. No wetland fill is
' required for development of this subdivision with the exception
of certain driveway crossings for isolated areas of high ridge
systems.
' CONNECTED NON-CONNECTED
Total Area of 404 Wetlands 45.5 +AC 21.2 +AC
' Wetlands Area to be Filled 0 0.11 +AC
Wetlands Volume of Fill 0 2UU CY
Wetlands Impacted U U
' V. Maritime Forest.
This portion of the project consists of the cenLr•al maritime
' forest area and composes a majority of the acreage owned by the
Kitty Hawk Woods Partnership. The property is borinded on its
eastern side by the North Carolina Power line right of way. The
' power line follows a high ridge system that has-been cleared and
supports the power line and the power line access road. On the
western side, this area is bounded by the main t•crad running;
through Kitty Hawk Woods and by residential lots fronting on that
' road. On the north, a residential subdivision exists Lhat is not
included within the Kitty Ilawk Woods project. The subdivision
was developed based upon plats recorded in the early 1970's and
' is not associated with this project. On the south, the property
bounds other areas that are generally similar to Lhe maritime
forest composing this project. Ilowever, these are..ts are not
controlled by or connected with this project. The southern
' properties are owned by various adjacent property owners.
The maritime, forest area consists of Lt:o wircels, the
' designation of which has been created fai- the purpose of these
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permit applications. The first parcel is an area of 135 acres
located at the southern end of the maritime forest area owned by
the developer. This area has been designated as the donation
area. The proposal calls for it donation of 135 acres to The
Nature Conservancy, the 'T'owr? of Kitty Hawk or to some other
entity or organization capable of maintaining this acreage in its
present state. The proposal calls for conveyance of this
property in fee simple, free and clear of any and all
encumbrances. At the time of the original meeting, parLicipanLs
inspected the site and found it to be composed of high ridges
with swale systems. The ridges consist of loblolly pine, beach,
dogwood species and with the occurrence of an uncommon species
known as the southern twayblade. The weLIa??ds are richly
forested with mature cypress tress. The proposal calls for the
creation of conservation easements along with the donation and
would allow the 135 acre donation to serve as the nttclet?s on
which to create other public ownership in the maritime forest
area.
The remaining area of this project consists of ai)i) xiilia te.ly
320 acres and is located to the nor•Lh of the donation area. The
developer proposes to sell this property for approximately $3,000
per acre. The purchase price for this section as well as the
designation of donation area and sale areas ire all somewhat
arbitrary. The price is designed so as to provide a sufficient
amount of money to apply against and retire the outstandir?g
obligations held by Great Atlantic Savings Bank, F.S.B. 'the
developer would receive no funds from the sale of any portion of
this project. The price will be affected only by the amount of
funds available from other sales within the entire 1,100 acre
project.
Great Atlantic Savings Bank has agreed to a proposal Whereby
the 135 acre parcel would be donated to the state with the
remaining area composing the central part of the Kitty Ilawk woods
sold in sections. The proposal calls for purchase by the state
of additional acreage over a four to-five year period. Finds for
this acquisition would probably be obtained from revenues
produced by the sale of vanity license plates. Legislation thnL
was approved by the North Carolina General Assembly raised the
fees for such license plates and these additional funds are
designated for acquisition of property of this kind. Since
sufficient funds would not be available to pay a total price of
$1,000,000 in one year, it was necessary to structure this
arrangement to allow for payments over a period of four to five
years using the vanity license plate revenue. The lender has
indicated that it will provide written consent to a purchase
contract or option arrangement with the State of North Carolina
allowing for this deferred purchase method of the central portion
of the woods. In this way, the actual purchase will be
established by contract and consented to by the lender even
though the purchase price would be deferred.
14

' In addition, the lender has indicated its consent to a
conservation easement that would be imposed against this property
once the obligation for purchase was established. This easement
' is discussed further in the portion of this application dealing
with mitigation.
' Ili combination, the donation and sale parcels will allow for-
the control of most of the maritime forest existing within tl?e
Town of Bitty Hawk with existing buffers in the form of the North
Carolina Power line easement and the main road running through.
' the woods ill Kitty Hawk. One advantage to the proposal is the
fact that tire entire acreage is presently controlled by the Kitty
Hawk Woods Partnership and is not fragmented. In addition, only
' one lender carries mortgages on this property arid this lender
supports the entire application process.

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VI. East Side of Kitty Hawk Woods Main (toad.
Following the eastern boundary of the Kitty IIawk Woods main
road is a ridge system on which the main road itself is located.
This ridge is bounded on the east by the area described in
Project V, the maritime forest. Present development is limited
by the zoning ordinance for the Town of Kitty Hawk which requires
very low density development on a single family basis. The
developer proposes to develop lots fronting on the Kitty Hawk
Woods main road with an approximate total of 20 lots. A zoning
change is required in order to result in this many lots. 'The
nature of the change would still require a low dens1t?v
development with 80,000 square foot lots. Ili some of the
original discussions, the area covered by this Project VI lend
been included in the proposed donation or• sl?le to the
conservatory agencies. However, calculating the funds that could
be expected to result fro?n a sale of the maritime forest mid
comparing those an?ounts with the required payments to the
existing lenders indicated that the development of these
residential lots would be necessary., As a corollary, the price
of the maritime forest may be significantly reduced by the
development of these lots. No land would be created in these
areas from filling existing wetlands and no wetland crossings
would be required based on the nature of the property.
The lots within this section will be subject to restrictive
covenants. These covenants will be drawn so as to minimize
impact on the habitat and will specifically prohibit filling of
any wetland areas. In addition, the covenants will state that
wetland crossings, if required for driveway purposes, shall be
accomplished only by bridge systems and that no crossings will be
permitted using culvert and fill systems.
No separate mat:) is provided for this section and the only
survey information available is the information shown oil the
15

' composite n?ap for this 404 permit application. "I'h(.,- Lots are
designed s o that they h ave it frontage of 200 feet along Lite Ki t.Ly
Rawl: Road and a depth of X100 feet. With this design, most lots
' in this se ction would trot require an y crossing of a y kind to
reach the buildable portion of th e lot. Where crossings are
required, as addressed above, a bridge system would,.,fle.,.

. ary.
necess
' VII. Ten Acre Lot Subdivisions MitLy Hawk Woods. Phase-J

and II). .
' These subdivisions have been platted and are composed of
approximately 21 ten acre lots. The property is bounded on the
east by the Kitty Hawk Woods main road and runs into the interior
' of the sound side portion of the Kitty Hawk Woods area. A road
system including bridges has been constructed within these
subdivisions. Development was done in a manner to minimize
wetland impacts and crossings were obtained under nationwide
' permits following old relic road systems. The homesites have
been developed in a manner that would minimize any wetland
crossings and orre particular site within these homesites has been
' developed with a bridge system to cross a wet area. 't'hese sites
are referred to as an example of the type of development that can
occur in the ridge and swale system of the maritime forest with
' minimum impact on wetlands and on the ridge systems as well. TI Ie
only additional requirements that may occur within these
subdivisions would result from a widening of the existing Covered
' Bridge Road in order to meet requirements of the 'I'owa of Iii tL%-
Hawk. This widening would result in it weLIand imptic L of 0.3
acres. The entire ten acre lot subdivision covers approximaLely
210 acres.
Covenants have already been imposed on the lots within these
sections requiring development in a manner that protects Lite
' habitat. Additional covenants will be proposed LhaL will
prohibit filling of wetland areas and require consLrucLion of it
bridge its those ins Lances where crossings are necessary. No
' culvert and fill type crossings have been required under Lhis
permit for the lots within these subdivisions.
VIII. KiLty Hawk Woods, Section 8.
' This area is locaLed Lo Lite west side of. I.he main rand
through the KiLLy Hawk Woods and is north of the area in Project.
' VII. The property is characteristic of the other properties in
that it contains wetland swales between ridges. It is presently
zoned to permit development in Lite same manner as those describf,d
' in Project III with 15,000 square feet exclusive of wetland for
each residential lot. The property will support developn?errL of
approximately 62 lots in the same manner as Project III allowir?g
for minim=al impacts. The wetland • fill. wit=hin Lit is area are
' approximaLely 0.08 acre for crossings supporting Lite road sysLvill.
None of the lots would require additional fill for development.
' 16

C
The property is bounded by a marsh area joining the high bridge
' creek runnin g through Kitty Hawk woods, dev elopment of lots
within this section can be compared to the two existing
subdivisions. shown as Project III arid identifi ed a5 Kitty Ilawk
' Woods, Sectio ns 6 and 7 , within this application.
CONNECTED NON-CONNECTED
' Total Ar ea of 404 Wetlands 15.71 ±AC 13.73 +AC
Wetlands Area to b e Filled 0 0.08 +AC
Wetlands Volume of Fill 0 380 CY
Wetlands Impacted 0 0
IX. 100 Acres of Sound Front Protaerty.
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This property is located adjacent to and froil Litrg on the
Curritttck Sound, consists of 100 acres and is boutrded on the ea0,
side by tire properly described in Project VII. Zoning
requirements in the Town of Bitty Hawk require development with a
density of 80,000 square feet, exclusive of wetlands. This will
result in approximately 25 lots within the subdivision. There
are approximately 15 lots located along the sound frontage with
the remaining lots in the center of the woods. The road system
would be developed in the same manner as that shown in Project VI
acid wetland impacts for the main road system would occur only as
a result of widening arid occasional crossitgs to expand the
existing relic road system. In addition, the Property located
along the sound front is generally composed of two ridges. In
order- to provide' access to the ridge closest to the soiind for
marketing purposes of this project, wetlatrd crossings are
proposed for a number of the lots that front the Curri.Luck Sound.
These crossing have been designed so as to minimize the number of
crossings and to permit driveway access to two lot. Lhrough a
shared system of crossings. Where access could be obtained
without a crossing, that option has been maintained.
. With the exception of those crossings that have hevII
requested under, this permit, all other crossings would rvyuire
the construction of a bridge and restrictive-covenants will. be
placed on record so that, no wetland areas can be filled within
this section. As mentioned above, the only exception La this
condition is the system of culvert and fillcrossings that at•e
required under this permit- application for the lots fronting oil
the CurriLuck Sound.
CONNECTED NUN-CONNECTED
Total Area of 404 Wetlands 51.8 +AC 6.9 +AC
Wetlands Area to be Filled 1.42 +AC 0.07 +AC
Wetlands Volume of Fill 5390 CY 170 CY
Wetlands Impacted 0 0
Y. ._Radcliff Court. Old Subdivision Pro.iect.
17

The developer owns certain lots ill nn old subdivision
located to the north of Project IX. A platted subdivision shots
and designates a number of small residential lots and road
systems. The developer desires to extend the road within this
' subdivision and to fill 0.23 acre of wet areas and thereby obLair?
access to 7 lots.
' CONNECTED NUN-CONNECTED
Total Area of 404 Wetlands 1.39 ±AC 0
Wetlands Area to be Filled 0.23 ±AC 0
Wetlands Volume of Fill 875 CY 0
t Wetlands Impacted 0 0
MITIGATION PLAN:
' The environmental damage resulting from the discharge of
fill material on the forested wetlands will be fully offset by
the following mitigation plan.
' I. DonaLion of a 135 Acre Tract.
' The landowner will convey to The Nature Conservancy a
significant portion of this unique, undisturbed maritime forest.
The conveyance will be in fee simple, interest free and clear of
' any liens.
The tract was inspected by all participants at. the May lf,
' 1989 meeting. The high ridges consisted of loblolly pine, beech
and dogwood species with the occurrence of an uncommon ground
cover species, southern twayblade. The wetlands were richly
forested with mature cypress trees. It was agreed that: this gift.
' could result in the nucleus on which to add other public
ownership in this top priority maritime forest. For a more
complete description, please review John Fussell's report on this
135 acre tract attached hereto.
Il. Conveyance of Three Parcels Totaling 121 Acres.
' Three areas of the ownership cannot be developed due to
wetland problems and open space requirements on commercial
' tracts. Conservation easements will be conveyed to The Nature
Conservancy or a fee simple interest can be conveyed if parcels
are released from the bank deeds of trust. See map showing the
master platy for location.
' III. Offer to Sell 320 Acres.
A 320 acre tract., located adjacent to the maritime for•esL Lo
' be donated, and located in the center of top priority area
protected by the state, will be offered to the Natural lleritnge
Trust Funds for $3,000 per acre. The offer will be available far
an adequate amount- of time Lo allow the funding of this
' acquisition. The price is negotiable with no profit to the
18

' In addition, restrictive covenants have been mentioned in
the portions of this narrative dealing with the residential
subdivision. In each case, the restrictive coverants are
intended to preserve all wetland areas and ml it imize at?c
' crossings. Some sections have been designed so that wetland
crossings will not be necessary. In other cases, where that
design was riot possible, restrictive covenants will requite
' construction of a bridge system rather than the use of culverts
and fill to establish crossings to higher areas. In some cases,
the application requests a permit for a fill and crossim system.
However, these situations have been minimized thro?.ighout Lit(-
project and a large majority of the lots proposed for devel.opmeiit,
will be subject to the covenants restrictions that prohibit fill
and crossing systems.
' To the extent possible, those areas subjected to
conservation easements will also be subject to the same kind of
controls placed on the property in public ownership. This will
' be accomplished either by direct conveyance or by use of the
easements.
1 ADDITIONAL INFORMATION
Due to the extent of the property covered by this permit:
' application, it is possible that questions w i I I arise in the
review process that have not been fully addressed in the maps or
the narrative. Additional information is available to any
reviewing agency-as set forth below:
' 1. To obtain blueprint copies of the maps and plats
describing the project (available in 24" x 36" sets), contact
' or?jidCaro inae2785b -i)919? 1079-3B52.Commerce Street, Greenville,
2. For information regarding mitigation and for questions
' relating to the quality of the donation area and the area
Proposed for sale to public owt?er.ship, questions should be
directed to John Fussell, 1,112 Shepard Street, Plorehead City,
' North Carolina 28557 - 919=240-1046.
3. For questions concerning the financial status of the
' developer or questions dealing with the legal title to Lite
property and its ownership by the partnership, contact Starkey
Sharp, SHARP, MICHAEL AND OUTTEN, Attorneys at Law, I'ost Office
Drawer 1027, Kitty Hawk, North Carolina 279,19 - 919-261-2126.
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EXHIBIT "C"
1
Ulf JAL CEN'IR E DEVTsI.U INIE,NJ' UID
November 14, 1989
Mr. Quentin Bell
Kitty Hawk Woods
P. O. Box 749
Kitty Hawk, NC 27949
' RE: Outer Banks Level Analysis
Dear Quentin:
' As a follow-up to our conversation today, I reviewed my files in
order to provide you with feedback on our analysis of available
' shopping center parcels on the Outer Banks.
For reference purposes, a normal land requirement for a shopping
center the size that we have planned (180,000 square feet) is
' approximately 18 acres. Due to the open area restrictions imposed
by Nags Head, Kill Devil Hills and Kitty Hawk, the land necessary
for such a development is approximately 30 acres. We evaluated
' every viable large tract from Nags Head north to Kitty Hawk and
found only one other site (other than Kitty Hawk Woods) that would
provide the required access and population density necessary for a
development. The problem with the other site is that it is zoned
' residential and Nags Head indicated that rezoning to commercial was
not possible. Additionally, the property had wetlands areas on
parts of the property that would need to be mitigated in order to
' design the layout of the center.
To summarize, we spent several months evaluating several possible
sites on the island and the only site that would work functionally
' is the Kitty Hawk Woods site.
I look forward to a resolution of the remaining issues and to our
' initiating the construction of our project.
Best p sonal regards
Robert Mo ele r.
' Vice President
RLMjr/jdm
1
54M CIettivowl Avcnue, Suite YX) • Raleigh, North Carolina 27612 • [phone] •1 ax No. (919) 782-•1838
s

SHARP, MICHAEL AND OUTTEN
ATTORNEYS AT* LAW
' SEA SCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
EXHIBIT "D"
STARKEY SHARP MAILING ADDRESS:
STEVEN D. MICHAEL POST OFFICE DRAWER 1027
1
ROBERT L. OUTTEN KITTY HAWK, NC 27949
JOHN C. GRAHAM, III January 22, 1990 FACSIMILE: [phone]
Memorandum ?•
Kitty Hawk Woods Project
Dare County, North Carolina
' This memorandum is prepared as a response to an on site
meeting conducted on January 16, 1990. The January 16th meeting
was intended to provide to certain responding agencies additional
information and clarification of concerns involving the
' application made by the Kitty Hawk Woods partnership. The
meeting was designed to pay particular attention to the concerns
that had been expressed by the Environmental Protection Agency,
t the United States Fish and Wildlife Service, and the National
Marine Fisheries program.
' By separate transmittal, participants will be receiving
certain information or documentation requested during the January
16th meeting. This information includes the following:
' 1. Alternative site analysis to be. prepared by
Sauter, Phelan and Agsociates.
' 2. Wetland quality analysis prepared by John
Fussell.
' 3. Description of design for, wetland creation or
restoration on Tyrrell County site prepared
by Dr. Russ Lea of North Carolina State
' University.
The developer was also asked to provide a final version of
the wetland impacts in the commercial ptrtion of the project.
' After careful review followiQ the 4anuary 16th meeting, the
developer submits the same plan for development of the commercial
site with the same wetland impacts as delineated on the detailed
maps and plans which have already been submitted. The developer
' has agreed to delete the 0.63 acres of *,retention pond excavation
on the. commercial site as a result of the meeting in Raleigh on
November 8, 1989. The reasons that prohibit the developer from
making any further reductions in those impacts are set forth and
described in the remainder of this memorandum.
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Memorandum
' January 22, 1990
Page 2
' SUMMARY OF PROJECT ANALYSIS: '
The Kitty Hawk Woods partnership seeks approval of certain
' development activity which results in fill activities in areas
designated as wetlands. The exact nature of the impact on
wetlands has been defined in significant detail in plans
' submitted to the United States Army Corps of Engineers. The
proposal is the result of a process covering approximately one
year. During this time a number of pre-permit meetings have,.bee
conducted, resulting in numerous, changes and revisions to the
' proposed development plans. Significant changes have occurred in
the nature of the original proposal leading to the version of the
development proposal that was made to the United States Army
' Corps of Engineers.
As a result of the pre-permit meetings and the changes that
have taken place in the nature of the application, the developer
' feels that the proposed development adheres to principals of
avoiding wetland impacts, minimizing impact where it cannot be
avoided and mitigation for those impacts which result from the
' proposed development. The developer also feels that the proposal'
sets an excellent example that would survive any type of review.
' The proposed development plan includes an analysis and
detailed explanation of all wetland impacts occurring within a
1,400 acre project. At the center of the project is a large area
of maritime forest constituting one of the few remaining maritime
' forest areas which are undeveloped as well as one of the largest
areas of its kind on barrier (islands on the Ea st Coast. Wetland
impacts have been avoided throughout the entire 1,400 acres to
' the extent that approximately 16 acres of wetland areas are
impacted. O f the 16 acres, less than 10 acres are involved with
creation of new building sites by direct fill with the remaining
' impact resulting from wetland e,rossings or roadways. In the
vicinity of the commercial site (the most controversial portion
of the proposal), less than S acres of connected wetlands are
' proposed for fill activity.
The site proposed for the most contr?versial portion of fill
activity is the only site available for the proposed commercial
' development. Reference is mAde to.the alternative analysis
provided by the firm of Sauter, Phelan and Associates. That
analysis indicates that no other site is available within the
Town of Kitty Hawk or within the immediate Dare County area of
the size necessary for the proposed" commercial development on
this site. Further, reference is made to the existing zoning on
' an entire 60 acre commercial site which permits the proposed
development. As additional evidence of the avoidance aspect of
the appj.?cation,,_ it is noted that only approximately 10 acres of
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Memorandum
' January 22, 1990
Page 3.
' wetland impacts are occurring on the* entire 60 acre area of
commercially zoned property and of these, less than 5 constitute
direct fill of connected wetlands.
' It should also be noted that the location of the proposed
fill in the commercial site is at the headwater of a connected
wetland adjacent to Kitty Hawk Bay. These waters are already
' subject to considerable runoff exposure from U.S. Highway 158 and
commercial activity occurring from existing commercial projects
along that highway. Presently, no controls exist for protectio4_,,,,,
of the headwaters and connecting; wetlands from exposure already
' resulting from the commercial activity and adjacent highway. The
location of the proposed project at the headwater of the
connecting wetlands would result in control measures in the form
' of storm water runoff procedures as well as drainage and other
matters described in significant detail in the proposed plan.
The developer submits the fact that the impacts from the proposed
project as well as the existing wetland impacts from U.S. Highway
' 158 and other commercial development will be controlled where
present controls do not exist.
' Some of the comments set forth above also point to aspects
of minimization of wetland impacts throughout the entire 1,400
acre project. Considerable portions of the project on which
' development is proposed are part of the maritime forest or
connected maritime forest areas. The developer has proposed a
method of residential development following extremely low density
' guidelines. The project areas have been designed in a manner so
as to minimize any impacts including narrow roadways, shared
driveway crossings and areas where crossings are prohibited
except by construction of bridge systems. Reference is made to
' the entire project acreage and the total areas of wetlands to be
impacted.
' In order that no net loss 'of wetlands shall occur, the
developer has proposed the creation of new wetlands on a site
located in Tyrrell County, North Carolina. The off site location
' was chose,, after detailed study of the Kitty Hawk Woods area and
the watershed involved in the proposed fill revealed no areas
suitable for the creation of new wetlands Because of the value
of upland ridge systems and habitat, the creation of new wetlands
' and mitigation of the proposed-,"fill within the maritime forest
area.was considered counter productive and it became necessary to
use a different site for the proposed mitigation area.
Nevertheless, this area constitutes a quality restoration or
creation of wetland project with 23 areas of wetland to be
' created on the site. The proposed mitigation site is a part of a
black bear corridor within the Scuppernong River plan sponsored by
the Nattiz.e Conservancy. Reference is made to the design and
i; - -

Memorandum
' January 22, 1990
Page 4
analysis of the proposed site prepared 'by Dr. Russ Lea of North
' Carolina State University.
There are a large number of other ways proposed by the
' developer to both minimize and mitigate wetland impacts within
the entire project. It is the developer's position that these
different aspects of the proposal, when considered together,
t constitute more than the required level of mitigation and
minimization of wetland impacts.
As an example, reference is.made to the areas proposed for
,....
he project. The developer had
residential development within the"
already agreed as a part of the project submission to limit
wetland impacts within these proposed residential developments.
' These impacts were limited by the nature of the project design as
well as proposed restrictive covenants that would prohibit
filling of wetlands and would limit applications for wetland
' crossings.
In a response to comments made in the January 16th meeting,
the developer has agreed to provide conservation easements, in
' addition to the restrictive covenants. These easements would be'
provided to the agency or entity managing the central area of the
Kitty Hawk Woods project. An example of the proposed
' conservation easement language is attached to this memorandum.
The original project called for conservation easements only in
certain areas not subject to development. This new aspect of the
developer's plan would impose these conservation easements within
' the residential subdivisions that compose the majority of acreage
controlled by this developer. A11 of the residential
subdivisions remaining under the control of the applicant would
' be subject to these conservation easements.
One of the most unique aspects of the proposal is the
' donation of approximately 455 acres of maritime forest to public
ownership. As a result of the pre-permit meetings. This aspect
of the developer's plan has been revised several times from
' earlier proposals calling for sale of areas to public ownership
into the present proposal for the donation of the entire maritime
forest area defined in the application. tReference is made to the
wetland quality analysis prepared by John Fussell. The developer
' is aware of no objections rai6ed by any reviewing agency as to
the. quality of the proposed donation area in terms of its need
for protection, its value as a resource and the unique
' opportunity afforded by this application. The fact that the
proposal now calls for donation of this site, rather than sale,
is also an indication of the economic factors affecting the
t developer. Economic reasons is one bf the primary reasons that
prohibit the further reduction of the wetland impacts in the
commercial site,..
A ..
1
Memorandum +
' January 22, 1990
Page 5
' When each aspect of this project is considered individually,
the unique nature of the proposal cannot be understood. However,
when all aspects of the project are reviewed together, the
' developer feels that the standards required for a review of this
kind are met and exceeded. Some concern has been expressed by
reviewing agencies that the proposal might set a 'bad precedent
and provide an example of "buying a permit". In response, the
' developer points to 'the fact that all parts of the project should
be considered together. .If the permit is granted, there is -no.,_
doubt that other developers may,Twish to emulate a plan of this M
' kind. 114'.
Apart from the fact that the maritime forest itself is
' unique and cannot be duplicated, other aspects of the plan are
also unlikely to reoccur. Here, the plan must be considered with
the possibility of development that might occur if this permit is
not obtained. There is no doubt that the level of protection
' provided by this proposal will not occur again, either in this
project or in any other plan likely to be submitted by some other
developer in response to this project.

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EXHIBIT "E"
DARE COUNTY
Commercial Highway Sales
Commercial Back Land Sales
ct
tai

' Land Sale No. 1
Deed Date of Sale:
' ntor:
Gr
a
' Grantee:
Location:
1 .
Size:
Shape:
Frontage:
Drainage:
' Topography:
Utilities:
' Zonin
:
g
' Improvements:
Present Use:
' Highest and Best Use!
Confirmed Sales Price:
' Price Per Square Foot:
Price Per Front Foot:
Financing:
' Condition of Sale:
Deed Reference:
' Remarks:
I
EXHIBIT "E" Continued
June 16, 1989
Diane Baum St. Clair
Nicholas G. Bakopoulous
Lots 11-14, Block 66, Kitty
Hawk Shores, Kill Devil
Hills, NC
20,000
Rectangular
200' on Pamlico Avenue and
100' on Norfolk Avenue
Adequate
Level
Water
B-Business
None
Vacant Site
Commercial Usage
$120,000
$6.00
$600.00
Purchase Money Deed of Trust
Arms-length
Deed Book 634, Page 160
The property is located on
the northeast corner of
Pamlico Avenue and Norfolk
Avenue

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Land Sale No. 2
Deed Date of Sale: March 8, 1989
Grantor: Diane Baum
Grantee: Willie S. Edwards et al
Location: Lots 6-15, Block 67, Kitty
Hawk Shores, Kill Devil
Hills, NC
Size: 50,000 Square Feet
Shape: Rectangular
Frontage: 250' on Pamlico Avenue and
200 on Norfolk Avenue
Drainage: Adequate
Topography: Level with Scrub Brush
Utilities: Water
Zoning: B-Business
Improvements: None
Present Use: Vacant Site
Highest and Best Use: Commercial Usage
Confirmed Sales Price: $300,000
Price Per Square Foot: $6.00
Price Per Front Foot: $1,500
Financing: Purchase Money D.O.T. - Cash
Equivalent
Condition of Sale: Arms-length
Tax Reference: Tax Map 158A, Block 67, Lots
6-15
Deed Reference: Deed Book 618, Page 211
Remarks: The property is located o?i
the northwest corner of
Pamlico Avenue and Norfolk
Avenue.

' Land Sale No. 3
Deed Date of Sale:
' Grantor:
Grantee:
' Location:
' Size:
' Shape:
Frontage:
' Drainage:
Topography:
' Utilities:
Zoning:

H

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Improvements:
Present Use:
Highest & Best Use:
Confirmed Sales Price:
Price Per Square Foot:
Financing:
Condition of Sale:
Tax Reference:
' Remarks:
1
1
August 8, 1989
Boddie-Noell Enterprises
Jack L. Adams
Northwest corner of Ocean Bay
Blvd., and Mustain Street,
Kill Devil Hills, NC
28,301 Square Feet
Rectangular
140 Feet on Ocean Bay Blvd. ,
200 Feet on Mustian Street
and 143 Feet on Carlton
Avenue
Adequate
Level and Cleared
Water and Private Sewer
B-Business
None
Vacant Site
Commercial Usuage
$120,000
$4.24
Cash Equivalent D.O.T.
Arms-length
Tax Map 158A, Block 63, Lots
7-13
The total area of the parcel is 40,000
square feet; however, 11,699 square feet
of the property contains either an access
and parking easement or a nonperpetual
septic easement. Therefore, the usable
area of the site is 28,301 square feet,
(40,000 SF - 11,699 SF)
Land Sale No. 4
Deed Date of Sale: August 5, 1987
Grantor: Schawarz, Jeannette M.
Grantee: Sea Whisper
Location: Westside N.C.S.R. 12,
Hatteras, NC
Size: 59,449 S.F. (1.36 Acres)
Shape: Irregular
Frontage: 150' on N.C.S.R. 12 and
Irregular shorline along
Pamlico Sound
Drainage: Mixed (Adequate and
Inadequate)
Topography: Level
Utilities: Water
Zoning: S1-Special District
Improvements: A small dwelling w1iic1i will
be moved or demolished.
Present Use: Vacant Land
Highest and Best Use: High Density Residential or
Commercial
Confirmed Sales Price: $150,000
Price Per Square Foot: $2.52
Price Per Front Foot: $1,000
Price Per Acre: $110,294
Price Per Unit: $8,333
Financing: Cash to Seller
Condition of Sale: Arms-length
Tax Reference: Tax Map 440, Parcel 3-2
Deed Reference: Deed Book 530, Page 824

Land Sale No. 4 (Continued)
Remarks: This site was developed with
' an 18 unit condominium
complex called Sea Whisper.

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Land Sales Summary
Sale No. Location
1 Northside Pamlico Ave. 06/16/89 20,000 SF'
Kill Devil Hills, NC
2 Eastside Norfolk Ave. 03/08/89 50,000 SF
Kill Devil Hills, Nc
3 Eastside Norfolk Ave 08/08/88 38,301SF
Kill Devil Hills, NC
4 Westside NCSR 12 08/05/89 59,449 SF'
Frisco, NC
Date of Sale Size
LAND SALES SUMMARY (Continued)
Sale No. Location
Utilities
Price Per
Square F.
1 B-Business Water $6.00
2 B-Business Water $6.00
3 B-Business Water and $4.24
Private Sewer
4 S-1 Water $2.52
1

' Commercial BackLand Sales
------------------
LAND SALES MARKET -----------------
ANALYSIS: --------------- ---------- ---------
' aaa=a=aa=as=a=aaa v=aaaaaa---- --- --------- ----- ------
a
Property Sale 1 Sale 2
---- Sale 3 -Sale-
------------------
$ per Square Foot --------?--- --
$6.00 $6.UO $4.24 $2.52,

Financing
0
00%
-----0-00% ----
---0_00$ -- 0.00
---------
--------
Time --
-------
-
8.34$ 12.45% 21.16% 36.33
' ------------------
Location ------------ --
-20.00% ---------
-20_00%
--- ---- -------- -
-20.00%
-------- -- -20.00
---------
------------------
Size ------------ --
0.00% -------
0.00% 0.00% 0.00
' ------------------
Zoning --------_--- --
-40.00%
-- -- ------?--- ----
-40.00%
---------- ---- ----_--- --
-40.00%
-------- -- ---------
0.00
---------
------------------
Quality ----------
-10.00% -10.00% -10.00% -10.00
' ================== ===__======= == ========== ===========_ __ ____====--
Indicated Value $2.30 $2.55 $2.17 $2.6tl

EXHIBIT "E" Continued
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LAND VALUE ANALYSIS
Lana Sale Number
Deed Date of Sale:
Grantor:
Grantee:
Location:
Size:
Shape:
Frontage:
Drainage:
Topography:
Utilities!
zoning:
Improvements:
Present Use:
Highest and Best Use:
Confirmed Sales Price:
Confirmed By:
Price per Square Foot:
Price per Front Foot:
Price per Acre:
Financing:
Condition of Sale:
Tax Reference:
Deed Reference:
Comments:
11/14/89
Shells Limited
NCNB National Bank of NC
Wes tside US 158, 560' S. of Bennett St., Dote
County, Kitty Hawk, NC
Square Feet: 40,000 Acres: 0.918
Square (200' x 2001)
Stree-t:US 158 Amount: 200.00 feet
Adequate yet site will require some fill
Level with scrub vegetation
Water
BM-General Beach Commercial Di.s tr i ct
Norte
Vacant site
Commercial usage
$350,000
David Watson, Real Estate Agent
$8.75
$1,750
$381,264
Cash to seller
Arms-length
Tax map 115D, section C, lots 219 & 220
Book: 646 Page: 202
The site's legal description is lots 2t9 6
220, section C of Kitty hawk UeacIi
Subdivision.
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' LAND VALUE ANALYSIS
Land Sale Number 2
' Deed Date of Sale:
Grantor:
' Grantee:
Location:

Size:
' Shape:
Frontage:
' Draina
e:
g
Topography:
'
Utilities:
' zoning:
Improvements:

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10/27/89
Southampton Investors, Inc.
Outer Banks Limited
Restside US 158, adjacent O.B. Ltd.,
Dare County, Nags !lead, NC
Square Feet: 21,402 Acres: 0.491.
Rectangular (100'x 211'x 100'x 216')
Street:US 158 Amount: 100.12 feet
Adequate
Level and cleared
Water
C2-Neighborhood Commercial District;
None
Present Use: Vacant site
Highest and Best Use: Commercial usage
Confirmed Sales Price: $190,000
Confirmed By: Bill Wheeler, Grantee
Price per Square Foot: $8.88
Price per Front Foot: $1,898
Price per Acre: $386,965
Financing: Cash to seller
Condition of Sale: Arms-length
Tax Reference: max map 179, parcel 20
Deed Reference: Book: 654 Page: 310
Comments: Although this property was purchased by an adjace?it
property owner, it is considered an arms-length sale.
Previously, the site was under a purchase contract which
fell through. The contract price was $190,000.

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LAND VALUE A14ALYSIS
Land Bale Number 3
' l
:
f S
t
d D
e
a
e o
a
Dee
' Grantor:
Grantee:
' Location:
' Size:
Shape:
' Frontage:
Drainage:
' Topography:
Utilities::
i
ng:
Zon
Improvements:
Present Use:
' Highest and Best Use:
Confirmed Sales Price:
' Confirmed By:
' Price per Square Foot:
Price per Front Foot:
' Price per Acre:
Financing:
' Condition of Sale:
Tax Reference:
'
Deed Reference:
Comments: None
08/18/88
Division of Missions, Inc.
Silver, John Whales
NWC of US 158 and Aycock Street,
Dare County, Kill Devil Hills, NC
Square Feet! 10,500 Acres: 0.2 1
Rectangular (100'x 105'x 100'x 105')
Street:US 158 Amount., 100.00 feet
Adequate
Level with scrub vegetation
Water
B-Business
None
Vacant site
Commercial usage
$87,500
Johnie Robins, R. E. Agent
$8.33
$875
$363,071
Cash to seller
Arms-length
Tax Map 140A,blk. 21, lots 36-40
Book: 586 Page: 73

LAND VALUE ANALYSIS
Land _ Sale Number a
Deed Date of Sale: 02/09/88
Grantor: Coastland Corporation
Grantee: Watson, Joseph W.
Location: NEC of US 158 and Holly Street,
Dare County, Kill Devil Hills, NC
Size: Square Feet: 29,375 Acres, 0.671
Shape: Irregular
Frontage: Street:US 158 Amount: 200.00 feet
Drainage: Adequate
Topography: Level and cleared
Utilities: Water; Private sewer
zoning. B-Business
Improvements: None
Present Use: Taco Bell site
Highest and Best Use: Commercial usage
Confirmed Sales Price: $225,000
Confirmed By: David Watson, Grantee
Price per Square Foot: $7.66
Price per Front Foot: $1,125
Price per Acre: $333,828
Financing: Cash to seller
Condition of Sale: Arms-length
Tax Reference: TM 170E, blk. J, It. 10,11,& pt. 12,13
Deed Reference: Book: 566 Page: 852
Comments: None
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Sale No.
1
2
3
4
Sale No.
Land Sales Summar
Location
Date of Sale Si..7e
Westside U.S. 158 11/14/89 40.000 SF
Kitty Hawk, NC
Eastside U.S. 158 10/27/89 21,402 SF
Nags Head, NC
Westside V.S. 1.58 08/18/88 10,500 Sr
Kill Devil Hills,NC
Eastside U.S. 158 02/09/88 29,375 SF
Kill Devil Hills, NC
Land Sales Summary (Continued)
Unad jm3ted
Zoning Utilities Price Per Square Toot
1 BC-1 Water $8.75
2 C-2 Water 88.88
3 B Water $8.33
4 B Water and Sewer $7.66

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Adjustments considered in this analysis include time, size,
location, zoning, frontage and quality of site. After evaluation,
the sales were judged similar to the subject in all characteristics
except for time of sale. Utilizing a 10% appreciation factor which
1 feel best represents current market conditions, time ad,j us tmeti L-s
were applied to the comparables.
The following adjustment chart summarizes the pertinent
dissimilarities between the sales and subject.
Commercial Highway Sales
LAND SALES ADJUSTMENT CHART:

Property
-----------------
Price per Sq.Ft.
-----------------
Financing
-----------------
Time
-----------------
Location
-----------------
Size
-----------------
Zoning
-----------------
Quality
Indicated Value

Sale 1
------$8.75
-------0.00$
------------
2.52%
------------
0.00%
------------
0.00%
------------
------------
0.00%
$8.97
Sale 2
$8.88
0.00%
------------
3.01$
------------
0.00%
------------
0.00%
------------
------------
0.00%
$9.15
Sale 3
------------
$8.33
------------
0.00%
------14.93%I'
?-------0.00$
------------
0.00%
------------
0
------------
0.00%
0.00%
$9.57
Sale 4
$7.66
0.00%
------------
20.16%
------------
0.00%
------------
0.00%
------------
0 I
------------
0.00%
$9.20
0

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EXHIBIT "E"
CURRITUCK COUNTY
Commercial Highway Sales
Commercial Back Land Sales
0
EXHIBIT "E" Continued
Currituck County
Commercial Hwy. Sales
LAND VALUE ANALYSIS
Land Sale No. 1
Deed Date of Sale:
Grantor:
Grantee:
Location:
Size:
Shape:
Frontage:
Drainage:
Topography:
Utilities:
Zoning:
Improvements:
Present Use:
Highest and Best Use:
Confirmed Sales Price:
Price Per Square Foot:
Price Per Front Foot:
Financing:
Condition of Sale:
Tax Reference:
Deed Reference:
Remarks:
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14
August 25, 1988
J. Bryan Smith Et Ux
Assorted Development Corp.
Westside of U.S. 158 approximately 1, 200
feet north of the U.S. 158 and SR 1107
intersection, Poplar Branch Township,
Currituck County, NC.
44,860
Rectangular
234 feet on U.S. 158
Adequate
Wooded and Level
None
B30-Business
None
Vacant Site
Commercial Usage
$50,000
$1.11
$214
Cash to Seller
Arms-length
Tax Map 124, Parcel 126
Deed Book 248, Page 697
This site is located 2.75 +/- miles
north of the Wright Memorial Bridge.

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LAND VALUE ANALYSIS
Land Sale No. 2
Deed Date of Sale:
Grantor:
Grantee:
Location:
Size:
Shape:
Frontage:
Drainage:
Topography:
Utilities:
Zoning:
Improvements:
Present Use:
Highest & Best Use:
Confirmed Sales Price:
Price Per Square Foot:
Price Per Front Foot:
Price Per Lot:
Financing:
Condition of Sale:
Tax Reference:
Deed Reference:
February 5, 1988
P. F. Crank, Jr.
William O. Campbell et ux
Lot B, Section II, Grant Eighty Nine
Subdivision, Poplar Branch Township,
Currituck County, NC
40,000 Square Feet
Rectangular
125' on U.S. 158
Adequate
Level and Mostly Wooded
None
B30-Business
None
Vacant Site
Commercial Usage
$44,000
$1.10
$352
$44,000
Cash to Seller
Arms-length
Tax Map 124, Parcel 95D
Deed Book 237, Page 305

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LAND VALUE ANALYSIS
Land Sale No. 2, Continued
Remarks: This parcel is located 2.5+/- miles
north of the Wright Memorial Bridge.
The site is located along the Westside
of U. S. Highway 158.
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LAND VALUE ANALYSIS
Land Sale No. 3
Deed Date of Sale: October 23, 1987
Grantor: P. F. Crank, Jr. et ux
Grantee: David A. Hamilton, Jr.
Location: Westside U.S. 158 directly across from
the U.S. 158 and N.C.S.R. 1107
intersection, Currituck County, NC
Size: 60,011 Square Feet
Shape: Rectangular
Frontage: 206.00' along U.S. 158
Drainage: Adequate
Topography: Level
Utilities: None
Zoning: B-40
Improvements: None
Present Use: Vacant Land
Highest & Best Use: Commercial Usage
Confirmed Sales Price: $60,000
Price Per Square Foot: $1.00
Price Per Front Foot: $291
Financing: Cash
Condition of Sale: Arms-length
Tax Reference: Tax Map 124, 95E
Deed Reference: Deed Book 233, Page 308
Remarks: Site is located 2.5 +/- miles north of
the Wright Memorial Bridge.
' LAND VALUE ANALYSIS
' Land Sale No. 4
Deed Date of Sale:
' Grantor:
Grantee:
' Location:
' Size:
Shape:
' Frontage:
Drainage:
Topography:
' Utilities:
Zoning:
' Improvements:
Present Use:
' Highest & Best Use:
' Confirmed Sales Price:
Price Per Square Foot:
' Price Per Front Foot:
Financing:
' Condition of Sale:
' Tax Reference:
Deed Reference:
' Remarks:
December 18, 1986
Cooper, Ronnie, J., et ux
DSW Partners
Eastside U.S. 158 Near Point Harbor,
Currituck County, NC
119,405 Square Feet
irregular
288.43 feet along U.S. 158
Adequate
Level
None
B-40
None
Vacant Land
Commercial Usage
$120,000
$1.00
$416
Purchase money D.O.T. for $96,000
Arms-length
Tax Map 132D, Lot 5
Deed Book 221, Page 181
Site is located .75 mile north of the
Wright Memorial Bridge.
' LAND VALUE ANALYSIS
' Land Sale No. 5
Deed Date of Sale:
' Grantor:
Grantee:
Location:
Size:
Shape:
Frontage:
Drainage:
Topography:
Utilities:
Zoning:
Improvements:
Present Use:
Highest & Best Use:
Confirmed Sales Price:
Price Per Square Foot:
Price Per Front Foot:
Financing:
Condition of Sale:
Tax Reference:
Deed Reference:
Remarks:
August 26, 1986
Cooper, Ronnie, J., et ux
Midgette, H. B., Jr.
Eastside U.S. 158, about 1,024 feet
north of S.R. 1102
40,000 Square Feet
Irregular
200 feet along U.S. 158
Adequate
Level
None
B-40
None
Vacant Land
Commercial Usage
$36,000
$.90
$180
Cash Equivalent
Arms-length
Tax Map 132D, Lot 5
Deed Book 217, Page 311
Site is located .75 mile north of the
Wright Memorial Bridge.

LAND SALES SUMMARY
Sale No.
-------- Location
-------- Date of Sale
------------ Size
- ----
1 Westside U.S. 158 08/25/88 44,860 Sr'
Lower Currituck County, NC Inferior Similar
Similar
2 Westside U.S. 158 02/05/88 40,000 Sr'
Lower Currituck County, NC Inferior Similar
Similar
3 Westside U.S. 158 10/23/87 60,011 Sr
Lower Currituck County, NC Inferior Similar
Similar
4 Eastside U.S. 158 12/18/86 119,405 Sr'
Lower Currituck County, NC Inferior S1.n,i.1ar
Similar
5 Eastside U.S. 158 08/26/86 40,000 Sr'
Lower Currituck County, NC Inferior Simflr@r
Similar
LAND SALES SUMMARY (Continued)
Unadjusted
Sale No.
-------- Zoning Corner
------ ------- Price
-- ------ Per Square roo
-------------- t
-
1 B30 No $1.11
Similar Inferior
2 1330 No $1.10
Similar Inferior
3 840 No $1.00
Similar Inferior
4 840 No $1.00
Similar Inferior
5 840 No $ .90
Similar Inferior
4
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Commerical Hwy. Sales
ABJUSIMENIS CNANI

I ! U?adjrr-tpd 1 ! tine
! Sale 1 Price I 1 Adiusted 1 Corner 1 ; r" re
1 Number ! oer S.F. ! Tine I Price I Size (influence 1 toning I Lor-atian i r-r F.K. '

! 1 I #i.11 ! 8.2 1. #1.20
i O.ifOX1 1010irr, 0.00X! o i???Y1
#t.?? ;
1----------1------------'----------' '--
--
-
I 2 #1
1 .10 I 16.56X1 $1.28 ! r),iIOX1 10.00'!.1 O.o0X1 O.OO%1
51
4
1----------l-----•-------1----------1------------1------- ! -,-- .
3 1 $1.00 I 20.8Fr.1 11.21 1 MOM MOM 0.00X1 0109X:
1. .3
--------- '------------ '
4 ! 11.00 1 33.59X1 11.34 1 0.OOX! 10.00X1 MoX! 0.iIQ%1
----------1------------I----
5 ! $0.40 1 ?8.26X! $1124 MOM 10.00X' 0 00xi
1
'
---------- I ------------ I ---------- l --------'--------- ' ---- I ---------- I ------

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Land Sale No. 1
Deed Date of Sale:
Grantor:
Grantee:
Location:
Size:
Shape:
Frontage:
Drainage:
Topography:
Utilities:
Zoning:
Improvements:
Present Use:
Highest & Best Use:
Confirmed Sales Price:
Price per Square Foot:
Price Per Front Foot:
Financing:
Condition of Sale:
Tax Reference:
Deed Reference:
Remarks:
EXHIBIT "E" Continued
Currituck County
Commercial BackLand Sale
November 14, 1988
Joan Gallop Mathews et ux
Point Harbor Storage
Westside N.C.S.R. 1105 approximately
300' north of U.S. 158, Poplar Branch
Township, Currituck County, NC
17,393 Square Feet
Irregular
340.6' on N.C.S.R. 1105
Adequate
Level and Wooded
None
B30-Business
None of Value
Vacant Site
Commercial Usage
$10,000
$.57
$.29
Cash
Arms-length
Tax Map 132, Parcel 33
Deed Book 250, Page 890
This property is improved with a small
single family dwelling which adds no
value to the site.
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Land Sale No. 2
t Deed Date of Sale: July 8, 1988
Grantor: Fred H. Hampton et al
1 ia et ux
lan
B
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Grantee: g
.
e
an
e
Location: Lot 1 of Hampton Subdivision,. Poplar
' Branch Township, Currituck County, NC
Size: 40,000 Square Feet
' ular
Irre
Shape: g

' Frontage: 369.29 Feet on Gallop Road
Drainage: Adequate
' Topography: Level and Wooded
Utilities: None
' Zoning: B30-Business
Improvements: None
'
Present Use: Vacant Site
' Highest & Best Use: Commercial Usage
Confirmed Sales Price: $20,000
' Price Per Square Foot: $.50
Price Per Front Foot $54
000
$20
Price Per Lot: ,
' Financing: Cash to Seller
Condition of Sale: Arms-length
' Tax Reference: Tax Map 132, Parcel 32D
Deed Reference: Deed Book 243, Page 930
' Remarks: Gallop Road is a dirt road. This
represents a recent transfer of the
' subject property.

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Land Sale No. 3
Deed Date of Sale: May 27, 1988
Grantor: Outer Banks Contractors, Inc.
Grantee: John O. Rowland et al
Location: Lot 5, Shores Point Subdivision, Poplar
Branch Township, Currituck County, NC
Size: 40,277 Square Feet
Shape: Irregular
Frontage: 34.15 Feet on Shore Drive
Drainage: Adequate
Topography: Level with street front portion
cleared and rear portion wooded.
Utilities: None
Zoning: B30-Business
Improvements: None
Present Use: Vacant Site
Highest & Best Use: Commercial Usage
Confirmed Sales Price: $23,000
Price Per Square Foot: $.57
Price Per Front Foot: $674
Price Per Lot: $23,000
Financing: Cash to Seller
Condition of Sale: Arms-length
Tax Reference: Tax Map 132, Lot 5
Deed Reference: Deed Book 242, Page 437
Remarks: This lot is further from U. S. 158 than
the subject.

LAND SALES SUMMARY
Sale No.

__
------

Location
-------- Date of

Sale S WI
------- ----
Contract 1 Lot 2, Hampton Subdivision Current 40,000 S.F.
1 Parcel, Westside N.C:S.R.
1105 11/14/00 17,393 S.r.
2 Lot 1, Hampton Subdivision 07/00/00 40,000 S.F.
3 Lot 5, Shores Point 05/27/00 40
277 S
F

Subdivision , .
.
LAND SALES SUMMARY (Continued)
S

ale-No-
------

Utilities Drainage
--------- --------

Price Per Square
-----------------

Foot
-----
Contract 1 None Adequate 8.88
1 None Adequate S.57
2 None Adequate $.50
3 None Adequate $.57
1
1
1
1
1
1
1
1
1
1
1
1
1
1
Commercial BackLand Sales
ADJUSTMENTS CHART
! I Unadjusted I I Time ! ! ! f 1 Adiusted
! Sale I Price I I Adjusted I ! ! I ! Price !
! Number, .! per S.F. I Time ! Price !. Size ! Location ! coning ! Duality ! cer S,F, i
! i ! $0.88 f O.OOXI $0.88 1 MOM MOM 0.00X! O.OOY,i 10.88
l---------- l ------------ ! ---------- I ------------ f ---------- I ---------- i ---------- l ------------ i -----------i
! 2 1 $0.57 1 3.04X1 $0.59 1 0.00X1 0.00X! MOM MOX! 10.57 ;
1---------- I------------ I---------- l------------ I---------- 1---------- l---------- l------------ l------------i
1 3 I $0.50 ! 8.34X! 10.54 1 0.00X! MOM 0.00111 MOM $0.54 i
1---------- 1------------ I---------- l------------ I---------- l---------- I---------- i------------ i------------i
! 4 ! $0.57 1 MOM 10.63 ! 0.001! 0.00X1 0.001! MOM 10.63 !
--------- ----------- i ---------- ----------------- ' ---------- ------ l ------------ i ------------ i

EDUCATION
QUALIFICATIONS OF F. BRUCE SAUTER
Post Office Box 7123
Greenville, North Carolina 27835-7123
B.S. University of Maryland, 1966
t Commissioned Officer USMCR, 1967
N.C. Real Estate Brokers License, 1971
AIREA Course 1-A "Appraisal Principles
and Valuation Procedures"
' University of Georgia, 1973
AIREA Course 1-13 "Capitalization Theory
and Techniques"
' University of Georgia, 1974
AIREA Course VIII "Residential Valuation"
University of Maryland, 1975
' AIREA Course II "Urban Properties"
University of North Carolina, 1976
AIREA Course VI "Investment Analysis"
AIREA Education Center, Chicago, Illinois, 1977
' AIREA "Standards of Professional Practice"
University of North Carolina, 1982
' PROFESSIONAL MEMBERSHIPS
American Institute of Real Estate Appraisers (MAI)
Society of Real Estate Appraisers (SRPA)
National Association of Realtors
' North Carolina Association of Realtors
Greenville-Pitt County Board of Realtors
' Greenville-Pitt County Horne Builders
EXPERIENCE
Sauter, Phelan & Associates 1988 -Present
' Real Estate Appraisers & Consultants
F. Bruce Sauter & Associates 1984 - 1987
Real Estate Appraisers & Consultants
' Moore & Sauter 1975 - 1983
Appraisers, Brokers & Consultants
Wheless & Moore, Inc. 1972- 1975
' Real Estate Appraisers
TYPICAL APPRAISAL ASSIGNMENTS
' Single and Multi-Family Residentials, Office
Buildings, Shopping Centers, Townhouses,
PUD's, Condominiums, Warehouses,
Manufacturing Buildings, Motels, Restaurants,
' Marinas, Day Care Centers, Highway Acquisitions,
Powerline Right of Ways, National and
State Park Acquisitions, Farms, Timberlands,
Rural Residentials, Subdivisions and Planned
' Communities, Industrial and Special Purpose
Properties, Golf Courses, Resort Developments
and Ocean Beach Properties
Qualified as Expert Witness in Superior Court
' and Commissioners Hearings in Following North
Carolina Counties: Pitt, Hertford, Dare, Beaufort,
Lenoir, Pender, Duplin, Carteret, Wake
INSTITUTIONAL CLIENTELE
Federal National Mortgage Association (FNMA)
Federal Horne Loan Mortgage Corporation (FHLMC)
U.S. Department of Interior - National Park Service
North Carolina Department of Administration
North Carolina Department of Transportation
Carolina Power and Light Company
City of Greenville, North Carolina
Greenville Utilities Commission
Greenville Redevelopment Commission
City of Washington, North Carolina
Washington Housing Authority
City of New Bern, North Carolina
City of Kinston, North Carolina
North Carolina Nature Conservancy
FINANCIAL CLIENTELE
BB&T, Greenville, NC
North Carolina National Bank, Greenville, NO
First Wachovia Mortgage Company, Greenville, NO
Barclays Bank of North Carolina, Greenville, NO
First Mark Mortgage Corporation, Greenville, NO
First Federal Savings & Loan, Greenville, NO
Horne Federal Savings & Loan, Greenville, NO
Planters National Bank, Greenville, NO
Peoples Bank & Trust Company, Greenville, NO
First American Savings Bank, Greenville, NC
Home Savings & Loan, Washington, NO
Great Atlantic Savings Bank, Manteo, NC
Pioneer Savings Bank, Rocky Mount, NC
Atlantic Permanent Savings Bank, Norfolk, VA
Wachovia Bank & Trust, Greenville, NO
PROFESSIONAL AND CORPORATE CLIENTELE
White & Allen, P.A. - Attorneys, Kinston, NC
Laurence S. Graham - Attorney, Greenville, NO
Shearin & Arclibell - Attorneys, Kitty Hawk, NO
Tharrington, Smith, Hargrove-Attorneys, Raleigh, NO
Ward and Smith, P.A. - Attorneys, New Bern, NO
John C. Proctor & Co. -CPA, Greenville, NC
Merrill Lynch Relocation Management, Atlanta, GA
Hornequity, Wilton, CT
E.I. du Pont, Wilmington, DE
Relocation Realty, New York, NY
Equitable Relocation Service, Washington, DC
Coldwell Banker Relocation Management, Atlanta, GA
Employee Transfer Company, Chicago, IL
General Motors Corporation, Detroit, MI
AT&T, Burlington, NC
Phillips Petroleum Co., Atlanta, GA
Eaton Corporation, Cleveland, OH
Texaco, Inc., Charlotte, NO
Empire Brushes, Inc., Greenville, NC
Proctor & Gamble, Cincinnati, OH
Relocation Resources, Hanover, MA
Marvin K. Blount, Jr.-Attorney, Greenville, NC
Stephen F. Home-Attorney, Greenville, NC
Lowrimore, Warwick & Co. -CPA, Greenville, NO
I
QUALIFICATIONS OF THE APPRAISER
John M. Phelan, Jr., GRI, GBI
EDUCATIONAL BACKGROUND AND TRAINING
' Liberal Art Degree (A.B.) with a double major in both English and History,
East Carolina University, 1969
' Essentials of Management Program, Old Dominion University, 1971 (Eight
required business courses for non-business majors leading to a M.B.A. Degree)
' American Institute of Real Estate Appraisers, Appraisal Courses IA, IB, VIII;
Capitalization Theory and Techniques, Part I; Litigation/Condemnation; and
Standards of Professional Practice
' Narrative Report Writing Course, Society of Real Estate Appraisers, 1980
Graduate of North Carolina Realtors Institute, University of North Carolina,
' 1979.
Graduate of North Carolina Builder's Institute, North Carolina State
' University, 1987
PROFESSIONAL EXPERIENCE
' Real Estate Salesman, American Central Corporation, Norfolk, VA, 1969
Real Estate Sales Manager, Vacation Properties, Inc., Va. Beach, VA, 1970
Project Coordinator, Providence Road Townhouses, Virginia Beach, VA, 1971
Production Manager, M & S Construction, Virginia Beach, VA, 1972
' Self-Employed, John M. Phelan Realty, Dare County, NC, 1973 -Present
' PROFESSIONAL AFFILIATIONS AND LICENSES
RM Candidate, North Carolina Chapter 40, AIREA
' FNMA Appraiser #1178923 - Classification #1
Affiliate Member, Employee Relocation Council
' State of North Carolina Real Estate Brokers License #15150
' Member, Dare County, North Carolina and National Association of Realtors
Associate Member, Outer Banks, N.C. '& National Home Builders Association
North Carolina General Contractor's License #23593
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DISTRIBUTION LIST FOR APPLICATION
MATERIAL FOR STATE AND FEDERAL PERMITS FOR
KITTY HAWK WOODS PROJECT
Preston Pete
Office of Coastal Management
NC Dept. of Natural Resources
Box 769.
Morehead City, NC 28557
Phone: [phone]
Fred Annand
The Nature Conservancy
Carr Mill, Suite 223
Carrboro, NC 27510
Phone: [phone]
John Fussell
1412 Shepard Street
Morehead City, NC 28557
Phone: [phone]
Dr. Wilson Laney
US Fish and Wildlife Service
P.O. Box 33726
Raleigh, NC 27636-3726
Phone: [phone]
Dave Monroe
Town of Kitty Hawk
P.O. Box 549
Kitty Hawk, NC 27949
Phone: [phone]
Dr. Wayne Wright
Regulatory Branch
US Army Corps of Engineers
P.O. Box 1890
Wilmington, NC 28402-1890
Phone: [phone]
Deborah Sawyer
Division of Environmental Management
NC Dept. of National Resources & Community Develop.
P.O. Box 1507
Washington, NC 27889
Phone: [phone]

C

George Everett, Director
Division of Coastal Management
NC Dept. of National Resources & Community Develop.
P.O. Box 27687
Raleigh, NC 27611-7687
Phone: [phone]
Dennis Stewart
NC Wildlife Resources Commission
111 Garner Road
Greenville, NC 27834
Phone: [phone]
Alan Weakley
National Heritage Program
NC Dept. of National Resources & Community Develop.
P.O. Box 27687
Raleigh, NC 27611-7687
Phone: [phone]
John Dorney
Division of Environmental Management
NC Dept. of National Resources & Community Develop.
512 North Salisbury Street
Raleigh, NC 27611
Phone: [phone]
Tom Welbone
US Environmental Protection Agency
345 Courtland Street NE
Atlanta, Georgia 30365
Phone: [phone]
Lee Pelej
US Environmental Protection Agency
345 Courtland Street NE
Atlanta, Georgia 30365
Phone: [phone]
Dr. Russ
Hardwood
NC State
P.O. Box
Raleigh,
Phone: (
Lea
Research Cooperative
University
8008
NC 27695
)19) 737-7796
' Andreas Mager, Jr.
National Marine Fisheries Service
9450 Koger Boulevard
' St. Petersburg, Florida 33702
1

Ron Seckler
' National Marine Fisheries Service
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
' Phone: [phone]

1

1
WOODS AND K & W LAND.
COMPARISON OF KITTY HAWK

Kitty Hawk Woods K & W Land Co.
Location Kitty Hawk, Dare Co. Havelock, Craven Co.
Project Shopping Center, Commercial Retail
Residential Roads Center and Parking
and Driveways,
Multifamily Housing,
and Parking
Wetlands Impact 19.11 acres 20 acres
(some isolated, others (tributary to East
tributary to Croatan Prong Slocum Creek
Sound) and McCotter's
Canal)
Water Dependent No
Alternatives Analysis Satisfactory completed
Wetlands Mitigation
23 acre wetlands
creation in Tyrrell
County
Land Trade or
Donation
455 acres of Maritime
Forest donated to the
State
No
Did not demonstrate
that practicable
alternative
unavailable.
None proposed.
Site now owned by
Forest Service.
Applicant would
trade 1354 acres
of privately-owned
land for 514 acres
of National Forest
land.
chart/BM-D-3
JUL .r F*
{
MY ( ? t,. '? Y yr `'
SEC 1 54lS?
• r.;gy
Date
Subject
Contents
KITTY HAWK WOODS PROJECT
KITTY HAWK, DARE COUNTY, N.C.
June 27, 1990
File No. CESAW-CO89-N-028-0495
Application for Department of
the Army Permits.
Applicant response to comments by
U.S. Fish & Wildlife Service, U.S.
Environmental Protection Agency,
U.S. Army Corps of Engineers
,0
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t
LIST OF EXHIBITS
Letter from Starkey Sharp to U.S. EPA . . . . . . . . . Exhibit A
Marketing Report by Sauter, Phelan & Associates . . . . Exhibit B
Coastland Times Article . . . . . . . . . . . . . . . . Exhibit C
Letter from Wal-Mart. . . . . . . . . . . . . . . . Exhibit D
Letter from Seamark Foods . . . . . . . . . . . . . . . Exhibit E
News & Observer Editorial . . . . . . . . . . . . . . . Exhibit F

a 4
SUPPLEMENTAL MEMORANDUM
This memorandum provides additional information to answer
certain questions and to supplement contentions that are made in a
June 4th submission on the Kitty Hawk Woods Project. Six general
topics are discussed within this supplemental memorandum. These
topics are identified in a letter dated June 21, 1990 addressed to
Mr. Lee Pelej of the U.S. Environmental Protection Agency"
Reference is made to that letter for identification of the topics
Further reference is also made to the memorandum and
submission made on June 4, 1990 and prior submissions made by the
applicant in the context of this permit application. The various
agencies and other participants in this application are identified
by the same names and labels as used in the prior submittal.
1. We have submitted a copy of an agreement between the
developer and Wal-Mart. In addition, attached to this memorandumn
is a copy of an additional letter from Wal-Mart dated June 27',
1990. Both of these documents show that Wal-Mart is actively
involved in the shopping center that is proposed for development on
the applicant's property.
While it is fair and appropriate to say that the applicant has
mentioned a Wal-Mart in a number of contentions that are made in
support of this application, it remains true that the applicant
does not have a direct relationship with Wal-Mart. Not
withstanding the relationship that exists with Capital Center
Development,(the developer), and Wal-Mart, the applicant prefers
that the focus of the permit application be directed towards a
proposed shopping center as the proposed use for the property.
Our reasons in mentioning this are several. Aside from the
fact that the applicant does not have a contractual relationship
with Wal-Mart, it remains possible that Wal-Mart will not be g
participant in the proposed shopping center. If a similar retailer
becomes the ultimate tenant or owner of that portion of the
shopping center originally designated for Wal-Mart, we do not wish
to be accused of misrepresenting the project through this permit
application. We do feel that the arguments that have been
mentioned in the context of the proposed Wal-Mart store apply to
any retailer of that nature that would occupy that space in the
shopping center. Different retailers may have different standards
individually for particular sites such as parking requirements
square footage requirements and relationship with other tenants in
the shopping center. We have tried to limit our contentions to
requirements that would hold true for any retailers of this nature'We feel it this also provides an answer to the argument that this
permit application is tailored to a Wal-Mart shopping center. It
is our intention to apply for a permit for a shopping center site.
We think that this is the appropriate and required approach as set
1
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forth in the regulations.
2. The applicant has made certain contentions concerning the
alignment of the shopping center. Most of these contentions arise
out of the suggestion that the shopping center be realigned along
a north - south ridge thereby removing or eliminating wet- land
impacts.
In the June 4th submission we noted that shopping centers need
visibility in order to be successful. We also argue that by
orienting the shopping center in a north - south direction away
from the east to west highway frontage eliminates the visibility
for most of the shopping center. We have also mentioned that the
primary visual presentation to potential customers of the shopping
center will be directed to traffic arriving on the resort strip
from the west and north and to traffic that is returning to the
area looking for this particular site. If the prior arguments did
not make this point clearly, it should be understood that there is
an additional limiting factor that results from reorienting and
realigning the shopping center along the north - south ridge. By
removing the impact from the wet land areas, the view from the
highway of the shopping center site is restricted to only that
north end of the shopping center that can be seen from the road.
However, in all likelihood the vegetation consisting of a forested
wetland area that would be cleared by orienting the shopping center
as proposed would remain in place. This means that the field of
vision that could effectively see the, shopping center at all would
be limited to an area of a few hundred feet viewed from the north
facing directly south. The only effective identification for the
center would be the entrance sign that might be located on the
highway.
This point make the concept of visibility very important to
the discussion of this permit. It may be suggested as an argument
against this part of our contention that the regulations prohibit
filling wetlands but do not prohibit the removal of vegetation Or
clearing forested areas which would otherwise provide a view of the
reoriented and realigned center. However, since most of the
arguments against the proposed fill area in the shopping center
focus on these wetlands and their unique value as maritime forest
habitats, it would seem clear that the destruction of the habitat
would be equally effected by clearing and removal of vegetation as
it would by filling. This assumes that local approval which would
be necessary for this type of clearing activity could be obtained.
To provide examples of shopping centers with different
orientations we will first attempt to review the centers that exist
along the Dare County resort strip. In this review or list we will
mention only those of comparable size and will not include smaller
one to five store operations. We will describe these examples
proceeding from a northerly direction along the resort strip
towards the southern end of the strip.
2
a
a. Market Place. This center is constructed in an
shape so that the longest leg is parallel to 158.. The short
leg at its base also has certain end frontage for a theatre
and a restaurant. The main portion of the longer leg contains
a Food Lion grocery store and a locally owned department store
known as Daniels. Interspersed throughout the center are
small local shops, banks and other stores. Approximately half
of the frontage is open to exposure from the highway,
including the entrance way and the portion adjacent to tt e
lower leg and its base. The remaining portion of the frontage
contains two banks on out parcels and a savings and loan
business. These out parcels are not a part of the property
that was owned by the shopping center developer.
This shopping center is very similar in terms of its
orientation and design to the proposed center. It is alf;o
similar in that some of the frontage is not controlled by the
shopping center nor is it linked to the shopping center
development.
The depth of this property is very similar to the depth
for the proposed center. Although exact figures are not
avai 1 abl e, we esti mate the Market P1 ace depth f rom U. S. 158 to
be approximately 1,500 feet.
b. Kitty Hawk Plaza. This center is a strip center
oriented adjacent and parallel to 158. It is located
immediately south of the intersection of 158 and the Kitty
Hawk Village Road. The center contains a Ben Franklin,?a
locally owned grocery store, a locally owned drug store and a
theater. There are approximately two other local shops which
change tenants from time to time. The property is located on
a commercial site 300 feet in depth. Access to the rear of
the center for service is provided by an unpaved street.
C. Seagate North. This is a "U" shaped center with the
open end of the U facing the highway. It is located in Kill
Devil Hills and originally consisted of approximately 15 local
shops. A restaurant is located in one of the interior corners
of the U and the entire center of the U shape was designed for
parking. Several years after the center was built, a bank was
located directly on the road frontage in the parking area.
The site is estimated to be 300 feet to 350 feet in
depth. There is no rear access. The buildings composing the
center are approximately 60 feet deep with varying store
frontage.
d. Dare Centre. This center is oriented directly
facing 158 and is located in K i l l Devil Hills on the West side
of U.S. 158. Tenants include a small sized Belks department
store, a Food Lion grocery store and a Roses department store.
3
w
There are approximately 15 to 20 local shop spaces. The
entire site is located on approximately 11 acres. It is
recently constructed having been open for no more than one
year. The depth of the center is estimated to be 600 feet
from U.S. 158.
No out parcels are located in this center and all parking
is between the highway and the shopping center buildings. The
entire center is open to view from the highway along its
entire length and on the north side, additional frontage
exists on a side street. Including entrances on the side
street, the center has four entrances. Access is available to
the rear of the center by a paved road that can be entered
from the north or south end.
e. Satterfield Landing. This strip center is oriented
perpendicular to U.S. 158. Tenants include a Food Lien
grocery store and local shops. When originally constructed,
the center had no view from traffic traveling south on 158
until the traffic was immediately adjacent to the entrance io
the center. This resulted from other buildings located to the
north of the center on the same side of the road which blocked
the view and the additional fact that the back of the
buildings faced a northerly direction. A small access road is
available to the rear of these buildings on the north side.
When approaching from the south, the entire frontage of the
center was originally visible once a driver approached the
entrance way. Since the shopping center was completed, ott
parcels were developed that block most of the view from the
south. Food Lion grocery store, which is the main tenant in
the center, is located on the western end of the center. This
was the first Food Lion that was opened in the Outer Banks
area and prior to its opening, only local grocery stores
existed in this market. Since the opening of this Food Lion,
two other Food Lions have opened in the resort strip each of
which have been referred to in preceding examples.
f. Pirate's Quay Shopping Center. This is a "U" shaped
center oriented with the open portion of the U facing 158 on
the western side just north of Jockey's Ridge in the town pf
Nags Head. This center consists of all local shops and h4s
approximately 500 feet of highway frontage. It is constructed
and oriented very similar to the Seagate North center referred
to above.
g. Outer Banks Mall. This is the only enclosed mall
shopping center in Dare County. It is also the largeot
shopping facility in Dare County and it is located at the
extreme opposite end of the resort strip from the site that is
discussed in the application. Unlike most malls, the main
anchor stores do not directly access the mall area. On the
4
north, a grocery store faces 158 with parking in front between
158 and the store frontage. Original opened as a Safeway,
this store is now a locally owned store. On the opposite end
of the center is a Roses and Peoples Drug store. Between the
ends is the enclosed mall area which consists of shops facing
inward. Access is available to the rear by paved roadway
accessible from either direction. All parking is located
between the center and 158. Parking is not divided or
available from the rear of the mall area. Customers entering
any of the "anchor" stores do not have to access the mall. A
diagonal wing has been developed since the mall was originally
opened on the north side. This wing consists of local shops
only. One out parcel in the center of the parking area has
been developed with a fast food store.
Having listed each of the comparable shopping center
experiences existing in the Dare County resort strip we can
now provide some discussion of their general success and
failures. We do not have direct data to support our
contentions and, therefore, limit this discussion to general
observation. Historically, all of the shopping centers that
have been constructed in this area have been intended to
access U.S. 158 and are oriented to the highway. The most
significant exceptions would be the Outer Banks Mall and the
Satterfield Landing centers. The Outer Banks Mall is not
really an exception in terms of its orientation but only in
terms that it has an area that ' can be described as a mall.
However, even this mall area is indirectly oriented to the
highway as well by virtue of the signage which is located
along the frontage of the central mall building. A center
entrance exists and all interior stores are advertised by
signs on the exterior of the mall facing 158. The anchors are
not really a part of the mall in this instance. The
Satterfield Landing shopping center is the only center
mentioned in the list above that is oriented perpendicular to
the highway.
By way of observation, the Satterfield Landing center was
initially successful due to the location of the Food Lion
store. Prior to its opening, grocery shopping was limited to
locally owned stores which were generally higher in price than
inland grocery shopping. Because of its size and the variety
of merchandise that was offered, the store was apparently
successful. None of the local shops have had the same success
and a large amount of turn over has occurred. While the Food
Lion store continues to be successful, other Food Lion stores
in the area have now opened. The center itself appears to be
less successful than competing centers which are oriented
directly along the highway.
3. June 21. A portion of the June 4th submission discussed
the possibility of dividing parking between the front and rear of
the stores. Such a design would be intended to diminish wetland
5

impacts. Our contention was that divided parking does not
adequately serve the needs of the proposed center and additional
documentation or examples have been requested.
Among those shopping centers listed that exist in the Dare
County resort strip, none has been designed to include a divided
parking area or parking in the rear as well as in the front. In
all cases, the parking is accessible from the front of the stores
only. Even in the circumstance of the Outer Banks Mall, the
roadway in the rear of the mall is designed for service vehiclds
and does not provide parking areas of any significance.
In discussion of this issue with the proposed developers, an
additional factor that was mentioned involved public safety. When
parking is divided, one of the areas seems to inevitably die
designated as the rear parking area. When the view of these areas
for patrolling police force and security forces is limited,
additional risk of crime and vandalism becomes a factor. In this
case, dividing the parking areas would result in limiting the viow
and accessability of the "rear" area.
We also note that, while malls are sometimes designed to
provide access from all directions, individual stores muet
generally be designed to allow for storage and administrative or
office areas in the rear of the store with retail space in the
front. To provide access in this case from two opposite sides of
a store would require reorientation ahd redesign internally. This
opens up numerous questions concerning store security, duplicatidn
of check out services, internal traffic flow and various other
issues that must be addressed by the tenant. Basically, people ale.
reluctant to enter a store from a rear entrance. If you can
resolve that problem by directing traffic into a rear parking area
and remove the negative connotation of a rear entrance, it
necessitate a major redesign internally. This in tern requires
additional floor space at additional expense on the part of the
retailer that is not justified by a return on the investment.
A redesign of this kind would also necessitate a division pf
the store composing the shopping center. Because the north - south
orientation does not provide enough width, stores would continue to
need to be built along the north - south ridge. Such a parking
arrangement would basically eliminate room that would normally be
used for the location of stores.
4. Some discussion has occurred about the possibility of
locating a shopping center on alternative sites available in
Currituck County on the opposite side of the Wright Memorial
Bridge. We submit along with this supplemental information a copy
of a report prepared by Sauter-Phelan & Associates. This report
was designed and intended to discuss the proposed shopping center
for the purpose of complying with certain provisions of the local
ordinances of the town of Kitty Hawk. Our references to this
6

i
i
report focus on some of the data that is contained in the report,
but principally upon discussion of the type of shopper who would
use the proposed center.
Reference to the population figures that are contianed in the
report will show that the population on a permanent basis of the
Dare County resort area is not large enough to support a shopping
center of the nature that is proposed. Indeed, the permanent
population could not support on a profitable basis any more than
one or two of all of the shopping centers listed in the preceding
part of this memorandum. It should be clear that the clientele
that will support any shopping center in this area comes from the
tourist trade arising during the resort season. Population figures
for Currituck County would support the same conclusion. There are
fewer permanent residence in Currituck County than there are in
Dare County. Summer or tourist type population for Curritudk
County is increasing but only in the area of the Currituck Outer
Banks. Access to the Currituck Outer Banks is provided by the
Wright Memorial Bridge and that portion of 158 that the proposed
center would front upon.
There are no shopping centers located in Currituck County.
There are no incorporated towns in Currituck County. There are
approximately three locally owned grocery stores in Currituek
County, the closest of which is located 15 miles north of the
western end of the Bridge. A small grocery store that was located
approximately 5 miles from the western end of the bridge was not
successful and closed approximately four years ago.
In a discussion of this nature, it is important to view a
location in Currituck County from the point of view of the
potential tenants. The question is, on what basis would a large
retailer, a grocery store or a drug store, locate in Currituek
County. Second, if they did locate in Currituck County, in what
area of the county would they locate. Presumably, a store would
locate in the county if they felt that sufficient business would he
generated for a profitable operation. Clearly, the population ba§'e
in Currituck County would not, in and of itself, justify the
location of any of these types of stores. No significant growth is
occurring at the present time in the southern end of Currituek
County. Some collateral growth that results from satellite
communities to the Hampton Roads metropolitan area is occurring in
the northern most portions of Currituck County, approximately 45
miles away. Even this growth has not yet enticed any major
retailers to build facilities similar to those that are proposed J;n
this permit in the northern community of Moyock. The southern
portion of Currituck County is far behind in terms of its present
growth rate.
This means that the retailers we are discussing would clearly
have to expect to obtain business from outside of the permanent
resident pool. The logical source for that business would be the
7
I ;
tourist trade generated by the Dare and Currituck Counties resort
strips.
It may be suggested that i ncomi ng touri sts woul d stop f i rst at
shopping facilities located in the Currituck County mainland on the
western end of the bridge. However, a logical analyses shows that
incoming tourist would not habitually shop in that manner. To
address certain obvious points, these tourists are generally
arriving after a long drive in loaded automobiles. If space is
available in the automobile, it would normally would have been
filled by shopping at home. For shopping needs that do exist once
the tourists arrive, these objectives will be filled once the
tourists arrive at their destination. The most obvious need would
be for food supplies during the projected stay. Once the tourist
arrives, the logical place to obtain this type of shopping is the
closest available facility. These tourists are not likely to
travel west across a bridge with any additional that might be
acquired for a suitable upland site in lower Currituck County.
In short, the information we have submitted shows that any
successful retail operation of the nature that is proposed would
depend upon the tourist trade resulting from the Dare County resort
strip. To expect that that trade would overflow and carry across
the bridge into lower Currituck County is unreasonable. It is also
unreasonable to expect that under the present market conditions
that any retailer or developer would take the risk and investment
necessary to build on an upland site in Curr i tuck County when faced
with the existing competition from the shopping that is available
on the resort strip.
5. We have discussed the necessity for a certain amount of
depth as a minimum requirement for a shopping center. In the
listing of other sites located on the Dare County resort strip, we
have tried to identify the depth of comparable shopping center
facilities. A review of that portion of this memorandum will show
that the more recently constructed quality shopping centers,
(Market Place, Dare Centre and Outer Banks Mall), all have a depth
comparable to the depth that is designed for this proposed center.
Further review will also show that the older shopping areas which
have between 200 and 400 feet of depth do not contain any major
retailers of the size proposed for this shopping center. While we
do not have specific marketing data to support this contention, we
feel that a market analysis and comparison of all shopping areas
would show that the most successful shopping centers are the new
shopping areas and that the older centers without the depth that is
implied in this design are not as successful.
The other point to be made in the discussion of these depth
requirements is the fact that local zoning and planning ordinances
often play a large part in these design characteristics. The older
centers in almost every case have, been constructed prior to the
present zoning and subdivision 'ordinances that exist in Dare
8
+! a
6. It has been argued that the shopping center could be
divided into smaller retail experiences and thereby eliminate the
requirements of a large area to support the proposed shopping
center. The example has been the discussion of a free standing
Wal-Mart as well as the other stores that might compose the center.
We acknowledge that Wal-Mart and similar retailers on some
occasions build free standing stores. In addition, grocery stores
and drug stores can also be cited as examples of free standing
stores which are self supporting. in discussion of this subject we
cite two general arguments in support of the proposed center.
First, for economic reasons involving the cost of constructing
retail facilities and the areas for profit in such development, the
shopping center developer and the potential tenants are interested
only in a "shopping center" rather than free standing store
locations. This argument has been, on some occasions, twisted to
say that we are asking for the permits in order that the developer
or the applicant may be able to make a profit. We acknowledge a
profit motivation in any development of this kind. We feel that in
the present application, the profit motivation on the part of the
applicant is a negligible factor. Discussion of this aspept
i nvo1 ves and requ i res a detai 1 ed d J scuss i on of the f i nanc i ng on the
entire 1400 acres property that is submitted as part of this
application.
We also note that some market factors must be considered in
the development of any site. Clearly, under our system, we do not
expect people to develop property at a loss. It seems to be
implicit that if property is to be developed, the developers expelpt
some type of profit or return. To this extent, market factors mu$t
be considered in this process. Here, not withstanding the
arguments of the service and other parties who may object to this
application, the mitigating factors that are a part of this permit.
must be considered.
An additional point in this discussion of possibly dividing
the proposed buildings into separate sites calls for a focus Qn
nationwide trends in this subject area. Again, the applicant feels
that common sense observation of any area of the country shows that
the trend for construction of retail facilities as proposed in this
case calls for a shopping center type of development. When factors
exist in a given marketplace that would allow for the location of
an individual store, it can generally be assumed that those factors
are the same factors that would be created by building a shopping
center. That is to say, an individual store would be located on a
free standing basis if the benefits provided by a shopping center
location are already existing. In the case of the present
application, these factors do not already exist. Retailers who
would constitute tenants for this proposed center are not willing
9

to commit the financial investment without the expected return on
the business generated by a center.
7. While it has not been addressed in any prior submission,
we feel that it is worthy to note the position of various agencies
or entities in favor or against this application.
Recommendations for approval:
1. Nature Conservancy.
2. North Carolina Heritage Foundation.
3. North Carolina Division of Environmental Management.
4. U.S. National Marine Fisheries Service.
5. N.C. Division of Coastal Management.
6. N.C. Wildlife Resources Commission.
7. Raleigh News and Observer
Recommendations that the permit be denied.
1. U.S. Fish and Wildlife Service.
2. U.S. Environmental Protection Agency.
3. N.C. Coastal Federation.
Neither list is intended to be complete. There are parties
who could be added to both lists but we feel that we have mentioned
the most significant. We have not mentioned the U.S. Army Corps of
Engineers because the corps has officially remained neutral
throughout this application process. We have also not mentioned
the town of Kitty Hawk. The town has also preferred to remain
neutral and it did not wish to become involved as an advocate or
endorser for either position. The town zoning ordinance permit
commercial development of a nature as proposed in the application
for the shopping center site. The areas zoned for commercial
development include both the high ground and the wetland areas.
The town land use plan also permits development of the nature
proposed.
The applicant feels it has addressed the objections of the
U.S. Field and Wildlife Service and that most of the questions that
may have existed at the time the last official position was taken
by the service have at least been answered.
U.S. Environmental Protection Agency, while entering its
objection, is presently considering the application.
North Carolina Coastal Federation has not participated in the
permit process which extends for over one year. They have entered
the process lately by providing certain objections and arguments
against the proposed permit. The applicant has attempted to answer
those arguments although we do not feel that the Coastal Federation
should play an active role in the permit process. We feel all of
10

the arguments made by the Coastal Federation against the
application are without merit and that most of these arguments are
without foundation in the regulations nor are they supported by the
facts.

11

SHARP, MICHAEL, OUTTEN AND GRAHAM
ATTORNEYS AT LAW
SEA SCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
STARKEY SHARP MAILING ADDRESS:
STEVEN D. MICHAEL POST OFFICE DRAWER 1027
ROBERT L. OUTTEN KITTY HAWK, NC 27949
JOHN C. GRAHAM, III FACSIMILE: [phone]
June 21, 1990
Mr. Lee Pelej
U.S. Environmental Protection Agency
345 Courtland Street N.E.
Atlanta, GA 30365
Via Facsimile
Dear Mr. Pelej:
In a telephone conversation with me on Tuesday, the 19th, you
identified several subjects on which you would like to receive
additional information. I have listed those subjects below.
r
1. Coastal Federation Letter. First, you asked for some
explanation of the letter from Wal-Mart that accompanied a letter
from the Coastal Federation. The Wal-Mart letter indicated that
Wal-Mart would not be coming to the area. In reply to the Coastal
Federation letter, we have submitted, among other informations a
copy of a letter of intent or lease agreement dated May 17, 1990.
This agreement confirms the Wal-Mart intentions regarding the Kitty
Hawk site.
2. June 4th Submission, Page 3. Referring to page 3 of our
June 4th submission, you noted that we cite experience from past
shopping center successes and failures as one of the reasons
justifying the orientation of the present proposed site plan. You
have asked that we provide examples of past failures and pest
shopping center experiences in general that support our contention.
3. June 4th Submission, Page 6. On this page, we indicated
that the experience of the developer and retailer demonstrated that
the division of parking between the front and the rear of the store
would not adequately serve our proposed site. You have asked for
further examples or documentation of this experience.
4. June 4th Submission, Page 7. At this point and in
subsequent pages of the submission, we discussed the alternative
analysis and the reasons the numerous upland sites located in
Currituck County on the other side of the Wright Memorial Bridge
are not considered as viable alternatives. You asked that we
provide additional information on''this point. You also indicated
`w .. r
Mr. Lee Pelej
June 21, 1990
Page 2
that this subject was of particular importance in the overall
discussion.
5. June 4th Submission, Page 11. At the top of this page,
we mention that shopping center developers require 600 to 800 feed
of depth in most circumstances. You asked that we identify other
circumstances where developers might not require this amount of
depth and provide comparisons to our present proposal.
6. June 4th Submission, Page 14. We discussed a free--
standing Wal-Mart store in this portion of the submission. The
real focus of this discussion was on the possibility of dividing
the shopping center site into smaller sites instead of combining
the center and thereby requiring a larger property area to support
the site. You asked that we provide'additional discussion of this
point.
We are accumulating information on each of the points raised
above and plan to submit this material to you as soon as it is
complied. In addition, I discussed by phone with you the
possibility of coming to Atlanta°to meet with you and other
officials in your office to discuss' the proposed permit. You
indicated that such a meeting might be productive. Later in the
week, I received a telephone call''-from Mike McGhee in which he
indicated a preference for Thursday, the 28th of June. We have
made reservations for travel to Atlanta on that date and will be
arriving at the airport sometime after 10:00 a.m. I would
anticipate being able to be at the EPA offices sometime after 11:00
a.m. We will be available until approximately 4:00 p.m., at which
time we have arranged for a return flight. We hope that this
meeting could involve participation by you, Tom Welbone, and Mike
McGhee.
Our exact arrival is 10:55 a.m. in Atlanta on Delta Airlines
and our departure is 4:54 p.m. We will arrange transportation for
ourselves from the airport to your office. For our part, Quentin
Bell, Rob Mosely of Capital Centre Development, and I will be the
persons attending the meeting. If you have any problems with this
date, please try to contact us as soon as possible.
Since rat ours,
Starkey/S?arp
SS/jve
cc: Mr. Mike McGhee
Mr. Tom Welbone
Dr. G. Wayne Wright
Mr. Rob Mosely
-------------
THE COASTLAND .TIMES, Tuesday, June 26, 1990,,0k9e 3A `
Nearly 100,000 Square Feet
Wal-Mart Announces Plans
For Kitty Hawk Operations,
Wal-Mart Stores, Inc. has an-
nounced plans to open a new WalMart ; ;and snack bar for the. customers' shop-
i
i

store in Kitty Hawk. "As a result, ap- ,,. p
ng conven
ence
,, ., In addition, the Kitty Hawk store
proximately 220 jobs will be created will include a garden center, pharmacy
for area residents. Wal-Mart is a na- and snack bar for the customers' shop-
tional discount retail chain' which. cur- i

:redtly operates 1,428 'stores in '30`
states,'':, said, David„ Glass,
president p
ng convenience.
! Yk,"''Wal-Mart has earned the reputation
' t,
'
,,
and chief
executive officer. pf„mee.tjgg,more. than, just, he mer-.
.
Constrction on the new store
to be chandising needs of the communities it
,
located on the wouthwest corner of ,,irservices, in traditionally demonstrating
U.S. Highway 158 and Juniper Trail; is involvement and commitment to the
scheduled -to begin later this summer. ;.'community through fund raising for
The 93,792 square-foot store is ex- local charitable causes, sponsorship of
pected to open in the summer of 1991.: 1d youth scholarships and other com-

Project developer is Capital . Centre munity projects.
t ,.: "
"
.
Development of Raleigh. Wal-Mart works to enhance the

"We are very excited about opening
quality
of life in each community

the new store in Kitty Hawk, said our company operates a retail
Glass. "Wal-Mart will be an active store or support facility," said Don
member of the community, working Shinkle, director of corporate and
with other local merchants to increase Public affairs for Wal-Mart. "This is
retail business in and around lithe Kitty accomplished through sponsorship or
Hawk area," Glass emphasized, participation in education, matching
The Kitty Hawk store will reflect grant, economic development and
the values that have guided the com- other local assistance programs."
pany since being founded in 1962. The „ Wal-Mart associates (employees)
new store has been designed as a one- enthusiastically support these
stop family shopping center. Name programs as they raise funds for
brand, high-quality merchandise will United Way agencies, children's
be featured in 36 departments includ- hospitals and numerous local
ing housewares, family apparel and charitable projects and events. Each of
shoes, recreation supplies, toys, major; these funds are eligible for a dollar-
electronics and stereo supplies, and an for-dollar match, up to $2,000, from
expanded health and beauty aids the Wal-Mart Foundation.
department. Examples . of matching grant
In addition, the Kitty Hawk store projects conducted by store associates
' ' . - --VA hr.-A-fnctc fnr ceninr
JUN 20 '90 12:11 CAPITAL CENTRE DEV. LTD. RAL NC. P.2i31
2301 Executive park West Phelan
GTeenville, NC 278,5.7123 PO. Dox 3396
[phone] Sauter 111 Carltorl Avenue
FAX-[phone] M1 Devil Hi1ls, NC 27,48-3396
?, _...: .. ..... _ ......_
F. Bruce Sauter. MAI &Associates (919)4!41-3400 .
• James G, Leach Re61 Estate Appraisers and GonstAlants PAX-(919)4417964
B. Porter Stokes John M. Phelan, JrMelvin L: Toot Richard P. Greenlee, Jr'
.
Dexter G. Moore Peggy C. C$elf
June 15, 1990 Leslie P, Gilbert .
Mr.. John D. Fife, Jr.,President
Capital Centre Development,. Ltd.
5400 Glenwood Avenue '
.Suite 300
Raleigh, North Carolina 27612
Re: Market Analysis of Shoreside Centre Shopping Center,
Kitty Hawk, Dare County, North Carolina
Dear Mr, Fife:
As requested, we have made an inspection of the above refer /
property, reviewed the necessary documents,' identified/ and
collected pertinent market data indicative of the present and
projected market in the Kitty Hawk, Muter Banks market. This
report has been prepared in accordance with sound appraisal
practices and the Code of Professional Ethics and Standards of
Professional Conduct of the American Institute of Real Estate
Appraisers as amended.
We submit herewith the following report which sets forth a brief
description of the property as well as pertinent data, analysis and
conclusions derived from our investigation,
Mr. Fife, we would like to thank you for this opportunity to be of
service to you. If we can be of further assistance, please advise.
Respectfully submitted,
Richard P. Greenlee, Jr.
Staff Appraiser
M. Phelan Jr,
/ns
Enc.
4
JUN 20 '90 12:12 CAPITAL CENTRE DEV. LTD. RAL NC.
MARKET ANALYSIS
OF
SHORESIDE CENTRE SHOPPING CENTER
KITTY HAWK, NORTH CAROLINA
Prepared For:
Capital Centre Development, Ltd.
Prepared By:
Richard P. Greenlee, Jr.
Staff Appraiser
and
John M. Phelan, Jr.
SAUTER, PHELAN & ASSOCIATES
P.O. SOX 3396
Kill Devil Hills, N.C. 27948
P.3/31
0
JUN 20 '90 12:12 CAPITAL CENTRE DEV. LTD. RAL NC.
TABLE OF CONTENTS
Letter of Transmittal
Table of contents
Contingent and Limiting Conditions
Restrictions Upon Disclosure and Use
Appraisers' Certification
Identification of Property
Objective of the Report
Function of the Report
Area Data Analysis
Neighborhood Analysis

Page No.
i
ii
iv
v
1
1
1
5
16
P.4/31
1 I I\L -v . L I L. INMI- 1 ll..
CONTINGENT AND LIMI'T'ING CONDITIONS
'1. The owner of record is assumed to have a free and clear
fee. simple tattle with no encumbrances that cannot be
cleared through normal channels.
2. The information on which this study is based has been
obtained from sources normally used by the appraiser and
considered reliable, but is in no sense guaranteed.
3. No opinion of a legal or engineering nature is
intentionally expressed or implied and no responsibility
is assumed for matters of this nature.
• 4. No survey was made especially for this study. Property
lines, area calculations, etc., of record, or otherwise
provided, are assumed to be correct.
5. The maps, plats and exhibits included herein are for
illustrations only, as an aid in visualizing matters
discussed within the report. They should not be
considered as surveys or relied upon for any other
purpose.
6. Toad bearing capacity of subsoil is assumed to be
adequate for the proposed utilization of the site, but
no borings or engineering studies' have been made and the
value conclusion could be affected by such information.
7. Your appraisers reserve the right to alter their opinion
of value on the basis of information withheld from them
or not discovered in the normal course of diligent
investigation.
8. The appraisers are not required to give testimony or to
appear in court by reason of this study, with reference
to the property in question, unless arrangements have
been made previously.
9. In the event that any material data provided your
appraiser is found to be erroneous, the sole liability
of Sauter, Phelan & Associates is to provide an amended
report based upon the corrected data.
10. In this assignment, the existence of potentially
hazardous material used in the construction or
maintenance of any building, such as the presence of urea
formaldehyde foam insulation and/or existence of toxic
waste, which may or may not be present on the property,
has not been considered. The appraiser is not qualified
to detect such substances. The client is urged to retain
an expert in this field, if desired.
Y A
JUN 20 '90 12:13 CAPITAL CENTRE DEV. LTD. RAL NC.
CONTINGENT AND LIMITING CONDITIONS (Continued)
11. It is assumed that the subject has never been utilized
as a waste disposal site for toxic or other hazardous
waste materials as defined by the appropriate government
agencies.
12. it is assumed that the subject will meet all zoning,
building, and life support requirements as established
by the appropriate government agencies or will obtain any
variances necessary.
13. It is assumed that all required licenses and/or permits,
consents, or other legislative or administrative
authority from any local, state, or national governmental
or private entity or organization have been or can be
obtained or renewed for any use on which the value
estimate contained in this report is based, in a timely
manner and without unusual cost.
14. Economic projections in this report assume a level
economy and the value stated is in U.S. Currency as of
this date.
15. Liability of Sauter, Phelan & Associates firm and
employees is limited to the fee collected for preparation
of the report. There is no accountability or liability
to any, third party.
P.6/31
16. Acceptance of and/or use of this report constitutes
acceptance of these conditions.
JUN 20 '90 12:14 CAPITAL CENTRE DEU. LTD. RAL NC. P.7/31
RESTRICTIONS UPON DISCLOSURE AND USE
The Bylaws and Regulations of the American Institute of Real Estate
Appraisers of the National Association of Realtors requires each
member and candidate to control the use and distribution of each
report signed by such member or candidate. Therefore, except as
hereinafter provided, the party for whom this report was prepared
may distribute copies of this report, in its entirety, to such
third parties as may be selected by the party for whom this report
was prepared; however, portions of this report shall not be given
to third parties without the prior written consent of the
signatories of this report. Further, neither all nor any part of
this report shall be disseminated to the general public by the use
of advertising media, public relations media, news media, sales
media or other media for public communication without consent of
the signatories of this report. The data gathered in the process
and reported in this report shall remain the property of Sauter,
Phelan & Associates.
t '
JUN 28 '90 12:15 CAPITAL CENTRE DEV. LTD. RAL NC. P.8/31
APPRAISERS' CERTIFICATION
The undersigned do hereby certify that, to the best of our
knowledge and belief,
1. The statements of fact contained in this report are true and
correct.
2. The reported analyses, opinions, and conclusions are limited
only by the reported assumptions and limiting conditions,
and are our personal, unbiased professional analyses,
opinions, and conclusions.
3. We have no present or prospective interest in the property
that is the project of this report, and we have no personal
interest or bias with respect to the parties involved.
4. Our compensation is not contingent on an action or event
resulting from the analyses, opinions or conclusions in, or
the use of, this report.
S. Our analyses, opinions and conclusions were developed, and
this report has been prepared, in conformity with the
requirements of the Code of Professional Ethics and
Standards of Professional Practice of the American institute
of Real Estate Appraisers.
6. The use of this report is subject to the requirements of the
American Institute of Real Estate Appraisers relating to
review by its duly authorized representatives.
7. No one other than the undersigned prepared the analyses,
conclusions, and opinions concerning the real estate that
are set forth in this appraisal report. However, other
members of the staff of Sauter, Phelan & Associates may have
assisted in obtaining and processing portions of the data
used. Each of the undersigned have made a personal
inspection of the property that is the subject of this
report.
8. Numerous others have provided significant professional
assistance to the persons signing this market analysis
report.
r
?0-44 1.1-t
Richard
P. Gre nlee, Jr. n M. Phelan,
Staff Appraiser
t
JUN 20 190 12:15 CAPITAL CENTRE DEV. LTD. RAL NC.
IDENTIFICATION OF THE PROPERTY
P.9/31
The subject property is known as Shoreside Centre and is
located opposite the intersection of Juniper Trail and U.S. 158 ip
Kitty Hawk. The parcel of land is irregular in shape with 778.59
feet of frontage on U.S. 158. The property consists of 30 acres
more or less and is legally described as part of a 60 acre tract
of land known as Kitty Hawk Woods.
OBJECTIVE OF THE REPORT
The purpose of this report is to estimate the general market
conditions of the land identified above, including historical and
potential levels of supply and demand in order to determine the,
need for and size of the purposed Shoreside Centre.

FUNCTION OF THE REPORT
The function of this report is to assist Capital Centre
Development, Ltd. in determining the strengths and weaknesses iz
the Outer Hanks market and specifically to meet the Town of Kitty
Hawk's zoning application requirements. The BC-3 zoning
Requirements in Section 19. request a Market Analysis containing
the following information;
A. The trade area of proposed shopping mall is all
of Dare County, the Currituck County Outer
Banks and lower Currituck from Coinjock to
Point Harbor.
B. The population of this area is estimated to be
22,501 in Dare County and approximately 14,671
in Currituck. The 1995 population is estimated
at 27,066 and 16,518 conversely.
1
JUN 20 '90 12:16 CAPITAL CENTRE DEV. LTD. RAL NC. P.10/31
C. The Dare County medium family income is
estimated to be $29,800 in 1990 and $25,800 in.
Currituck. 'The projected inoome is $38,033
for Dare County and $34,204 in Currituck in
1995.
D. The information requested under this section
is not available due to a number of factors.
The first is definite lack of any baseline
economic surveys that delineate the differences
between the buying power of year round
residents, second home owners and tourists.
The second problem deals specifically with the
fact that national firms (Wal Mart's) consider
site selection and analysis proprietary
information and will not release it.
B. The residual buyer power is delineated over a
number of charts on the facing pages and in
the area data. The Outer Banks area is the
fastest growing area in the state.
Furthermore, Dare County has been recognized
as one of the fastest growing counties in the
nation. Accordingly, the gross retail sales
have risen dramatically from $114 million in
1980 to $459 million in 1989. This represents
a 14.95$ annual compounded growth rate and
places Dare County fourth in the state, behind
only Mecklenburg (Charlotte), Guilford
(Greensboro) and Wake (Raleigh) Counties. The
interesting fact is that Dare County's remote
location and much smaller population guarantees
that almost all travel trade expenditures are
generated internally. Unlike the three
counties above, which receive a large portion
of their travel trade expenditures from pass
through travelers versus the Outer Banks
destination travelers.
The 1987 Outer Banks Chamber of Commerce Visitor Survey found
that the Outer Banks is a "family-oriented" area, with "the average
'visitor" group consisting of five persons and staying for six
nights, 94.3& of the visitors planned overnight visits, the
"typical visitor" was a repeat visitor, between 30 and 39 years of
age, a college graduate, who had an annual household income of
$50,000 or more.
2
D
.:=JUN 29 .'90 12:16 CAPITAL CENTRE DEV. LTD. RAL NC. P.11i31

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JUN 20 '90 12:17 CAPITAL CENTRE DEV. LTD. RAL NC.
P.12/31
As stated in Section D, it is difficult to correlate the net
potential and residential buying power due to the diverse nature
of the Outer Banks Market, which is so heavily influenced by the
above summer visitor. The area and retail sales are obviously
growing from immigration and not internally. Since the majority
of retail sales take place during the three months "in-season", it
is safe to assume these sales are generated by tourist--visitors.
As stated, the typical tourist is here for a short stay and will
shop first where its convenient and secondly shop at a store he/she
recognizes. Basically, this is the principle behind the grouping
and location of shopping centers. The well known national anchor
attracts smaller national or regional companies who attract local
stores due to their perception of increased traffic generating
increased sales.
The North Carolina Power Outer Banks Economic Profile, the
Chamber of Commerce 1982 Visitor Study, and the Dare County
Carrying Capacity/Development Study were reviewed as part of this
analysis. In addition, discussions were held with Gerald Pifer,
Economist for the Department of Housing & Urban Development, who
supplied the estimates of medium family income. The estimates of
population were supplied by the North Carolina Office of State
Budget and Management Information Services.
The Carrying Capacity Study referred to the peak visitor
population with density's of over 3,600 per square mile countywide,
which is comparable to the permanent population density in
Richmond, and more than 4,600 per square mile in Kitty Hawk which
3
JUN 20 '90 12:18 CAPITAL CENTRE DEV. LTD. RAL NC.
P.13/31
is slightly higher than the permanent population density in St.
Petersburg, Florida. This density insures the need for
concentrated retail shopping such as the proposed Shoreside Centre
Shopping Center, along with the fact that the average second
home owner and tourist visitor have disposable annual inoomes of
over $50,000, the gross retail sales in Dare County alone are $459
million and growing at a rate of 14.95*.

4
JUN 28 '90 12:18 CAPITAL CENTRE DEV. LTD. RAL NC. P.14i31
AREA DATA - DARE COUNTY
In the Area, analysis, the appraisers evaluate the four major
factors, Environmental, Economical, Social and Governmental, which
affect the value of the subject property. In the following four
sections, each factor will be described and analyzed,
Environmental
Dare County is the most easterly of North Carolina's 100
counties. It is best known for the Outer Banks, the unique sand
barrier reef which stretches out into the Atlantic Ocean from the
Virginia/Currituok County line to its culmination some 83 miles to
the south at Cape Hatteras Inlet,
Since the area is predominantly known as a vacation spot, its
location relative to various points alb as follows
Norfolk, VA 80
Richmond 160
Washington, D.C. 273
Philadelphia, PA 336
New York City, NY 433
Pittsburgh, PA 525
Atlanta, GA 609
Boston, MA 642
Cleveland, OH 650
Cincinnati, OH 669
Nashville, TN 764
Toronto, CN 785
5

JUN 20 '90 12:19 CAPITAL CENTRE DEV. LTD. RAL NC.
P.15/31
The Outer Banks consist of a chain of barrier islands separating
the Sound waters from the Atlantic Ocean. Tempered as it is by the
Gulf Stream, Dare County enjoys a maritime climate, with cooler
summers and warmer winters than elsewhere in the northwest region
of the state. The following table gives a brief summary of monthly
variations in average air' and water temperatures, rainfall, and
wind speeds.
WEATHER AND WATER TEMPERATURES
Weather
Month Avg. Max_ Avg. Min. Avg. Wind MPH
--------- Avg. Precip.

Jan.
Feb.
51
51
35F ~----??- 0 ---_ ------_-__----_

4.8•,
Mar.
58 34
40 15 , 0 4.6

Apr.
67
49 14.0
2.1
May. 75 58 15.2 3.1
Jun. 82
67 13.0 4.5

Jul.
87
72 13.2

12.8 3.8

6
3
Aug.
Sep. 86
80 71 11.6 .
.0
Oct. 72 67
58 11.4 5 5.2

Nov.
63
47 12.4
13.9 3.1
3
5
Dec. 53 37 13.9 .
3.5
Average Water Tem peratures at Diamond Shoals
Jan. 47 Jul. 76
Feb. 50
Aug.
79
Mar. 55 Sept- 75
Apr- 58 Oct. 70
May
Jun. 65
75 Nov. 67
Dec. 63
Source: The Outer Banks Chamber of Commerce
The Outer Banks area of Dare County represents a natural
resource of high intrinsic value, providing economic opportunities
for the permanent residents and recreational opportunities for the
millions of visitors throughout the eastern United States.
6

JUN 20 '90 12:19 CAPITAL CENTRE DEV. LTD. RAL NC.
P. 16/31
Historical Roanoke Island, the mainland, the Dare Beaches and the
Cape Hatteras National.Seaahore comprise the major land areas of
the county. Dare County is bounded on the east by the Atlantic
Ocean and on the north, south and west by the waters of the
Alligator River; Currituck, Albemarle and Pamlico Sounds and, a
small portion of Hyde County. Situated only 80 miles south of
Norfolk and Virginia Beach, Virginia, it is dependent on southeast
Virginia for many of its goods and services.
The Outer Banks is broken up into areas designated locally as
Roanoke Island, consisting of the Towns of Manteo and Wanchese; the
Mainland, consisting of the Villages of Manns Harbour, East Lake
and Stumpy Point; the Dare Beaches, which are known as the
northern beaches, consisting of the area from Duck to Oregon
Inlet; and the southern beaches, consisting of all of Hatteras
Island. This is an area of some 391 square males and, as stated,
extends approximately 83 miles from north to south. It is
connected to the mainland by a series of modern bridges and
ferries.
in the past the Outer Banks was difficult to reach, by road due
to the surrounding bodies of waters. This in turn contributed to
its slow growth and yet its charm, i.e., its remoteness. Today the
area is served by a series of major highways and state maintained
secondary roads. The North Carolina Department of Transportation
has upgraded these roads in conjunction with the 400th anniversary
of the first English Colony on Roanoke Island on July 13, 1584.
7
JUN 2© '90 12:20 CAPITAL CENTRE DEV. LTD. RAL NC. P.17/3T
TRAFFIC COUNTS CURRITUCK SOUND BRIDGE
Annual Vehicle n_.._tv
3.3.i
3.4
3.,i
?! 3
c
o?
p 2.8
o?
2.6
r
2,4
2.2
2
1.8
1.S
1.4
1
600
5o(
40C
e 41
U v
b X0
2001
100
a
Monihiv V?h4.4.
1985 1886 1987 .1988 1989
Year
•,...1 mw Dune July Aug. $opf. 0,% 1`1111. Dec.
?] 1 88 nth
W1987 1988
r
JUN 2Q '90 12:20 CAPITAL CENTRE DEV. LTD. RAL NC.
P.18i31
_ Economic
Dare County's major industry is tourism and the primary
attraction to the tourists are the miles of beaches. The number
of tourists visiting the Outer Banks has been increasing annually.
According to the Aare Count Carrying Capacity/Development
Study Final Re t, visitation to the Outer Hanks may occur at any
of three potential scenarios. The three scenarios are listed
below.
Scenario I - LOW to Moderate Growth
Scenario 11 - Moderate to High Growth
Scenario III - High to Free Market Development
PROJECTED VISITORS TO THE OUTER BANKS
Avera a Visitors
year Scenariol
--------- Increase
-_-M----- ScenarioIl
--- Increase Scenariolil Increase
1985
1 5-, ------
59
270 - ?------- - -----a---- --- ------
1
990
1995 60,472

77,574
2.34
28
28 ,
73,351
27.13 58,275
80,500
38.38

2000
87,568 .
12.88 94,193
117
300 25.01
24
53 115,195 43.10
, . 157,443
36,68
Peak Visitors
1985
1990 125,060
135,333
8
21 125,060 125,060

1995
140,552 .
3.86 145,267
171
689 16.16 159,714
27.71
2000 151,734 7.96 ,
205
170 18.19
19
50 209,291 31-04
, . 275,970 3
1.86
Your appraisers feel that Scenario II is the most likely scen
i
ar
o.
The above table lists the projections . The projections are based
on the number of visitors within Dare County during any point in
.time.
Within Dare County, levels of employment varies with the
tourism QYcle. Generally, unemployment is low during the Spring,
8
JUN 20 '90 12:21 CAPITAL CENTRE DEV. LTD. RAL NC.
s
0
M
O
Unemployment Trends
983 1984 1988 1988 1987 1988 198
EA Dom E YCr. ® IJ.S.A
P. 19/31
4 0
JUN 20 '90 12:21 CAPITAL CENTRE DEV. LTD. RAL NC.
P.20/31
Summer, and Fall and increases during the Winter months. For
example, during 1989 the average unemployment rate for January was
7.9$ while July unemployment was considerably lower at .90%. The
table below portrays historic employment trends within. Dare County,
North Carolina, and the United States.
HISTORIC EMPLOYMENT TRENDS
1983 1984 1985 1986 1987 1988 1989
Dare County
Civilian Labor
Force: 8,940 10,670 12,120 12,860 13,740 15,310 16,130
Rate of
Unemployment: 7.6 6.7 4.9 4.6 4.0 3.7 2.9
State of N.C.
Rate of
Unemployment: 8.9 6.7 5.4 5.3 4.5 3.6 3.5
United States
Rate of
Unemployment: 9.6 7.5 7.2 7.0 6.2 5.5 5.3
Dare County's unemployment rate for 1989 was 2.9% while the
rates of North Carolina and the United States were 3.5$ and 5.3%
respectively. Although Dare County has a large amount of variation
in its unemployment rate, the historic averages compare very
favorably with both the State of North Carolina and the United
States. Also, during the 1981-1989 period, the civilian labor
force had grown by 89.951.1
18.99% Annual compounded growth rate.
9
4 0
JUN 20 '90 12:22 CAPITAL CENTRE DEV. LTD. RAL NC.
1407
130
120
110
:? g
o 100
90
so
70
so
ECONOMIC INDICATORS FOR DARE.COUNTY
Building Pcrm1tv
1983
4eo
440
420
400
Sao
360
340
0h 3.20
0
0 300
280
260
240
2.20
200
180
1601
1968 1689
1984 loss lose 1987
Year
Retail Saks
P.21/31
1983 1984 1006 1986, 1987 1988 1989
i ?
f . "-' J
Economic activity as measured by the amount of building
permits and retail sales has grown at a rapid pace during the 1981
to 1989 period. Total retail sales increased by 302.67 percent
and the amount of building permits has increased by 192.02
percent. The following table summarizes the economic activity.
ECONOMIC INDICATORS FOR DARE COUNTY

Year Building
Permits Percent
Change Retail
S
l Percent

---- -
-------
------- a
es
------ Change
-------
1980 $33,633,230 $114
005
263
1981
1982 43,172,390
42
920
286 28.36
0 ,
,
136,157,653 19.43

1983 ,
,
63,308,244 --
.58
47.50 146,849,250
168,085
587 7.85
14
46
1984
1985 84,136,600
85
224
290 32.90
1 ,
216,914,984 .
29.05

1986 ,
,
109,523,776 .29
28.51 256,038,093
842
301
197 18.04
17
89
1987
1988 114,987,276
138
198
036 4.99
20
19 ,
,
349,000,942 .
15.62

1989 ,
,
98,214,298 .
-28.93 409,585,154
459,064,330 17.36
12.08
1980-»1989
Total. Percentage Change 192.021 302.67%
Annual. Compounded Growth Rate 11.31% 14.951
Source: Outer Banks Chamber of Commerce.
Given projected increases in both permanent residents and
visitors, Dare County should remain an attractive area for economic
development although the growth rate may not be as rapid as in
previous years.
Ad valorem taxes in Dare County are based on current
10
JUN 20 '90 12:23 CAPITAL CENTRE DEV. LTD. RAL NC.
P.23/31
assessments. In addition to Dare County taxes, each municipality
has its own tax rate. The current rates are given below:
County of Dare S.59 per $100
Kill Devil Hills .55 per 100
Kitty Hawk .37 per 100
Manteo .60 per 100
Nags Head .57 per 100
Southern Shores .32 per 100
Currituck County $.51-$.57 per $100
Source: Outer Banks Chamber of Commerce.
"According to a 'Sales Ratio Study' conducted by J. M. Kelly,
Dare County's Real Estate Analyst, total property assessments
within Dare County during 1985 were $1,238,373,869 while market
values for the year were estimated at $1,826,509,984" (source:
Outer Banks Current, February 25, 1987, page 3b).
In addition to ad valorem taxes, Dare County has a 3% lodging
tax on the gross receipts of all hotels/motels and rental cottages,
a 5$ sales tax, a 1* real estate transfer tax which is based upon
the sale price of the property, and taxes upon the sale of
alcoholic beverages. Taxes on liquor sales include the following
items:
1)A state excise tax levied at 22.54 of the retail sales
price.
2)A $.05 per bottle rehabilitation charge which is used in local
alcoholic education and rehabilitation programs.
3)A mixed beverage tax of $15 per four liters on liquor to be
resold as mixed beverages.
A majority of the profits from the sale of alcoholic beverages are
redistributed to each municipality.
11
v ?? r vv rv +.._ - r.-r yr rr i i r r? ?.•r...r i r r ?? ?? r • ?. 1 ? • 1 ?f?? 1 lt. • 1 • L..-T? yi
M ?
Governmental
The government of Dare County consists of a Board of
Commissioners who are elected and an appointed county manager,
while the five incorporated municipalities have elected town
councils with Nags Head, Kill Devil Hills and Kitty Hawk having
appointed town managers. ' The sheriff's department provides
protection throughout the county, along with the local police
departments in the various towns. There are approximately nine
volunteer fire stations strategically placed throughout the county
along with an emergency medical center located in the Town of Nags
Head which is supported by a helicopter pad and one county
helicopter for emergency service.
Electricity is provided by North Carolina Power, Tideland
Electric Corporation and on Hatteras Island, Cape Hatteras Electric
Membership Corporation. There is a county wide water system
serving the northern beaches and Manteo and on Hatteras Island
there is a Cape Hatteras Water Association serving the villages
of Hatteras, Frisco, Bunton and Avon; waste water is treated
throughout the majority of the county by septic tank systems with
some scattered private treatment plants. Telephone service is
provided by Carolina Telephone and Telegraph Company.
Approximately seventy percent of the county now has cable T.V.
available through the facilities of Outer Banks Cable Television.
As stated, the majority of the county is served by the Dare
County central water system or on Cape Hatteras by the Cape
12
4
JUN 23 '93 12:24 CAPITAL CENTRE DEV. LTD. RAL NC.
P.25/31
Hatteras Water Association. However, both systems have
experienced difficulty in keeping up with the growth and have
declared moratoriums in the past. Dare County, the Towns of Nags
Head and Kill Devil Hills have joined together and expanded the
Town's Fresh Pond Reservoir. The possibility of more water
moratoriums and lack of a central sewerage system would appear to
inhibit the potential for future growth and may limit multi-family
and commercial usage. However, there are numerous private water
and sewerage systems allowing some multi-family projects to be
developed.
Social
The entire area along the Cuter Banks is resort and
recreational in nature and attracts a considerable volume of
tourist trade during spring, summer and fall seasons. Local
business people appear to agree that the tourist season is
expanding with the season running from approximately Easter to
Thanksgiving.
The businesses located on the Dare County Beaches consist
primarily of tourist related activities such as motels, hotels,
restaurants, gift shops, variety stores, banks, realty offices,
etc. There are also a number of persons employed in the
construction, commercial fishing, charter boat building and sport
fishing industries. There is only one industrial complex at
present in the county. This is the 69 acre Wanchese Harbor
Seafood Industrial Park located in the fishing village of Wanchese
13

on the. southern end of Roanoke Island.
Dare County's population has increased from 13,377 in 1980 to
20,905 in 1988 for an average annual increase of 5.74%. Future
trends in permanent population growth are given below.
PROJECTED PERMANENT RESIDENTS ON THE OUTER BANKS
Percent Percent Percent
Year Scenario I Increase Scenario II Increase Scenario III Increase
1985 19,600 19,600 19,600
1990 23,796 21.41 29,484 24.92 31,608 61.27
1995 25,738 8.16 31,683 29.40 54,320 71.86
2000 27,886 8.35 39,470 24.58 95,166 75.20
Source: Dare County Carrying Capacity/Development Study Final
Report,
August 17, 1986
According to the North Carolina State Government Statistical
Abstract 5th Ed ition, 1984, the age group characteristics of Dare
County's permanent populati on is as follows:
0-4 5-17 18=24 25-44 45-64 65 Years
Years
--- Years Years Years Years And Over
--
Number: 769 - ------
2,346 ------
1,591 ------
3,786 ------ --------
3,200 1,690
Percent; 5.71 17.54 11.89 28.30 23.92 12.63
Median Age: 33.3 Years
The bar chart on the facing page gives a graphical representation
of Dare County's age characteristics.
14
JUN 20 '90 12:26 CAPITAL CENTRE DEV. LTD. RAL NC.
P.27/31
Access to Dare County is provided via U.S. Routes 158, 64 and
264. These three routes represent the major means of ingress and
egress to the County; however, a small amount of traffic flow
occurs from State Route 12 via a toll ferry system.
U. S. Route 158 is a combination three and five lane highway
which has the center lane as 'a permanent turn lane. Upon entering
the County near its north most boundary, the highway divides into
a by-pass and beach road. Although the by-pass was built to
facilitate traffic flow around the busy beach road, years of
commercial development along the by-pass has greatly reduced its
function. Traffic flow is generally adequate; however, some
difficulties occur during the peak season (June - August).
Routes 64 and 264 enter the county from the west. Both
highways are two lane and traffic flow is generally moderate.
State Route 12 runs from Whalebone Junction to Ocracoke. The
Highway is two lane and the only significant amount of usage
occurs during the summer season. Route 12 is connected between
Hatteras and Ocracoke Islands by a toll ferry. A series of
bridges connect the Outer Hanks, Manteo Island, Hatteras island,
and the Mainland.
15

NEIGHBORHOOD ANALYSIS
Real estate is an immobile commodity. As such, it is
influenced by the surrounding neighborhood. Conditions within the
neighborhood can affect buyer/seller opinions concerning real
estate, which is a major reason why the neighborhood description
is important in real estate valuation. The defined neighborhood
is that area which is considered to influence the subject property.
The subject's neighborhood can best be defined as the area
adjacent to and immediately surrounding U.S. 158 from lower
Currituck southward to Hatteras Village in Dare County. The
neighborhood is accessed via U. S. Hwy. 158.
Kitty Hawk lies on the north end of the beach between Kill
Devil Hills to the south and Southern Shores on the north.
Immediate land uses along U.S. 158 Bypass in this area include
shopping centers, office buildings, restaurants, service stations,
retail shops and a myriad of other commercial establishments.
designed to capture the heavy tourist trade which visits the area
every year. Much of this development has occurred during the last
ten years along with a corresponding increase in seasonal
residential developments along the ocean and soundfront area.
Along with this increase in various service industries such as
banking and related financial services, legal and accounting firms,
engineering and contracting services, real estate sales and
development companies, and medial and other professional services.
16
t F
JUN 20 '90 12:27 CAPITAL CENTRE DEV. LTD. RAL NC.
P.29/31
The Town of Kitty Hawk was incorporated on April 13, 1981.
Up until 1920, the Village of Kitty Hawk was under the jurisdiction
of Currituck County, though it was directly connected to Dare
County, which was established in 1870. In 1920, the General
Assembly made Kitty Hawk and the neighboring community of Duck part
of Dare County. Despite current talk of incorporation, a petition
of incorporation was not circulated until the winter of 1980-81.
The petition, signed by a solid majority of Kitty Hawk's residents,
was then presented to and approved by the General Assembly.
Incorporation gave Kitty Hawk the ability to preserve its
historical identity and chart its own course for the future.
The Town Charter, issued on November 22, 1981, created a
Mayor-Council form of government but short experience soon lead to
a change to the Council-Manager form.
When it incorporated, the Town had 1,598 taxpayers and 477
registered voters. At the end of 1988 there were 3,273 taxpayers
and 972 voters.
Another indicator of growth is the building permits that have
been issued for construction in Kitty Hawk:
Year 1982 1983 1984 1985 1986 1987 19RA
Permits
Issued 100 137 188 149 183 176 222
Kitty Hawk's permits represent an average of 8t of the building
permits issued in Dare County as a whale.
The Town's staff numbered three in 1981 and increased to 16
by 1988. The four room commercial office which the.Town acquired
for its town Hall was renovated with two additional rooms but
17
?s
Proved totally inadequate for the Town's needs. A Town Hall
containing a 100 seat auditorium and 11 offices has been
constructed on a 27 acre parcel of land that was donated to the
Town and was occupied in February of 1989.
All of the above indicators verify the published reports that
Kitty Hauck is one of the communities experiencing explosive
expansion. It also demonstrates the need for a Land Use Plan which
effectively manages development to provide for the health and
welfare of the population.
Recognizing the accelerating growth required professional
attention, the Town hired a Planner in September, 1987. He also
acted as Zoning Administrator, A number of program changes have
evolved: There has been a shift from lot-by-lot commercial
development to ordinances encouraging unified development;
procedures were instituted which involve the Town earlier in the
development process with developers; and ordinance changes now
ensure better compliance with zoning standards. In 1989 the Town
will establish an office of Planning Development and Management for
full time planning. It also proposes to hire a Code Enforcement
Officer for the office of Enforcement and Permits.
The Town is not only growing but it is also growing-up, it
is moving towards a program of professionalism in the management
of growth and multitude of related problems. In the area growth
will occur at a moderate to rapid pace as indicated by the average
annual compounded increase in retail sales of 16$ from 1981 to
1989. Traffic counts over the Currituck Sound Bridge have also
18
• r
JUN 20 'q© 12:28 CAPITAL CENTRE DEV. LTD. RAL NC. P.31i31
increased from 1,955,970 in 1981 to 2,768,587 in 1989 for an annual
compound increase of g$ per year. According to the North Carolina
Department of Transportation, the average daily counts along Hwy.
158 are 16,000 in Kitty Hawk; 27,200 in Kill Devil Hills and 15,700
in Nags Head. In general, increased traffic flows and continued
growth of the area will have a positive influence on the value of
commercial property in the Kitty Hawk area.

19
JUN 2© '93 12:29 CAPITAL CENTRE DEV. LTD. RAL NC.
ADDENDA
A. Resumes
B. Locatidn Map
C. Proposed Site Plan
D. Gross Retail Sales for Dare County
E. BC-3 Zoning Ordinance
P.32/31
WAL=MART°
WAL-MART STORES, INC. 701 SOUTH WALTON BLVD. • BENTONVILLE, AR 72716 501-273-4000
Writer's Direct Dial
[phone]
June 27, 1990
Robert L. Moseley, Jr.
Vice President
Capital Centre Development, Ltd.
5400 Glenwood Avenue, Suite 300
Raleigh, NC 27612
RE: Site/Design Criteria
Wal-Mart Location
Kitty Hawk, North Carolina
Dear Mr. Moseley:
Direct Fax
501-273-6599
Direct Zip Code
Department 8703
72716-0482
Although every site and trade area differ, the items you requested feedback on
speak to the basics of store location and are critical when determining where
to locate a Wal-Mart Store.
With respect to the questions about the Wright Memorial Bridge being a
barrier, Wal-Mart has found that customers avoid bridges at all costs if there
is an alternative. This is especially true if time is at a premium, such as
the situation in Kitty Hawk, where many of Wal-Mart's customers will be people
visiting the island on vacation. Long bridges like the Wright Memorial are
especially difficult because of the problems associated with weather and
traffic mishaps that many times make a bridge impassable. For these reasons,
Wal-Mart feels that a store built on the mainland would have a very high
probability of failure.
With respect to orienting the store perpendicular to Highway 158, in this
particular instance, this orientation is not feasible because of the lack of
sufficient area to provide for the necessary building and parking. In a
general sense, turning our store perpendicular to the primary arterial is not
the preferred mode because the customers have difficulty seeing the store
front sign.
With respect to parking, Wal-Mart feels that a store's success or failure
depends upon the amount and convenience of the parking to the customer. We
are relocating in excess of 100 stores in the near future primarily because of
inadequate parking.
Wal-Mart requires that the parking be in front of the store with the majority
being in the immediate front of the store's entrance. Those stalls which are
further away than 300 to 400 feet from the front entrance or to the side or
rear of the store will not be utilized by the customers except during the
extremely crowded holiday "peak season", as all of the "proper spaces" are
full and the customer will go elsewhere.

- - - - - - -- - , ' --, - - -, G A." , i L) 7 L:7 L:7 i OG"oJo r .104
Parking to the rear of a store also causes safety and security proolems.
Tractor-trailer delivery vehicles are hazardous to pedestrians an$ the
seclusion of vehicles parked to the rear invites burglaries and robberies.
Wal-Mart requires 6.5 parking spaces per 1,000 square feet of building area
for a new store. In this particular instance, 610 parking spaces wo4ld be
required in front of the store.
With respect to Wal-Mart building a free-standing store, in this instance, we
feel that a shopping center (versus a free-standing store) is the appropriate
decision. - This is based on the competition on the island, which all have
grocery co-tenants and are part of a shopping center. Because of thq high
premium placed on time by the customers, it is important to have a ong-stop
shopping destination to satisfy all of their retail needs.
With respect to the property depth questions, our typical depth is 700 to 800
feet. Many times the maximum depth is dictated by the adjoining retailers in
the center because of the undesirability of having offsetting building
fronts. The smaller retailers have difficulty in depths greater than 70th feet
because of the inability of the customer to read or see their store `front
signage from the major arterial.
I hope that the above provides some additional clarification on Wal-Kart's
criteria.
Sincerely,
Michael R. Bin am
Real Estate Manager
MB/vh
I . v 1
`
P.O. Box 1149
Nags Head, NC 27959
i
:r
Mr. Robert L. Moseley, Jr., Vice
Capital Centre Development, Ltd.
5400 Glenwood Avenue, Suite 300
Raleigh, NC 27612;
RE: Proposed Location
Seamark Foods:
Kitty Hawk, North Carolina
June 27, 1990
President
Outer Banks Mall
[phone]
Dear Mr. Moseley:
The followingwill hopefully provide '
you with some feedback regarding the
issues that you raised regarding Seamark Foods locating at the site in Kitty F•Dawk.
As a long time resident of the Outer Banks and as an operator (and owner) of
the same grocery store for 8 years (in Nags Head), I feel that several of the
issues you raised are critical to the success of a store in Kitty Hawk. T4he gro-
cery business on the Outer Banks is very unique because of the natutre of the
customer. The over.;helming majority of our customers are vacationing on t.e
island and they only have a short period of time to do what they came to the
island for...enjoy the beach and to relax. We feel our success as a grocery re-
tailer relies greatly upon our convenient location and high level of servile ex-
pected by our customers.
I will address each of the issues you raised below.
With resPect to parking, we have found that the parking needs of a grocery
store on the Outer ?En-cs are greater than that of a store on the mainland be-
cause of the tremendous peak s',z=,er traffic. We generate 8000 of our business
during the peak season and our total volume.is at or above a similarly sided
store on the mainland. The result is that we have roughly 40% more traff e on
an average day (during the peak season) than a conventional grocery store.
Ninety percent (9Co) of our customers are women and retirees and we have found
that they will not shoo a store if the parking is not convenient to the entrance.
To put parking to the sides or rear of the store would be a mistake because of
the truck traffic and relatively secluded nature of the area. Our customers do
not feel safe using parking in these areas and would elect to shop elsewhere.
With respect to orienting the store perpendicular to Highway 158, I feel
that it would be a mistake because all of the other grocery stores face the pri
:nary high;Yay se_-vicing the site. V_sibility to the main high•,rav is critical to
a grocery store's success. An example of the problem is the Food Lion at
Satter.ie_d Landing (s:t'_].ch is oriented perpendicular to the road) in Nags Head.
it is the lowest grossing Fcod Lion on the island.
i
P.O. Box 11491 Outer Banks Mail
ags Head, NC 27659
[phone]
Mr. Robert L. Moseley, Jr.
June 27, 1990
Page 2
With respect to the bridge issue, let me assure you that to locate pn the
mainland would mean certain failure. The vacationers and permanent residents
have too many options on the island not to cross the bridge. There are count-
less wrecks on the bridge that tie up traffic for hours and even the weather
can cause problems:
i
With respect ?o the depth of the property, it is important for the store
to have visibility because of that afforded our competitors. The impact of
moving the store back further than 700 feet is the same as turning the store
sideTaays...the store is at a competitive disadvantage.
I hope that the above provides you with feedback on the issues you raised.
Sincerely,
Tim Walters, President
Seamark Foods
TW:sw
i

JUN-07-1030 U 09:11 ID:BELL-GLAZENER DES GP TEL NO:919-782-2270 #178 P02
?r
l?U21ae ?r619ti twS 0 f9 5 Cez0_/Z
But l i;ttie teal world, the carrot
O*d Sti ; 't11,e developers hold out
hid e too: ' . 6rful to resist. In return
gett rig to build on the 16 acres
b#swedInds,* they would donate to
4•
01 . of ideal,
i,Ide in :the environmental
fiiiiks ?Muld-like to say a proud and
? yinoi lid " No! to developers who
ant fill 16 acres' of Kitty Hawk
*etlands near where U.S.1.58 ME:Pts
the beach to put up a Wal-Mart and
a grocery store. And if the state had
the kind of stiff controls it ought to
Have • over coa§tal. development,
then ?t at '"No l' would, indeed . be
e o?{ag; answer.
state or a conservation agency
ec4eus 4M acres of maritime
>t, on 'the Dare Banks next to
r )kcted shopping center and
e residential development..
;'s in addition to restoring 23
s in.Tyrrell County to wetlands
is to meet the federal "no net
of *etlands" rule.

,.The U.S. Army Corps of Engi-
, leers is trying to decide whether to
rant a permit for the swap. From
lt'e state's point of view, the thing
.to keep in mind is the developers'
Waim,that unless the whole pack=
e i,v i3reval, including the
eraopp?ng . area, the land
on' mare' vtwugh revenue to

but good enough
pay the mortgages., in that, ;Case,
they say, they'd have to hack their
way into the woodlaad to build still
more pricey summer., homes. ; .
.. The tract is the •lar "t. among
North Carolina's 12,00f remaining
acres of maritime fbr6t. Like the
rest, its tangle of trees 4nd brash is
invaluable in catching and holding
fresh wiater and preveptin erosion.
It also shelterq . plant, and aniMal
species that otherwise Couldn't live
on thq windy,, salty banks.
Thb N.C. Coastal Federation op-
poses the package histn dermining
existing wetlands r¢gulations. Yet
the state has'no money;;to buy that
455 acres of irrepl#c"ble forest,
and ho prospect 'of getting money
soon enough to save It from the
bulldozers. The. land-use regula-
tions that Should, ;,axed could,., pre-
vent the savaging of the,forest don't
yet exist. . '
Princi le is a noble thing and this
kind of Seal is far fro?a ideal. But
sometimes pragmatism must take
precedence. When the choice boils
nown to,saving to acres of wetlands
vs,- saving;. 455,,'acres of maritime
fd?rest, the latter O'ourse seems the
reasonable one_
_..?.:_,?.:,. "_:..>_-..:_._'.?.___?:. -_:_.. - .. .? .i_A.._ •: .•.:,.'_.. _ :.: : .tee: ?... .. ... .... _,:
SHARP, MICHAEL, OUTTEN AND GRAHAM
??. ATTORNEYS AT LAW
SEA SCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
t TELEPHONE: [phone]
STARKEY SHARP MAILING ADDRESS:
STEVEN D. MICHAEL; POST OFFICE DRAWER 1027
ROBERT L. OUTTEN KITTY HAWK, NC 27949
JOHN C. GRAHAM, III June 20, 1990 FACSIMILE: [phone]
Dr,
G. !Jayne Wright
Chief, Regulator Br tig90
Department of the Branch
SON 260
Wilmington Districtrmy
Corps of Engineers
Wilmington, NC 28402- ???41a
. 1890 I I -
Subject: File No.
CESAW-C089-N-028-0495- "-.
Kitty Hawk Woods \
Dear Dr. Wright:
We received
?'drratio)I addressed coPY
of n "/ recent 'rter
L:u you inv I" ' from the Coastal
view of the timing of the lettzrg th'e/'Kitty Hawk Woods
review process, I felt an + `at/this critical st p
age of the
/11 .- .\ rS.pOnse was necessary.
The letter refers tq %and \
Mart indicatin Provi s a'e>o from Wai-
inKiht? Hawk. $ A3at Wal;'_ i PY of a letter part will 40t be participatin
11vt have K direct ryeolu ar`e aware, the applicant in thig i the site
dealin atio?zshi
s icase does
g with a -6ha ; 'cent P wit!) Wai-:fart. The a
=elationshi --ping\er., developer who applicant is
however, wp wfth possible in turn has
hq a tenants for the shO a
e been
relationship th Wal Pr sided with PPing center;
Ma documentation that shows the
Enclosed th thi
forth the terms,. U. /letter is a copy of a
and the S__ the,lSasic lease document setting
shopping'centpr developer. Arrangements between Wal-?
particular attention to review of lath -cument
that have been raised b its recent date this donConce wrinth
by the other letter that was mailed any cons
The second was to
you.
rasp° a se the point we would like to
other comments of make will provide n general
ns to In the case of this a the Cv,stal Federation letter•
eff t has
efforts to comply with the the applican
participstin the request of the Corps go Ile to and great
g review agencies. This has involved a l sn
in cuncludinl; the application process. lengthy delay
in terms of It has also involved major
xpenditres engineering and legal costs, to say
• Wayne Wright
20, 1990
Page 2
V
nothing of the financial costs incurred as a result of the delays.
Throughout this process, the applicant has tried to cooperate with
the Corps and with all other agencies and at no time has the
applicant resorted to political
manoeuvering in an effort to influence the p rmithprocesse scenes
We are now faced with a letter which has been mailed to
several respected politicians. The letter contains inaccurate
information. It is delivered at a very critical time in the review
process and at a very late date considering the fact that this
permit review has taken more than one yaar. The applicant was not
provided a copy of the letter by the Coastal Federation nor has the
Coastal Federation ever contacted the applican directly in an
attempt to learn more about the proposed project.
We find all of this very offensive. We also feel that it
insults the integrity of the applicant as wal as the various
review agencies who have participated in this-v
lengthy permit process. complicated and
We have reviewed the letter datod June 11th from the Coastal
Federation. The letter misstatesa'nd misinterprets the June 4th
submittal from the applicant. In order that we will be sure to
have responded to all points pr.'esented _to you. We will reply
:separately to the various paragrapha 1contained in the letter.
Please let us know if this ?s___tye apprp'priate action at this time.
i
?. Sinc*.rely yours,
Starkey Sharp
SS/jve
Enclosure
cc; U.S. En ror
U.S. Fi
National
1XS2.
U.S. Senatb-z
Congressman
N.C. Senator
Agency
1Xre Service
Service
Sanford
B. Jones
Basnigh.t

Walter
Mark
SHARP, MICHAEL, OUTTEN AND GRAHAM
ATTORNEYS AT LAW
SEA SCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
STARKEY SHARP
STEVEN D. MICHAEL
ROBERT L. OUTTEN
JOHN C. GRAHAM, 111
June 21, 1990
Dr. G. Wayne Wright
Ctilef, Regulatory Branch
U.S. Army Corps of Engineers
Past Office Box 1890
Wilmington, NC 28402-1890
RE: File No. CESAW-CO'89-N-028-0495
Kitty Hawk Woods
Dear Dr. Wright:
MAILING ADDRESS:
POST OFFICE DRAWER 1027
KITTY HAWK, NC 27949
FACSIMILE: [phone]
11
We received a copy of a letter dated June 11, 1990, from the
:North Carolina Coastal Federation. The letter is addressed to the
Corps and it addresses certain matters involving the Kitty Hawk
Stood- project. The North Carolina Coastal Federation is not one of
the commenting agencies or responding agencies with whom we have
been communicating over the past one year period involving this
permit application; however, because we fee that their letter is
inaccurate and contains a number of misstatements, we felt that it
would be appropriate to provide a point by point response.
GENERAL RESPONSE
"The letter contains a number of statements of fact which do
aot accurately follow the true fact scenario as it applies to the
Kitty Hawk Woods project. In addition, the letter contains
conclusions by the Coastal Federation about the wetland regulations
and the standa"rds and requirements that ;rust be met in order to
obtain a permit. In many cases, we do not agree with the Coastal
Federation's interpretation of the regulations and their meaning.
In other cases, we feel that the slant that has been placed on the
factual representations of the letter are equally misleading. Both
of these aspects are revealed in several obvious places and are
also revealed in vary subtle distinctions.
As stated in the documentation provided in our June 4th
submission, we feel that the project meets the requirements of the
regulations and in most cases exceeds those requirements.

,j. Wayne Wright
une 21, 1990
Page 2
ALTERNATIVE DESIGNS
The Coastal Federation states that "it is clear that the
project can be modified by rotating the parking area...". The
applicant has addressed this possible design alternative in
considerable detail in the June 4th submission. The reasons that
prohibit such a design are dismissed on three basis by the Coastal
Federation:
1. it is suggested that a different business client be
sought by the applicant rather than limiting the
application and the design to the desires of one
particular company.
2. The Coastal Federation feels that the particular desires
of a business client are not compelling evidence in terms
of other alternatives.
3. The Coastal Federation appears to be referring to the
"bad precedent" argument.
In response, we note that the applicant has considered a
number of other business client; in the process of developing this
particular permit application. Because relationship exists with
a particular client, we have be--,n obli.-aced to disclose the nature
of that relationship and to focus or; the desires of that client;
however, the presentation throughout the permit application and
specifically in the June 4th submission does not limit the focus to
the single client question. The arguments we have presented that
prohibit the rotation of the project as ar. ;Icernate design apply
to :.toy :hopping center that might be loci:ed on this property.
Regardless of the tenant or the developer, market factors have
a major effect on the design of developments. As much as we would
like to require developers to use particular locations (rather than
accepting a developer's choice of location), a project will
generally not be constructed unless the dcvaloper feels that the
marketplace provides a good opportunity for success. If th--
developer's data and information indicate that highway orientation
is critical, the developer will not invest in the project unless
that orientation is available.
In the cas.e of the Kitty Hawk Woods site, the applicant has
dealt with several interest developer:, as well as several
interested tenants or ultimate users of tht: proposed site. During
the process of consideration of this property, it has been reviewed
by Belk, K-Mart and Wal-Hart, to name a few of the individual large
anchor possibilities. The applicant has also been approached by
several developers, including the present proposed developer. We
do not feel that it is appropriate or a requirement of the
`...Wayne Wright
June 21, 1990
Page 3

regulations that the Corps consider the choice of developers or
business clients or the reasons that justify the applicant's
decisions on those who have ultimately been selected.
We have tried to direct the focus of our arguments away from
a particular business client and have referred in general terms to
retail anchors and to general shopping center standards. The
implication by the Coastal Federation that we are catering to a
particular client or that we have failed to look for other business
clients as an alternative is a misinterpretation of the facts.
This argument also misinterprets the requirements of the
regulations.
In response to the bad precedent that might be established as
compared to the Florida golf course, we refer to our arguments 071
that subject in prior submissions. In summary, we feel that t'ha
permit would not establish a bad precedent and would indeed prosent
an excellent precedent or standard for other developments. On this
subject, we have obtained the agreement and endorsement of the
appropriate officials of the State of North Carolina. We have also
pointed out the. potential for bad precedent by the rejection of
this permit application. In this context, wz refer to the type of
cooperation that the Memorandum of Agreement contemplates between
the reviewing agencies and the applicant when cooperation to the.
degree that is evidenced by this application process results -In a
complete denial. There is little precedent for other developers to
provide the same cooperation.
If it is necessary for the applicant to distinguish the Kitty
hawk :floods site from the golf course site in Florida, plea:ra
provide us with specific information concerning that application
mad w.e will try to make the necessary distilICLIons. Barring such
an approach, we reel that any reference to the golf course i:l
Florida and any comparisons to this sits are inappropriate. '!
certainly do not feel that it is appropriate to make comparisons
based upon newspaper articles.
Finally, in this section of the Coastal Federation letter
reference is made to a letter from Wal-Mart dated February 14,
1990. Enclosed with this letter, you will find it copy of a letter
from Wal-Mart dated May 17, 1990. Certain financial information
from tho letter has been deleted; however, trop. the balance of the.
letter, you can see that Wal-Mart has entered an agreement with the
developer.
Please note the second to the last paragraph of the Wal-Mart
letter.. Because of Wal-Mart's concerns about press releases and
other publicity, we have been reluctant to openly disclose this
information; however, in view of the letter that has been
circulated by the Coastal Federation, we felt it was necessary to
,,G. Wayne Wright
,tune 21, 1990
Page 4
provide a copy of the agreement. I would appreciate it if you
would respect the confidentiality of this material.
ALTERNATIVE LOCATIONS
The argument by the Coastal Federation on this point again
misinterprets and misquotes the discussion of this subject in the
June 4th submission. This argument was addressed in several places
in that submission. One discussion involved the "retail shopping
e::perience" which is described in the response to the Fish and
ldildlize Service. The Coastal Federation would interpret the
applicant's position to be the argument that, because the applicant
owns a large area of wetland, it has no, alternative except to
develop within that wetland. This has never been the position of
the applicant and we have not attempted to use that argument.
Indeed, although the application was not initiated on the
understanding that the alternative analysis approach would be
necessary, we feel that we have met and exceeded the requirements
of the regulations on this point in our prior submission.
The arguments of the Coastal Federation are illustrative of a
very important concept involving the permit :application process and
the standards that are established by the 'iemorandum of Agreement
(MOA). In the case of any given application, it can be argued
that, somew/sere, another alter:a:ative e lst For any development,
It can be argued that the plans can be redesigned. For any given
uoe, it can be argued that such a usa is inappropriate for the
locality or unnecessary in the particular marketplace. Obviously,
if rhis is the approach which is established by the MOA, there is
no point in considering any application; however, the MO A clearly
eonte:inplates, that permits will be issued and establislas standards
for considering; permit applications. This ;Weans that the type of
approach that is suggested by the Coastal Federation i:3
unmistakably contrary to the intent of the MOA.
TIIRBATS OF ALTERNATIVES
The Coastal Federation refers to the possibility of oth--r
Vypes of development as a threat that has been made by the
applicant. First, in misquoting a Public Television article, the
Coastal Federation states that the developer is threatening co
construct a. golf course. Second, the type of development that
would be permitted under the current zoning regulations in Kitty
Hawk is again misquoted.
The applicant in this instance has not made'any threats of any
kind. The applicant has been approached by developers who desire
to purchase the property located within the maritime forest for the
purpose of golf course development. As is pointed out in

wayne Wright
21, 1990
Page S ,
particular detail in the various submissions, the present zoning
does not allow for golf course type of development in the Kitty
Hawk woods.
Instead, the applicant has pointed out what type of
development would be permitted on the lands owned by the applicant
in Kitty Hawk without a zoning clianga. Using the existing zoning
standards, the bulk of the maritime forest can be developed,
;providing for fifty to si:Cty residential humesites where there are
presently no plans under the proposed application format.
Considerable effort was made to point out the type of development
that can.occur under the existing zones and the fact that such
development would be necessary in order to pay the debt obligations
existing against the property.
This information has not been submitted as a threat. Rather,
as required by the MOA, it is important that the reviewing agencies
consider,the cumulative effect of the shopping center project and
the effect on the locality if the permit is denied. The *',OA
clearly contemplates this type of -consideration.. It is pointed out
in'the. last submission that it is not necessary to consider other
types of development such as golf courses. it is Sufficient to
know that under the present zoning regulations for Kitty Hawk
certain impacts would be permitted. We have provided examples of
those impacts in the form of comparison with certain other areas
within the.Kitty Hawk Woods project that are developed or proposed
zor development.
We also argue in all submissions that the value of saving the
maritime forest from these impacts far outweighs any loss that
might be considered to occur through grantini!, the permit. It would
bt: interesting to know whether the Coastal Federation is
conclusively endorsing development of the Kitty Hawk Woods maritime
forest with the resulting impacts on the surrounding wetlands and
upland habitats, along with the development of the commercially
zoned parcel without impacting wetlands. If the Corps has any
doubt of the possibility of development, we su;;s;est that the Corps
accept comments from the appropriate officials of the Town of Bitty
Hawk as to.what would be permitted under their zoning ordinance.
THE DONATION
Argument of the Coastal Federation on this point is difficult
to respond to because it is not coherent. In terms of requiring a
donation through legal authority, the argument has no merit.
Nowhere has it been argued by the applicant that any donation is
required. Indeed, the applicant feels that the combination of all
of the areas of mitigation in this application results in far more
mitigation, under any aspect of the definition, than would be
required. It is unlikely that other developers will present
G. Wayne Wright
Y rune 21, 1990
Page 6
similar offers of donation since no other areas of maritime forest
of this magnitude exist. The Coastal Federation is taking the
donation out of the context of its presentation and out of the
historical context of the development of this permit application.
We again argue that any precedent that is established by the
donation is a good precedent.
TYRRELL COUNTY MITIGATION SITE `
The speculation on the possible adverse effect on a local
school in Tyrrell County resulting from the proposed wetland
mitigation is totally without merit. Any legitimate concerns of
tails kind or any other kind relating to the site in Tyrrell County
will Se acknowledged. If the Corps has any concerns, please
identify them so that we will have the opportunity to prepare a
professional and factually.based response.
SUMMATION
It i3 the position of the applica:,t that the Coastal
Federation has misinterpreted the federal regulations as
to this application and it has misinter rote they apply
p d the proposal by the
applicant. bye feel this results in a direct misrepresentation
throughout the letter. When considering the Coastal Federation's
letter of June 11th as to its content, no response would appear to
be required or merited on the part of the applicant; however, in
consideration of the recipients of the lattWr and to avoid the
possibility chat some or all of the content3 of the letter would be
presented as "evidence" against the application, we felt it waw
necessary to provide the response set forth above. We refer,
however, to our more detailed discussion of all of these points as
set forth in the June 4th submission along with the multitude of
other documents and supporting data for this application.
Sincerely yours,
Starkey Sharp
SS/Jve '
Enclosure
cc: U.S. Environmental Protection Agency
U.S,. Fish and Wildlife Service
National'Marine Fisheries Service
w
B?
1TORTH CAROLINA COASTAL FEDERA IO
ladnot Creek Farm • 3223-4 Highway 58 • Swansboro, North Carolina 28584 • [phone]
June 11, 1990
Mr. Wayne Wright
U.S. Army Corps of Engineers
P.O. Box 1890
Wilmington, North Carolina 28402-1890
Re: Kitty Hawk Woods Shopping Center Project, Dare County
Dear Mr. Wright:
The federal requirement that wetlands must not be filled if
alternatives are available is the foundation of wetlands
protection in this country. This regulation must be stringently
adhered to or we will loose our remaining wetlands. Issuance of
a permit for Kitty Hawk Woods shopping center project would
establish a dangerous precedent that undermines the requirement
that wetlands not be filled if alternatives are available.
Evaluation of alternatives has two components: (a) is there
an alternative location for the proposed project, and (b) is
there an alternative or modified project for the site with less
wetland loss. Both of these issues must be considered if we are
to maintain our remaining wetlands. The traditional presumption,
as stated in regulation, is that there are alternatives for non-
water-dependent projects such as shopping centers. Wetland
mitigation is to be used only where there are no alternatives toJ Gt
wetland loss, and not to justify avoidable wetland loss. ?
In the present case, it is clear that the project can be
modified by rotating the parking area to substantially reduce the
wetlands loss and still provide the same commercial area and
parking area. The developers argue (June 4, 1590 submittal) that
this alternative is not viable because the major proposed
business client for the shopping center says it will not locate
there with such a design. This argument must be rejected.
Please consider:
(1) 'Finding different business clients for a site is clearly a
reasonable alternative. If the agencies responsible for C;a
managing wetlands accept the argument that the range of $
practicable alternatives includes only those acceptable to iws-
one particular company, then the evaluation of alternatives
is meaningless.
(2) The fact that a business refuses to locate at a site unless
it gets everything a certain way is clearly not compelling f°
evidence that no other alternatives are possible.
g?? printed on recycled paper
•
Mr. Wayne Wright
:June 11, 1990
Page 2.
(3) The attached article about essentially the same argument
being used for a golf course in Florida (which EPA is N0
strongly opposing) is an example of the endless series of
projects in wetlands for shopping centers, hotels,
subdivisions, golf courses, etc. that can occur if this
precedent is established.
With regard to the implication in the June 4 submittal that
this project has been driven by the need and requirements for a
Wal-Mart store, the attached letter from Wal-Mart in February
saying it had decided to not put a store in Kitty Hawk is
interesting. Apparently Wal-Mart has been tentative.
The requirement to consider alternative locations for the
project goals has also not been met. The option of having the
same amount of commercial area distributed in two or more
locations has not been realistically considered. Here too, the
developers' underlying assumption that they need certain
businesses located together in a certain type of layout with
certain visibility defeats the basic intent of evaluating
alternatives. If this assumption is accepted, then other
developers will have a strong incentive to invest in very large
projects in wetlands since they can argue there are no
alternative locations with the exact desired characteristics.
This sets in motion a precedent that is contrary to the intent of
the law and that will bring tremendous pressures on the
regulatory agencies. The attached Florida golf course case is an
example of this issue also.
Last week in a program on public TV, the developers of Kitty
Hawk Woods said that they would consider a golf course
development project if the shopping center permit were denied.
The threat that the developers will do something worse if they
don't get what they want on this permits is also included in the
June 4 submittal. However, this threat should not affect the
permit decision. The basic issue is that there are alternatives
n 1 Vll LlV1 G 1111VQV V . 1W
Iv
The fear that the critical mari forest will be ravaged
if this permit is denied is unfounded. About 740 acres of the
site (including all the proposed 455 acre donation) has strict ?„,?,?rg/
low density zoning that prohibits golf courses and other large .L•
land clearing. This zoning only allows residences on lots with
at least 80,000 square feet of high ground. Since the maritime
forest is about 50 to 80 percent wetlands, there would be very
1P

Mr. Wayne Wright
June 11, 1990
Page 3.
large lots. This zoning also requires extensive studies to
minimize and restore damage to vegetation from construction.
In addition to local authority, the Corps and State can exert
protection by requiring individual 404 permits and 401
certifications for any construction.
This permit decision may be complicated by the offer to
donate 455 acres of maritime forest if agencies agree to permit.
If the developers' arguments about evaluating alternatives are
accepted in this case, then the same arguments will have to be
accepted in other cases. But, there is no legal authority to
require any kind of "donation" of natural areas for all the other
cases that will follow. The federal regulations are unambiguous
on this point -- the permit should be denied if there are viable
alternatives with less wetland loss. If the permit is issued, it
will set a precedent that could easily cause unnecessary loss of
thousands of acres of wetlands.
It is my understanding that a school is located near the
proposed mitigation site in Tyrrell County. I have talked with
personnel from several agencies about the possibility that
altering the hydrology of the field will increase the water table a
and adversely affect the school, but apparently the detailed
mitigation plan has not been developed and no one has evaluated
this possibility. If the permit is not denied on other grounds,
the possible effect of hydrological modification on adjacent
areas should be evaluated before a permit decision is made. It
would be a debacle if the mitigation site turned out to be
inappropriate.
Thank you for carefully considering these comments. I am in
the process of obtaining additional documents about this
application and plan to submit additional comments.
Very Sincerely,
J ?^
Jim Kennedy
Environmental Scientist
cc: US EPA, Region IV
US Fish and Wildlife Service
US National Marine Fisheries Service
US Senator Terry Sanford
Congressman Walter B. Jones
NC Senator Marc Basnight
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WAL-MART STORES, INC.
CORPORATE OFFICES
BENTONVILLE, ARKANSAS 727'16
.WALMART Thomas P. Seay
Senior Vice President
Real Estate and Construction
[phone]
February 14, 1990
Mrs. Jay E. Murphy
Box 494
Kitty Hawk, NC 27949
Re: Your Letter to Mr. Glass
dated February 2, 1990
Dear Mrs. Murphy:
Thank you for the above referenced letter concerning a Wal-Mart in Kitty Hawk, NC.
We at Wal-Mart share your concern for our ecological system.
I have been to Kitty Hawk and looked at a possible Wal-Mart site; however, after
visiting your area we decided not to locate a Wal-Mart in your community. I
suspect that you have heard rumors from a trip that was made back in May of 1989.
Best of success in preserving our natural maritime forest at Kitty Hawk.
Sincerely,
F
Thomas P. Seay
TPS:rlh m
cc: Curtis Barlow
Mike Bingham
David Glass
Y?o
Cc Lv ` ??
NORTH CAROLINA COASTAL FEDERATION
adnot Creek Farm • 3223-4 Highway 58 • Swansboro, North Carolina 28584 • [phone]
H
June 18, 1990?i
Dr. Wayne Wright
Regulatory Branch "F,.,
U.S. Army Corps of Engineers S Via' " 'as
P.O. Box 1890
Wilmington, North Carolina 28402-1890 -? ¢4
L
Re: Kitty Hawk Woods Shopping Center Project, Dare County
(Second Comments)
Dear Dr. Wright:
This letter is a follow-up to my previous letter of June 13.
Please consider the following points:
As shown in the attached newspaper article, the State of
North Carolina has openly put pressure on federal agencies in an
attempt to get approval of this project, which the State
apparently recognizes in counter to the wetland protection
program. At a press conference announcing the deal, George
Everett, current Director of the Division of Environmental
Management, is quoted as saying:
"We want to send a message to federal agencies that there's
more here than maintaining wetlands. . . . If it weren't
for the maritime forest we'd have said 'No deal."'
These comments indicate the State considers the donation of 455
acres of maritime forest as reason to abandon the basic wetland
program. However, under the existing legal framework, if the
project involves an unnecessary loss of wetlands, then no
"donation" (whether money or natural resources) can make it
necessary.
As noted in my previous letter, the problem with the "deal"
is that it sets a precedent for abandoning the traditional
requirement that wetlands not be filled if alternatives are
available.
There is widespread agreement that it would physically be
possible to rotate the proposed shopping center to greatly reduce
the wetland filling for the shopping center. This has been
pointed out by both the U.S. Fish and Wildlife Service and the
Kitty Hawk Town Planner (see attached letter).
??? printed on recycled paper
Dr. Wayne Wright
7 'June 18, 1990
Page 2.
The developers provide no tangible evidence that the
proposed shopping center cannot be rotated for economic reasons
and, in fact, admit that there is evidence that stores can be
successful with such a design. The developers admit that a Food
Lion store in the area is successful even though it is located in
a shopping center perpendicular to the highway as would occur
with the rotated design for Kitty Hawk Woods (page 4 of the June
4 submittal). In an effort to negate the damaging evidence of
the Food Lion store, the developers claim that the "local shops
have a high amount of turnover" in the shopping center with the
Food Lion. However, they provide no tangible data to back up
this speculation. Turnover is normally high for local shops in a
seasonal resort situation and the developers provide no evidence
that this shopping center has higher turnover than others in the
area. In addition, the turnover of local shops can also be taken
as evidence that the market for shopping centers is already over
built. Thus, there is no tangible evidence to over come the
presumption that alternatives exist for a non-water-dependent
project.
In addition, the developers admit there are other sites in
the area that appear to be suitable for similar stores such as K-
Mart (page 14 of the June 4 submittal), but reject these sites as
not meeting the specific conditions desired for the Wal-Mart
based shopping center.
In short, approval of this project sets an unambiguous and
unrestricted precedent that wetlands can be filled with no
tangible justification other than that the developers simply want
filling for a particular project. This allows the developers to
set such an extremely narrow definition of the purpose of a
project that evaluation of alternatives becomes meaningless. In
the present case, the developers define the project purpose as
providing within a 20 mile stretch of highway the specific large
site area and other conditions desired by kcal-Mart, even though.
other stores would likely be satisfied with less environmentally
demanding conditions. The precedent set by this project appears
to be even more damaging than the controversial Old Cutler Bay
golf course project in Florida that EPA is strongly opposing.
Underlying the controversies about Kitty Hawk Woods shopping
center and Old Cutler Bay golf course is the economic issue of
whether the US Army Corps of Engineers and EPA are responsible
for approving a project in order to assure that a developer makes
a profit on land. I believe the answer to this issue is clear.
r
•` Dr. Wayne Wright
June 18, 1990
Page 3.
The Corps and EPA are not responsible for assuring that
developers make a profit, particularly when the developers pay
high prices for wetlands. The price for wetlands property should
be set by market forces consistent with the wetland protection
regulations; implementation of the regulations should not be
adjusted to fit the price paid by developers. Here too, the
wetlands management program becomes a farce if the guiding
principle is to make sure developers make a profit no matter how
much they paid for the land. If developers paid so much that
they cannot make a profit in compliance with the wetland
regulations, then that is their problem. If I make a bad
investment in the stock market, the government doesn't bail me
out. Likewise, we should not sacrifice wetlands to bail out
developers who make bad land investments.
The crisis of the savings and load bail out program shows
the absurd conclusion of unrestrained land speculation. Wetland
losses should not be added to the already enormous public cost of
excessive real estate speculation.
Thank you for considering these comments. I am still
attempting to obtain further documents relevant to this project
and plan to submit additional comments.
Very Sincerely,
Jim Kennedy
Environmental Scientist
cc: US EPA, Region IV
US Fish and Wildlife Service
US National Marine Fisheries Service
Senator Terry Sanford
Congressman Walter B. Jones
Senator Marc Basnight
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m4L? Town Manager
Mayor

CLIFTON G. PERRY
•r,•-r?""m • • •- =? ROBERT C. W. NICHOLL
1981 Town Attorney
Mayor Pro Tempore
D. PAUL PRUITT, JR.
TOWN OF KITTY HAWK JOHN G. GAW, JR.
Town Clerk
Town Council Members P.O. Box 549 LYNN U. MORRIS
ELIZABETH A. SMITH 101 Veteran's Memorial Boulevard
LEO E. ANTONUCCI Kitty Hawk, NC 27949 Town Planner
SAMUEL O. SMITH [phone] DAVID L. MONROE
June 6, 1990
Mr. Jim Kennedy
PO Box 10613
Raleigh, NC 27605
Mr. Kennedy:
Pursuant to our phone conversation today, I have researched my
file and am not able to produce a copy of the letter I cited. However,
my meeting log indicates that I participated in a meeting on
January 16, 1990, with representatives from the Nature Conservancy,
U.S.E.P.A., U.S. Army Corps of Engineers, U.S. Fish and Wildlife, N.C.
Wildlife Resource Commission and others, and the representatives of
the Kitty Hawk Woods Partnership. At that meeting and at earlier
meetings here in Kitty Hawk and in Raleigh, I stated that the impact
on wetlands for commercial development could be reduced to nearly
nothing if the shopping center site plan were rotated ninety degrees.
The proposed shopping center is depicted occupying only twenty acres
of the sixty commercially zoned acres. Such a change would have an
obvious economic impact inasmuch as a "residual commercial tract"
would not be available to sell. However, the fact remains that there
is ridge land within the BC-3 zoning district which could support the
shopping center development with only minimal impact on non-adjacent
wetlands.
incerely
David L.oe
Town Planner

DLM/bmc
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KITTY HAWK WOODS PROJECT
KITTY HAWK, DARE COUNTY, N.C.
Date June 4, 1990
Subject File No. CESAW-C089-N-028-0495
Application for Department of
the Army Permits.
Contents Applicant response to comments by
U.S. Fish & Wildlife Service, U.S.
Environmental Protection Agency,
U.S. Army Corps of Engineers.
SHARP, MICHAEL, OUTTEN AND GRAHAM
ATTORNEYS AT LAW
SEASCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
STARKEY SHARP
STEVEN D. MICHAEL
' ROBERT L. OUTTEN
JOHN C. GRAHAM, 111
' Dr. G. Wayne Wright
Chief, Regulatory Branch
Department of the Army
Wilmington District
' Corps of Engineers
Wilmington, NC 28402-1890
June 4, 1990
Subject: File No. CESAW-C089-N-028-0495
Kitty Hawk Woods
Dear Dr. Wright:
MAILING ADDRESS:
POST OFFICE DRAWER 1027
KITTY HAWK, NC 27949
FACSIMILE: [phone]
We are providing responses to various letters and meetings
that have taken place regarding the application foe a Department of
the Army permit for fill materials in Kitty Hawk, Dare County,
North Carolina. This letter and the attached documents and
information respond to the following:
1. Letter of April 26, 1990, from the U.S. Department of the
Interior, Fish and Wildlife Service, Raleigh Field Office
by L. K. Mike Gantt, Supervisor.
2. Meeting held on May 1, 1990, at the office of the
Department of the Army, Wilmington District, Corps of
Engineers in Wilmington, North Carolina.
3. Meeting on May 10, 1990, with representatives of U.S.
Fish and Wildlife Service in Raleigh, North Carolina at
the office of U.S, Fish and Wildlife. .
4. Meeting on May 16, 1990, at the office of North Carolina
Division of Environmental Management with Robert F,
"Mike" McGhee, U.S. Environmental Protection Agency,
Chief, Water Quality Management Branch.
5. Letter of May 29, 1990, from the U.S. Environmental
Protection Agency, [dater Quality Management Branch by
Robert F. "Mike" McGhee, Chief.

Dr. G. Wayne Wright
June 4, 1990
Page 2
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The first part of our response to these documents and events
is a point by point reply to the comments of the Fish and Wildlife
Service letter of April 26th. The second part of our response
contains certain information intended to supplement the documents,
reports, and other materials that have already been submitted in
support of this application, and to reply to the U.S. Environmental
Protection Agency letter of May 29th. The third part of our
response summarizes the present position of the applicant.
There are a number of attachments and exhibits to the enclosed
memorandum and these are incorporated by reference throughout the
document.
We are prepared to provide additional information or respond
to any new inquiries at your request.
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Sincerely yours,
Starkey Sh p

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TABLE OF CONTENTS
I. Response to letter dated April 26, 1990, from U.S.
Department of the Interior, Fish and Wildlife Service. . 1
A. Gen eral Comments . . . . . . . . . . . . . . . . . . 1
B. Spe cific Comments . . . . . . . . . . . . . . . . . 2
1. Memorandum, p. 1 . . . . . . . . . . . . . 2
2. Memorandum, p. 2, paragraph 3 . . . . . . . . 2
(contains discussion of alternative methods of
site layout to minimize impacts; Avoidance)
3. Memorandum, p. 2, paragraph 4 . . . . . . . . 7
(contains discussion of alternative sites;
Practicable Alternatives)
4. Memorandum, p. 3, paragraph 2 . . . . . . . 11
5. Memorandum, p. 3, paragraph 3 . . . . . . . 12
6. Memorandum, p. 5, paragraphs 2-5 . . . . . . 12
7. Prospectus, pp. 1-7 . . . . . . . . . . . . 12
8. Analysis, pp. 1-4 . . . . . . . . . . . 13
(contains additional discussion of alternative
sites)
9. Evaluation, p. 1, paragraph 1 . . . . . . . 15
10. Evaluation, p. 1, paragraphs 3ff. . . . . . 15
11. Evaluation, p. 1, paragraph 6 . . . . . . . 15
12. Evaluation, p. 2, paragraph 3 . . . . . . . 15
13. Evaluation, p. 3, paragraph 3 . . . . . . . 16
14. Evaluation, p. 3, paragraph 4 . . . . . . . 16
15. Evaluation, p. 4, paragraph 6 . r . . . . . 17
(discusses the possibility and impact of
development without permit)
16. Evaluation, p. 5, paragraph 2 . . . . . . . 19
17. Evaluation, p. 5, paragraph 5 . . . . . . . 19
C. Sum mary Comments . . . . . . . . . . . . . . . . . 19
II. Response to letter from U.S. Environmental Protection
Agency d ated May 24, 1990, from Robert F. McGhee, Chief,
Water Qu ality Management Branch. . . . . . . . . . . . 19
A . Gen eral Comments . . . . . . . . . . . . . . . . . 20
B. Spe cific Comments. . . . . . . . . . . . . . 20
1. Currituck County Location as Practicable
Alternative . . . . . . . . . . . . . . 20
2. Evolutionary Process of Permit Application . 21
3. Compliance with 404(b)(1) Guidelines and
Compliance with Memorandum of Agreement
(MOA ) . . . . . . . . . . . . . . . . . . . 24
4. Minimization . . . . . . . . . . . . . . . . 26
5. Compensatory Mitigation . . . . . . . . . . 27
a) Creation of Wetlands in Tyrrell County. 27
b) Donation into Public Ownership of
Approximately 455 Acres of Maritime
Forest . . . . . . . . . . . . . . . 28
C) Imposition of Conservation Easements. . 29
C. Summary Comments . . . . . . . . . . . . . . . 30
III. Summary Comments to Responsive Memorandum. . . . . . . 31
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LIST OF EXHIBITS

Table 1 - Summary of Wetlands to be Filled. . . . Exhibit A
' Table 2 - Summary of Wetlands to be Impacted by
T Excavation or Structures on Piling. . . Exhibit A
' Letter from Capital Centre Development. Ltd.. Exhibit B
Zoning Maps . . . . . . . . . . . . . . . . . Exhibit C
' Conservation Easement . . . . . . . . . . . . . . Exhibit D

' Conservation Easement . . . . . . . . . . . . . . Exhibit E
Names and Addresses of Agencies . . . . . . . Exhibit F
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MEMORANDUM
SUBJECT: Application for Department of the Army permit to place
fill materials in certain wetland swales for construction
' of shopping center, residential roads and driveways,
multi-family housing, and parking areas., all situated on
approximately 1,400 acres of maritime forest located in
' Kitty Hawk, Dare County, North Carolina. The application
in question has been filed by Kitty Hawk Woods
partnership (referred to throughout this memorandum as
"Applicant").
I. Response to letter dated April 26, 1990, from U.S. Department
' of the Interior, Fish and Wildlife Service. (The Fish and Wildlife
Service will be referred to throughout this memorandum as
'Service').
' A. General Comments.
Following the receipt of the April 26th letter from the
' Service, representatives of the Applicant arranged to meet with the
Service in order to review the letter. The purpose of the meeting
was to provide answers to those questions that remained from the
' point of view of the Service and to show in further detail the
reasons that the proposed wetland impacts had not been reduced any
further than those changes noted in the letter of April 26th. In
addition, the Applicant hoped to be able to persuade the Service
' that the application meets the requirements of the Section
404(b)(1) guidelines. It is the position of the Applicant that
those guidelines are met in that there is no "practicable
' alternative to the proposed discharge which would have a less
adverse impact on the aquatic ecosystem".
The Applicant feels that further examination of the issue of
' alternative sites shows that the proposed site for the shopping
center development is the only feasible site and that the
relocation of the shopping center along the upland ridge system is
' not viable for a number of reasons which are discussed in greater
detail in this memorandum.
' As a result of the meeting that occurred with the
representatives of the Service, the Applicant felt that a number of
questions had been answered, at least to the extent that explained
the reason the location of the shopping center site had not been
' changed or the size or layout reoriented. With this additional
information and the answers to these questions in mind, we feel
that careful review of all of the information relating to this
' application shows that the guidelines are met and that no
practicable alternative exists to the proposed shopping center
development. With this in mind, the other requirements of the
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' guidelines dealing with avoidance, minimization, and mitigation are
more than adequately dealt with.
' B. Specific Comments. (Paragraph headings refer to the same
headings used in the April 26th letter.)
' 1. Memorandum, p. 1: We reviewed the total wetland
impacts for the entire project as shown on the 404 permit
application map prepared by Stroud Engineering. The Service
noted a discrepancy with the figure of 19.11 acres stated in
' the evaluation. The correct figures are those shown on the
404 permit application map, subject only to the deletion of
the proposed 0.63 acre retention pond. In addition, we
' explained the different categories of wetland impacts which
are included in the total acreage and itemized for each
portion of the project. Attached to this memorandum and
' labelled "Exhibit A" are tables outlining these figures in
detail.
2. Memorandum, p. 2, paragraph 3: Significant
' discussion occurred regarding the possibility of avoiding
wetland impacts and the question of whether avoidance had been
maximized in the proposed shopping center site. We note here
' that very little discussion occurred concerning the
residential areas of the project and the question of avoidance
in those areas. The principal concern, as it has been
throughout the application process for this project, focused
' upon the shopping center site. Some discussion with the
Service addressed possibilities of avoidance within the multi-
family site. However, the focus of all discussions dealt with
' different possibilities of design modification for the
shopping center.
' In that context, we reviewed with the Service some
history of the present site plan for the shopping center. We
also identified the various participants in the shopping
center. The Applicant does not propose to build the shopping
' center itself. The Applicant has entered into a contract with
a shopping center developer, Capital Centre Development
(referred to herein as Developer). The Developer, in turn,
' has established certain relationships with retail chain stores
which will become tenants in the proposed shopping center. A
representative of the Developer, Robert L. Moseley, Jr.,
attended a portion of the meeting with the Service. In our
' discussion, the Developer explained the process by which the
site for the shopping center was selected. These discussions
are referred to in other portions of the memorandum dealing
' with the alternative site analysis and the practicable
alternative issue. In addition, the Developer discussed
different possibilities for layout of the shopping center
' itself and answered a number of questions or proposals that
were raised by the Service.
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One proposal that has been made on several occasions
throughout the permit application process has been the
rotation of the proposed shopping center design from an
east/west direction into a north/south direction. This new
location following a rotation would locate the center along
' the upland ridge that follows the western portion of the
property along the power line easement. Moseley explained
that certain decisions that are made in the context of the
' development and construction of a shopping center of this kind
are controlled by the major retailers who will provide the
'anchors' for the center.
' To properly understand these decisions, it is necessary
to recognize the chain of events that leads to a proposed
site. Although these events will be discussed in further
' detail in other portions of this memorandum, they have a
bearing on the context of the proposed layout. The Developer
is first contacted by the major retailer, in this case, Wal-
Mart. This contact authorizes the Developer to look for
possible sites for the development of a shopping center
containing a Wal-Mart as one of the anchors. The Developer
goes through a process of selecting the sites available which
' led to the selection of the Kitty Hawk Woods site addressed in
this application. After selecting the site, the Developer
discusses several different layouts for the,shopping center.
' It is important to understand that, without the participation
of the major retail anchor, the shopping center would not be
successful and would not be built. This means that the
' requirements of the major retail anchor must be satisfied in
terms of layout and construction.
The retail anchor establishes these requirements as a
' result of large experience in the construction of shopping
center sites. The experience from past shopping center
successes and failures results in a number of standards which
' are adapted to fit the market that exists in the area of the
proposed shopping center. In this case, to address certain
specific requirements, it is necessary that the center have
' visibility from the main traffic artery, U.S. 158. In order
for all portions of the center to have visibility, it is
necessary that the shopping center layout be parallel to U.S.
158. The change mentioned above which would require the
rotation of the center along a north/south access would defeat
that requirement.
' It should be noted that some portions of this center are
located behind existing buildings not owned by the Applicant
or the Developer and these buildings present certain
limitations on visibility. However, the studies and
' information that are available to the Developer and to the
anchor indicate that the directional flow of potential
customers to the shopping center will be coming from the east

' in a westerly direction on U.S. 158. The proposed layout
allows considerable visibility from the westbound lanes of
t U.S. 158 that is not blocked by the existing development along
the frontage of U.S. 158. In addition, significant portions
of the proposed center are located on higher elevations than
' the U.S. 158 frontage which would also provide sufficient
visibility.
' Although the concept of the shopping center requires a
major retail anchor, additional complimentary anchors are
necessary for the center to be successful. In this case, the
second anchor takes the form of a supermarket. A layout along
' the upland ridge system with a north/south access requires
that one anchor or the other be located at the extreme
northern end of the center. This location eliminates
' visibility for the other anchor. Without visibility, the
store will not participate. The experience of the Developer
indicates that it is not sufficient to satisfy one anchor at
the expense of the other. In this case, we cannot locate the
' primary retailer in a position of visibility at the north end
of the strip center at the expense of the secondary retailer,
the supermarket, which might be located at the other end. The
' major retailer does not wish to participate in a center in
which it is the only visible store. The supporting local
shops would have no visibility and would not lease.
' The Developer referred to an existing shopping center
site located in the Town of Nags Head as an example of a site
oriented on an opposite access to the main artery. The
' Satterfield Landing shopping center which contains a Food Lion
supermarket together with a number of supporting local shops
is located off of U.S. 158 near the north boundary line of the
t Town of Nags Head. At this point U.S. 158 runs in a
north/south direction. The shopping center in question is
located along an east/west access. The Food Lion store is
' located at the extreme west end of the center and the entire
center is on the west side of U.S. 158. The result of this
orientation is that the Food Lion store does not have direct
frontage on U.S. 158 and is visible from one direction only,
northbound traffic. Historically, this center has a record of
unsuccessful local shops. The Food Lion itself appears to
remain successful but the tenants in the local shops
' experience a high amount of turnover.
The Developer proposed to the retail anchor that the
center be located along the upland ridge system on a
' north/south access. In order to provide answers to the
visibility issue, the Developer proposed a boulevard system
which would provide access off of U.S. 158 along a roadway
' following the eastern edge of the ridge adjacent to the
wetland areas. The retail anchor indicated that it was not
willing to participate in a development of that kind. The
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experience of the Developer and the retail anchor indicates
that construction of a boulevard of this kind does not create
the necessary traffic to provide a substitute for the
visibility that would occur by being located on the
orientation of U.S. 158.
The location of the boulevard alone does not insure that
traffic w i l l use that road. In this case, the road would lead
into a residential development. That development, in and of
itself, would not be sufficient to generate traffic of a kind
and nature that would justify the shopping center. The
boulevard would not provide a substitute for the main artery
of traffic.
As a result of the market studies conducted by the
Developer and the major anchor, they have concluded that
potential shoppers are persons who first arrive in the area
and locate their accommodations. Shoppers then go back to the
shopping areas they have identified. This results in the
visibility by westbound traffic on U.S. 158 being critical
visibility. Shoppers do not turnoff of the main highway in
search of other shopping areas. This is particularly the case
when the majority of the shoppers for this proposed shopping
center are tourists. The main artery, U.S. 158, is easily
accessible to all traffic. The major competitors of the
retail anchor for this center are already in'this marketplace
with existing stores. In this instance, the Rose's Stores
located in Nags Head and Kill Devil Hills are established in
centers that are oriented adjacent to U.S. 158. It is the
experience of the Developer and the anchor that the average
shopper will chose the visible and accessible store or
shopping center when faced with a choice between visibility
and lack of visibility. Based upon this experience, the
anchor has indicated that it is not willing to participate in
this shopping center if the boulevard approach using the
north/south access is employed.
The second possible alternative to the shopping center
site plan which was mentioned was to scale down the size of
the center. In this regard, we again refer to the process by
which this proposed shopping center site plan was prepared.
The major anchor requires a considerable area designated for
parking space. In this case, the requirements of the anchor
exceed the municipal requirements. When this fact is linked
with the requirement that the store be located in a center
with another secondary anchor, such as a supermarket, certain
minimum sizes begin to develop. In order for the center to be
successful, it is also necessary for additional local shops to
be located within the center, usually between the two anchors.
Neither anchor is willing to participate in a shopping center
that does not carry these requirements.
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Additional requirements that prevent the shopping center
from being diminished in size exist through local zoning and
building regulations. Unlike many urban areas, the commercial
zone in which this center is proposed requires significant
setbacks from adjacent residential zoning. In this case,
setbacks of 100 feet consisting of buffer areas which remain
vegetated severely limit the location of the proposed center.
In short, the shopping center which is proposed to be located
on approximately 30 acres has already been reduced in size
from original plans which contemplated a center located on the
entire 60 acre zoned commercial site. Further reductions have
been necessary to accommodate local zoning and building code
requirements and to minimize those areas of wetlands which are
affected by the proposed center. Further reduction in size
would not be successful.
It is also worth noting 'at this point that a major
portion of the wetland areas which are proposed to be filled
in the commercial shopping center site are areas within the
right of way of the proposed entrance. Even if the concerns
which have been mentioned above could have been resolved to
allow relocation or reorientation of the center, the entrance
way would still be necessary and would still require a
significant wetland impact.
A third alternative discussed with the'Service was the
location of parking areas to the rear of the store. Under
this possibility, parking areas might be split or divided so
that the area required for parking in the front of the store
would be reduced. It was hoped that a move in this manner
might allow further relocations of those parts of the shopping
center situated in wetlands. It has been the experience of
the Developer and the retailer that divided parking is not
successful and will not adequately serve a store of the nature
proposed. The retail anchor will not participate in the
shopping center unless the parking is laid out in front of the
store, without division.
As reasons in support of this position, the Developer
' referred to retail shopping habits. Basically, if the shopper
cannot park directly in front of the store, experience and
studies indicate that the shopper will not stop and will not
' use the store. When a lot is full, shoppers tend to go to
other shopping areas rather than search for parking places in
the rear of the store. Techniques using signs locating the
' additional parking, directional arrows, and other methods of
informing the potential shopper of additional parking have not
proved successful.
' An additional concern involves security. To some extent,
this may explain the reasons that shoppers do not use
additional parking that may be available in the rear of a
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' building. Even though access may be provided from the rear,
shoppers have concerns about security that appear to control
their use of rear parking as distinguished from dividing
' parking as may occur in a shopping mall.
Basically, the mall experience presents a different set
t of rules affecting the layout design of a shopping center.
The commercial site is not sufficient in size on which to
locate a shopping mall and the location of a mall on this site
would undoubtedly disturb considerably more areas of wetlands
' than those which are proposed by the strip center. The
Applicant has not cited this point as an additional area of
minimization because the Developer and other interested
' parties have indicated that the market for this area would not
support a shopping mall.
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It is sufficient to say that the parking standards and
orientation for parking in a shopping mall cannot be applied
to a strip center of this kind and the relocation of portions
of the parking area for the major retailers or other stores in
this proposed center would not work. The major retail anchor
was not willing to participate in a center of this kind with
a different parking orientation and has certain specific
parking requirements which must be met.
Attached to this memorandum and labeled "Exhibit B" is a
letter from Capital Centre Development, Ltd. addressed to
Starkey Sharp. In this letter, the Developer sets forth in
additional detail some of the items discussed in this portion
of the memorandum.
Summarizing this aspect, the Applicant feels that wetland
impacts have been avoided to the maximum extent possible under
the circumstances existing for this project. The Applicant,
along with the proposed shopping center Developer and proposed
tenants of the shopping center, have reviewed in detail a
number of proposed alternatives that would modify the existing
shopping center design. Each of these alternatives have been
found to be inadequate for various reasons outlined above.
For these same reasons, development of the shopping center
would not be possible except according to the present layout.
3. Memorandum, p. 2, paragraph 4: The Service felt
that additional analysis should have been given to other
upland sites suitable for residential shopping development
rather than limiting available sites to those meeting the size
requirements for shopping center development. We feel that
this point is raised because of statements in some of the
earlier documentation referring to this site as the only
commercially zoned site in the area that has sufficient size
to support a shopping center. The process by which this site
was selected was mentioned briefly in the preceding
7

u

H
discussion. This portion of the memorandum will provide more
detailed information concerning the process.
In this case, the Applicant owns certain property located
in the Town of Kitty Hawk that includes a 60 acre site zoned
commercial with zoning requirements for shopping center
development. The Applicant was contacted by the Developer,
only after a detailed analysis of all possible sites in the
entire market area. The Developer undertook this analysis and
feasibility study following contacts between the Developer and
the major proposed anchor, Wal-Mart. Basically, Wal-Mart
indicated a desire and an intention to locate a Wal-mart store
in this market area. Being familiar with the requirements for
a Wal-Mart, the Developer proceeded to study the available
sites for a shopping center.
It is first necessary to recognize that the proposed
shopping center is located in the Town of Kitty Hawk within
the approximate center of the primary developed resort area of
Dare County, North Carolina. The resort area of Dare County
is located on a barrier island along the Atlantic Ocean.
Access to this area is provided by two main highways, U.S. 158
and U.S. 64. U.S. 158 crosses through Currituck County and
provides access to the barrier island approximately 40 miles
south of the North Carolina/Virginia line. U.S. 64 provides
access to the southern end of the barrier island from mainland
Dare County and western areas of the State of North Carolina.
Both of these access points are by way of bridges.
Development of the resort area has historically
concentrated between the two bridges, a distance of
approximately 20 miles. In addition, development has extended
from the northern bridge in a northerly direction toward the
Virginia line. There are no further access or egress from
those areas north of the northern bridge, U.S. 158.
The decision by Wal-Mart to locate a store within this
market means that the store will have to be located within an
area between the terminus point of the two bridges in order
for the store to have appropriate exposure in the market. The
Developer considered alternative sites on U.S. 158 west of the
Currituck Sound bridge in Currituck County mainland areas.
However, any sites that might be available to the west of the
bridge were not considered suitable. Potential shoppers who
would use the Wal-Mart store or the other stores within the
shopping center consist of local year round residents and
visitors or temporary residents. The vast majority of
shopping business occurs through purchases made by the
temporary residents, the tourists. Both Wal-Mart and any
other secondary anchor have already determined through their
own private market analysis that sufficient business exists to
justify the location of a store in the area. Because a large
8

portion of the potential shoppers are tourists, studies
indicate that these shoppers will not cross a bridge to access
a shopping center. Even though the proposed shopping center
site is only one mile from the Currituck Sound bridge, the
additional barrier presented by the bridge together with the
additional distance that might be required to a suitable site
on mainland Currituck County would prevent shoppers from using
a' store located in that area. Similar reasons apply to
anything located further west on U.S. 64. This is
particularly valid when you recognize that the major
competitors for the proposed shopping center are located in
the central area of the Dare County resort strip. When faced
with the choice of shopping without crossing the bridges or
crossing the bridges and traveling some distance to locate the
shopping center, the average shopper would stay on the island.

w

Having eliminated any possible sites that are not located
within the primary resort strip, the Developer was left with
those areas located between the two bridges, consisting of
approximately 20 linear miles. Areas located north or south
of the terminus of either bridge were eliminated. First,
similar reasons to those which eliminated Currituck and Dare
County mainlands also apply to these areas. Second, virtually
no available land exists north or south of the bridge which
would support a shopping center development. South of the
U.S. 64 bridge is the Department of the Interior National Park
Service property composing the Cape Hatteras Seashore. North
of the U.S. 158 bridge are the communities of Southern Shores,
Duck, and Corolla. These areas have all been extensively
developed leaving very few large tracts.
Analysis of the 20 mile strip between the two bridges for
shopping center purposes requires that the Developer
concentrate on properties which have access to U.S. 158. U.S.
158 is the main artery which provides north/south access along
the resort strip and connects the Currituck Sound bridge with
U.S. 64 at the southern end of the strip in Nags Head. This
area is divided between three towns, Nags Head in the south,
Kill Devil Hills in the center, and Kitty Hawk in the north.
Division between the three towns is approximately equal.
Throughout this strip, old U.S. 158, now designated N.C. 12,
runs parallel to the present U.S. 158 Business/Bypass Highway.
There are virtually no parcels of land located along N.C. 12
of any size greater than residential size. Even if such
parcels were available, market factors such as traffic studies
and other criteria indicate a requirement of access by way of
U.S. 158.
Attached and labeled as "Exhibit C" are certain area
zoning maps and showing the location of properties in between
the two bridges along U.S. 158. These maps have been marked
9
1
to identify areas which are developed and those areas
remaining undeveloped.
1 Using maps similar to these and by actual physical review
of the resort strip, the Developer located only two possible
sites for shopping center development. Once site was located
in the Town of Nags Head. This parcel meets the size
requirements for the proposed shopping center. However, the
property is zoned residential. Certain areas of wetlands were
located on this site but could have been dealt with by leaving
' these areas in an undisturbed state. The Developer approached
the officials of the Town of Nags Head about the possibility
of rezoning this site to allow commercial development. The
Nags Head officials emphatically indicated that rezoning would
not be considered for that parcel.
The only other existing site located between the two
bridges is the Kitty Hawk Woods site. In its present size,
the shopping center proposed for the Kitty Hawk Woods site
encompasses approximately 30 acres. The site is part of a 60
' acre site that is zoned for commercial development. Both of
these acreage figures include significant areas of wetlands
which limit the available land for development within the
' site.
The important point to be made here is the fact that the
Developer considered other possible sites, without regard to
' zoning prior to selecting the Kitty Hawk Woods site. The
desired tract size was clearly a factor in selecting the
shopping center site. However, this factor was not the only
' factor considered in making the selection. A shopping center
site could be acquired by acquisition of different parcels
which could then be combined to achieve the necessary size.
However, the Developer was not able to locate suitable parcels
other than those which have already been mentioned, even by
combination of adjacent separately owned tracts.
' For reasons which have been discussed in the preceding
analysis, the primary anchor requires certain depth in the
dimensions and layout of a shopping center site. This depth
allows the location of parking areas f"or the stores between
the access highway and the store frontage. Although the size
of a particular tract is critical to its suitability, size
' alone does not satisfy the requirements. Without sufficient
depth, a tract that might otherwise meet the size requirements
would not be suitable. Most of the commercial zoned
properties in any of the three towns are located adjacent to
' U.S. 158. However, most of that commercially zoned property
is zoned only to a depth of 200 to 300 feet. Very few parcels
exists on which zoning extends beyond 300 feet from the
' highway right of way. In addition, very few parcels exist
which could, even by rezoning, result in a sufficient depth
10
for suitable development of the shopping center. The shopping
center developers require 600 to 800 feet of depth in most
circumstances.
Reference is made to Exhibit B for additional
confirmation of these factors.
Summarizing this portion of the memorandum, we note that
ektensive studies were made prior to the selection of the
Kitty Hawk Woods site. Size was not the only determining
factor in selecting this site. The review also considered
sites which, if rezoned or combined, would have presented an
alternative site suitable for shopping center development. No
practicable alternatives were located.
4. Memorandum, p. 3, paragraph 2: In some of the
earlier documentation involving this application, the
Applicant stated that the proposed commercial development
might provide an overall positive effect to the wetland swale
system when compared to the present lack of control of runoffs
entering the system. The Service did not agree with this
contention. The Applicant concedes that it is difficult to
make a comparison between uncontrolled surface runoff from a
major highway and controlled filtered runoff from a large
commercial shopping center. However, there are several points
worth considering when reviewing this aspect of the
application.
The location of the proposed shopping center is at the
"headwater" of this particular swale system. Historically
(over 50 years ago), this swale system was connected with the
swale continuing to the north into the subdivision known as
Southern Shores. However, since U.S. 158 was located through
this area, the swale has been interrupted with the location of
the shopping center being at the northern end of the swale
adjacent to U.S. 158. While all wetlands should be considered
of equal value, it is worth noting that these wetlands at the
proposed shopping center location are more directly impacted
by the adjacent highway than wetlands located further and
deeper in the woods.
The construction of a shopping center with storm water
runoff systems and the required filtration methods that are
imposed by those systems will minimize the adverse impacts
that otherwise would result from runoff from the commercial
center.
To the extent that the commercial site may result in an
overall net increase in runoff and undesirable constituents
entering the adjacent wetlands, the Applicant, through the
development plan, has sought to minimize those impacts as
11
required by North Carolina Division of Environmental
' regulations.
If the shopping center is not constructed according to
the proposed plan, it is probable that the upland ridge system
will be developed for commercial usage. In all likelihood,
this alternative to development would result in multiple
ownership of different parts or parcels within the 60 acre
' commercial site and with piecemeal development. The loss of
the control that would be provided by use of a central storm
water runoff and filtration system will almost certainly
result in an overall net increase of runoff and undesirable
constituents into the adjacent wetlands over the runoff
resulting through the controlled shopping center proposal.
' 5. Memorandum, P. 3, paragraph 3: The Applicant
accepts the Service's commendation on the density and design
of the single-family residential areas. The Service notes
that all development, even on a limited nature, results in
' adverse environmental impacts. The significant point here,
from the point of view of the Applicant, is the fact that the
single-family residential areas are linked to the permit
' application for the commercial site. For practical and
economic reasons, failure to obtain permits for the necessary
fill in the commercial site will result in different
' development plans for the single-family residential areas.
Present zoning will permit development of those areas to a
greater density than the density and design that is proposed
as a part of this application. Furthermore, the protection on
' development, individual permitting, and other concerns which
have been addressed in the application would not apply to
these single-family areas. This would leave the only
' protection for this area through local government ordinances
and through the existing permit system.
' 6. Memorandum, p. 5, paragraphs 2-5: The Service has
commended the mitigation package but has indicated that review
of the mitigation is premature. The Applicant'feels that the
information that has been provided to date, including the
' information discussed in this memorandum, clearly establishes
that the proposed impacts of the project are unavoidable and
that practical alternatives are not available. We note that
' the Applicant accepts the commendations of the Service in
reference to the mitigation package to the extent that the
mitigation has been reviewed by the Service. We note that no
' reviewing agency or authority has yet stated that the
mitigation package that has been assembled is less than
extensive or adequate.
' 7. Prospectus, pp. 1-7: In the meeting conducted with
the Service in Raleigh on may 10th, the consultant for the
Applicant, Dr. Russ Lea of Triangle Wetland Consultants, was
' 12
present for the purpose of discussion of the restoration of
the Tyrrell County site. The consultant was prepared to
' answer any questions concerning that restoration and did
address several points relating to the specific plan for
restoration. It was the position of the consultant that it
' would be unfair to prepare a detailed plan at this stage of
the application process. The unfairness would result because
of the large expense of preparation of such a plan. This is
' particularly the case when the permit, if granted, could state
the appropriate conditions under which the restoration would
occur.
' Any specific questions raised by the Service in the
meeting were responded to by the consultant. Certain new
information was pointed out to the Service. In particular, it
' was noted that the proposed restoration area would become a
portion of a black bear corridor presently being established
connecting the Alligator River system with the Scuppernong
' River system.. Further, the proximity of this property to The
Nature Conservancy acquisition on the Scuppernong River was
also noted.
' An Additional point to be considered in reviewing this
portion of the mitigation plan is the fact that this aspect of
the plan allows the creation of wetlands so that there will be
' no net loss if the permits are granted. The 'ratio of wetlands
created or restored to those lost is greater than one to one.
This was necessitated by the fact that no reviewing agency saw
any merit to the destruction of upland ridge systems on the
' Applicant's primary site in Kitty Hawk in order to create
wetland systems at the expense of viable habitat. To date, no
objections have been raised to the Tyrrell County site or its
' feasibility for restoration in order to accomplish the no net
loss objective.
' As noted above, the Applicant feels that consideration of
the mitigation plan is not premature. In addition, the
extensive nature of the mitigation plan must be considered in
terms of the cumulative impact of the proposed wetland impacts
' as opposed to the impacts which would occur if the project is
not permitted.
' 8. Analysis, pp. 1-4: The Service feels that the
consultants who prepared the analysis of shopping center sites
did not consider sites available for the provision of a
' "retail shopping experience" and for meeting the size criteria
for this particular shopping center design. In paragraphs 2
and 3 above, considerable discussion is devoted to the process
by which the Applicant's site was selected for the proposed
' shopping center. We believe that the information which was
exchanged in the meeting with the Service at the Raleigh
office on May loth may have answered some of the questions

13
1
1
1
1
1
1
raised by the Service in addressing this portion of the
earlier memorandum.
In considering the "retail shopping experience", it is
important to recognize that the Applicant does not have the
ability to control the type of shopping that will be provided
in the marketplace. Moreover, it is not incumbent upon the
Applicant to justify a need in the area for an additional
shopping center or to provide justification for the
construction of a new Wal-Mart store. To a large degree, the
desire of a shopping center developer to purchase property for
construction of a shopping center and the desire of a major
retail anchor store to locate in the Dare County resort area
are prima facie indications that the retail shopping
experience has been examined and that the proposed development
is appropriate for this market.
If these points are established, it logically follows
that the normal and reasonable market requirements for
construction of such a shopping center or such a shopping
center anchor store must be considered when locating a
possible site. Put in different terms, it would be
unreasonable to expect a Wal-Mart store to locate in the Dare
County market if the only site on which they could construct
a store required construction of a free standing Wal-Mart
store. Given the existing Wal-Mart requirements and the fact
that market analysis indicates a free standing Wal-Mart store
will not support itself, it is easy to understand that a Wal-
Mart store under those circumstances would not be constructed.
Considerable detail was devoted earlier to the process by
which the particular sites were reviewed, including the
possibility of combination and recombination of other parcels,
rezoning, and the consideration of available properties not
presently developed. The Applicant feels that all of this
information, when appropriately reviewed in the context of the
proposed shopping center, indicates that suitable
consideration was given to other shopping experiences and that
a full review of all available sites was made. Further, we
feel that the very nature of this discussion is indicative of
the fact that no practicable alternatives are available.
The Service refers to a recent approval for a nationwide
permit for the Wright Company (reference SAW26-90-35).
Information available to the Applicant indicates that the site
being discussed and referred to by the Service has been
considered as a possible location for a K-Mart. However, it
is the Applicant's understanding that the site is too small to
support a center of the type proposed by the Applicant's
' Developer. Further, although the wetland issues may have been
resolved in reference to that site, additional issues remain
which block or hinder advancement of that proposed project.
' 14
1
1
1
In particular, old platted street rights of way exist
dissecting the property such that it cannot practically be
developed without the removal and abandonment of these rights
of way. Various property owners hold rights of access and
usage for these areas and the last information available to
the Applicant has been that these impediments are not likely
to be removed. Accordingly, the Applicant feels that the
reference to this site as a comparable property is
inappropriate.
9. Evaluation, p. 1, paragraph 1: The Service pointed
out a discrepancy between the acreage calculations in the
evaluation and those shown on the 404 application map. The
correct figures are those shown on the application map with
the only exception of the deletion of a 0.63 acre retention
' basin originally proposed for excavation from within the
wetlands on the shopping center site.
10. Evaluation, p. 1, paragraphs 3ff.: No response
appears to be required based upon the Service's agreement with
this point.
11. Evaluation, p. 1, paragraph 6: The Applicant's
consultant, John Fussel, is providing by separate cover the
questions referred to in this paragraph,of the Service
response.

12. Evaluation, p. 2, paragraph 3: In the meeting held
on May 10th with the representatives of the Service in
Raleigh, additional discussion occurred concerning the nature
and quality of individual wetland areas throughout the 1,400
acre tract. In the letter of April 26th, the Service stated
that representations that might be made by the Applicant in
any documentation should be supported by data from a
comprehensive wetland delineation of the entire tract.
In the process of preparing documentation for this
application, extensive wetland delineation occurred throughout
the entire 1,400 acre tract. The only areas in which the
wetlands have not been delineated by survey are those areas
comprising the donation area of approximately 455 acres and
those areas set forth within the 10 acre parcels noted as
Projects VI and VII on the 404 permit application map. The
Service agreed that it would not be necessary to delineate
wetlands within the proposed donation/mitigation area or
within those areas included within Projects VI and VII. The
Service further acknowledged that the Applicant has provided
all delineations requested.
Additional discussion occurred concerning the relative
value of different areas of wetlands. When the entire area
15
remains undisturbed, there can be little argument that small,
disconnected wetland pockets have equal but different values
from larger wetland swales connected to the adjacent sounds.
However, in the process of shopping center development,
retention and maintenance of the small wetland pockets in the
midst of surrounding buildings and pavement on upland areas
which are not subject to the permitting process results in a
deleterious effect on of the function of those small pockets.
To this extent, their value is significantly lessened.
13. Evaluation, p. 3, paragraph 3: The Service
disagrees with certain characterizations in the evaluation
regarding the 455 acre donation tract. In certain other
aspects, the Service agrees with characterizations of that
tract. The focus of these discussions is the value of the
Kitty Hawk Woods maritime forest and its priority for
protection.
Argument on this point appears to be without merit for
either position. Clearly, no commenting agency or consultant
or other party involved in the permit process has questioned
the value of the proposed donation tract. At the core of the
permit application is the concept of the donation into public
ownership of the central area of the Kitty Hawk Woods maritime
forest. No less significant is the inclusion in a protective
plan of most of the rest of the undisturbed or lightly
developed areas surrounding the central portion of the
maritime forest. There can be no question that the entire
maritime forest area should have priorities for protection.
At a meeting held in Elizabeth City on May 24 and 25,
1990, several environmental groups petitioned the Coastal
Resource Commission to implement protective measures for eight
maritime forests. The Kitty Hawk Woods maritime forest was a
top priority. If the recommendations are adopted, the steps
for protection by importance are as follows: a) acquisition or
donation of land, b) encouragement of local zoning ordinances
to reduce density and development, c) establishment of "Areas
of Environmental Concern" on selected portions of the eight
sites.
Applicant's permit proposal, with donation of almost 600
acres of Kitty Hawk Woods maritime forest in fee simple or
through conservation easements, is thoroughly in harmony with
the goals of the state and environmental community.
14. Evaluation, p. 3, paragraph 4: The Service noted
that incidental effects of development such as storm water
runoff, sewage disposal, pest management, and lawn maintenance
all have a cumulative effect on the site's wetlands and their
quality. To that extent, the Service disagreed with those
segments of the evaluation that referred to the opportunity to
16
' preserve the undisturbed nature of portions of the 1,400 acre
project. The Applicant feels that the Service has raised a
' much more important and significant point by its objection to
this part of the evaluation. The Applicant has shown that,
within the limitations of the existing land use plan and
zoning requirements, all areas of the Kitty Hawk Woods
maritime forest can be developed. Further, the Applicant has
shown that, through the permit process and the proposals made
' as a part of the application, large areas of the tract which
could be developed remain undisturbed and undeveloped.
Additional large areas will remain subject to severe
limitations on development, more stringent than the present
existing zoning requirements. To this extent, it is clear
that the cumulative effect of a denial of the permit will be
significant derogation of the quality and existence of
wetlands located on the entire 1,400 acre site. Because the
issuance of the permit will prohibit and limit development,
except in those areas directly impacted, the cumulative effect
of the permit itself will result in the preservation of vast
' areas of wetlands and other undisturbed habitat. To this
extent, it is clear that the opportunity does exist to retain
the nearly pristine water conditions in much of the area of
the proposed development.
15. Evaluation, p. 4, paragraph 6: Portions of the
' evaluation spoke to the scenario of development in the absence
of the proposed permits. The Service points out that wetland
impacts throughout the tract would still be subject to various
review processes and the aspects of control that exist through
' those review processes. To that extent, the Service contends
that the threat of development, if the permits are not issued,
is not as bleak as the predictions that are made in the
' evaluation.
The Applicant concedes that regulations exist and would
' continue to exist that affect the development of these
parcels. However, we feel that there can be no argument
against the point that the cumulative effect of development
under the proposed permits would provide a far better result
' than the cumulative effect of development without the permits.
The comments by the Service would imply that the state
' and federal permitting processes would continue to provide
adequate protection of the 1,400 acre tract, even if the
protection guaranteed and inherent in the permit application
were not in place. Such a view ignores the effect of
development that could occur within the tract without the use
and need of any permits. It is unnecessary for the Applicant
to speculate on the types of development that might occur and
' the multiplicity of development scenarios that could be
presented in the future. By reviewing.existing zoning, it is
easy to predict development to the maximum density that is
' 17

' allowed by that zoning. When this is considered together with
the fact that wetland regulations do not affect the
' development or destruction of upland ridge systems, it is
clear that the prediction of extensive development and
developmental impacts is very realistic.
' We can provide certain specific examples of possible
development in the absence of the permit protection. The main
' area of the donation consisting of approximately 455 acres
consists of three and sometimes four parallel ridge systems
running in a north/south direction. The existing zoning
regulations covering the maritime forest and woods areas
' requires low density residential development. Individual lots
must consist of no less than 80,000 square feet of uplands.
However, the uplands are not required to be contiguous. Under
' this zoning, the entire maritime forest area included within
the proposed donation could be developed to a density of
approximately 50 building sites. Examples of this density can
be seen in the project identified as Project IX and a
' modification of the project identified as Project IV on the
404 permit application map.
' Areas shown in Project VII have been proposed for
development using a 10 acre lot format. Lots within this area
could be developed to allow approximately double the 21 lots
shown. '
' The area located within the commercial zone comprises 60
acres. Approximately half of this acreage is located to the
' west of the primary swale and adjacent to the power line
easement. This entire ridge system is developable under the
current commercial zone.
' The area designated as the multi-family site on the 404
permit application maps is presently zoned for multi-family
' use. Assuming the permits were denied, even for minor road
crossings, access would be available to all areas of the
multi-family site by construction of bridges. The resulting
development under the existing multi-family zone would
' virtually eliminate all of the ridge systems contained within
that site.
' In summary, it is clear that extensive development could
occur under the existing zoning regulations resulting in
incidental runoff from driveways, storm water runoff, sewer
' disposal, lawn maintenance, pest management, roof systems, and
all of the other incidental runoffs that occur through
piecemeal development and subdivision of large parcels. It is
unnecessary to speculate on the type of development that might
' occur if zoning changes were accomplished within this area.
Proceeding in that direction, a vast number of other
possibilities for development exist. The Applicant cannot
18

' agree that the possibility of development under the existing
zoning regulations in the absence of the permit is any
' brighter than the bleak picture painted through the
evaluation. Indeed, closer analysis will clearly show that
the cumulative effect of development in the entire 1,400 acre
' parcel, in the absence of the permit protection, will be
vastly and significantly greater than the effect of
development under the proposed permit.
' 16. Evaluation, p. 5, paragraph 2: The Service does not
agree with speculation contained in the evaluation to the
effect that standards for wetland determination may change to
' the benefit of the Developer. The Applicant agrees that the
decisions to be made regarding this permit application should
be based upon the present delineations.
' 17. Evaluation, p. 5, paragraph 5: Criticism of the
Corps' ability to police all violations was unjustified.
However, in defense of Applicant's consultant, it was his
' intent to emphasize the donation as the best and most
permanent way to protect the wetlands in the maritime forest.
C. Summary Comments.
As a result of the information exchanged in the meeting with
the Service on May 10th, the Applicant feels that all questions
' concerning the possibility of modification of the commercial
shopping site have been answered. The Service may not agree to the
extent that it is willing to recommend that the permit be granted.
' However, the Service should clearly understand at this point the
practical and economic reasons which prevent further minimization
of wetland loss through modification of the design or the project.
' To that extent, the Applicant hopes the Service no longer believes
that that additional potential exists.
' The additional information provided clearly shows that the
guidelines have been met to the extent that; 1) no practicable
alternative exists, and 2) wetland loss has been avoided to the
extent possible. The other requirements of the guideline appear to
' also be clearly met in the form of minimization and mitigation.
The Applicant feels that the proposed project meets the
guideline requirements cited by the Service. The presumption of a
practical alternative has been met and rebutted by the information
provided to the Service through this permit application and
reviewed through this memorandum.
In the event that the Service modifies its earlier opinion on
these points, we feel the Applicant has also shown more than
sufficient minimization and mitigation and that additional
discussion and review of those subjects would not be productive.
19
II. Response to letter from U.S. Environme4tral Protection Agency
dated May 24, 1990, from Robert F. McGhee, Chief, Water Quality
Management Branch. (The Environmental Protection Agency will be
referred to throughout this memorandum as "EPA".)
A. General Comments.
A meeting took place in the office of the Division of
Environmental Management for the State of North Carolina in
Raleigh, North Carolina on May 16, 1990. Participating in the
meeting on behalf of the Developer were Starkey Sharp and Quentin
Bell. The other participants included Robert F. McGhee of the EPA
and George Everett, Director of the Division of Environmental
Management. In the meeting, a general discussion took place
concerning the proposed Kitty Hawk Woods project and the expected
comment letter from EPA. In general, Mr. McGhee advised the
Applicant of the type of information that would need to be
assembled in order for the EPA to give a clear response to the
permit requests. Following that meeting, the Applicant has been
assembling certain information in order to respond to an earlier
letter from the Fish and Wildlife Service and also to provide the
type of information discussed in the meeting with the EPA. Prior
to completing the response and assembling all of this information,
the Applicant received a copy of the May 24th letter. Accordingly,
the response has been adapted to reply to the EPA letter of May
24th as well as the April 26th letter from the Service.
B. Specific Comments.
1. Currituck County Location as Practicable
Alternative: The EPA letter is phrased as a response to the
alternative site analysis prepared by Sauter-Phelan &
Associates and submitted as part of the supplemental materials
accompanying the request for a permit for Kitty Hawk Woods.
The May 24th letter from the EPA addressed the issue of a
practicable alternative. Referring basically to the
alternatives that would be presented by utilization of an
upland location in Currituck County, the EPA states that the
analysis does not support the conclusion reached indicating
that there would be other practicable alternatives. It is the
position of the Applicant that there are no practicable
alternatives and that a number of reasons exist to justify
this conclusion in addition to the reasoning and justification
that is presented by the alternative site analysis. One of
the purposes of this memorandum is to set forth these
additional justifications and reasons.
We are providing this additional information based upon
the comments and understandings that were reached in the May
16th meeting with the EPA as well as the implications
contained in the May 24th letter. That letter states that
additional information concerning the issue of the practicable
20

alternative may result in a revised posion from the EPA. In
particular, information that would show that the abundant
t upland locations available on the mainland of Currituck County
are not practicable alternatives may be conclusive in
resolving that issue with respect to this permit. To that
' end, the information summarized in the following paragraphs as
well as the exhibits and other information contained in this
memorandum is designed and intended to support that position.
' The EPA points out that compensatory mitigation may not
be used as a method to reduce environmental impacts in the
evaluation of the least environmentally damaging practicable
' alternatives for the purpose of requirements under Section
230.10(a). The Applicant contends that the compensatory
mitigation referred to in the context of this project is not
' used as a method of reducing the environmental impacts in the
selection process. Further, the Applicant contends and shows
by the additional information contained in and with this
memorandum that the standards of Section 230.10(a) are met in
' the context of avoidance and selection of the least
environmentally damaging practicable alternative.
' 2. Evolutionary Process of Permit Application: In
order to obtain a complete understanding of the permit
application and the manner by which the application complies
' with the guidelines, it is necessary to understand the
evolutionary process that has occurred during the review of
the permit application. In the spring of 1989, the Applicant
contacted the Corps to discuss the proposed shopping center
' site and the permits that would be necessary in order to
develop that site. These discussions led to an on site
meeting in May of 1989. The meeting was arranged by
representatives of the Corps and was attended by various
' responding agencies, including the Fish and Wildlife Service,
North Carolina Division of Coastal Management, North Carolina
' Division of Environmental Management, North Carolina Wildlife
Resources, North Carolina Natural Heritage Program, and The
Nature Conservancy. At these initial meetings, in addition to
the attendance by other agencies not named, the Fish and
' Wildlife Service was instructed that its representatives would
also represent the EPA in the absence of an agency field
representative.
' In this initial meeting, the concept of including the
entire 1,400 acre project under the control of the Applicant
' in the permit application was presented to the responding
agencies. At that time, the specific mitigation proposals
that are now included as a part of the permit application had
not been fully developed. Issues of mitigation were discussed
' along with other aspects of the proposed development. The
meeting included a presentation using various maps to explain
the entire project and the scope of the proposed development
' 21

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¦ as well as a field investigation of each area composing the
project.
' The meeting resulted in certain basic guidelines that
controlled the way the application developed. First, as a
' result of the input and comments received at this first
meeting, the Applicant was instructed to prepare detailed
surveys and plats of all individual aspects of the project and
to delineate all wetlands on these plats. The Applicant was
' instructed to submit maps of this kind with the permit
application as a combined permit application for all aspects
of the 1,400 acre project. The second significant aspect of
' this meeting was a discussion of the concept on which the
permit application would be based. Each agency represented
was asked to comment on whether the proposed permit was
' conceptually feasible or whether the agency felt that the
concept could not be developed in a way that would meet
approval or result in a favorable recommendation. All of the
agencies represented indicated that the concept could be
' developed in a manner that would result in favorable approval.
Although this initial discussion was not intended to
guarantee final approval or to indicate the final consent of
any agency to the issuance of the permits, it was intended
that the concept and direction of the permit process was
acceptable.
' At that meeting, the Corps did not direct the Applicant
to formulate materials which would follow the step by step
' process and guidelines or to follow the sequence that is
presently required by the Memorandum of Agreement. The
Applicant understood that, by including all 1,400 acres,
' including those areas which were proposed for development in
a normally permissible fashion, the process of controlling
impacts and the benefits to be gained by the inclusion of such
a large area justified a different approach to these proposed
permits.
The Applicant prepared the necessary documents, including
' the extensive surveys and maps, which make up the 404 permit
application. When drafts of those maps were available, an
additional meeting occurred in July of 1989, at which the
' various responding agencies were again represented.
Representatives of the Division of Environmental Management,
an agency not represented at the initial meeting, were present
at the second on site meeting. This meeting was conducted in
' office by review of each individual map representing the
various projects covered by the umbrella of the permit
application. Comments from all agencies were taken on each
' aspect of the project with a view toward avoiding wetland
impacts and minimizing impacts where avoidance could not be
achieved.
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Following this meeting, significant modifications
occurred in the draft documents and plans. The multi-family
site went through major modifications resulting in elimination
of a major crossing and the relocation of building sites
within the multi-family area. The result, in that case,
increased certain wetland impacts because of the suggestions
made by the attending agencies. In particular, it was agreed
that the location of buildings and parking areas in isolated
pockets was more beneficial than the destruction of a number
of surrounding ridge systems. Following these comments and
the direction obtained, the multi-family site was redesigned
significantly. Other areas of the project were also
redesigned in order to follow recommendations and to meet
requirements of the various agencies.
In the fall of 1989, the completed maps and revisions to
the project were submitted to the Corps of Engineers.
Accompanying that submission was a memorandum setting forth a
description of the different impacts for each individual
project within the entire Kitty Hawk Woods permit application.
The description took the form of a memorandum accompanying the
detailed maps and plats.
Following the submission, during November and December of
1989, a number of responding agencies provided letters to the
Corps indicating their position. Three agencies provided
letters indicating a recommendation that the permits be
denied. The letters originated from the Service, the EPA, and
the National Marine Fisheries Service.
In order to respond to these recommendations of denial,
an additional meeting was scheduled in January of 1990. This
meeting was attended by representatives of the Service, the
EPA (for the first on site review by that agency), and the
National Marine Fisheries Service. Representatives of other
agencies were also present but the focus of this meeting was
to address the concerns that were raised by these three
responding agencies in objecting to the permit. The meeting
again resulted in on site field trips to all areas of the
project and included a review of the off site mitigation
proposal in Tyrrell County.
It became clear after the January meeting that it would
be necessary for the Applicant to provide answers to a number
of questions raised at that meeting. In particular, it would
now be necessary to provide a formal analysis of all
alternative sites that might provide a practicable alternative
to the commercial shopping center site. In addition, a review
and prospectus of the proposed mitigation site in Tyrrell
County in which wetland acres would be created to avoid a net
loss situation was requested. Finally, a comparative wetland
analysis was requested relating to the quality of wetlands in
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the areas proposed for filling activities and. the areas
proposed for mitigation through donation and creation of
wetlands. The final submittal of each of the separate
documents prepared by various consultants resulted in the
second letter from the Service dated April 26th and, somewhat
later, the letter from the EPA dated May 24th.
Additional meetings which have occurred include the
meeting on May 1st in the offices of the Corps of Engineers in
Wilmington, the meeting on May 10th with the Service in
Raleigh, and the meeting on May 16th with the EPA in Raleigh.
This chain of events leading to the present status of the
permit application omits discussion of the position of the
State of North Carolina through its representative agencies.
In short, the approval of all required agencies has been
received, including the 401 certification issued by the
Division of Environmental Management. Additional discussion
will occur later in this memorandum concerning the position
taken by the state.
3. Compliance with 404(b)(1) Guidelines and Compliance
with Memorandum of,Aq_reement MOA : The preceding discussions
have explained that the original application was not designed
to follow the usual sequence dealing with information relating
to this project and its compliance with the 'MOA. It has also
been explained that the Applicant feels the project meets the
requirements and guidelines and the documents previously
submitted along with this memorandum and the attachments
thereto conclusively show this compliance.
As a practical matter, this portion of the memorandum is
intended to show compliance with the three general types of
mitigation: avoidance, minimization, and compensatory
mitigation. It is important to recognize in this review that
the overall standard is the national goal of no overall net
loss of the nation's wetland base. The MOA recognizes that no
net loss may not be achieved in each and every permit action.
It also recognizes the fact that deviation from the sequence
as well as individual, particular discharges into wetlands may
be justified when the discharge can reasonably be expected to
result in environmental gain attributable to the project
itself.
These points are emphasized at the outset of this
discussion because of the unique nature of the proposed Kitty
' Hawk Woods' permit. The Applicant feels that the information
submitted demonstrates compliance with the guidelines in the
appropriate sequence. However, the Applicant also feels that
' compliance can be measured by comparison with the
environmental gain resulting from the approval of the project.
In this regard, the Applicant feels it is appropriate to
24

consider the likely result of permit denial and to compare the
' net environmental gain or loss between permit denial and the
granting of the permit.
' Considerable discussion in other parts of this memorandum
has referred to the determination that the proposed
alternative is the least environmentally damaging practicable
alternative. Detailed discussion of the subject occurred in
' the alternative site analysis submitted prior to this
memorandum. In addition, within this memorandum discussion
occurred in Section I.B, paragraphs 2, 3, and 8. This
' discussion is also supported by Exhibit B to this memorandum,
the letter from Capital Centre Development, Ltd. describing
the process by which the particular site was selected, and the
' maps attached as Exhibit C to this memorandum showing
alternative sites and the lack of alternative sites suitable
for the proposed project.
' In compiling this information, the Applicant feels that
the presumptions dealing with avoidance have been rebutted.
That is to say, the various information referred to in this
' memorandum shows that no alternative sites are available which
provide the required practicable alternative.
The information and analysis first show that the shopping
center site is limited, by market and other conditions, to a
geographic area located between the terminus points of the
U.S. 158 and U.S. 65 bridges accessing the Dare County resort
strip. Regardless of the availability of upland sites in
mainland Currituck County on the opposite side of the Wright
Memorial Bridge (U.S. 158), such sites cannot be considered
viable alternatives since the market will not support location
of a shopping center on the opposite side of the bridge. This
conclusion is not reached by reference to whether the
Applicant has available land for development located on the
Currituck County mainland. Rather, the focus is on the
intention of the shopping center Developer and the shopping
center tenants to build and operate in particular locations.
The information we have submitted conclusively shows that a
shopping center will not be built nor will the proposed
tenants occupy a center if it were built on such alternative
sites.
The Currituck County mainland sites are mentioned because
they are the only sites with any proximity to the market'area
that are available and consist of sufficient size to support
a shopping center.
One point that has been made during the analysis of the
practicable alternative issue is the question of whether the
review should accept the assumption that the shopping center
will be built as a contiguous center consisting of numerous
25

stores on one location or whether an alternative approach of
' building individual stores and shops on different locations,
not involving the Applicant's property, would be feasible.
The information we have provided shows that the proposed
' tenants of the Developer who would occupy the proposed
shopping center are not willing to commit to development or to
participate in construction of stores except in the context of
a shopping center similar to the proposed site plan. In this
' specific case, Wal-Mart will not commit to lease a store
except as a part of a shopping center meeting certain
requirements. These requirements include location (location
' on the Currituck mainland is not acceptable), minimum size,
traffic orientation, and other similar matters that have been
discussed in detail in other parts of this memorandum.

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The Applicant has provided the materials and information
necessary for the reviewing agencies to determine,
independently of the desires and intentions of the Applicant,
that no practicable alternative exists, whether in the form
proposed by the Applicant or in any other form relevant to
this proposal. This analysis can be tracked in the following
manner. The Developer proposes to build a shopping center to
access the Dare County resort strip market. The Developer has
entered contractual arrangements with proposed tenants,
without which the Developer will not build the shopping
center. The Developer has analyzed available sites and
selected the proposed site submitted by the Applicant. The
Developer could locate no alternative sites. The Developer is
not willing or able to develop a noncontiguous shopping center
by dividing stores between separate parcels of land. The
proposed tenants are unwilling to participate in a shopping
center except in substantial conformity to the proposed plan.
The Applicant contends that it has met the burdens which
are placed upon it under the guidelines and the MOA. Further,
the Applicant contends that the reviewing agencies can and
should accept these analyses independently of the Applicant's
perspective and that the same analysis will prevail when
viewed using a public perspective as required by the goals and
objectives of the MOA.
4. Minimization: During the review process for this
permit, a number of significant changes have been made to the
proposed development. Some changes occurred prior to the
beginning of the on site meetings and field investigations.
Significantly, an originally proposed development encompassing
the entire 60 acre commercial site was reduced to a 30 acre
impact as described in the proposed site plan for the
commercial project. In addition, following the pre-permit
meetings and other comments by reviewing agencies, additional
changes were made to various aspects of the project. These
changes included a major revision to the multi-family site as
26

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well as limitations on the size of the development of the
proposed commercial site. The guidelines and MOA also called
for minimization of adverse impacts through permit conditions.
In that aspect, the Applicant has proposed extensive
conditions including conservation easements and low density
development, in addition to the normal conditions that would
be placed upon the Applicant through the issuance of a permit.
By normal conditions, we refer to those conditions imposed
upon any project by the various reviewing agencies (such as
storm water runoff filtration systems, sewage disposal
requirements and setbacks, zoning requirements and buffer
areas, and similar conditions). The permit conditions which
have been proposed with this application combine with the
project modifications which have already occurred to complete
the appropriate and practicable steps to minimize the impacts.
5. Compensatory Mitigation: There are three general
areas or types of mitigation which are proposed with this
permit: a) creation and or restoration of wetlands in Tyrrell
County, North Carolina on a greater than one to one basis, b)
donation into public ownership of approximately 455 acres of
maritime forest, and c) imposition of conservation easements
on most of the remaining acreage in the original 1,400 acre
project.
a), Creation of Wetlands in Tyrrell County. This
subject has been addressed in the prospectus prepared by
Triangle Wetland Consultants and dated January 25, 1990.
Comments on the prospectus were provided by the Service
and the Applicant's response has been set forth in the
first section of this memorandum. Certain summary points
are relevant in this portion of the discussion.
The creation of wetlands is proposed for an off site
area. In this case, on site creation is not practical
because the only available areas for creation of wetlands
would destroy existing upland ridge systems. All
agencies involved in the review process agreed that the
value of the habitat of the existing upland ridge systems
far outweighed the value of creation of on site wetlands.
For this reason, off site mitigation was selected. In
order to present mitigation of similar value, a site was
selected within the same Albemarle/Pamlico estuary
system. As described in detail in the prospectus, the
wetlands will be created on greater than a one to one
basis. General concerns that reviewing agencies may have
about the possible success of wetland creation and
habitat development are addressed in the prospectus.
Additionally, these concerns can be addressed in further
detail and controlled by permit conditions to the extent
that the prospectus may be summary in nature.
27

The location of the proposed wetland creation is
particularly appropriate since it helps to complete a
connection between the Alligator River and Scuppernong
River systems. The parcel will also constitute a part of
' a black bear corridor connection between these two
systems and lies in close proximity to an area of
property designated for acquisition by The Nature
Conservancy. The Applicant has indicated a willingness
to consider wetland creations on other sites. However,
no alternatives have been suggested nor has any specific
objection been raised to the proposed site by any
' reviewing agency.
b) Donation into Public ownership of Approximately
' 455 Acres of Maritime Forest. A critical aspect of the
application involves the donation into public ownership
of a large portion of the Kitty Hawk Woods maritime
forest. There can be no question that the inclusion of
' this donation as a part of the mitigation package removes
any question of quality and quantity from consideration
of the appropriate and practicable compensatory
' mitigation program. Certain points need to be reiterated
in this portion of the memorandum.
' The area proposed for donation is a large contiguous
maritime. forest. It is among the largest undisturbed
maritime forest areas in the state and on the East Coast.
It has been targeted as an area of concern for protection
' among a total of eight maritime forests. The property is
presently in the possession of one owner, the Applicant.

Considerable attention has recently been given to
proposals made to the North Carolina Division of Coastal
Management concerning protection of all maritime forest
areas in the state. In that regard, this site has been
considered along with others for attention in terms of
its eligibility for protection. The primary means of
providing protection to the vanishing maritime forests is
acquisition by donation or purchase. Action by the state
on any other method of providing protection to these
maritime forests is uncertain and will probably not be
immediate.
The property, under its present zoning, could be
developed for low density residential use. Despite the
wetland ridge and swale system predominating the center
of the woods, it is developable under the present zoning
in a manner that has been demonstrated by the Applicant
through this memorandum and through prior information
submitted with this permit.
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By its definition, the proposed donation site cannot
' be duplicated. Contrary to the viewpoint of some,
inclusion of the donation area in the mitigation package
does not constitute the "purchase of a permit" nor does
the inclusion establish a precedent with any negative
' implications.
As mentioned in other portions of this memorandum,
' it is essential that the comparison be made between the
possible development of the donation area and the
limitations on development which would occur if the
' permit were granted. While it has a direct bearing on
the nature of the proposed mitigation as well as the
minimization of impacts and the compensation of impacts,
the total mitigation and donation package must be viewed
' in the context of the national goal of the regulatory
program.
c) Imposition of Conservation Easements. In the
' discussion of minimizing impacts, the proposal to
establish conservation easements and to limit development
to a density less than allowed under existing ordinances
' has been mentioned. Attached to this memorandum as
"Exhibits D and E" are draft copies of proposed
conservation easements. These documents present the
' third aspect of compensatory mitigation.
Several of the reviewing agencies commented on the

' fact that restrictive covenants and municipal zoning
requirements were less than satisfactory in providing for
enforceable protection from future development. These
discussions occurred in the context of the proposal by
' the Developer to minimize wetland impacts in the
developed portion of the Kitty Hawk Woods maritime
forest. To the extent that restrictive covenants and
' municipal ordinances can be changed, they have been found
to be less satisfactory in maintaining permanent control
over development than might be contemplated in a permit
' of this kind. In response to this, the Applicant has
proposed two types of conservation easements.
The first type of easement imposes the limitations
' on development and protects wetlands in those areas which
are not planned for development but are not contiguous to
the central maritime forest included in the donation.
' For these areas, the management of the conservation
easement will be allocated to the same body or
institution which enforces the protection of the public
ownership interest in the central maritime forest. There
' would be no limitations on the development prohibitions
and all development rights would be removed.

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The second type of conservation easement would be
imposed in those areas which are proposed for residential
development. Again, management of the easement would
fall upon the institution which manages the donation
tract. In this case, in order that residential
properties would be marketable, a more narrow definition
of the conservation easement is required. The benefit of
the easement in these areas is that it provides the
enforceability that was requested by the commenting and
reviewing agencies. The easement in this case is
intended to allow development of the property but to
require that that development at all times comply with
the goals of the 404 regulatory system, the town's zoning
ordinance, and the state's AEC system if imposed.
C. Summary Comments.
The Applicant has presented the additional information which
was requested, either through response to comments from the Service
and the EPA or as new information bearing on compliance with the
404(b)(1) guidelines. It is clear to the Applicant that the
environmental criteria of the guidelines are met.
The Applicant has shown that no practicable alternative exists
to the proposed development site or to the nature, size, and extent
of the development site. Indeed, the Applicant feels that this
conclusion can be reached independently of the desires and
motivations of the Applicant as is conceptually required by the
MOA.
Less attention has been provided to the minimization of
' impacts and the compensation for impacts by way of mitigation. To
some extent, these subjects require less attention because they are
self-explanatory. However, the Applicant feels that the size,
' nature, and scope of the proposed mitigation and minimization must
be considered in the analysis of the avoidance factor as well as
the analysis of the permit application as a whole.

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It is clear to the Applicant that the goals of the 404
regulatory program are met. This permit does not diminish the
nation's wetland base and to that extent the proposed application
complies with the national goal of no overall net loss.
The Applicant has shown that the alternative to the proposed
permit will inevitably be the development of large areas which are
proposed for protection. While further attention is provided to
this subject in the summation of this memorandum, reference is made
here because it bears upon the possibility of additional
environmental harm as opposed to a guarantee of environmental gain.
This comparison is inherit in the MOA and is specifically set forth
as a basis by which the EPA and the Corps may deviate from the
30
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sequence of the normal analysis. This project represents an
' example of those circumstances.
III. Summary Comments to Responsive Memorandum.

This memorandum has been designed to respond to certain questions
and concerns raised by the Service and by the EPA. To that extent,
some of the points raised in the memorandum may be appear to be
raised in piecemeal fashion while other points may appear
repetitive. For this reason, it is important that all sections of
the memorandum be considered in combination.
At-the request of the Corps, the Applicant has agreed to proceed
with this project through a process of meetings, including
preapplication meetings, with the Corps and other responding
agencies. Significant changes occurred in the proposed application
as a result of such meetings. Although no legal requirement
existed for the Applicant to submit the entire 1,400 acre project
to this review, the Applicant complied with that request and
adapted the application significantly as a result. This
combination, as a result of the preapplication meetings with the
Corps and other agencies, resulted in significant expense to the
Applicant. It is clear that this expense and the Applicant's
participation and cooperation are not justification alone for the
favorable treatment of the permit application. However, in the
context of precedents that may be established by this permit.
process, there would appear to be little incentive for potential
applicants of other major projects to be encouraged to participate
in a similar manner if the permits in this case are rejected. The
MOA states that the objective of mitigation for unavoidable impacts
is to offset environmental losses. The MOA also states that, while
no net loss may not be achieved in each and every permit action, it
remains the goal to achieve no net loss of the nation's remaining
wetland base. Statements of this kind clearly justify the review
of this permit from a public policy standpoint. From this
viewpoint, the comparison must be made between the potential for
development without a permit and the limitations on development
that occur with the permit.
A number of reviewing agencies and entities have recommended the
approval of the permit. In some cases, the approval of these
agencies is mandatory, such as the required 401 certification from
the Division of Environmental Management for the State of North
Carolina. In other cases, approval may appear to be biased by the
potential benefit or gain to the reviewing agency. Some comments
on the proposed permit have indicated that favorable reviews have
resulted from an overriding desire on the part of state or
independent agencies to acquire the donation parcel.
Regardless of one's viewpoint on these subjects, the favorable
reviews by these separate reviewing agencies and bodies must be
considered in the overall review process for this permit.
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The Applicant has shown a number of negative impacts that will
occur to the environment and to the wetland system if development
proceeds under the present zoning requirements without the
limitations that would be imposed by the permit. The cumulative
effect of that development and the impacts it will have on the
environment must be considered against the effect of the extent of
proposed development along with the controls that will dominate
that development under the permit process.
The Arplicant has provided the reviewing agencies with information,
data and rationale sufficient to support the conclusion that the
Section 404(b)(1) guidelines are met. The Applicant has
demonstrated that the goals and objectives of the MOA, as well as
the policies that established the 404 regulations are also met.
The Applicant has also provided information, data, and reasoning to
support the conclusion that the approval of the permit will, in
th i s case, resu 1 t i n a pos i t i ve of fect on the env i ronment and- w i 11
inure to the benefit of the public, whereas a denial of the permit
will clearly result in an overall derogation of environmental
quality.
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EXHIBIT A
TABLE 1
SUMMARY OF WETLANDS
TO BE FILLED

PROJECT PROJECT FILL ON FILL ON TOTAL
AREA - CONNECTED NON- FILL ON
ACRES WETLANDS - CONNECTED WETLANDS
ACRES WETLANDS - ACRES
- ACRES
Shopping Center 30.0 4.15 4.46 8.61
(Approx.
1/3 Road)
Other Commercial 30.0 0 1.01 1.01
Total Commercial 60.0 4.15 5.47 9.62
Multi-family 96.0 0.29 3.98 4.27
Residential (Road)
Section 10, 96.0 0 0.11 0.11
Single-family (Road)
Residential
Section 8, Single- 58.0 0 0.08 0.08
family Residential (Road)
Widening Covered 210.0 0.62 --- 0.62
Bridge Road (Road)
Phase 5, Single- 110.0 1.42 0.07 1.49
family Residential (Road) (Road)
Radcliffe Court 7.0 0.23 0 0.23
Road Extension - (Road)
12 lots
Totals 637.0 6.71 9.71 16.42

EXHIBIT A (cont.)
TABLE 2
SUMMARY OF WETLANDS TO BE IMPACTED
BY EXCAVATION OR STRUCTURES ON PILINGS
PROJECT PROJECT IMPACTS ON IMPACTS TOTAL
AREA - CONNECTED ON NON- IMPACTS
ACRES WETLANDS - CONNECTED ON
ACRES WETLANDS WETLANDS
- ACRES - ACRES
Total Commercial 60.00 0 0.01 0.01
Multi-family 96.0 1.53 0.66 2.19
Residential
Totals 156.0 1.53 0.67 2.20
EXHIBIT G;
CAPITAL CENTRE DEVELOPMENT, LTD.
May 22, 1990
' Mr. Starkey Sharp, Esquire
Sharp, Michael & Outten
P. O. Box 1027
' Kitty Hawk, NC 27949
RE: Follow up to Meetings with:
' U.S. Fish & Wildlife Agency
The Environmental Protection Agency
' Dear Starky:
Pursuant to the above referenced meetings, the following
provides you with additional details of the process we undertook
' when analyzing potential sites for our client, Wal-Mart.
Additionally, details about the design process, i.e. orientation
of the shopping center, are included for your review.
' Before providing details about the specific site review
process undertaken, information on the lender's requirements and
those of Wal-Mart/shopping center physical site requirement
' should be noted,.
The lending institutions require that at least two
' (preferably three) anchor tenants are involved in the project to
provide security in case one of the anchor tenants ceases to
operate. In this development, we are planning to incorporate
' Wal-Mart, Seamark Grocery and a drug store as the three anchor
tenants. With the three anchor tenants as part of the
development, it is necessary to also include approximately 40,000
square feet of specialty shops and three outparcels to meet the
' financial requirements of both our investors and lenders.
Wal-Mart feels that a 93,792 square foot facility is
' appropriate for this particular market. They also require
sufficient land area to expand their facility in the future by
30,000 square feet. Wal-Mart's parking needs (6.5 cars per 1,000
' square feet of building area) are higher than the industry
standard (5 cars per 1,000 square feet of building area) and as
such their land requirements are higher than the norm. The
reason that Wal-Mart insists on the higher parking ratios'is
' because of their experience of operating over 1,200 stores
nationwide. They have found that they lose substantial amounts
of business when there is a lack of parking and, in fact, are
' forced to abandon over 100 existing stores each year (and rebuild
new ones) just because of the parking shortage. The result of
the above requirement is that a typical Wal-Mart of this size
requires approximately 14 acres.
I
' 5400 Glenwood Avenue, Suite 300 • Raleigh, North Carolina 27012 • [phone] • Fax No. [phone]
EXHIBIT 0 (cont.)
' Mr. Starkey Sharp, Esquire
.May 22, 1990
Page 2

The requirements of the remainder of the shopping center are
at industry standards (5 cars per 1,000 square feet of building
' area). With an additional 80,000 square feet of shopping center
space (grocery store, drug store, specialty shops and
outparcels), the required land area is an additional 8± acres for
' a total of 22± acres. This land area is required under normal
land utilization ratios. However, the towns of Nags Head, Kill
Devil Hills and Kitty Hawk all have open area requirements of
' forty percent or greater (Kill Devil Hills-45%). The result is
that the amount of land required increases by forty percent to
approximately 30 acres for this development.
' Site Review Process: Wal-Mart instructed Capital Centre
Development to evaluate the potential sites within the general
confines of the two bridges leading to the Outer Banks. They
' felt that a location on the mainland would not be feasible
because of the following:
1. Rose's currently has two locations on the island and K-Mart
' is also planning to develop a facility on the island. If
Wal-Mart were to pursue a site on the mainland, they would
be at a significant competitive disadvantage.
' 2. Their experience has shown that customers will not drive
across a geographical boundary such as a bridge. This is
' especially true in a resort environment where vacationers
put a high premium on their time and simply will not drive
the extra distance.
' The available sites (approximately 30 acres) between the two
bridges are limited to two: a site in Nags Head and the proposed
Kitty Hawk Woods site. The reason for the limited number of
' sites is due to the following:
1. Zoning: Most of the tracts large enough are not zoned
properly and Nags Head and Kill Devil Hills are opposed to
' rezoning additional land to commercial.
2. Physical Shape: Most of the land located on Highway 158,
' zoned for commercial use, is limited to 300 feet deep which
prevents the construction of a large building with suitable
parking (see attached zoning maps). The site at Nags Head
' (Sound Side Drive/Highway 158) was large enough but was
zoned residential. The town of Nags Head was unwilling to
consider rezoning the tract to commercial. Additionally the
site had some marsh type wetlands areas that would require
' mitigation.
' EXHIBIT 0 (cont.)

' Mr. Starkey Sharp, Esquire
May 22, 1990
Page 3

For these reasons, we focused on the only other site which
is owned by Kitty Hawk Woods Partnership. When we approached
' Kitty Hawk Woods, we were advised of the wetlands situation. We
were also advised that the site is zoned for commercial use and
that the town of Kitty Hawk wanted a shopping center built on the
' site.
Site Design Process: Our initial design attempt centered around
' laying the center out perpendicular to Highway 158 which would
allow us to avoid the wetlands area. We encountered both market
and physical problems with this design.
' 1. Market: Wal-Mart and all other national retailers require
that they have visibility and accessibility from the major
arterial servicing the site (Highway 158). By turning the
' center perpendicular to Highway 158, the retailers would
have very poor visibility and, in fact, when a site plan
was submitted to Wal-Mart for review, they flatly declined
' because their experience has shown that their store is not
successful when visibility is limited.

I

2. Physical: Wal-Mart requires that the parking for their
store be lpcated immediately in front of their store. The
necessary distance to achieve this requirement is 800 feet,
which was not achievable due to the distance from the North
Carolina Power right-of-way to the wetlands area (550 feet).
Unlike enclosed malls, which have multiple entrances leading
to a common area, strip type centers have a single point of
access to the stores. For this reason, parking located on the
sides and to the rear of a strip center tend to be security
problems and customers will not utilize them.
For the above reasons, the only way to design the center is
in the configuration shown on the submitted site plan.
I hope the above provides additional details supporting the
rationale for the choice of Kitty Hawk Woods site and subsequent
design.
Enclosure
RLM:sam
A:SS52290.RLM
Best personal regards,
Robert L. Moseley, Jr.
Vice President

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EXHIBIT D
CONSERVATION EASEMENT
THIS DEED OF EASEMENT made the day of , 1990,
by Kitty Hawk Woods, a North Carolina general partnership, herein
referred to as Grantor, and the Nature Conservancy, herein referred
to as Grantee.
- WHEREAS, the Grantor is the owner of certain properties
hereinafter referred to;
AND WHEREAS, the property has certain aesthetic values in that
it constitutes a portion of a maritime forest worthy of protection
from uncontrolled development and contains therein certain areas
identified as wetlands, the integrity of which is important to the
continued existence of the maritime forest area;
AND WHEREAS, the Grantor recognizes the need for protection of
such maritime forest areas and wetlands and in order to accomplish
that protection has arranged for the conveyance of certain
conservation easements as described herein for the purpose of
preserving the natural values and character of the property and
preventing the degradation or diminishment of the wetland areas or
the reduction of maritime forest areas;
AND WHEREAS, the Grantee is willing to accept such easement;
NOW THEREFORE, in consideration of One Dollar ($1.00) and
other good and valuable consideration, the receipt of which is
hereby acknowledged, and in further consideration of the mutual
covenants, terms and conditions set forth herein, the Grantor does
hereby grant and convey unto the Grantee and to its successors, in
perpetuity, a certain interest and conservation easement, the
nature and extent of which is set forth hereafter, in and over the
lands of the Grantor which are described as follows:
(Here the description will include parcels of
approximately 125 total acres. No development wi 11 occur
in these areas. A variation of this easement might be
used for the 455 acre donation site if it is conveyed to
the Town of Kitty Hawk.)
' The terms, conditions and restrictions of this conservation
easement are as follows:
' 1. No wetland areas, as defined by Section 404 of the Clean
Water Act and supporting administrative regulations, may be
excavated, dredged, filled or removed and all such areas shall be
left in their natural state.
I
EXHIBIT D (cont.
' 2. No property subject to this easement shall be eligible for
any permi t to f i 1 1 such wetl and areas, even where such permi t mi ght
' normally be allowed under the policies and provisions of the Clean
Water Act as administered by the Army Corps of Engineers.
3. The terms of this easement shall not prohibit the
' construction of bridge crossings to provide access between areas of
high land but crossings designed using roadway fill material shall
be prohibited.
' 4. There shall be no removal, destruction or cutting of
trees, shrubs, vegetation or other similar material from any of the
property, except as may be permitted under the terms and conditions
' of the ordinances of the Town of Kitty Hawk or for the prevention
and treatment of disease, good husbandry practices or other
necessary public purposes as approved by the Town of Kitty Hawk.
' The Grantee shall have the right to enter upon the property at
reasonable times in order to monitor compliance with the terms,
conditions and purposes of this easement. Any failure on the part
' of the Grantee herein or its successors to enforce or otherwise
insure compliance with the terms and conditions of this easement
shall not constitute a waiver or forfeiture of the future right to
I take action in such manners as defined by this easement.
TO HAVE AND TO HOLD the said rights, privileges and easements
' herein granted unto the Grantee, its successors and assigns
forever.
' IN WITNESS WHEREOF, the Grantor has hereunto set its hand and
seal the day and year first above written.

I
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C

EXHIBIT E
CONSERVATION EASEMENT
1
THIS DEED OF EASEMENT made the day of 1990,
' by Kitty Hawk Woods, a North Carolina general partnership, herein
referred to as Grantor, and the Nature Conservancy, herein referred
to as Grantee.
' WHEREAS, the Grantor is the owner of certain properties
hereinafter referred to;
' AND WHEREAS, the property has certain aesthetic values in that
it constitutes a portion of a maritime forest worthy of protection
from uncontrolled development and contains therein certain areas
' identified as wetlands, the integrity of which is important to the
continued existence of the maritime forest area;
' AND WHEREAS, the Grantor recognizes the need for protection of
such maritime forest areas and wetlands and in order to accomplish
that protection has arranged for the conveyance of certain
conservation easements as described herein for the purpose of
' preserving the natural values and character of the property and
preventing the degradation or diminishment of the wetland areas or
the reduction of maritime forest areas;
' AND WHEREAS, the Grantee is willing to accept such easement;
NOW THEREFORE, in consideration of One Dollar ($1.00) and
' other good and valuable consideration, the receipt of which is
hereby acknowledged, and in further consideration of the mutual
covenants, terms and conditions set forth herein, the Grantor does
' hereby grant and convey unto the Grantee and to its successors, in
perpetuity, a certain interest and conservation easement, the
nature and extent of which is set forth hereafter, in and over the
' lands of the Grantor which are described as follows:
(Here the proposed subdivisions shown in project areas,
IV, VI, VII, and IX will be described.)
' The terms, conditions and restrictions of this conservation
easement are as follows:
' 1. No wetland areas, as defined by Section 404 of the Clean
Water Act, may be excavated, dredged, filled or removed and all
' such areas shall be left in their natural state except where an
appropriate permit or permits have been obtained.
2. Areas designated on the subdivision plat of the property
subject to this easement as wetland crossings or areas for location
' of roadway fill shall not be prohibited by the terms and provisions

EXHIBIT E (cont.)

I

I
I
I
of this easement but this easement shall apply to all other wetland
areas as designated on such plats.
3. There shall be no removal, destruction or cutting of
trees, shrubs, vegetation or other similar material from any of the
property, except as may be permitted under the terms and conditions
of the ordinances of the Town of Kitty Hawk or for the prevention
and treatment of disease, good husbandry practices or other
necessary public purposes as approved by the Town of Kitty Hawk.
The Grantee shall have the right to enter upon the property at
reasonable times in order to monitor compliance with the terms,
conditions and purposes of this easement. It is acknowledged that
the property subjected to this easement is intended for residential
development and that the reasonable residential use of such
property is not intended to be limited or prohibited, except as
specifically set forth by the terms of this easement. Any failure
on the part of the Grantee herein or its successors to enforce or
otherwise insure compliance with the terms and conditions of this
easement shall not constitute a waiver or forfeiture of the future
right to take action in such manners as defined by this easement.
' TO HAVE AND TO HOLD the said rights, privileges and easements
herein granted unto the Grantee, its successors and assigns
forever.
1 IN WITNESS WHEREOF, the Grantor has hereunto set its hand and
seal the day and year first above written.

I
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I
0
EXHIBIT F
NAMES AND ADDRESSES OF AGENCIES
RECEIVING COPY OF MEMORANDUM
Robert F. "Mike" McGhee
' Chief, Water Quality Management
Branch
U.S. Environmental Protection Agency
' Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
' Preston Pate
Office of Coastal Management
N.C. Department of Natural Resources
' and Development
Post Office Box 769
Morehead City, NC 28557
' J. Merrill Lynch
The Nature Conservancy
Carr Mill, Suite 223
' Carrboro, NC 27510
Dr. Wilson Laney
' U.S. Fish and Wildlife Service
Post Office Box 33726
Raleigh, NC 27636-3726
' L. K. "Mike" Gantt
U.S. Fish and Wildlife Service
Post Office Box 33726
' Raleigh, NC 27636-3726
Dave Monroe
' Town of Kitty Hawk
Post Office Box 549
Kitty Hawk, NC 27949
' Dr. Wayne Wright
Regulator Branch Chief
U.S. Army Corps of Engineers.
' Post office Box 1890
Wilmington, NC 28402-1890
' Ralph Thompson
U.S. Army Corps of Engineers
Post Office Box 1000
Washington, NC 27889
t
Dennis Stewart
N.C. Wildlife Resources Commission
111 Garner Road
Greenville, NC 27834
Alan Weakley
National Heritage Program
N.C. Department of National
Resources and Community Development
Post Office Box 27687
Raleigh, NC 27611-7687
John Dorney
Division of Environmental Management
N.C. Department of National
Resources and Community Development
512 North Salisbury Street
Raleigh, NC 27611
Dr. George Everett
Director
Division of Environmental Management
N.C. Department of National
Resources and Community Development
512 North Salisbury Street
Raleigh, NC 27611
Tom Welbone
U.S. Environmental Protection Agency
345 Courtland Street N.E.
Atlanta, GA 30365
Lee Pelej
U.S. Environmental Protection Agency
345 Courtland Street N.E.
Atlanta, GA 30365
Andreas Mager, Jr.
National Marine Fisheries.-Service
9450 Koger Boulevard
St. Petersburg, FL 33702
Larry Hardy
National Marine Fisheries Service
Habitat Conservation Division
Pivers Island
Beaufort, NC 28516

I

EXHIBIT F (cont.)
' Deborah Sawyer Dr. Russ Lea
Division of Environmental Management Hardwood Research Cooperative
N.C. Department of National N.C. State University
Resources and Community Development Post Office Box 8008
t Post Office Box 1507 Raleigh, NC 27611-8008
Washington, NC 27889
' Roger Schecter
Division of Coastal Management
N. C . Department of National
' Resources and Community Development
Post Office Box 27687
Raleigh, NC 27611-7687

1
1

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-YI
1TORTH CAROLINA COASTAL FEDERATION
ladnot Creek Farm • 3223-4 Highway 58 • Swanaboro, North Carolina 28584 • [phone]
March 13, 1990
Mr. William Cobey, Secretary
DEHNR
P.O. Box 27687
Raleigh, North Carolina 27611
Dear Secretary Cobey,
,
.1
.J ..
J
Since we did not have time to discuss wetlands at our last
meeting, I thought it might be valuable to summarize for you our
reservations about the wetlands and maritime forest land deal for
the Kitty Hawk Woods project in Dare County. Developers propose
to donate to the State about 460 acres of prime maritime forest
if they can fill about 16 acres of wetlands for a'shopping
center.
As you know, federal regulations prohibit wetland filling if
a practicable alternative is possible (40 CFR 230.10). The State
water quality standards regulations recognize that State
decisions about wetlands should be guided by these regulations,
as well as by other factors. Thus, issuance of a 401
Certification for a 404 permit means the State has determined
that the project has no practicable alternative.
Approval of this project will be a radical departure from
the traditional interpretation of this requirement. Projects
such as shopping centers and residential development, which are
not "water dependent," have been traditionally considered to have
practicable alternatives.
From my point of observation, it appears that DEHNR became
so engrossed with the highly desireable possibility of protecting
the maritime forest, that the requirement for no practicable
alternative was basically brushed aside. The federal agencies
are now requiring that the applicant submit justification that
there is no practicable alternative to the wetland loss. DEHNR
has apparently already committed to accept whatever rationale the
developers propose. This case is, of course, a precedent for
future projects.
In essence, I find myself in the position of waiting for the
developers to submit their documents so I can find out what the
new State policy and standards are for determining the existence
of practicable alternatives in future 401 certification
decisions.
??? printed on recycled paper
Bill Cobey
March 13, 1990
Page 2.
For example, one argument the developers may claim is that
there is no other tract of high ground of the desired size
available in the area. If the State accepts this argument, then
there will be no basis for denying future proposals for
commercial, residential, or industrial projects in wetlands in
the area as long as the projects use at least 16 acres. Approval
of the Kitty Hawks Woods project will establish that such
projects have no practicable alternative other than in wetland
locations.
Thus, wetlands will be the foundation of future development,
with no limit on the wetland loss. Likewise, this principle will
be extended throughout the coast and provides a strong incentive
for developers to fantasize and invest in very large projects in
wetlands -- small projects will be more likely to be ruled as
having practicable alternatives.
Please think carefully about DBHNR's legal position for the
many future requests for large shopping centers, convention
centers, hotels, condominiums, and probably golf courses in
wetlands after this precedent is set. Protection of natural
resource areas such as maritime woods will not be a factor in
future proposals since there is no legal foundation or
requirement for this type of "voluntary" donation.
The tenuous nature of the "voluntary" donation is apparent
if one considers what will happen if the Kitty Hawk Woods
applicants decide to not make the donation after the 401
certification is issued. The State would have no basis for
denying the project if such a modification were requested since
issuance of the 401 Certification means the State has ruled the
project meets all legal requirements -- and there is no legal
requirement for the voluntary donation.
In summary, it appears to me that this project sets a
precedent that will inevitably result in unlimited, rapid loss of
wetlands. This is a huge step in the wrong direction from no net
loss of wetlands. It sets no precedent for private donation of
valuable natural resources since there is no legal foundation for
that aspect. The proposed interpretation of the requirement for
no practicable alternatives sets precedent for a myriad of issues
that certainly deserve more extensive discussion and evaluation.
Various concepts and details of the federal regulations and court
cases need to be considered -- for example, practicable
alternatives include utilizing several smaller commercial areas
rather than one large area. We believe an interpretation that
promotes large non-water-dependent projects in wetlands is not
consistent with the intent of the Clean Water Act or with the
Department's responsibilities for the public resources.
Y
Bill Cobey
March 13, 1990
Page 3.
While we recognize the importance of protecting the maritime
forest, the precedent for wetland loss set by this case is almost
beyond comprehension. Although we recognize that the
administration is already committed to a position on this case
and is unlikely to change its position, it might be useful for
you to meet with interested environmental groups to discuss your
perspectives about the implications of this project.
This proposal also points out the lack of a legal framework
for handling situations with the potential for exceptional
mitigation. We would be happy to work with you to try to develop
a legal framework for handling future cases with the potential
for exceptional mitigation efforts.
Very Sincerely,
?794^r^
Jim Kennedy
Environmental Scientist
cc: Governor Jim Martin
George Everett
Roger Schecter
Bill Hogarth
US EPA, Region 1V
US Army Corps of Engineers
US Fish and Wildlife Service
National Marine Fisheries Service
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------- -----

Kitty Hawk Citizens Association, Inc.
P.O. Box 60. Kitty Hawk. N.C. 27949
January 31, 1990
WHEREAS, the pertinent State and Federal agencies are reportedly considering
action to allow the creation of wetlands at a site far removed from Kitty Hawk and
Dare County, to offset the proposed fill of wetlands in Kitty Hawk Woods; and
WHEREAS, this so-called "no-net-loss" policy has not been the subject of
requisite public hearings, nor formally promulgated thereafter; and
WHEREAS, such a policy could well impact adversely the fragile environment of
Kitty Hawk Woods, by allowing land outside of our Town to mitigate the elimination of
wetlands within the Town;
NOW9 THEREFORE, BE IT RESOLVED that the Kitty Hawk Citizens Associa-
tion, Inc., go. on formal record opposing such a policy; and
BE IT FURTHER RESOLVED THAT the Association President transmit this
resolution to the following agencies:
U.S. Environmental Protection Agency
U.S. Army Corps of Engineers
U.S. Fish and Wildlife Service
N.C. Division of Coastal Management
AND BE IT FINALLY RESOLVED THAT the Association vigorously support
appropriate actions by the Kitty Hawk Town Council to preserve all finite wetlands in
its jurisdiction.
Carol Lyons, Presi nt
cc: Kitty Hawk Town Council
Senator Marc Basnight
Representative Walter Jones
Senator Jesse Helms
Senator Terry Sanford
Dare County Board of Commissioners
i
U.S. FISH AND WILDLIFE SERVICE ( ?sES RVI.D?.?FE
SERVICE'
Raleigh Field Office
Post Office Box 33726
Raleigh, N.C. ;27436-13726
Date: ?6?Un t?c7r W
To: ?? ?1- 90 J
-?- L? --F.
h-GK-(-
United States Department of the Interior
a-
FISH AND WILDLIFE SERVICE
75 SPRING STREET, S.W.
ATLANTA, GEORGIA
30303
SEP 2 8 1989
Memorandum
TAI'S
MDEIN?

To: All Field Supervisors, Fish and Wildlife Enhancement, FWS,
Southeast Region
From: Chief, Ecological Services, Fish and Wildlife Enhancement, FWS,
Atlanta, GA
Subject: Recent decision by the Director of Civil Works regarding an
elevation of a permit in the northeastern United States
Enclosed is a copy of an August 17, 1989, decision by the Director of Civil
Works, General Patrick J. Kelly, that contains an interesting discussion of
"Practicable Alternatives" and "Mitigation". The decision is self
explanatory and should be useful in your future dealings with the Corps
Districts in the Southeast Region. I would be interested to learn if this
decision has any bearing on the various District actions. If you have any
questions or comments, please call me or Dennis Chase.

Attachment
OCT 02 1989

CECW-OR
AlPLY TO
ATUNTION Op.
Ms. Constance Harriman
Assistant Secretary of the Interior
for Fish and Wildlife and Parks
Department of the Interior
Washington, DC 20240
Dear Me. Harrimant
17 AUG 1989
Pursuant to paragraph 7e of the Section 404(q) Memorandum of
Agreement between the Department of the Army and the.Department-'af .,
the interior, we are enclosing a copy of our "Findings" which
addresses the policy issues you raised in reference to the Hartz
Mountain permit case.
We have directed the Army Corps of Engineers, New York
District to undertake additional review of the Hartz Mountain
permit application in light of the conclusions presented in our
findings. Specifically, additional information on practicable
alternatives and the baseline values of the existing wetland and
proposed wetland enhancement is required before a permit decision
can be made.
Your interest in this matter and the cooperation of your
staff is appreciated. Questions or comments concerning this
elevated case may be directed to Mr. Michael Davis of my
regulatory staff at [phone].
Sincerely,
?a
Briqadi on (P)p
Director Civ Works
DEPARTMENT OF THE ARMY
V,S, A?mv Gera of 9n0netrs
WASHINGTON.O.C. 90314.1000
U. S. Army
Enclosure

CECW-OR
aer.v To
A"erwrIGN or
I+IEMORANDUM THRU COMMANDER, NonTR ATLANTIC DIVISION
FOR COMMANDER. NEW 'JORK DISTRICT
I ? AUS W
SUBJECT: permit Elevation, Hartz Mountain Development Corporation
1. By memorandum dated 26 May 1589, the Assistant secretary r of
the Army (Civi 1 Works ) adeized Me that beph dagra teed he tsot
of the Environmental Prot
interior (DOI) to elevate I the
,sregeardo tfor PAVtZ he ca a was a evated to
Development Corporat on the
13OUSACE for national policy level review of issues concerning
mitigation and practicable alternatives provisions of"the
404(b)(1) Guidelines.
2. Based on out review Of the a? n?drDdsv we have detexminedgs
with your staff, the aPp1iC8A y lementing the 3delines
certain aspects of interpreting and imp
should be clarified. Our conclusions are stated in the enclosed
report titled Hartz Mountain 404(q) Elevation, RQUSACE F3.ndin5$•
3. Please te-evt?lvate the pubjeot pe=jj in light of the guidance
In order
provided in our findings and take action acco qlT' the
for us to comply with paragraph 8 of the Defy
/EpA Memorandum of lkgreement, please notify H4tiSACE Regulatory
Army
Branch as soon as you reach a permit decision- Qu8stione or
comments concerning this fslevat case may be direct2d0?1.
Mr. Michael Davis of my regulatory staff at (202)
FOR THE COI+ yjU;D=
Enclosure A ZCK K
Brigadi ne {P), USA
Director Ci Works
DEPARTMENT Og THE AKMY
U.S. Army Coma of $n{inee/e
w?.sH,r?rroN 0.6, 2G?ttt40o
?1
V

.it7 A'JG 9
XL,4O DUM 4 CA THE DIRECTOR OF CIVIL WORDS
SUBJECT= Hartz Hountaia Permit Elevation Ce,ee
This 36 it reply to your memorandum of July 25,
1989 , concerning the subj eet elevated permit Casa.
We have reviewed your draft findinq$ and concur with
your co:scZusioas. You ahould notify the )law York
District to proceed in light of the Quidatsct provided
in your f i,ridings.
This findings provide an exttll=41Y'sis of tthe he
issues in a complex case. particularly fornat used to present your analysis 4f eco=and it
be used as a model in the future. the ease action officer, is to be aowmaded for his
efforts.
since such of tbs guidance ilandrarijnfo=.talS
contained Lz the findings is
section 404 p4=it applica?tioad, pleaso distribute to
corps Foos.

< 0r-
jtobtrt We Pat/
xssistant (??e a zksof tb* ) X?
HARTZ MOUNTAIN 404(g)ELEVATION

HOUSACE, FINOINGS
PAEPAAED BY CECW-OR
26 JULY 19159
F;NZWY M4 1=1 ND I NCB
i q''rz r7CX.1% r4ci x" Fn-=1 Vr Q.t?"`V?FaT x QV
The purpose of this documont is to present the findings of
the Headquarters Corps of Engineers (HOUSACE) Ceview Qf colic x
tea, ues associated with a permit application before the New York
i
District (District). This review was undertaken in accordance with
the 1995 Memoranda of Agreement (MOAss) between the Department of
the Army and the Environmental Protection Agency (EPA) and the
Department of Interior (DOI)•
I. BA K6ROUND
On a August 1986 the Hartz Mountain Development corporation
requested Department of the Army authorization to discharge fill
material into 97.41 acres of tidal wetlands within the New Jersey
Hackensack Meadowlands District for the purpose of constructin{haa
3,301 unit residential housing development. Specifically,
project involves the discharge of approximately 950f000 cubic yards
of fill material into wetlands dominated by common reed (JMragxdtes
cccmua1z) A public notice describing the proposal was i3sued on
22 May 1957, and a public hearing was conducted in June of 1987•
A number of comments both for and against the project were received
in responsie to the public notice and hearing. Three Federal
agencies. EPA, Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) all objected to the issuance Gf a
permit for the proposed project.
Interagency coordination on the permit application proceeded
for approximately 18 months during which time additional
-' information was submitted by Hartz Mountain and their consultants.
In July 19SS the District completed the preliminary permit decision
process and determined that the project was not contrary to the
public interest provided that Hartz Mountain comply with certain
restrictions and conditions aimed at minimizing the environmental
impacts of the project. Since the Federal resource agencies
continued to object to permit issuance, a meeting was held Awsith
each agency in accordance with the procedures of the MOAs.
result of these meetings, each agendy provided detailed written
comments on 'their specific concerns. In general each agencY's
? t r,.+idel ine?
concerns centered on the application of the 1_h )1
practicable alternative requirements, the District's contention
that the wetland was of very low value, and the adequacy of the
mitigation n2 to offset environmental impacts. The District
forwarded these comments to Hartz Mountain for response and/or
rebuttal. Alter considering the information contained within the
Df strict comp IRted that isionthe -making permit
administrative record, the District
January 1989. A4S3n+ th
should be issued. In response to the District's decision, EPA, FWS
and NMF5 requested,semeetings with the North Atlantic us5 the permit decision in accordance i
Engineer (NAD) to d: with
Paragraph b of the MOAs. As a result of these macti.ngs+ NA
forwarded comments and suggestions to the District on 8 March 1969.
to ofincfour
She comments and $u9Aestion n be reworded age
conditions which NAD recommended "rhe District
viability of the mitigation requirements.
incorporated these recommendations into.the permit
on 2S Marcho1969onOna2S
a decision to issue the permit was made March 1999, EPA, FWS and NMFS were given written notice of the
District's "Intent to Issue" the permit.
In accordance with the C1As+ rin I.etters of equested tfiatp the 2 Assistanand
the DOI and EPA, respectively ,
Secretary of thQ Army (Civil Works) LASA(CW)) elevate the while
Mountain permit decision for higher level review. NMFS,
continuing to object to projectj -did not
one recommendationsefrom;µQUSACE,
On 26 May 19890 ASA(CW), ted the
granted the DOI and EPA elevation request. A9A(CW) gran request and forwarded the action to HOUSACE for nationaI policy
icy
level review of 404(b)(1) Guidelines issues concerning elevation
and ew sanotsba based one ins f i ienttinteragency. Coordination.
request
lts
The information in the f complete ad ir??.strpatSvetrecord ofuthe
of t". HOUSACE review of the p nfo Hartz Mountain permit appliCdt btainedlth ouch imeetings with (the
contained in the record was d
applicant and associated consultants, the District and NAD staff,
the FWS and EPA.
In terms of environmental protection, the 404(b)(1) Guidelines
(Guidelines) form an essential component of the Corps' 404
regulatory program. The Guidelines (40 CFA 230) are tihe
substantive environmental criteria to fill mu5ed in aterial . e Inluatin
accordance
impacts of discharges of dredged or q04 permit cannot
with the Corps regulations (33 CFR 320 330)+ a
be issued unless it complies with the rssuesf c s" HGingCE's r sew
of this case focused on the policy
with the Guidelines.
1 I . F1RACT 1 CAS ALTERNAT I17ES
A key provision of the Guidelines is t eofpdredgedbor
alternative test which provides that Inc discharge
till material shall be permitted there a lesscadveb4e
alternative to the proposed dis 9e
2
reasonably be 230-10(a)3- In tmis
impact on the04 dischage may ecosystem"
respect* "it should
respect. sf a 4
be avoided."
In addition to the basic alternatives test, 230.50(a)(3)
establishes a rebuttable presumption against dischargesA into
"special aquatic sites" for non-water dependent activities. to
water dependent activity does not require access Or proximity
or siting within a special aquatic site to fulfill its "basic
purpose." Pra[ icable•-altt natives to non-water deQ?e4.t
r' i
activities arsx resumed to be av i ab2 and to r suit n les!L
nv'ronmen al loss unless c earl d monstrated Oth2Cwi%Q_kY the
applicant-. The Hartz Mountain project (housing) is clearly a non-
water dependent activity. This fact is well documented in the
District's decision documents and has not been contested by the
applicant. Therefore, the burden of proving that no practicable
alternative exists is the sole responsibility of Hartz Mountain,)
not the District or resource agencies.
A prerequisite to evaluating practicable alternatives Is the
establishment of the "basic purpose" of the proposed activity. It
is the responsibility of the Corps districts to control this, as
While the
well as all other aspects of the Guidelines analysis.
Corps should consider the applicant's views and information
regarding the project purpose and existence of practicable
alternatives, this must be undertaken without undue deference to
the applicant's wishes. These general issues were discussed and
guidance provided in the HOUSACE findings for thePermit
Elevation, Plantation Landing Resort, Inc." dated 21 April
a copy of which has been provided to all Corps divisions and
that document
guidance
districts. Much of the legal end policy
is generally applicable to this case, and need not be repeated
herein.
In this case, Hartz has clearly stated that their project
purpose was construct 1units of t submittedn
IR-2 a with the
-2 area. In n fcts a July 86 "planners report"
permit application stated that "a site geographically located
outside the Meadowlands District would not fulfill the 'baThe
projoct purpose' of 401(b)(1) Lsic1 of the Permit program."'
IA-2 site is an area designated by the Hackensack Meadowlands
Development Commission's (HMDC) master plan as "Island Residential"
housing. Hartz acquired ownership to 194 acres of the 238 acre
site in 1979. Based on concerns of the District, Hartz ultimately
mooified the project purpose to expand the potential project area
to New Jersey Housing Region I lHudson, Passaic and Bergen
Counties). However H etz asserts that its ur os rema n
ong ru n of a lar ssca 3 301 units hous'n dev to Mview
While it appears that the District made a conscious hwas not the
the project from a more basic purpose perspective,
approach taken by Hartz in evaluating
pospoVerifi tential
d by aDre e sit es Har
[404(b)(3) evaluation page 53.
3
Moskowit2, Community Planner and consultant for the applicant, who
conducted the analysis of alternative sites. This aPproacM
seriously I laws the validity of the 'alterna e analysis
to those
inconsistent with the Guidelines. Limiting projst
that can facilitate a 3,301 unit development may preclude the
evaluation of otherwise practicable alternatives. Acceptance of
this very restrictive alternatives analysis negates all attempts
In
to otherwise more generically define basic protect purpose.
this case, in the "Summary Discussion of the Availability of
Practicable Alternatives" j404(b)(1) evaluation page 137 the
District states that "There are no practicable alternative sites
that are reasonably available to the applicant for the proposed
construction activities within the Northeastern New Jersey Region
which would m.Rat the a li amt's role t r ae and the stated
need for the project" (emphasis added).
The Guidelines alternatives analysis must use the "basic
project purpose", which cannot be defined narrowly by the ap l cane
to preclude the existence of practicable alternatives. other nand, the Corps has some discretion in defin mg the
on"bassic
project purpose" for eavi Section 404 permit app
manner which seems reasonable and equitable for that particular
case. It is recognised tnat this particular case may be unusual,
because it involves unique issues of zoning and land use planning
by the HMDC and the apparent sCarcity of undeveloped land in the
Region 1 area. However, federal concerns over the environment,
health and/or safety will often result in decisions that are
inconsistent with local land use approvals. In this respect, the
Corps should not give undue deference to HMDC or any other zoning
body.
At the request of the District, Hartz conducted a earchwfor
potential alternative sites in Region 1. Ultimately, 43 sites re
-
identified and evaluadbasedNonta s toofulcriteriardevelopedtby
Each site was evaluated
Hartz. The District reviewed the criteria and concluded that with
were "appropriate for reviewing sites for practicability is approach
regard to the Section 404(b)(1) Guidelines."
While may
be an acceptable method for evaluating alternative sites, we
are concerned that * the applicant ,s pus poses werteoconthe
th6t only sites that meet
For example, alternative sites le than 50 acres
e a e3.not
considered practicable because they would facilitat1
lapplicant's stated
unit development and therefore achieve the app
project goals" L404(b)(1) evaluation page B]. On this subject tnG
District states: _
"Based on the applicants goal's for a profit? it must be
presumed that the Size of a potential alternative site
is of primary importance. A smaller parcel of lanC could
be considered a practicable alternative for a residential
housing project although it could not accommodate a
4
project nearly the size that is the subject of the
present permit application." E404(b)(1) evaluation
page 73
In this rasa the Dist act's administrative r_cord g.the
appearance of having given too moth deference to the applicant's
narrowly defined project purpose. This may have very well resulted
in the exclusion of otherwise practicable alternatives.
The District goes to great length to explain the criteria
utilized by the applicant and the justification for each [404(b)(1)
evaluation page 83. However, no information is provided in the
decision documents on the specific sites, the ratings At
received, or why they tailed as practicable alternatives.
minimumv a table of the sites listing this information should have
been included in the 404(b)(2) evaluation. In regard to the actual
evaluation of the 43 potential sites, we observed at least a,:few
discrepancies in the data submitted by the applicant- For example;'
two adjacent sites (4 and 5) were given different ratings on
accessibility to public transportation. Of more significance is
the fact that the IR-2 site was not evaluated against the criteria
used for the other sites. Our estimates indicate that the site may
in fact not pass as a practicable alternative based on the
applicant's own system for analyzing alternatives. Failing to
evaluate the project site when using this type of evaluation system
is inappropriate and indicates that the applicant has not rebutted
the presumption against the discharge of fill material into special
aquatic sites.
Throughout the decision documents the District mentions the
need for housing in the Region and referemces-New Jersey Council
an Affordable Housing (CGAH) information GStatement of Findings
(SOP) page 14. 404(b)(0 evaluation page ii, Environmental
Assessment MA) page 23. While the need for Concerned lo housing
that the
in the Region may be very real, we are
administrative record does not clearly demonstrate the existence
of such a need. The COAH information focuses on the need for low
to moderate income housing and this portion of the housing need is
not questioned. However, it appears that the District relied on
the COAH data to substantiate the need for housing above the
moderate income level. Admittedly the COAH information translates
an actual need of 42,534 low/moderate units to an overall figure
of 213,000 housing units. This is based on the number of market
rate units that may be required to support the actual low/moderate
mousing needs. Use of this information to justify an overall
housing need may not bo appropriate. Further, reference to a COAH
letter on page 11 of the 404(b)(1) evaluation is misleading it not
inaccurate. The District states:
"The 27 September 19e8 correspondence from the State of New
Jersey's Council on Affordable Housing (COAH) substaaiiabes
the applicant's showing that no reasonably a
4
5
practicable alternative sites to th need ptoe dloevelopment
exist by focusing on the 'compelling
housing in Secaucus at the Mill Creek Site, at the densities
mandated by the Hackensack Meadowlands Development Commission
zcniny regulations."
What the referenced COAH letter really states is that there is a
need for 420534 low to moderate income units and that it may take
four market units per low/moderate unit to support such housing:
In regard to the "compelling need" at the Mill Creek site (IR-z),
the COAH letter states:
"The COAH supports the development of affordable hoWsiAo units
at the Mill Creek sits as a meaningful step toward addressing
the compelling need for such hoWS m in Secaucus and Region
1," (emphasis added)
The proposed project will provide a maximum of 330A10%
admini pf st torattialveY,
low to moderate income units at the IR?-2 site.
record and di5CUSSiOns with the applicant indicate that it is
likely that only one half of the 330 "nits will actually be built
at the IR-« site. The decision documents consistently State that
10% to 20% of the project will be dedicated to low to moderate
housing. This is clearly not the case and the record should
reflect such. Eurthc±r_._ thg nee for houginc of an tvae and th_e_
z n n r uxrEmentS of HM danno override the id i ne's
reauir&mZm%_to RRIact h? least` dama in DraCticable eel_tArn Live.
CONCLUSIONS:
1. For purposes of thig case only, the basic proJOCt PurPOSO
should be defined 85 "construction of a large scale, high density
housing project in the Region i area." That does not necessarily
mear+ a project of 3$01 units in one contiguous location As
proposed by Har'tzm The D trim sh uld determi th v•abl
feasi ire circumstances rat which ch attar r
hi h nsit he i r ct. The District may
lap a ca e
require the applicant to provide information that facilita eS
completion of this determination. Clearly Hartz as previously
determined that a development of 2,74B units would be ible.
it may very well to that a smaller development (i.e•? < 21,748
hE+ Y documen
,units) would also be viable.
above 5 fpe
e CprreGtE to reflect the applicants project purpose should be
eefQrenCeS t to $.ztisfying ld
deleted).
2. Oncw the minimum feasible size, etc. has been determined
in BCCPrddnGt' with (2. ) above,he p;.strict must tcarefully evaluate
mould be c.mp+a?eC by Wart..
the criteria used to compare alternative sites, The alternatives
,analysis must be? objective and Ca 1 anted , and not be used to provide that
a rationalization for the applicant's preferred result (i.e.,
6
no practicable alternative exists). The IR-2 site must be included
3,n the alternatives evaluation and added to the administrative
record.
3. The alternative site ca--a should to mace part of the
decision documents. This should include a listing of all sites,
their evaluation scores and a summary of the final determination
of practicability.
4. Information on the need for housing must be accurately
cited in the decision documents and additional information on the
overall housing need (i.e., above Taderate level) should be
provided.
111. Mt„ T IGAT I-©N1 >
As previously discussed, the Guidelines establish the
supstantive environmental criteria to be applied in the evaluation
04 potential impacts associated with discharges of dredged or fill
material into waters of the United States• In addition to the
"practicable alternative" test in 230.10(a), the Guidelines state
that a discharge cannot be approved, except as provided under
404(b)(2), if it results in significant degradation of waters of
the United States and; unless all appropriate a.nd practicable shops
have been taken to minimize potential adverse impacts on the
aquatic ecosystem [230.10 (c) and (d)). These form an important
part of the current approach of requiring mitigation in the 404
regulatory program. Mitigation is also a required consideration
under the Corps' Public interest Review [33 CrR 320.4(r)3.
As a general rule, once the least damaging practicable
alternative has been selected, appropriate and practicable steps
must be taken to mitigate the project impacts. Determining the
amount and type of mitigation i5 often difficult at best. In
particular, compensatory mitigation for wetlands loss engenders a
considerable amount of controversy and discussion among regulatory
and resource agencies and the development community. I onder4to
improve consistency, Army and EPA are currently
mitigation policy.
Pending the promulgation of the joint mitigation policy, the
Corps should requires mitigation measures which will provide
cnmpr3ntio
and functions th.athar'O alost or &dve?r ely impacted asr aare!sultuof
lThe'di9CUSSiOn of mitigation tl'Jt follows, ano any SubSequent
requirements, have no bearinS on the previous discussion and
requirements concerning the availability of practicable
a:ternatives.
7
As with
a proposed development in waters of the United ?itatas.
other permit specific Guidelineti and public interest decisions, a
determination of mitigation requirements will be made by the Corps.
Such decisions should be made after appropriate consultation with
The Corps decision must be
F de.3ra and state re?sourGe enGi25• ? 'funCt2on3 of
artauat manner c 5ite5! atinrthis ncase wotlandsiogicd.
special in
A prerequisite to developing a wetlands compensatory
mitigation plan is the establishment of values and functions of
the existing wetland system. Without tho benefit of baseline
information, the permit decision-maker Cannot determine an
appropriate mitigation level to find compliance with the
Guidelines. AS Matter of oli he Corps ho d m 2t make
ermit ecisions b tore obta.inin the Mete sir and a ro riat
information on the value of the-specific r sour a that would be-
lost So a prooosed d_isChar_pe of dred?le or fill- ma ria i he
from the
permit is Crantp, This information may be obtained
applicant, in-house studies, technical assistance from experts a V
the Corps waterways Experiment Station (WES) or universities and
previously published reports to mention only a few sources. It is
incumbent upon the Corps to review the data carefully to ensure
that the information Ls. scientifically sound and can be supported
if challenged.
In the Hartz Mountain case an extensive mitigation "Coept"
was proposed by the applicant. The District relied heavily an
potential success of this concept in reaching a decision to issue
the permit. The basic premise of the Hartz mitigation concept was
that the misting wetland system was highly degraded and of very
low value. In this regard, Hartz maintained that they Could
enhancq low value wetlands (both on-site and at two off-site
locations) to a point where they could compensate for the direct
loss of 97.41 acres. This assumption is based on a Presumed
"successful" Mitigation project currently under way by
another part of the IR-2 site. This 63 acre mitigation project was
required as part of a 1983 Departmamt of the Army permit to fill
127 acres of wetlands for commercial and industrial developmen t
To date, no comprehensive evaluations have been completed
substantiate the claims of success on this mitigation project in
terms of overall wetland values. For the current project, Hahat
determined, using the FWS Habitat Evaluation Procedure (HEP),
they would have to enhance 93.74 &tree of wetland and create 22.41
acres of open water canals to compensate for tre lots ;stands"
acres. In addition, Hart= proposed 8.84 acres of ra.
for upland habitat arts 9.44 acres of wetlands preservation.
Throughout the District's review of this case there as. been
i&s
eiQnilit.t* t disagreement thQ between
dome at d wetlanc.?cwith?nctne
on the actual value of '?
project area. The applicant's HErl, which was maditied sevteiral
times, concluded that the area has "relAtively low 0 -s tin
e
and wil life any olodical value" (emphasis added) (EA page 6).
An Advanced Identification field team from the District, EPA, FWS,
NMFS, New Jersey Department of Environmental Protection and HMDC
comouc'-Mo a analysis of the Hackensack area using the Corps Wetland
Evaluation Technique (WET). According to the District, the "draft
WET documents have shown that the general regions encompassing ath e_
proposed development site and mitigation areas have ??
?ofs,znt?al?fpr fish and wildlifs, as W Q11 as he ote tial f r
h vin mod rate o hi h eneral ecolo ical value ..." (emphasis
added) (EA Paso 6). The District has indicated that the WET
analysis was not specific to the project area and was more of a
f4winoshield" survey. EPA and FWS requests for permit ekevation
were based, in part, on the lack of definitive data on the values
of the project and mitigation sites. FWS continues to question the
validity of the applicant's application of the MEP (a FWS
methodology) process.
Based on the decision documents for this applications "it
the
area concurred with
p project generally
appears t t vathe lue District
Their position r waso based
low wetland
on the HEP evaluation and other environmental data collected by
the applicant. However, the addition of Special Conditions (A.)
and (D.) Seem to indicate that their support was somewhat tacit
and that questions on the wetland values remained. Condition (A.)
requires Hartz to perform a site specific WET using environmeTnhItal
data from other agencies and the HEP generated information,
information is to be used to "confirm that the proposed wetland
mitigation values compensate for the aoareMte value
cax h Condition
functions lost to the filling activities..." Special
(D.) requires Hartz to undertake a comprehensive sampling and data
collection program which includes the establishment of baseline
information for the project area. While Hartz has provided
ious
biological, chemical and physical data in the form ao updated
surveys and studies conducted over the years,
comprehensive scientific report on the existing conditions does not
exist in the administrative record. Fr -am a o1 a er active w
belie ve that a valid Gul?deiine determin ti n Cann t e matt
w't t he enefit of an a ro r'at assessmen of the r _rval_ ors of the impact d reAcurc__. This information is equally
important in making the Corps public interest determination.
Fu her thi as ssment _should be cam feted afore a final
decis on 9a re reached. The level and sophistication of information
required will vary from application to application depending on the
size and nature of the project. It is recognized that in a small
number of cases (e.g., unauthorized fill), baseline information may
not be readily obtainable and best professional judgemen Must
prevail. However, the piecemeal approach of assessing c
wetland values and' the reliance
resou?Ces 9 r ey of the subje t parcels
19£6 comprehensive, natural
and the Hackensack River" are causes for concern.
9
According to Hartz, completing the proposed mitigation would
result in a 20% net increase in overall estuarine value in the
project area. For purposes of the mitigation discussion the
project area is defined as the 231.31 acre universe of the 1R--2
S-' to and the two 01.1-site mite,;" tion areas. Tho ewisting estuarine
value of the project area was ostimated at 3i?'l. of its potential.
A 20% increase would result in a project area that functions at 46%
of its potential estuarine value. When the 97.41 acres of project
fill, 8.84 acres of "islands" and the 9.40 acres r of pr&servation.
are removed from the project area, 115.86 acres marsh
enhancement and open water. In order to obtain their estimated 20%
overall increase Hartz will have to enhance the 115.86 acres to 41%
of their potential estuarine value. In this respect,, we are
concerned about Hartz'%, or anyones, ability to increase values too
such a level. If the open water is subtracted, the remaining g
acres of wetland would nave to he enhanced to 113% of its potential
estuarine value. Clearly, this would not be possible.
case additional acreage may be required to achieve the 20% not
increase in values required.
Another issue that is of concern is the inclusion of "fringe"
wetlands and open water in the mitigation plan. Over 33 acres of
the mitigation credit consist of a series of canals and adjacent
narrow strips (cringe) of intertidal plantings among 3,301 housing
units. The overall wetland value of this part of the mitigation
by aariaras
should by documented. The HEP evaluation looked at,ethis
vne 33.85 acre tract a *d not a5 on. r ,a mains purpose f or this
residential development. 'Cho applicant'
part of the plan may very well be aesthetics.
An issue that was initially discussed in the HOUSACE permit
elevation recommendations to ASA(CWI, was the proposed issuance of
the Hart- permit prior to receipt of s detailed mitigation plan.
In tnis case, permit conditioning appears sufficient to emsurep
hto
a detailed plan will be submitted for District approval prior
the discharge of fill material. However, at a minimum, the permit
plans should have provided enough information to accurately reflect
the work proposed (e.g., typical cross sections, etc.).
CONCLUSIONS:
' . Hartz should be req uired to complete a comprehensive
2
baseline stud,/ of the iR-2 site, oft-site mitigation are
decisi©ntns
pruviotJS 63 acre mitigation site before a final permit
made. The District, in Consultation with FWS, EPA and NMFS will
determine the scope of the study and the methods used. The final
call on the study will be the District's.
?Correctly, these areas were not counted by the applicant or
the District in determining the amount of marsh enhanCement
reM.'Irea.
10
r
2. The District, not Hartz, should complete a site specific
WET evaluation before making a permit decision. We Strongly
encourage the District to utilize experts from WES to undertake
this task. Funding for work Of this nature has previously been
provided to WES by HOUSACE and initial discussions hate confirmed
the availability of the appropriate WES staff.
3. The wetland replacement value of the fringe wetlands and
in tha r record?ted. Documentation
be included should
value t 5hould the,IR-2
ope its water
4. pnce information is obtained from the studies =noted in
paragraphs one through three above, a determination of the value
of the existing Phrasxdtea marsh and, as appropriate, the amount of
compensatory mitigation required to compensate for the lost
resource should be completed, Based on those determinations, a
final permit decision should be made.
5. After completion of the above, if a decision is made to
issue the permit, Hartz should be required to submit more detailed
permit plans. While we do not expect final drawings, basic
information
pro and post project cross between sections at all h mitigation t
typical sites
should be included.
IV. GENERAL ?CDt+lCi MS I MS
A review of the voluminous administrative record reveals the
extensive amount of effort on the part of the District to evaluate
this application. Se-.:*rely understaffed and working in a difficult
geographic area, they should be commended for their overall
aceamplishments in the regulatory program.
From the guidanca presented in this document, the general
conclusion should be drawn that the Army Corps of Engineers is
serious about protecting waters of the United States, includi.np
wetlands, from unnecessary and avoidable loss. The Corps districts
should interpret and implement the Guidelines in a manner that
recognizes this. Further, the Corps should inform developers that
special aquatic sites are not preferred sites for development and
tnat non-water dependent activities will generally be discouraged
IM accordance with the Guiaelines. When unavoidable impacts do
occur, the Corps will ensure that all appropriate and practicable
action is required to mitigate such impact5. The mitigation must
be properly planned with stringent permit conditions to ensure
s: accomplishes stated objectives. Compliance monitoring by Corps
n:s«ricts must be an integral part of this process.
11

n?t•?
1-T
STARKEY SHARP l ?
STEVEN D. MICHAEL
ROBERT L. OUTTEN
JOHN C. GRAHAM, III
SHARP, MICHAEL AND OUTTEN
ATTORNEYS AT LAW
SEASCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
January 22, 1990
Memorandum
Kitty Hawk Woods Project
Dare County, North Carolina
ls? ?
IQ,, ,b 0
MAILING ADDRESS:
POST OFFICE DRAWER 1027
KITTY HAWK, NC 27949
FACSIMILE: [phone]
This memorandum is prepared as a response to an on site
meeting conducted on January 16, 1990. The January 16th meeting
was intended to provide to certain responding agencies additional
information and clarification of concerns involving the
application made by the Kitty Hawk Woods partnership. The
meeting was designed to pay particular attention to the concerns
that had been expressed by the Environmental Protection Agency,
the United States Fish and Wildlife Service, and the National
Marine Fisheries program.
By separate transmittal, participants will be receiving
certain information or documentation requested during the January
16th meeting. This information includes the following:
1. Alternative site analysis to be prepared by
Sauter, Phelan and Associates.
2. Wetland quality analysis prepared by John
Fussell.
3. Description of design for wetland creation or
restoration on Tyrrell County site prepared
by Dr. Russ Lea of North Carolina State
University.
The developer was also asked to provide a final version of
the wetland impacts in the commercial portion of the project.
After careful review following the January 16th meeting, the
developer submits the same plan for development of the commercial
site with the same wetland impacts as delineated on the detailed
maps and plans which have already been submitted. The developer
has agreed to delete the 0.63 acres of retention pond excavation
on the commercial site as a result of the meeting in Raleigh on
November 8, 1989. The reasons that prohibit the developer from
making any further reductions in those impacts are set forth and
described in the remainder of this memorandum.
w.
Memorandum
January 22, 1990
Page 2
SUMMARY OF PROJECT ANALYSIS:
The Kitty Hawk Woods partnership seeks approval of certain
development activity which results in fill activities in areas
designated as wetlands. The exact nature of the impact on
wetlands has been defined in significant detail in plans
submitted to the United States Army Corps of Engineers. The
proposal is the result of a process covering approximately one
year. During this time a number of pre-permit meetings have been
conducted, resulting in numerous changes and revisions to the
proposed development plans. Significant changes have occurred in
the nature of the original proposal leading to the version of the
development proposal that was made to the United States Army
Corps of Engineers.
As a result of the pre-permit meetings and the changes that
have taken place in the nature of the application, the developer
feels that the proposed development adheres to principals of
avoiding wetland impacts, minimizing impact where it cannot be
avoided and mitigation for those impacts which result from the
proposed development. The developer also feels that the proposal
sets an excellent example that would survive any type of review.
The proposed development plan includes an analysis and
detailed explanation of all wetland impacts occurring within a
1,400 acre project. At the center of the project is a large area
of maritime forest constituting one of"the few remaining maritime
forest areas which are undeveloped as well as one, of the largest
areas of its kind on barrier islands on the East Coast. Wetland
impacts have been avoided throughout the entire 1,400 acres to
the extent that approximately 16 acres of wetland areas are
impacted. Of the 16 acres, less than 10 acres are involved with
creation of new building sites by direct fill with the remaining
impact resulting from wetland crossings or roadways. In the
vicinity of the commercial site (the most controversial portion
of the proposal), less than 5 acres of connected wetlands are
proposed for fill activity.
The site proposed for the most controversial portion of fill
activity is the only site available for the proposed commercial
development. Reference is made to the alternative analysis
provided by the firm of Sauter, Phelan and Associates. That
analysis indicates that no other site is available within the
Town of Kitty Hawk or within the immediate Dare County area of
the size necessary for the proposed commercial development on
this site. Further., reference is made to the existing zoning on
an entire 60 acre commercial site which permits the proposed
development. As additional evidence of the avoidance aspect of
the application, it is noted that only approximately 10 acres of
Memorandum
January 22, 1990
Page 3
wetland impacts are occurring on the entire 60 acre area of
commercially zoned property and of these, less than 5 constitute
direct fill of connected wetlands.
It should also be noted that the location of the proposed
fill in the commercial site is at the headwater of a connected
wetland adjacent to Kitty Hawk Bay. These waters are already
subject to considerable runoff exposure from U.S. Highway 158 and
commercial activity occurring from existing commercial projects
along that highway. Presently, no controls exist for protection
of the headwaters and connecting wetlands from exposure already
resulting from the commercial activity and adjacent highway. The
location of the proposed project at the headwater of the
connecting wetlands would result in control measures in the form
of storm water runoff procedures as well as drainage and other
matters described in significant detail in the proposed plan.
The developer submits the fact that the impacts from the proposed
project as well as the existing wetland impacts from U.S. Highway
158 and other commercial development will be controlled where
present controls do not exist.
Some of the comments set forth above also point to aspects
of minimization of wetland impacts throughout the entire 1,400
acre project. Considerable portion's of the project on which
development is proposed are part of the maritime forest or
connected maritime forest areas. The developer has proposed a
method of residential development following extremely low density
guidelines. The project areas have been designed in a manner so
as to minimize any impacts including narrow roadways, shared
driveway crossings and areas where crossings are prohibited
except by construction of bridge systems. Reference is made to
the entire project acreage and the total areas of wetlands to be
impacted.
In order that no net loss of wetlands shall occur, the
developer has proposed the creation of new wetlands on a site
located in Tyrrell County, North Carolina. The off site location
was chosen after detailed study of the Kitty Hawk Woods area and
the watershed involved in the proposed fill revealed no areas
suitable for the creation of new wetlands. Because of the value
of upland ridge systems and habitat, the creation of new wetlands
and mitigation of the proposed fill within the maritime forest
area was considered counter productive and it became necessary to
use a different site for the proposed mitigation area.
Nevertheless, this area constitutes a quality restoration or
creation of wetland project with 23 areas of wetland to be
created on the site. The proposed mitigation site is a part of a
black bear corridor within the Scuppernong River plan sponsored by
the Nature Conservancy. Reference is made to the design and

Memorandum
January 22, 1990
Page 4
analysis of the proposed site prepared by Dr. Russ Lea of North
Carolina State University.
There are a large number of other ways proposed by the
developer to both minimize and mitigate wetland impacts within
the entire project. It is the developer's position that these
different aspects of the proposal, when considered together,
constitute more than the required level of mitigation and
minimization of wetland impacts.
As an example, reference is made to the areas proposed for
residential development within the project. The developer had
already agreed as a part of the project submission to limit
wetland impacts within these proposed residential developments.
These impacts were limited by the nature of the project design as
well as proposed restrictive covenants that would prohibit
filling of wetlands and would limit applications for wetland
crossings.
In a response to comments made in the January 16th meeting,
the developer has agreed to provide conservation easements, in
addition to the restrictive covenants. These easements would be
provided to the agency or entity managing the central area of the
Kitty Hawk Woods project. An example of the proposed
conservation easement language is attached to this memorandum.
The original project called for conservation easements only in
certain areas not subject to development. This new aspect of the
developer's plan would impose these conservation easements within
the residential subdivisions that compose the majority of. acreage
controlled by this developer. All of the residential
subdivisions remaining under the control of the applicant would
be subject to these conservation easements.
One of the most unique aspects of the proposal is the
donation of approximately 455 acres of maritime forest to public
ownership. As a result of the pre-permit meetings. This aspect
of the developer's plan has been revised several times from
earlier proposals calling for sale of areas to public ownership
into the present proposal for the donation of the entire maritime
forest area defined in the application. Reference is made to the
wetland quality analysis prepared by John Fussell. The developer
is aware of no objections raised by -any reviewing agency as to
the quality of the proposed donation area in terms of its need
for protection, its value as a resource and the unique
opportunity afforded by this application. The fact that the
proposal now calls for donation of this site, rather than sale,
is also an indication of the economic factors affecting the
developer. Economic reasons is one of the primary reasons that
prohibit the further reduction of the wetland impacts in the
commercial site.

Memorandum
January 22, 1990
Page 5
When each aspect of this project is considered individually,
the unique nature of the proposal cannot be understood. However,
when all aspects of the project are reviewed together, the
developer feels that the standards required for a review of this
kind are met and exceeded. Some concern has been expressed by
reviewing agencies that the proposal might set a bad precedent
and provide an example of "buying a permit". In response, the
developer points to the fact that all parts of the project should
be considered together. If the permit is granted, there is no
doubt that other developers may wish t,o emulate a plan of this
kind.
Apart from the fact that the maritime forest itself is
unique and cannot be duplicated, other aspects of the plan are
also unlikely to reoccur. Here, the plan must be considered with
the possibility of development that might occur if this permit is
not obtained. There is no doubt that the level of protection
provided by this proposal will not occur again, either in this
project or in any other plan likely to-be submitted by some other
developer in response to this project.
4.ff
CONSERVATION EASEMENT LANGUAGE
ATTACHMENT TO MEMORANDUM
THIS DEED OF EASEMENT made the day of , 1990,
by Kitty Hawk Woods, a North Carolina general partnership, herein
referred to as Grantor, and the Nature Conservancy, herein
referred to as Grantee.
WHEREAS, the Grantor is the owner of certain properties
hereinafter referred to;
AND WHEREAS, the property has certain aesthetic values in
that it constitutes a portion of a maritime forest worthy of
protection from uncontrolled development and contains therein
certain areas identified as wetlands, the integrity of which is
important to the continued existence of the maritime forest area;
AND WHEREAS, the Grantor recognizes the need for protection
of such maritime forest areas and wetlands and in order to
accomplish that protection has arranged for the conveyance of
certain conservation easements as described herein for the
purpose of preserving the natural values and character of the
property and preventing the degradation or diminishment of the
wetland areas or the reduction of maritime forest areas;
AND WHEREAS, the Grantee is willing to accept such easement;
NOW THEREFORE, in consideration of One Dollar ($1.00) and
other good and valuable consideration, the receipt of which is
hereby acknowledged, and in further consideration of the mutual
covenants, terms and conditions set forth herein, the Grantor
does hereby grant and convey unto the Grantee and to its
successors, in perpetuity, a certain interest and conservation
easement, the nature and extent of which is set forth hereafter,
in and over the lands of the Grantor which are described as
follows:
(Here the proposed residential subdivisions will be
described.)
The terms, conditions and restrictions of this conservation
easement are as follows:
1. No wetland areas, as defined by Section 404 of the Clean
Water Act, may be excavated, dredged, filled or removed and all
such areas shall be left in their natural state.
2. No property subject to this easement shall be eligible
for any permit to fill such wetland areas, even where such permit
might normally be allowed under the policies and provisions of
the Clean Water Act as administered by the Army Corps of
Engineers.
400
3. The terms of this easement shall not prohibit the
construction of bridge crossings to provide access between areas
of high land but crossings designed using roadway fill material
shall be prohibited.
4. Areas designated on the subdivision plat of the property
subject to this easement as wetland crossings or areas for
location of roadway fill shall not be prohibited by the terms and
provisions of this easement but this easement shall apply to all
other wetland areas as designated on such plats.
5. There shall be no removal, destruction or cutting of
trees, shrubs, vegetation or other similar material from any of
the property, except as may be permitted under the terms and
conditions of the ordinances of the Town of Kitty Hawk or for the
prevention and treatment of disease, good husbandry practices or
other necessary public purposes as approved by the Town of Kitty
Hawk.
The Grantee shall have the right to enter upon the property
at reasonable times in order to monitor compliance with the
terms, conditions and purposes of this easement. It is
acknowledged that the property subjected to this easement is
intended for residential development and that the reasonable
residential use of such property is not intended to be limited or
prohibited, except as specifically set.forth by the terms of this
easement. Any failure on the part of the Grantee herein or its
successors to enforce or otherwise insure compliance with the
terms and conditions of this easement shall not constitute a
waiver or forfeiture of the future right to take action in such
manners as defined by this easement.
TO HAVE AND TO HOLD the said rights, privileges and
easements herein granted unto the Grantee, its successors and
assigns forever.
IN WITNESS WHEREOF, the Grantor has hereunto set its hand
and seal the day and year first above written.
(The terms of the easement as set forth above will need to be
more particularly defined and the paragraphs set forth above are
sighted as examples of the nature of a conservation easement to
be imposed upon the residential subdivision areas within the
Kitty Hawk Woods project. Certain areas not proposed for
residential subdivision will also be subjected to similar
conservation easement language, but the references to the
residential subdivision portion shall be omitted. The terms of
the conservation easement will differ' for the lower and higher
density properties within the residential subdivision. The
developer has agreed to submit the areas owned by the developer
to a conservation easement of this kind prior to sale and as a
condition of the permit application process.)
IMPORTANT
To
Date Time
WHILEYOU WERE 0 T
M
of ?-YJ
Phone
AREA CODE NUMBER EXTENSION
TELEPHONED PLEASE CALL
CALLED TO SEE YOU WILL CALL AGAIN_
WANTS TO SEE YOU URGENT
RETURNED YOUR CALL
Message
'T'1?.! ? ? SignedAM?? live.
N.C. Dept. of Environment, Health, and Natural Resources
:??? - 3 yon
A61ON-
? Noie and file - ? Note, initial. end forward
?,.Npte and,return to me:- ? Your comments, please
? Note and see me about this ? for your information ,.
_ ? Foil.your, approval ." Preparereply for my. signature
? Per our conversation ? Prepare. information for me to reply
? Per your request. '?'Pfease 'answer, with copy to me
Return with more details. To' be`filed '
4

M?
/&%\ WETLANDS
FORESTRY
?f 'I
°'T_'?"' \ WASTE DISPOSAL
TRIANGLE WETLAND CONSULTANTS
January 25, 1990
Mr. Quentin Bell
Kitty Hawk Woods
P.O. Box 749
Kitty Hawk, NC 27949
Dear Quentin:
Attached is our mitigation prospectus for, the site proposed
near Columbia, NC,. Feel free to distribute this document to
all agencies. We will wait for your go ahead before pursing
the mitigation plan which will ultimately be tied to the
permit application.
We are very positive about the attributes of this site and
truly believe it will be relatively risk free to produce a
functioning bottomland hardwood forest. We are encouraged
by what we saw during our reconnaissance and look forward to
continuing our involvement; with the project.
Sincerely,
Russ Lea
Douglas J. Frederick
rwh
Post Office Box 33604 • Raleigh, North Carolina 27636 • Phone [phone]

MITIGATION PROSPECTUS
for
KITTY HAWK WOODS
This mitigation prospectus is l:)e i.ng provided by Tr° i.angl e
Wetland Consultants, Inc. for wetland fills associated wil-h
the development of Kitty hawk Woods in 1Ci t_, ty Ilawk, NC. I'lre
proposed mitigation site is located :in Tyrrell County-, N,C
near the town of Columbia. The mi_ti.gat.ion will consist of,
converting 22.8 acres of agricultural fields to forested wet-
lands with an added donation of a 3.0 acre wood.] hie.
BACKGROUND
Of the many issues associated with the Clean Water r
Act's 404 program, the one debated most. often is wetlands
mitigation (i.e. compensation for wel,land loss ). Wlti lc,
mitigation has been readily acc.ept:ed caiI'll .irr t1-1e 101
per•mi..tt:ing Process, various researchers Crave begun to yti< -.-
tion the success of mitigation projects. Furthermoro
regulators often cite the lack of te?c;I111010gy for. creating caet-
lands as the reason for many project failures. Tlris
statement may be well founded; however-, a closer loot: reveals
that other, factors likely contribute to poor., success rates.
Inadequate mi.tigati.orr ustta.l .ly is a Punct,ion of poor
1.

documentation, planning, moni'tor'ing, and enforcement of per-
formance criteria.
Total duplication of natural wetlands is impossible due
to the complexity and variation in natural as well as
created or restored systems and the subtle relationships of
hydrology, soils, vegetation, animal life, and nutrients
which may have developed over thousands of ,years. Neverthe-
less, our experience to date suggests that some types of
wetlands can be approximated and certain wetland functions
can be restored, created or enhanced in particular contexts.
It is often possible to restore or cr'eat'e a wetland witty
vegetation resembling that of a naturally-occuring wetland.
This does not necessarily mean, however, that it will have
habitat or other values equaling those of a natural wetland
nor that such a wetland will be a persistent, i.e., a long
term, feature in the landscape.
APPROACH
At Triangle Wetland Consultant's, we have developed proce-
dures for the development of mitigation plans which improve
the chances of resource replacement both in negotiations and
in reality. For this mitigation project the following will
be addressed:
1. Conduct, an ecological assessment of the wetland
to be restored, replaced, etc. This implies that.
the consultants will understand the chemical, physi-
cal and biological interactions of the system before
replacing it. Our assessments are tied to a
reference forested wetland according to the MiST
2

I
(Mitigation Site Typing) procedures under review at
EPA Region TV.
2. State goals and a discussion of the functions and
values planned for replacement.
3. Establish the methods to answer the questions
of what, where, when, and how (i.e., acreage of
mitigation, wetland habitat type(s) to be
constructed/restored, location, dates for begin-
ning and completing the project, methods of con-
struction, and maintenance requirements). In or-
der to ensure fair compensation, more acreage for
replacement than was lost to development will be
required.
4. Standards will be set for success, including a
qualitative and to the extent possible, a quan-
titative description of what:, will be considered a
successful, functioning wetland in the permit.
5. We will design a monitoring strategy to determine
the success of obtaining the performance standards.
6. A contingency plan will be formulated outlining the
possible restorative measures in case the mitiga-
tion meets with partial success.
In order to assist the programmatic aspects of implementing
this mitigation the following will be developed:
1. A single, structured format for the development of
the mitigation project will be established to ensure
that the above criteria are included.
2. All mitigation plans will be developed in unison
with commenting agencies in the early stages of the
design process.
3. All information, requirements and monitoring results
will be kept in a single comprehensive file.
4. A complete mitigation plan will be attached to the
404 permit in such a watt- that the permit is
revocable if the terms and conditions of the plan
are not met. In addition, reference to the
mitigation will be in the permit.
5. The consultants, operating in good faith, will
attempt to develop a review program which assigns
responsibilities for inspecting the completed
3
I
I
mitigation project, evaluating success a. rid
reporting to the agency responsible for enforcing
the mitigation agreement.
DESIGNING FOR SUCCESS
The success of any wetland mitigation project depends,
to a considerable extent, upon the ease with which the
hydrology can be determined and established, the availability
of appropriate plant stocks, the rate of growth of key
species, the water level manipulation potential built into
the project, and other factors. To the extent possible,
our mitigation projects will be self-sustaining without: the
need for continued water level manipa.il.ation or other manage-
ment over the life of the project unless such management is an
intentional feature of the project. We will attempt to
develop the project in a broader hydrologic and ecological
context (if appropriate) where specific habitat or other
values dependent upon the broader context are to be created,
or where expected urbanization or other alterations in the
watershed or on adjacent lands may threaten the wetland to be
restored.
In order to reduce the project risks and to enhance the
abilities of multidisciplinary mitigation teams to communi-
cate, Triangle Wetland Consultants have employed the skills of
the Virtual Environments Laboratory in the School of
Design at North Carolina State University. The lab serves as
a dedicated computer-based imaging and simulation facility.
.4
Y
Interdisciplinary teams can assemble and design landscape
features using human-scale environments for modeling complex
environmental influences such as hydrology. The virtual.
environment methodology will refocus the orientations of
computer-aided design and scientific visualization. While
it shares with these fields the efficient generation and
analysis of alternatives, the virtual environment becomes
more intuitive, more three dimensional and more interactive
than traditional design.
Rather than the graphic representation of abstract
scientific principles emphasized in most scientific visualiza-
tion, the Virtual Environments Lab will assist in the
production of life-sized, real.-world phenomena and spacial
characteristics. These will be interacted with and dis-
played in such a way as to walk the viewer completely through
the virtual wetland restoration project. These graphic
representations can then be translated in engineering design
plans to ensure a high degree of attainment of project,
specifications.
SITE DESCRIPTION
The project, area is in the northeastern lower Coas-
tal Plain region of North Carolina near Columbia, the county
seat of Tyrrell County. The project area is in the Riders
Creek watershed which drains into the Scuppernong River. The
Scuppernong River flows into Bull. Bay of the Albemarle
5
A
9
Sound. The project area consists of agricultural fields ad-
jacent to the Tyrrell County Elementary School. along
State Road 1300 in the southeast corner of the intersection of
US Highway 64 and NC 94.
The soils of the project area consist of Tomotley-
Augusta-Altavista which are nearly level having loamy to
sandy surface soils on uplands. The Tomotley soils are
poorly drained with a very dark gray fine sandy loam surface
soil. The subsoil is gray sandy clay loam in the upper part
and light brownish gray sandy loam in the lower part. The
Augusta soils are somewhat poorly drained wii;h a surface
layer that is dark grayish brown fine sandy loam. The sub-
soil is light olive brown sandy clay loam and in the upper
part and gray to light gray sandy clay in the lower part.
The Altavista soils are moderately well. drained with surface
soil of dark brown loamy fine sand. The subsoil is yel-
lowish brown sandy clay loam in the tipper part and yel-
lowish brown fine sandy loam in the lower part.
The adjacent forests are comprised of native trees of
loblolly pine, sweetgum, blackgum, ,yellow-poplar, willow
oak, swamp chestnut oak (cow oak), American beech and red
maple. The major understory trees include dogwood, ironwood,
sweetbay, wax myrtle and sourwood. The understory her-
baceous and shrub layer consists of briers, reeds, and
other associated plants. In close proximity to the project
site are several natural tupelo swamps which provide unique
6

habitat and a means of connecting, our project to natural
surface waters (see enclosed map).
Our preliminary reconnaissance indicates that there is
great opportunity to provide a variety of forested wetland
communities on this project site. The range of proposed com-
munity types would span from obligate wetland associates to
facultative wetland associates. There is considerable
benefits of using this site because of the existing water
controlling structures that are already in place and the
ability to reconnect the system to naturally functioning
wetlands (see map).
SUMMARY
A fully developed mitigation plan will be provided ac-
cording to the procedures developed in the MIST document;
inclusive of monitoring and standardization against a
reference ecosystem. There is a high probability of
successful mitigation on this project site. The proven
ease of establishing wetland forested vegetation on agricul-
tural fields and the considerable benefits of in-place
water management structures, makes this a desirable location
to offset losses associated with wetland fills at Kitty Hawk
Woods.
7
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TYRRELL CO. I GATION SITE
PROM5ED
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A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i P001Ec? REGION IV
345 COURTLAND STREET. N.E.
OCT 2 T 1989 ATLANTA. GEORGIA 30365
RREF: 4WM/WQMB/LP
-f
LTC Colonel Thomas C. Suermann
District Engineer
U.S. Army Corps of Engineers, Wilmington"`
P.O. Box 1890
Wilmington, North Carolina 28402-1889`
JAN 18 1990
ATTENTION: Mr. James Poteat
SUBJECT: Kitty Hawk Woods Partnership WATER QUALITY
(Public-Notice No. 89N-028-0492) SECTION
Dear Colonel Suermann:
This is in response to the subject public notice concerning the
construction of a shopping center, multifamily housing, residential roads
and driveways in Kitty Hawk, Dare County, North Carolina. As a result of
this activity, approximately 16 acres of very high quality wooded wetlands
dominated by cypress (Taxodium distichum) and blackgum (Nyssa biflora)
will be eliminated by fill activities. In an attempt to compensate for
the loss of valuable wetlands, the developer is offering to convey about
135 acres of dune-swale maritime forest to the Nature Conservancy An
additional 124 acres of the same system could also be conveyed to the
Nature Conservancy if the parcels are released from the bank deeds of
trust. A 320-acres tract of maritime forest is also being offered to the
Natural Heritage Trust for sale. Finally, a 26-acre farm field located in
another county is proposed to be converted into a wetland.
Although the applicant has offered to transfer existing wetlands into
public ownership as mitigation, it is the position of the Environmental
Protection Agency that this action cannot be considered mitigation for the
loss of valuable Outer Banks freshwater wetlands. As proposed, the
project will still result in a loss of 16 acres of a high quality aquatic
resource. Mitigation is applicable only if the proposed fill activity is
dependent upon being located in a wetland to accomplish its primary
function, and no practicable alternatives are available for the project.
Commercial and residential development are not considered water dependent
activities.
Consequently, it is our opinion that the proposed activity will result in
unacceptable direct and cumulative negative environmental impacts, and is
contrary to the 404(b)(1) Guidelines. As a result of this determination,
is our recorlmeridation Lhat the subject permit application be denied.
:lc:?rety yours,
i y
4
Navembex 1.6, 1989
Dr. G. Wayne Wright
Regulatory Branch Chief
US Armv Corns of Engineers
P.O. Box 1890
Wilmington, North.Carolina 28402-1889
RE: Kitty'Hawk Woods, Public Notice C089-N-028•-0492
Dear Dr. Wright:
Kitty Eawk Woods Partnership is the applicant seeking permit;
to fill 16.42 acres and excavate 2.16 acres of fo-rested wetlands
ork 1, 400 acre ownership. As a resu.14- vi the 11; 9/89 iZc. E_; qr?
-t7 t!`i??
Jieet:!.!13 agencies, we lla ': deGt,o YdGCZ._f
s" i c7ht.ly . The proposed changes are s.m.,TDr7 r:l.zoi .K r7 C'. rl_?'
C cirliiercj'al : h#; o.r'C} nal r'[ pl i cat:.:io/
1. _'•_].I'1`a J. Z? iC]f3u of adjacent (,ve(•Jc°mds and 5.4*7 acr-e F) t" is {-.7_Jar `e
Fae ?_?:.?ic1s for marls, park:Ing and 1ot+ridations L-'or i:t??? :sholaptric, c?ntE r.•.
0,63 acre of re,tencio} i Ooi?.d u:1.l1 b, tall f n(I
t-:), uc._J.and :locat.i6ns within the project. !-'t important to re,!i1emb-au
'Chat' ?:i":t? 4.15 acre :`ill in the deep, wet Fwa.!_es i.s at. ti:e ..?7 r''.• ;"T_t_
'.iio'. t te.rrdnu- (US 1.5.8. bypass) . This rema.:i.7i'ing swale sys-te'.n: `A7 i.
r -t, ct'ot'A' 'v C7;Je spcLce requirements of the Town or by
ease-ments throughout the property
,'-)I Pro.ect TT , ulti family The rginal app;:;.:. .., ion f:c r
0.29 'acr'tls Of F_-111 for a road Grossing `l t`... tfze, and Iace--..n 4ia:.?_ :ci'! o? La
vital to thi'; project. The request to -fJ 11 3.98 acres on
s ale.:1 for nark.?Iig and townhouse footprints rep r_esem.ed c? r!'ti7.yI'!
.once'i_ve d at the pre-permit meetings to save r:idt.le svii.]- ayvl f.i,of":3.
espec%ally the old growth canopy, trees. This or l lin l plan n
11,')p:.icati_on to •fi11 or excavate 5.80 ac,---es til.i J,a'tands, bat }.:h
developer will see that c onservat._ion easements 'da? l;l c;i? p_r ,vi (.1FCi f(- r•
protee-tion_, of ridge area as w6li as the deep,, wetland swa- los runn-
ing south to Kitty Hawk Bay.
Mffij HdwkN%)o&
Residendd Esmtes
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258

Dr. G. Wayne Wright
Kitty Hawk Woods
page 2
(3) Projects IV," VLI,. I'X, and "X, Residential: The Applica-
tion to fill 2.53 acres wetlands for the road and driveway cross-
ir_gs is still "necessary for then"e ..tire: ant'' and
other deed restrictions will be .pr epared prohibiting future lot
buyers from making impacts on wetlands,on their respective lots.
(4) ' Mitigation Program: The heart of the mitigation plan is
to place significant portions of our undisturbed maritime forest
into public ownership. The shopping center transaction will pro-
vide the funds enabling the landowner to den ate 'the 135 acre tract
and as much of the 124 acre parcels in fee simple interest to the
Nature Conservancy or State. the 26 acre Tyrrell farm will be
restored to a forested wetlands condition under the guidance of
the USFWS and NCWRC to ensure "No Net Loss" of wetlands. Tn add-
ition, the proposed 320 'acre sale to the state will 'now be donated
probably in 60 acre increments beginning at_th'e'l?5 acre tract and
continuing north until the.entire 455 acres is in public ownership
over a period of 5 years. The bank liens on the 320 acre tract will
be paid off from residential income based on a 5 year absorption rate.
I would like to address other subjects brought out in the
Raleigh meeting
. Avoidance and Minimi'zation' of Wetlands: Two pre-permit meet-
ings with review agency input resulted in the current plans as
pre: ent;e .X ill -the application. We fee: that t1 ha wetlu:,:,d impacts
are minimal for a tract of this size and are necessary to develop
the commercial, multifamily, and residential areas properly. Jim
Poteat, formerly with your staff, presided over these meetings and
will substantiate our consciencious effort to minimize wetlands
impacts.
Inconsistency With"Land Use Plan: Our attorney, Starkey
Sharp, and the town planner, Dave Monroe, had reviewed the
language in land use plan earlier and found no inconsistencies.
This problem now comes as a complete surprise, and we've asked
the Town to make an interpretation.

'Kitty Hawk%o&
Resfdentlal Estates ,
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258
,OF
Dr. G. Wayne Wright
Kitty Hawk Woods
page 3
Local Permit:: and Zoning: We feel that zoning changes,
subdivision plans,.health department permits should be hand-
led at the local level and should not be an issue with this
Federal permit.
Alternate Site: The attached letter from the shopping
center developer confirms our position that this is only
available site for a-shopping center of this size on the
Outer Banks
Precedent: This permit issuance and mitigation plan
will not set a precedent for other developers because their
ability to donate a "precious natural resource" such as a
maritime forest is limited.. If it is a precedent, we, the
partnership feel it is a very good one.
SFntin 1 ,
D Bell, Project Manager
Kitty Hawk Woods Partnership
QB/ ltr7
Enc:
Kitty Mwki%)o&ls
Res&mf;a[ F_s-1-
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258
CCD
CAPITAL CENTRE DEVELOPMENT', LTD
November 14, 1989.
Mr. Quentin Bell
Kitty; Hawk' ,Woods
P.0. Box 7,49
Kitty Hawk, 'NC 27949
IZE: Outer Banks Level Analysis
Dear Quentin
As a follow-up to our conversation today, I reviewed my files in
order to provide you with feedback on our analysis of available
shopping center parcels on the Outer Banks.
For reference purposes, a'normal land requirement for a shopping
-center the `size that-we have planned (180,000psquare'feet) is
approximately 18 'acres. Due to the open area restrictions imposed
by Nags Head, Kill<'Devil Hills and Kitty Hawk, the'land necessary
for such a development isapproximately!30 acres.'`'We evaluated
every viable large tract from Nags Head-north to.Kitty Hawk and
found only one other-site (other than'Kitty Hawk Woods) that would
provide the require& access and population density''necessary for a
development. The problem with the other site'is'that it is zoned
residential and Nags Head indicated that rezoning to commercial was
not possible. Additionally, the property had wetlands areas on
parts'of'the property that would need to be mitigated in order to
design:_the layout of'the center.
.To summarize, we spent several months evaluating several possible
.sites on the island and 'the only site that would work functionally
is the Kitty Hawk Woods site.
I ldok forward;:to a resolution_of the remaining issues and to our
initiating"'the construction of our project.
Best p sonal regards -
Robert Mo ele r.
Vice President
RLMjr/jdm
5400 Glenwood Avenue, Suite 300 • Raleigh, North Carolina 27612 - [phone]- Fax No. [phone]

DISTRIBUTION LIST FOR APPLICATION
MATERIAL FOR STATE AND FEDERAL PERMITS FOR
KITTY HAWK WOODS PROJECT
Preston Pate
Office of Coastal Management
NC Dept. of Natural Resources
and Development
Box 769
-
Morehead City, NC 28557
Phone: (919) ,726-7021
Fred Annand
The Nature,-Conservancy
Carr Mill, Suite 223
Carrboro, North Carolina 27510
Phone.: (919.) ' 967-7007
John Fussell
1412 Shepard Street
Morehead City, North Carolina..28557
Phone: [phone]
Dr. Wilson Laney._
US Fish and Wildlife Service,,',,,.
P.O. Box 33726
Raleigh, North.Carolina 27636-3726
Phone,: [phone]
Dave Monroe
Town of Kitty Hawk
P.O. Box 549
Kitty Hawk, North Carolina 27,949
Phone: [phone]
Ernest W. Jahnke,
Regulatory Branch
US Army Corps of Engineers
P.O. Box 1890
Wilmington, North Carolina 28402-1890
Phone: [phone]
K1ttg MwkV%)o&
R?tdentlri! Fsk*s
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258

I
Deborah Sawyer,.``
Division of Environmental Management
NC Dept. of National Resources, and
Community Development
P.O. Box 1.507
Washington, North Carolina 27889
Phone: (919) x.46-6481
George Everett
Division of Coastal Management
.NC Dept. of National Resources
and Community Development
P.O. Box 27687:'
Raleigh, North-,Carolina 27,611-7687
Phone: [phone]
Dennis Stewart,
NC Wildlife Resources commission
111 Garner Road!'
Greenville, North Carolina 27834
Phone: (919), ;'752-x3270
Alan Weakley
National Heritage Program
NC Dept. of National'Resources'and
Coummunity Development
P.O. Box 27687,
Raleigh, North-Carolina 276117687
Phone:.(919) -733-7701
John Dorney
j Divisionlof Environmental Management
v NC Dept.'.of National Resources and
Community.Development
512'North"Salisbury Street
Raleigh,, North :..Carolina 27611.
Tom Welbone
US Environmental ProtectionlAgency
345 Courtland Street NE'
Atlanta,,Georgia 30365
Phone: [phone]
K1tty Wwk"bo&
a ; ResIdentfal Estates
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258

Kitty Hawk`%x)ds
NesMenfid Estams
POST OFFICE BOX 749s`< KITTY HAWK, NORTH CAROLINA 27949 919-261-2258

tr, 14 1989
TALC
Dr. Wayne Wright
Regulatory Branch Chief
US Army Corps of Engineers
P.O. Box 1890
Wilmington, North Carolina 28402
RE: CESAW -.C089-028-0492- Kitty Hawk Woods
Dear Wayne:
I've arranged a field trip for Lee Pelej, EPA,'and Larry
Hardy, National Fisheries, to examine the proposed wetlands
impacts, quality of wetlands in the donation, and the Tyrrell
wetlands restoration site. The meeting begins at 8:30 a.m.
on January.1,6,1990 at our attorney's office.
The following will also be in attendance:
Dennis Stewart, NC Wildlife Resources Commission
Fred Annand, The Nature Conservancy
Alan Weakley, National Hertiage Program
John Fussell, Ecologist
George Everett, Division of Coastal Management
Russ Lea, NC State University
Fred White, NC Forest Service
Ernest Jahnke, Corps of Engineers
Mike Gantt, US Fish & Wildlife Service
Starkey Sharp, Attorney
Other representatives from the review agencies are certainly
welcome to attend. I sincerely hope that you could be with us
also.
Lee Pelej, EPA, emphasized that the wetlands restoration
would need to be state-of-the-art. With that assignment, I've
asked Fred White and Russ Lea to participate with it's design.
Please try to attend.
Sinc ely/,
Qu tin Bell
Project Manager
2B/ltw
Enc : Kitty HawkWoods
Resmenfial Arms
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258

January -16, 1990
8:30 -9:00 a.m. - overview of Project at Starkey Sharp's;
office (see.map)
9-'00;:. -10:30 a.m.- Field Examination of wetlands to be
impacted in shopping center & multi-
family (projects I & II)
10':30 -12:00 p.m.- Field Examination of donation areas
(both 135 acre and 320 acre parcels)
-12:00 1:00 p.m.- Ride through residential developments
for a look at past and proposed deve-
lopment
1:00 - 2:00 p.m.- Lunch
3:30 - 4:00 p.m. - Look at proposed wetlands restoration
site in Tyrrell County ( see map )
4:30 Adjourn

Kitty HawkWoodis
ReshknW Es1ms
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258
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January 3, 1990
MEMORANDUM
TO: Governor James G. Martin
FROM: William W. Cobey, Jr.
SUBJECT: Kitty Hawk Woods Briefing
1. Developer Quentin Bell of Kitty Hawk Woods Partnership proposes to
develop 1400 acres of maritime forest in Kitty Hawk for residential lots,
multi-family housing, and a shopping center. Kitty Hawk Woods, where
development will occur, is one of the most significant tracts of maritime
forest on the east coast.
2. Negative impacts include loss through filling or excavation of 18.52
acres of wetlands, 10.25 of which are related to construction of a shopping
center. The shopping center is the area of greatest contention, but is
essential to the financial success of the development.
3. To mitigate wetland loses, the developer proposes donation into public
ownership of 455 acres of prime maritime forest in the center of Kitty Hawk
Woods, protection of another 124 acres through conservation easements, and
restoration of a 26-acre forested wetland in Tyrrell County. The portion of
Kitty Hawk Woods proposed for donation includes the best quality section of
this very significant maritime forest area.
4. In view of this exceptional opportunity to protect a nationally important
natural area without public acquisition cost, state agencies (DEM and DCM)
propose to accept the mitigation plan and issue a 401 Water Quality
Certification and a positive Consistency Determination.
5. Supporters of this action include the Nature Conservancy, local
governments involved, the Division of Parks'and Recreation Natural Heritage
Program, the Division of Coastal Management, and the Division of Environmental
Management. Opponents include the US Fish and Wildlife Service and
potentially the Environmental Protection Agency.
6. My staff has briefed Nancy Temple and David Prather. I believe this is
consistent with the Coastal Initiative in that it allows a well-planned
development to occur while providing for significant environmental protection.
WWCjr:GE
20 1s
. wUu
DIVISION OF PARKS AND RECREATION
iy
October 13, 1989
:.? ;t'j;`..?
TO: Steve Benton
FROM: Alan Weakley, Natural Heritage Program

SUBJECT: Comments by N.C. Natural Heritage Program on CESAW-89-
0492, Application by Kitty Hawk Woods Partnership to fill wetland
swales for shopping center and residential development.
Few ecosystems are more threatened than the maritime forests
of Atlantic Coast of the United States. The barrier islands of
North Carolina support a variety of maritime forest types:
Maritime Evergreen Forest, Maritime Deciduous Forest, Maritime
Swamp Forest, and Maritime Shrub Swamp. Kitty Hawk Woods
contains one of only two large tracts known of Maritime Deciduous
Forest, which is rated as "Critically Imperilled Globally" (the
other example is at Nags Head Woods). Kitty Hawk Woods contains
by far the largest occurrence of Maritime Swamp Forest, also
rated as "Critically Imperilled Globally".
In a comprehensive review of remaining maritime forest
tracts in North Carolina, Lopazanski, Evans, and Shaw (Assessment
of Maritime Forest Resources on the North Carolina Coast, 1988)
stated
"Kitty Hawk Woods is the largest area of maritime forests on
the North Carolina coast composed of species more typical of
northern maritime forests. The forest also contains
southern elements as well as a number of rare species such
as Listera australis. Kitty Hawk Woods' ecological
significance lies mainly in its size, lack of disturbance
and extensive forest wetlands. These attributes also make
it an important wildlife refuge."
In fact, Kitty Hawk Woods does not closely resemble maritime
forests north of the Chesapeake Bay, and the Maritime Deciduous
Forests at Kitty Hawk and Nags Head are the only representatives
of this type over 100 acres in size. Bellis (in prep.) has found
that the highest diversity maritime forests on the east coast of
North America are found in northeastern North Carolina.
Wentworth et al. (in prep.) also found the maritime forests of
Kitty Hawk Woods and Nags Head Woods to have unique composition
when compared to other maritime forests in North Carolina.
On the basis of these assessments, the North Carolina
Natural Heritage Program rates Kitty Hawk Woods as an ecological
area of national significance, and one of the highest priority
natural areas in North Carolina. The upland and wetland systems
of Kitty Hawk Woods are of exceptional natural value. By far the
largest Maritime Swamp Forest on the Atlantic Coast of North

America, the wetland swales of Kitty Hawk Woods are especially
notable. The N.C. Natural Heritage Program (hereinafter NCNHP)
considers the protection of Kitty Hawk Woods to merit the highest
attention from federal, state, and local agencies and
individuals.
The NCNHP therefore supports the project proposal. We note
that of the 15.98 acres of wetlands to be filled, 11.54 acres are
considered "separate wetlands" (swales separated from adjacent
system by relic dunes). Based on our onsite visit, we consider
these pocket wetlands to be of limited value. Onsite evaluation
of wetlands to be filled also revealed significant degradation of
wetlands in the shopping center area, due to proximity to
developed lands, pollution from roads and development already
present, and excess influx of nutrients from these sources. In
contrast, the proposed donation tract contains wetlands of
uniformly high quality, substantially removed from offsite
impacts. The upland areas it contains are of similarly high
quality and are highly significant to our natural heritage.
We also note that Kitty Hawk Woods Partnership has offered
off-site mitigation for wetlands to be filled.
The NCNHP feels that without the permanent protection of the
135-acre donation tract and the 320-acre purchase tract, ongoing
development within upland Maritime Deciduous Forest and adjacent
to wetland Maritime Swamp Forest on these tracts may well largely
destroy wildlife -.;:d cthe:r -values of these ?
Though much of these tracts is jurisdictional wetland, the ridge
and swale topography allows along-ridge access to nearly all
upland portions, enabling current or future owners to develop
these areas with minimal regulatory influence. The proposed
donation (and associated purchase, should funds be available)
represents an opportunity to protect this unique and important
area.

Please type of print. Carefully describe all an-
ticipated development activities, including construc-
tion; excavation, filling, paving, land clearing, and
stormwater control. If the requested information is
not relevant to your project, write NIA (not ap-
plicable). Items 1-4 and 8-9 must be completed for
all projects. .
1' APPLICANT _....?.. :.._. _....._ w: ,_:
a.
b.
C.
Name KITTY HAWK ?•?OODS PARTNERSHIP
Address P• O. BOX 749
City KITTY HAWK State N. Q.
Zip 2 7 9 4 9 I Day phone [phone]
X Landowner or Authorized agent
Project name (if any)
Kitty Hawk Woods
If the applicant is not the landowner, also give
the owner's name and address.
2. LOCATION OF PROPOSED
PROJECT
a. Street address or secondary road number
b. City, town, community, or landmark
Town of Kitty Ilawk
c. County Dare
d. Is proposed work within city limits or planning
jurisdiction? Yes
e. Name of body of water nearest project
Currituck Sound
3 DESCRIPTION AND PLANNED,
::USE OF PROPOSED PROJECT
a. Describe all development activities you propose
(for example, building a home, motel, marina,
bulkhead, or pier).
Dp_imm 1 onment of Shonni nor
C'entor., tnwnhnuse units and
si nql P fami 1 y siffidl -,Tl Gi nns
'If you plan to build a marina, also complete
and attach Form DCM-MP-2.
b. Is the proposed activity maintenance of an ex-
isting project, new work, or both?
New Work
c. Will the project be for community, private, or
commercial use?
Commerical Use

d. Describe the planned use of the project.
ShoI212ing Center & Offices on 66 Ames
225 Townhouse Units on 97 Anrec
127 Homes on Small Lot-, (15,000-= ft +
73 Homes on Larae Lots (,Ac +)
4; -LAND AND WATER
- CHARACTERISTICS
. . T:.
a. Size of entire tract 1400 Acres
b. Size of individual lot(s)1500 sg ft to 10 Acre
c. Elevation of tract above mean sea level or Na-
tional Geodetic Vertical Datum 2 ' a 2 9'
d. Soil type(s) and texture(s) of tract
Friznns Sands & .onohv Loans
e. Vegetation on tract P1a rrit i mr- FnreSt
f. Man-made features now on tract
Rinalp wamil?z HomPS
g. What is the CAMA Land Use Plan Classifica-
tion of the site? (Consult the local land use
plan.)
X Conservation X Transitional
Developed Community
Rural Other
h. How is the tract zoned by local government? RSnl
Commerical, Multifamily, sinqle family,.
i. How are adjacent waters classified?SA-1
j. Has a professional archaeological survey been
carried out for the tract? No
If so, by whom?
5 UPLAND DEVELOPM?TNT?'}
Complete this section if the project includes any
upland development.
a. Type and number of buildings, facilities, or
structures proposedShoppinq Center
(14.7,000 sq ft) , multifamily(225.Unit
Single family (200 Lots)
b. Number of lots or parcels 2 0 0
C. Density (Give the number of residential units
and the units per acre.Pultifamil :4Units)(ci
Single Family: 2 Units acre Maximum
d. Size of area to be graded or disturbed
e. If the proposed project will disturb more than
one acre of land, the Division of Land
Resources must receive an erosion and sedimen-
tation control plan at least 30 days before land
disturbing activity begins. If applicable, has a
sedimentation and erosion control plan been
submitted to the Division of Land. Resources?
No, but will be sLbm'itted
f. Give the percentage of the tract within 75 feet
of mean high water to be covered by im-
permeable surfaces, such as pavement,
buildings, or rooftops. None
..
8 ONJ
In addition to the completed application form, the
following items must be submitted:
A copy of the deed (with state application only) or
other instrument under which the applicant claims
title to the affected property. If the applicant is not
claiming to be the owner of said property, then for-
ward a copy of the deed or other instrument under
which the owner claims title, plus written permis-
sion from the owner to carry out the project.
An accurate work plat (including plan view and
cross sectional drawings) drawn to scale in black
ink on' 8 1/2 x 11 white paper. (Refer to Coastal
Resources Commission Rule 7J.0203 for a detailed
description.)
Please note that original drawings are preferred and
only high quality copies will be accepted. Blue-line
prints or other larger plats are acceptable only if 16
high quality copies are provided by the applicant.
(Contact the U.S. Army Corps of Engineers regard-
ing that agency's use of larger drawings.) A site or
location map is a part of plat requirements and it
must be sufficiently detailed to guide agency per-
sonnel unfamiliar with the area to the site. Include
county road (SR) numbers, landmarks, and the like.
A stormwater management plan, if applicable, that
may have been developed in consultation with the
Division of Environmental Management.
A list of the names and complete addresses of the
adjacent waterfront (riparian) landowners. These
individuals' have 30 days in which to submit com-
ments on the proposed project to the Division of
Coastal Management. The applicant must advise
the adjacent landowners of this opportunity by sen-
ding a copy of the permit application to them by
registered or certified mail. This notification is re-
quired by G.S. 113-229(d).
(1) Name Seascape Golf Course Inc
Address Kitty Hawk, N.C.
(2) Name Charles Foy
Address Kitty Hawk, N. C.
(3) Name Outer Banks Contractors
Address Kitty Hawk, N.C.
(4) Walter Davis
Midland, Texas (6)
(5) Brian Newman
Kitty Hawk, N. C. (7)
A list of previous state or federal permits issued
for work on the project tract. Include permit
numbers, permittee, and issuing dates.
LAMA R 7-0 1 1 in/i9/197 LAMA 3R21 11?/2Q/87

A check for $100 made payable to the Depart-
ment of Natural Resources and Community
Development to cover the costs of processing the
application.
A signed AEC hazard notice for projects in ocean-
front and inlet areas.
A statement on the use of public funds. If the
project involves the expenditure of public funds, at-
tach a statement documenting compliance with the
North Carolina Environmental Policy Act
(N.C.G.S. 113A-1 to 10).
9 CERTIFICATION AND PERARS.
SION TO ENTER ON LANWi ?g .
Any permit issued in response to this application
will allow only the'development described in the
application. The project will be subject to condi-
tions and restrictions contained in the permit.
1 certify that to the best of my knowledge, the pro-
posed activity complies with the State of North
Carolina's approved Coastal Management Program
and will be conducted in a manner consistent with
such program.
I further certify that I am authorized to grant, and
do in fact, grant permission to representatives of
state and federal review agencies to enter on the
aforementioned lands in connection with
evaluating information related to this permit ap-
plication and follow-up monitoring of project.
This is the fib- day of Jimp ,
1989
_.
X
Landowner or Authorized agent Mgr. Partner
Send the completed application materials to the
Division of Coastal Management Office nearest you
and the U.S. Army Corps of Engineers. See the
map on the inside front cover for the appropriate
DCM office and addresses and phone number.
Kitty Hawk Land Company
Kitty Hawk, N.C.
Kenneth Wichard
Greenville, N.C.

ADDENDUM TO JOINT APPLICATION
GENERAL INFORMATION:
Kitty Hawk Woods Partnership owns or controls approximately
1400 acres of property located! in the Town of Kitty Hawk. A
large portion of this property consists of undisturbed maritime
forest. The property is characterized by high developable ridges
and low wetland swales between the ridges. Most ridges run in a
north-south direction and cover the entire property area. The
wetland swales are considered for the purpose of these
applications to be under the jurisdiction of the U.S. Army Corp
of Engineers. A preapplication meeting was held on May 16, 1989
to discuss the proposed project and the impacts on wetlands and
the forest area. Present at the meeting were representatives of
the Corp, the property owner, The Nature Conservancy, U. S. Fish
and Wildlife Service, North Carolina Wildlife Resources
Commission, North Carolina Natural Heritage Program, North
Carolina Division of Coastal Management and the Town of Kitty
Hawk. As a result of the meeting, certain directions were
established for proceeding with the permit applications with
emphasis on three underlying concepts:
1. Avoid impact on wetlands where possible.
2. Create wetlands to result in no net loss where impacts
are required.
3. Donation of a significant portion of the forest to
preserve the habitat.
An additional meeting occurred on the 12th of July with
representatives of the North Carolina Division of Environmental
Management to allow that agency to be included in the discussions
that have occurred through that date.
BACKGROUND:
The 1400 acre ownership is located generally to the west of
the Sea Scape Golf Course and to the east of the Currituck Sound
and south of U.S. Highway 158 as it divides the towns of Kitty
Hawk and Southern Shores. Town zoning categorizes the property
into four classes:
1. Commercial - approximately 60 acres.
2. Multifamily- approximately 97 acres.
3. Single family residenXial lots - approximately 300
acres.
1 "
b

4. Single family residential lots low density (80,000
square feet minimum) - approximately 937 acres.
PROJECT DESCRIPTION:
The maritime forest area consists of forested ridge swale
systems with a north-south orientation. The ridges have
elevations of 5 feet to 25 feet above sea level. The
depressional swales lie between the 2 and 4 foot contours and are
designated 404 Wetlands by the U.S. Army Corp of Engineers. All
wetlands are flagged, surveyed and certified by Corp
representatives. The ridge flora contains mostly loblolly pine,
oak, hickory, dogwood, beech and holly. The plant composition of
wetlands is largely red maple, red bay and sweet gum except the
deeper wetlands which have cypress and black willow.
WETLAND IMPACTS:
Impact within the project to wetlands can be categorized in
two areas. The first is described as creation of new lands by
direct filling of wetlands for development of the newly created
land. The second category is the filling of wet areas to create
wetland crossings using a fill and culvert system allowing flow
of water through culverts for areas divided by the filled area.
INDIVIDUAL PROJECTS:
The following paragraphs described the different portions of
the entire 1400, acre project. Each individual section is
identified as a separate project with an explanation of the
nature of the proposed development and the wetlands impacts.
I. Commercial Shopping Center Project.
This project is located in the northeastern corner of the
1400 acre project and is generally south of U.S. 158 and west of
the Sea Scape Golf Course. Zoning covers and area of
approximately 60 acres zoned for commercial development by the
Town of Kitty Hawk. Within the commercial zone, the
characteristic ridge system exists so that the western side of
the 60 acres contains most of the high ground along with a
separate ridge on 'the eastern side and generally wet areas
located in the center. In addition, several smaller separated
areas exist that are not directly connected with the large wet
area in the center of the property. The developer proposes to
create a commercial shopping center on this site. The main
portion of the center would be located in the existing high ridge
systems with supporting parking and roadways also located on the
ridges. However, in order to accommodate access to the property
and to allow for sufficient parking to meet town requirements,
and to provide the most economical development of the property,
it is necessary to fill certain wet areas. Approximately' 1.6
2

acres would be filled for the purpose of providing access roads
leading south from U.S. 158 at or near the intersection with
Juniper Trail. The roadway would be filled for a width of 40
feet to a height of 5 feet with a .right of way of 60 feet. The
length of the roadway would be approximately 1,700 feet. A
second category of fill consists of 9.4 acres of wetland swales
which would be filled to an elevation of 5 feet for parking and
building adjacent to the major development on the higher
elevation areas. The total estimated fill area for the 60 acre
project is 11.0 acres.
This commercial site contains the highest market value
property within the entire 1400 acre site. For economic reasons,
the developer needs to be in a position to develop the acreage
specified including those areas with fill in order to be able to
pay the obligations to creditors outstanding for the entire
p r o j ect.
II. Multifamily Site.
The multifamily site is located to the south of the
commercial site described in project I above and is generally
bounded by the Sea Scape Golf Course on its eastern boundary and
the North Carolina Power right of way for a main transmission
line on the west. The property is presently zoned for
multifamily use and existing high ground within the multifamily
site would allow a density of approximately 225 townhouse or
condominium units on a total of 97 acres. No fill for creation
of land is required in the multifamily site. All. wetland impacts
consist of road crossings and total approximately 1.8 acres to
create approximately 2,000 feet of roadway. Roads in this area
would be constructed with 40 feet of width and 28 feet of ABC
stone base and 2 inches of I-2 asphalt paving. The largest
portion of the crossings are required to connect the eastern and
western areas of high ground presently divided by a large swale
containing standing w.ater.
III. Residential Subdivision Lots.
This area is already developed with roads and central water
system in place. The development consists of residential lots
located immediately adjacent to the Sea Scape Golf Course. No
permits are required for development within this section. The
properties in the section are identified as Kitty Hawk Woods,
Sections 6 and 7. The purpose of including these properties
within the permit narrative is to provide an example of a method
of development whereby wetland impacts are minimized. Within the
two sections of residential subdivided lots, all. lots contain at
least 15,000 square feet, exclusive of wetlands. In addition,
all lots have been designed so that no wetland impacts will occur
upon creation of driveways to the residential building sites. In
s,.ome cases this has required the creation of lots in excess of
3
f `1
30,000 square feet. Approximately 50 acres is impacted by these
two residential subdivisions which are characteristic of other
areas within the ridge and swale systems of the Kitty Hawk Woods
project. Development of these areas occurred during the past two
years preceding the application and is referenced as an example
of the type of development sponsored by the Kitty Hawk Woods
Partnership.
IV. Eckner Street Ridge.
This area is a small ridge system located to the south of
Eckner Street, east of the North Carolina Power line transmission
right of way and west of the project described in III. It is
separated from Kitty Hawk Woods, Sections 6 and 7 (III above) by
a large swale area containing extensive water systems.
Development of this ridge into single family lots, designed in
the same manner as project III, would result in approximately 2-038
residential lots. This development cannot occur without a zoning
change presently under discussion with the Town of Kitty Hawk.
Present zoning allows for single family residential but requires
a much lower density and would not Ipermit the development into as
many lots. No wetland fill is required for development of this
subdivision with the exception of certain driveway crossings for
isolated areas of high ridge systems. - 0
V. Maritime Forest.
This portion of the project consists of the central. maritime
forest area and composes a majority of the acreage owned by the
Kitty Hawk Woods Partnership. the property is bounded on its
eastern side by the North Carolina' Power line right of way. The
power line follows a high ridge system that has been cleared and
supports the power line and the power line access road. On the
western side, this area is bounded by the main road running
through Kitty Hawk Woods and by residential lots fronting on that
road. On the north, a residential subdivision exists that is not
included within the Kitty Hawk Woods project. The subdivision
was developed based upon plats recorded in the early 1970's and
is not associated with this project. On the south, the property
bounds other areas that are generally similar to the maritime
forest composing this project. However, these areas are not
controlled by or connected with this project. The southern
properties are owned by various adjacent property owners.
The maritime forest area consists of two parcels, the
designation of which has been created for the purpose of these
permit applications. The first parcel is an area of 140 acres
located at the southern end of the maritime forest area owned by
the developer. This area has been designated as the donation
area. The proposal calls for a donation of 140 acres to The
Nature Conservancy, the Town of Kitty Hawk or to some other
entity or organization capable of maintaining this acreage in its
1ILA ? µf
M
e S
UPW 1
4
1 ?
w
K ?
present state. The proposal calls for conveyance of this
property in fee simple, free and clear of any and all
encumbrances. At the.time of the original meeting, participants
inspected the site and found it to be composed of high ridges
with swale systems. The ridges consist of loblolly pine, beach,
dogwood species and with the occurrence of an uncommon species
known as the southern twayblade. The wetlands are richly
forested with mature cypress tress. The proposal calls for the
creation of conservation easements along with the donation and
would allow the 140 acre donation to serve as the nucleus on
which to create other public ownership in the maritime forest
area.
The remaining area of this project consists of approximately
300 acres and is located to the north of the donation area. The
developer proposes to sell this property for approximately $5,000
per acre. The purchase price for this section as well as the
designation of donation area and sale areas are all somewhat
arbitrary. The price is designed so as to provide a sufficient
amount of money to apply against and retire the outstandin
g
obligations held by Great Atlantic Savings Bank, F.S.B. The
d
eveloper would receive no funds from the sale of any portion of
this project. THe price will be affected only by. the amount of
funds available from other sales within the entire 1400 acre
project. Representatives of the FDIC have indicated that the
price is negotiable for this project subject to factors mentioned
within this paragraph. In combination, the donation and sale
parcels will allow for the control of most of the maritime forest
existing within the Town of Kitty Hawk with existing buffers in
the form of the North Carolina Power line easement and the main
road running through the woods in Kitty Hawk. One advantage to
the proposal is the fact that the entire acreage is presently
controlled by the Kitty Hawk Woods Partnership and is not
fragmented. In addition, only one lender carries mortgages on
this property and this lender supports the entire application
process.
VI. East Side of Kitty Hawk Woods Main Road.
Following the eastern boundary of the Kitty Hawk Woods main
road is a ridge system on which the main road itself is located.
This ridge is bounded on the east by the area described in
project V, the maritime forest. Present development is limited
by the zoning ordinance for the Town of Kitty Hawk which requires
very low density development on a single family basis. The
developer proposes to develop lots fronting on the Kitty Hawk
Woods main road with an approximate total of. 20 lots. A zoning
change is required in order to result in this many lots. The
nature of the change would still require a low density
development with 80,000 square foot lots. In some of the
original discussions, the area covered by this project VI had
been included in -the proposed d'onation or sale to the
5

conservatory agencies. However, calculating the funds that could
be expected to result from a sale of the maritime forest and
comparing those amounts with the required payments to the
existing lenders indicated that the development of these
residential lots would be necessary. As a corollary, the price
of the maritime forest may be significantly reduced by the
development of these lots. No land would be created in these
areas from existing wetlands and very few, if any, wetland
crossings would be required based upon the nature of the
property.
VII. Ten Acre Lot Subdivisions (Kitty Hawk Woods, Phase I
and II).
These subdivisions have been platted and are composed of
approximately 25 ten acre lots. The property is bounded on the
east by the Kitty Hawk Woods main road and runs into the interior
of the soundside portion of the Kitty Hawk Woods area. A road
system including bridges has been constructed within these
subdivisions. Development was done in a manner to minimize
wetland impacts and crossings were obtained under nationwide
permits following old relic road systems. The homesites have
been developed in a manner that would minimize any wetland
crossings and one particular site within these homesites has been
developed with a bridge system to cross a wet area. These sites
are referred to as an example of the type of development that can
occur in the ridge and swale system of the maritime forest with
minimum impact on wetlands and on the ridge systems as well. The
only additional requirements that may occur within these
subdivisions would result from a widening of the existing covered
bridge road in order' to meet requirements of the Town of Kitty
Hawk. This widening would result in a wetland impact of 0.3
acres. The entire ten acre lot subdivision covers 210 acres.
VIII. Kitty Hawk Woods, Section 8.
This area is located to the west side of the main road
through the Kitty Hawk Woods and is north of the area in project
VII. The property is characteristic of the other properties in
that it contains wetland swales between ridges. It is presently
zoned to permit development in the same manner as those described
in project III with 15,000 square feet exclusive of wetland for
each residential lot. The property will support development of
approximately 60 lots in the same manner as project III allowing
for minimal impacts. The wetland impacts within this area are
approximately 1.0 acres for crossings supporting the road system.
Crossings cover a distance of 1,100 lineal feet. None of the
lots would require additional fill .for development.. The property
is bounded by a marsh area joining the high bridge creek running
through Kitty Hawk Woods. It is probable that the property would
be developed providing access to that creek with a boat ramp on
the western side of the property.
6
. -? .
IX. 100 Acres of Sound Front Property.
This property is located adjacent to and fronting on the
Currituck Sound, consists of 100 acres and is bounded on the east
side by the property described in project VII. Zoning
requirements in the Town of Kitty Hawk require development with a
density of 80,000 square feet, exclusive of wetlands. This will
result in approximately 25 lots wit'hi'n..the subdivision. There
are approximately 15 lots located along the sound frontage with
the remaining lots in the center of the woods. The road system
would be developed in the same manner as that shown in project VI
and wetland impacts for the main road system would occur only as
a result of widening and occasional crossings to expand the
existing relic road system. In addition, the property located
along the sound front is generally composed of two ridges. In
order to provide access to the ridge closest to the sound for
marketing purposes of this project, wetland crossings are
proposed for a number of the lots that front the Currituck Sound.
These crossing have been designed so as to minimize the number of
crossings and to permit driveway access to two lots through a
shared system of crossings where access could be obtained without
a crossing, that option has been.maintained.
X. Radcliff Court, Old Subdivision Project.
The developer owns certain
located to the north of project IX.
.and designates a number of small
systems. The developer desires to
subdivision and to fill 1.2 acres o
of
access to 4 waterfront lots.
lots in an old subdivision
A platted subdivision shows
residential lots and road
extend the road within this
wet areas and.thereby obtain
7

MITIGATION PLAN
The environmental damage caused by filling wetlands will be
fully offset by the following mitigation plan.
(1) Donation of 140 Acres: The landowner will convey to the
Nature Conservancy/ Town of Kitty a significant portion of this
unique, undisturbed maritime forest. The conveyance will be in
a fee simple interest free and clear of any liens.
The tract was inspected by all participants at the 5/16/89
meeting. The high ridges consisted of loblolly pine-beech-dog-
wood species with the occurence of an uncommon species, southern
twayblade. The wetlands were richly forested with mature cypress
trees. It was agreed that this gift could result in the uncleus
on which to add other public ownership in this top priority mari-
time forest.
(2) Conservation Easments on100 Acres: Four areas of the
ownership will not be developed O.ue to location, wetlands problems,
or open space requirements. Conservation easements will be con-
veyed to the Nature Conservancy. Later, gee simple interest could
be conveyed.
(3) Offer To Sell 300 Acres: A 300 acre portion, adjacent to
the donation area and located in,the center of targeted area to be
projected by State , will be offered to the Division of Coastal
Management for $5,000/acre for a reasonable lenght of time'for'i.t
to fund this acquisition. The price is negotiable with no profit
to the landowner. Only the bank holding the note and deed of trust
has to be satisfied.
(4) Creation of Wetlands: The 5/16/89 meeting emphasized
"no net loss" of wetlands; therefore, Kitty Hawk Woods will create
wetlands on a one-to-one basis.
None of the group wanted the forested ridges destroyed
and converted to wetlands to compensate for the proposed filling
of roughly 15 acres of swales. The use of a remote site is re-
commended for our restoration work. The proposed site is located
in Tyrell County south of Columbia. It is a 26 acre farm tract of
which 22.8 acres are upland, non 404, farmland. Restoring this
drained farmland to a wetlands condition will recessatate blocking
ditches and, perhaps, adding earthen berms to produce a permanent;
high water table. Outplanting of forest species using red maple,
cypress, and sweet gum seedlings available from North Carolina and
Virginia nurseries can be done if necessary. This entire farm parcel
will be given to a State agency or university to conduct research
on wetlands restoration.
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- -- ---------------

w,
Swap Stirs ontroversy
Deat Would Protect `Part of Maritime Forest ` .
By Frank Tursi ??,,,???p PROPOSED LAND OFFER
JOURNAL REPORTER
One of the last remaining stretch-
' 455 acres of maritime forest land to tie donated
es of undisturbed
maritime forest on' Proposed residential development
the state's rapidly developing barrier,; ;] Shopping center proposed by Kitty Hawk Woods
islands would be protected under the ` FaMers ip .
terms of a ;controversial . agreement r 12
between the state and a major. land-
owner in Dare County.

Kitty.Hawk Woods Partnership; 5V
which owns a 1,400-acre tract in Kit-
ty Hawk, will give the state 455 acres
of forest in the center of the tract and
will restore swamps and marshes
along the Alligator` River in nearby f
Tyrrell County. In return, the;,'part-
nership wants permission tq`fill m "
wetlands for a% proposed sl?oppmg _
center and residential development, 5s
State officials declined toy talk
about the deal yesterday, but, they I
have scheduled a news conferetice in '
Raleigh today: to announce their ac- ,
ceptance of the offer.
Before the deal is final; however, ..
the Army Corps of Engineers, which
regulates the filling of most wetlands,
must allow the destruction of about
16 acres of wetlands, most of it for
the shopping center. Environmental-
See FOREST, Page 3 joURNAL GRAPHIC BY'JIM,STAN E'Y '.

FOREST
Continued From Page 1
ists and various federal agencies, in-
cluding the Environmental Protec-
tion Agency, have objected to the so-
called "dredge-and-fill" permit. Issu-
ing the permit, they say, would set a
bad precedent because federal rules
do not normally allow wetlands to be
filled for shopping centers.
The deal also implies that permits
can be bought, environmentalists
said yesterday.
The partnership bought the land
from the now-defunct Greater At-
lantic Savings and Loan in Manteo,
said Starkey Sharp, a lawyer in Kitty
Hawk who represents the landown-
ers. They want to sell about 40 acres
along U.S. 158 to developers in Ra-
leigh who would build the shopping
center, Sharp said. It is only section
of the tract that fronts a major road.
The rest of the land would be sold
and developed in stages for single-
family homes and apartments or con-
dominiums.
Negotiations with the state began
last year. The partnership first of-
fered to give the state 135 acres of
maritime forest and to sell it an addi-
tional 300 acres. It also offered to
restore 26 acres of wetlands in Tyr,
tell County. It sweetened the offer to
an outright donation of 455 acres
after the EPA and the U.S: Fish and
Wildlife Service objected to the
dredge-and•fill permit, said a source
in the federal government who want-
ed to remain anonymous. The donat-
ed land' is worth more $2 million,
Sharp said.
"The state started salivating at the
the offer," the source said. "They felt
that they couldn't turn it down."
Maritime forests - with their live
oak, loblolly pines and sweet bay
magnolias - once covered vast areas
of the state's barrier islands. They are
quickly disappearing as the islands
a:e developed, though. The state es-
tmated two years ago that only 24
ti-acts larger than 20 acres remained.
Most of those would be gone before
2'360, the report said. The tract in-
c?uded in the deal is considered espe<
c'ally critical since it contains plant
soccies that are found in only four
other places in the world. The state
commission determined last year that
the only way to protect the tracts
that remain is to acquire them.
That makes the Kitty Hawk offer
wry attractive, said Derb S. Carter
Ji., an environmental lawyer who
works for the Southern Environ•
n;ental Law Center in Raleigh. And
it. makes it very hard to criticize.
'. "You look unreasonable when
you oppose that kind of deal," he
said, "but you don't want to open up
the process to that kind of transac-
tion."
Federal guidelines stipulate that
the landowner must prove that alter-
native sites don't exist for the devel-
c pment, said Lee Pelig, a field biolo-
gist with EPA's regional office in At-
lanta, Kitty Hawk Woods Partner-
;.hip hasn't done that, he said.
Todd Miller, the executive direc-
tor of the N.C. Coastal Federation,
said that he wonders what kind of
essage the offer sends to other
landowners and developers,
"It's a lot like buying a permit," he
uaid. "It's like saying, 'Let's make a
seal."?
The landowners have looked at
altematives, Sharp said, and have fol-
lowed the guidelines. Environmen-
mlists should support the offer, he
;laid, because it's better than the al-
ternative. "We see this as a good
,.)recedent," he said, "Here we have a
maritime forest -in one piece under
ane ownership. If the development
doesn't go, it's likely that the forest
will be sold and parceled out. Then it
may be too late. It may be devel-
oped."
U?
?? 1
6?
September 13, 1989
MEMORANDUM
TO: Distribution List
From: Quentin Bell
Re: Kitty Hawk Woods Maps
The 404 permit has been submitted to the Corps. Jim Poteat
asked that I send you the blue line maps supporting the permit
application.
Also enclosed is John Fussell's work on non-connected wet-
lands vegetation on the multifamily tract.
We will be working with Dennis Stewart to develop the wet-
lands restoration plan for the 23 acre Tyrrell si.te,
Call me if you need additional information.

Kitty Hawk"boo s
Resldentlal Estales _
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258

DESCRIPTIONS OF WETLAND POCKETS
ON MULTIFAMILY TRACT
KITTY HAWK WOODS
30 July 1989
John Fussell
Environmental Services, Inc.
a
INTRODUCTION
As part of a proposed mitigation plan, I have described
the vegetation of the wetland pockets on the multifamily tract
at Kitty Hawk Woods. This work was done on 20 July 1989.
For locations of the pockets, refer to the preliminary
plat by Stroud Engineering, dated 30 May 1989.
DESCRIPTIONS
Descriptions give:
1) dominant vegetation for the different strata (note:
the canopy vegetation may be from trees that are
located outside of the pocket);
2) moisture level of the site on 20 July (Note: there
had been extremely heavy rains on the night of 18 July);
3) the average DBH and canopy height of canopy trees
within wetland, if there are more than five trees;
4) if there are five cr fewer canopy trees, then the
number of trees is given, and the DBH and height of
each is given.
AA. Red Maple (sparse)/Cane.
Site is now saturated.
No canopy trees within wetland.
AB. Sweet Gum-Red Maple (sparse and shrub-sized)/
Cane (sparse)/Virginia Chainfern (sparse).
Site is now saturated to flooded 6".
No canopy trees within wetland.
AC. Sweet Gum-Red Maple (sparse)/Red Maple (sparse)/
Cane (sparse)/Virginia Chainfern (sparse).
Site is now saturated.
9" DBH, 60'.
2 canopy trees.
BA. Red Maple-Sweet Gum (moderate)/Cane-Greenbrier.
Site is now flooded 6" to 1'.
16" DBH, 80'.

AD., Sweet Gum (moderate)/Red Maple (sparse)/
Cane (sparse)/Virginia Chainfern-Netted
` Chainfern (sparse).
Site is now saturated.
14" DBH, 70'.
AE. Sweet Gum (sparse)/Red Maple (sparse)/Cane (sparse)/
Virginia Chainfern.
Site is now saturated.
10" DBH, 60'.
2 canopy trees. r
AF. Sweet Gum (moderate)/Blueberry-Cane (sparse)/
Netted Chainfern.
Site is now saturated.
10" DBH, 60'.
2 canopy trees.
AG. Red Maple (sparse)/Greenbrier/Netted Chainfern.
Site is now saturated to flooded 2".
17" DBH, 80'.
2 canopy trees.
AK. Sweet Gum (sparse)/Blueberry (sparse)/Virginia Chainfern.
Site is now saturated.
14" DBH, 70'.
1 canopy tr6e.
AH. Sweet Gum-Red Maple (moderate)/Red Maple/Blueberry/
Virginia Chainfern-Netted Chainfern.
Site is saturated to flooded 2".
15" DBH, 90'.
AI. (no trees)/Ironwood (sparse)/Cane-Blueberry (sparse).
Site is now saturated.
no trees.
F
AJo Sweet Gum-Red Maple (moderate)/Blueberry-Red Bay/
Virginia Chainfern.
Site is now saturated to flooded 2".
14" DBH, 90'.
5 canopy trees.
AL. Sweet Gum-Red Maple/Red Maple (moderate)/
Red Bay-Blueberry (sparse)/Virginia Chainfern.
Site is now saturated to flooded 4".
12" DBH, 80'.
t
AM. Sweet Gum (moderate)/Red Maple (sparse)/Cane/
Virginia Chainfern.
Site is now saturated.
12" DBH, 80'.
CC. Sweet Gum (moderate)/Black Gum-Red Maple (moderate)/
Blueberry-Cane/Virginia Chainfern (sparse).
Site is now saturated.
6" DBH, 70'.
CD. Sweet Gum (moderate)/Red Maple (moderate)/
Cane-Red Bay'(sparse)/Virginia Chainfern (sparse).
Site is now saturated.
10" DBH, 70'.
CE. Red Maple/Red Maple (moderate)/Cane (sparse)/Virginia
Chainfern.
Site is now flooded 8".
12" DBH, 90'.
AN. Sweet Gum (sparse)/Red Bay-Blueberry-Cane (sparse)/
Virginia Chainfern.
Site is now saturated.
12" DBH, 70'.
:AO. (no trees)/(no"shrub layer)/Virginia Chainfern-
Netted Chainfern-Partridgeberry (sparse).
Site is now moist.
No trees.
a
AP. Sweet Gum (moderate)/Blueberry-Red Bay/Virginia Chainfern.
Site is now saturated.
10" DBH, 60'.
2 canopy trees.
AQ. Sweet Gum (sparse)/Red Maple (moderate)/Blueberry/
Netted Chainfern-Virginia Chainfern.
Site is now saturated to flooded 4". ti
15" DBH, 90'.
AS. Sweet Gum (sparse)/ Red Maple (sparse)/
Red'Bay-Blueberry (sparse)/Virginia Chainfern.
Site is now saturated to flooded 6".
14" DBH, 90'.
AR. Sweet Gum (sparse)/Blueberry (sparse).
Site is now moist.
12" DBH, 60'.
1 canopy tree.
CF. Sweet Gum-Red Maple (sparse)/Red Maple (sparse)/
Cane (sparse)/Virginia Chainfern (sparse).
Flooded 12",.
10" DBH, 70:,_' .
Comment: there is 1 Baldcypress in this pocket.
CG. Sweet Gum (moderate)/Cane-Blueberry (sparse)/
Virginia Chainfern-Cinnamon Fern (sparse).
Site is now moist.
6" DBH, 50'.
4 canopy trees.
CH. Red Maple (moderate)/Red Maple (sparse)/
Virginia Chainfern.
Site is now saturated to flooded 4".
12" DBH, 80'.

AT.' Sweet Gum (sparse)/Blueberry/Virginia Chainfern.
Site is now saturated to flooded 1".
6" DBH, 60'.
AU. Black Gum-Sweet Gum (sparse)/Red Maple (sparse)/
Virginia Chainfern.
Site is now moist to saturated.
10" DBH, 70'.
t
AV. Red Maple (moderate)/Red Maple/Blueberrl (sparse)/
Virginia Chainfern (sparse).
Site is now saturated to flooded 3".
12" DBH, 80'.
AX. Sweet Gum-Red Maple (sparse)/Red Maple (sparse)/
Blueberry/Virginia Chainfern.
Site is now saturated.
8" DBH, 50'.
3 canopy trees.
AY. Sweet Gum (moderate)/Red Maple (moderate)/
Cane (sparse).
Site is now moist.
12" DBH, 70'.
2 canopy trees.
AZ. (no trees)/Blueberry/Cane (sparse).
Site is now moist.
No trees.
CI. Sweet Gum-Red Maple/Red Maple (sparse)/Cane/
Virginia Chainfern-Royal Fern-Marsh Fern (sparse).
Site is now saturated to flooded 18".
15" DBII, 901.
C,T. Sweet Gum-Red Maple (moderate)/Red Maple (moderate)/
Cane/Virginia Chainfern.
Site is now saturated to flooded 1'.
12" DBH,,. 60' .
.CO. Black Gum-Sweet Gum/Red Maple (moderate)/Cane/
Virginia Chainfern.
Site is now saturated to flooded 6".
14" DBH, 90'.
CP. (no trees)/Cane/Virginia Chainfern (sparse).
Site is now saturated.
No trees.
t
CQ. (no trees)/Virginia Creeper-young Red Bay-young
Strawberry Bush.
Site is now saturated.
No trees.
CR. Red Maple/Blueberry/Virginia Chainfern.
Site is now saturated.
5" DBH, 50'.
3 canopy trees.
CS. Sweet Gum-Red Bay (moderate)/Sweet Gum (sparse)/
Blueberry/Virginia Chainfern (sparse).
Site is now saturated.
8" DBH, 60'.
4 canopy trees.
GS. Sweet Gum/Red Maple/Royal Fern (sparse).
Site is now saturated to flooded 6".
10" DBH, 60'.
GR. Baldcypress/Red Maple/Royal Fern-Arrow Arum (sparse).
Site is now saturated to flooded 12".
12" DBH, 80'.
GM. Sweet Gum/Ironwood (sparse)/Cane (moderate)/
Netted Chainfern (sparse).
Site is now saturated to flooded 2".
12" DBH, 80'.
a
GN!.' Red Maple (moderate)/Red Maple-Red Bay (moderate)/
Lizard's Tail-Netted Chainfern (sparse).
Site is now saturated to flooded 12".
10" DBH, 60'.
GQ. Sweet Gum (mderate)/Red Maple-Black Willow (moderate)/
Virginia Chainfern (sparse)/unidentified
aquatic species (Myriophyllum ?)
Site is now flooded 18".
14" DBH, 601. r
GP. Sweet Gum-Red Maple (moderate)/Red Maple (moderate)/
Royal Fern (sparse).
Site is now saturatd to flooded 8".
10" DBH, 50'.
GO. Sweet Gum/Black Gum (sparse)/Virginia Chainfern (sparse).
Site is now saturated.
8" DBH, 40'.

Appendix 1. Scientific names of plant species cited.
SCIENTIFIC NAME COMMON NAME
Acer rubrum Red Maple
Arundinaria gigantea Cane
Carpinus ciroliniana Ironwood

Euonymus americanus t
Strawberfy Bush
Liquidambar styraciflua Sweet Gum
Mitchella repens Partridgeberry
Nyssa sylvatica Black Gum
Osmunda cinnamomea Cinnamon Fern
Osmunda regalis Royal Fern
Parthenocissus quinquefolia Virginia Creeper
Peltandra virginica Arrow Arum
Persea borbonia Red Bay
Salix nigra Black Willow
Saururus cernuus Lizard's Tail
Smilax spp.--including Greenbrier
S. laurifolia, S. rotundifolia,
S. bona^nox
Taxodium distichum Baldcypress
Thelypteris palustris Marsh Fern
Vaccinium sp. Blueberry
Woodwardia areolata Netted Chainfern
Woodwardia virginica Virginia Chainfern

D;[+rJISION OF ENVIRONMENTAL MANAGEMENT
% December 18, 1989
.i• MEMORANDUM,
TO: Bill Mills, Environmental Engineer
Water Quality Section
THROUGH: Roger K. Thorpe, at r Quality Regional Supervisor
Washington Regional Office
FROM: Deborah Sawyer, Environmental Technician
Water Quality Section, WaRO
SUBJECT: 401 Certification for Kitty Hawk Woods Development Project
Project #00725
Dare County
This office has recommended denial of the above subject project due to
removal of uses of the wetlands involved, therefore being in violation
of the Antidegradation Policy. Due to the applicant's proposal to
donate a large portion of the wetland system, this office is in
concurrence with the Division's Central Office to change the
recommendation to issuance. This office would request, however, that
a condition be stipulated on the 401 that all of the residential lots
must have a 50 ft. setback from the wetlands of the septic tank
drain fields. It should be further stipulated that even if the Dare
County Health Department issues a variance allowing the septic tank
drain field to be less than the recommended 50 ft. setback that this
office will consider this construction to be in violation of the
conditions of the 401 Certification.
If you have any questions or comments, please call this office at
946-6481. Thank you.
DS/cm
cc: John Dorney, DEM - Central---
Robert Abernathy, DCM - Elizabeth City
John Parker, DCM - Central

DIVISION OF ENVIRONMENTAL MANAGEMENT
September 6, 1989
MEMORANDUM
TO: Steve Tedder
THROUGH: Alan Klimek(!
Boyd DeVanebp
FROM: John Dorneyq
RE: Kitty Hawk Woods Dove opment and Wetlands
F
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k,.
C.
Attached is the plan for Kitty Hawk Woods development and
their proposed actions to mitigate for wetland fill. As you are
aware, Debra Sawyer and I have attended two meetings with the
developers to discuss agency concerns. We have told the
developers that Central and Regional office staff will recommend
to Paul that 401 Certification be denied because most of this
fill is for non-water dependent activities (e.g., fill for a
shopping center). The developers plan to meet with Paul to
discuss possible mitigation with hope to overcome staff
objections. Their mitigation proposal is attached.
Many of our concerns have been addressed in this final
submittal. Basically, we agree with the proposals but believe
that the developers could be required to donate some or all of
the 320 acres they have offered to sell to the state. This would
be better compensation for filling the valuable wetlands near
U.S. 158. If you believe that it would be helpful for us to meet
with Paul to discuss the development and proposed mitigation plan
before the developers meet with him, please let us know. Debra
Sawyer might want to be present as well.
JD/kls
Tedder.mem/D-2
Attachment
cc: Debra Sawyer
J
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MITIGATION PLAN
The environmental damage caused by filling wetlands will be
fully offset by the following mitigation plan.
(1) Donation of /3.i Acres: The landowner will convey to the
Nature Conservancy/ Town of Kitty a significant portion of this
unique, undisturbed maritime forest. The conveyance will be in
a fee simple interest free and clear of any liens.
The tract was inspected by all participants at the 5/16/89
meeting. The high ridges consisted of loblolly pine-beech-dog-
wood species with the occurence of an uncommon species, southern
twayblade. The wetlands were richly forested with mature cypress
trees. It was agreed that this gift could result in the uncleus
on which to add other public ownership in this top priority mari-
time forest.
(2) Conservation Easments on-9-0 Acres: Four areas of the
ownership will not be developed Oue to location, wetlands problems,
or open space requirements. Conservation easernents will be con-
veyed to the Nature Conservancy. Later, fee simple interest could
be conveyed.
(3) Offer To Sell 3Z0 Acres: A 300 acre portion, adjacent to
the donation area and located in,the center of targeted area to be
projected by State , will be offered to the Division of Coastal
Management for $5,000/acre for a reasonable lenght of time for'it
to fund this acquisition. The price is negotiable with no profit
to the landowner. Only the bank holding the note and deed of trust
has to be satisfied.
(4) Creation of Wetlands: The 5/16/89 meeting emphasized
"no net loss" of wetlands; therefore, Kitty Hawk Woods will create
wetlansis,on a one-to-one basis.
---t
None of the group wanted the forested ridges destroyed
and converted to wetlands to compensate for the proposed filling
of roughly 15 acres of swales. The use of a remote site is re-
commended for our restoration work. The proposed site is located
in Tyrell County south of Columbia. It is a 26 acre farm tract of
which 22.8 acres are upland, non 404, farmland. Restoring this
drained farmland to a wetlands condition will recessatate blocking
ditches and, perhaps, adding earthen berms to produce a permanent;
high water table. Outplanting of forest species using red maple,
cypress, and sweet gum seedlings available from North Carolina and
Virginia nurseries can be done if necessary. This entire farm parcel
will be given to a State agency or university to conduct research
on wetlands restoration.

ADDENDUM TO JOINT APPLICATION
GENERAL INFORMATION:
Kitty Hawk Woods Partnership owns or controls approximately
1400 acres of property located in the Town of Kitty Hawk. A
large portion of this property consists of undisturbed maritime
forest. The property is characterized by high developable ridges
and low wetland swales between the ridges. Most ridges run in a
north-south direction and cover the entY.re property area. The
wetland s w a I e s are considered for the purpose of these
applications to be under the jurisdiction of the U.S. Army Corp
of Engineers. A preapplication meeting was held on May 16, 1989
to discuss the proposed project and the impacts on wetlands and
the forest area. Present at the meeting were representatives of
the Corp, the property owner, The Nature Conservancy, U. S. Fish
and Wildlife Service, North Carolina Wildlife Resources
Commission, North Carolina Natural Heritage Program,. North
Carolina Division of Coastal Management and the Town of Kitty
Hawk. As a result of the meeting, certain directions were
established for proceeding with the permit applications with
emphasis on three underlying concepts:
1. Avoid impact on wetlands where possible.
2. Create wetlands to result in no net loss where impacts
are required.
3. Donation of a significant portion of the forest to
preserve the habitat.
1.a
An additional meeting occurred on the 12th of July with
representatives of the North Carolina Division of Environmental
Management to allow that agency to be included in the discussions
that have occurred through that date.
BACKGROUND:
The 1400 acre ownership is located generally to the west of
;the Sea Scape Golf Course and to the east of the Currituck Sound
and south of U.S. Hfghway 158 as it divides the towns of Kitty
Hawk and Southern Shores. Town zoning categorizes the property
into four classes:
1. Commercial - approximately 60 acres.
2. Multifamily - approximately 97 acres.
3. Single family residen,t1al lots - approximately 300
acres.
1 '
M' • . 4•
4. Single family residential lots low density (80,000
square feet minimum) - approximately 937 acres.
PROJECT DESCRIPTION:
The maritime forest area consists of forested ridge swale
systems with a north-south orientation. The ridges have
elevations of 5 feet to 25 feet above sea level. The
depressional swales lie between the 2 and 4 foot contours and are
designated 404 Wetlands by the U.S. Army Corp of Engineers. All
wetlands are flagged, surveyed and certified by Corp
representatives. The ridge flora contains mostly loblolly pine,
oak, hickory, dogwood, beech and holly. The plant composition of
wetlands is largely red maple, red bay and sweet gum except the
deeper wetlands which have cypress and black willow.
WETLAND IMPACTS:
Impact within the project to wetlands can be categorized in
two areas. The first is described as creation of new lands by
direct filling of wetlands for development of the newly created
land. The second category is the filling of wet areas to create
wetland crossings using a fill and culvert system allowing flow
of water through culverts for areas divided by the filled area.
1.
INDIVIDUAL PROJECTS:
The following paragraphs described the different portions of
the entire 1400 acre project. '' Each individual section is
identified as a separate project with an explanation of the
nature of the proposed development and the wetlands impacts.
I. Commercial Shopping Center Project.
This project is located in the northeastern corner of the
1400 *acre project and is generally south of U.S. 158 and west of
the Sea Scape Golf Course. Zoning covers and area of
approximately 60 acres zoned for commercial development by the
Town of Kitty Hawk. Within the commercial zone, the
characteristic ridge system exists so that the western side of
the 60 acres contains most of the high ground along with a
separate ridge on 'the eastern side and generally wet areas
located in the center. In addition, several smaller separated
areas exist that are not directly connected with the large wet
area in the center of the property. The developer proposes to
create a commercial shopping center on this site. The main
portion of the center would be located in the existing high ridge
systems with supporting parking and roadways also located on the
ridges. However, in order to accommodate access to the property
and to allow for sufficient panting to meet town requirements,
and to provide the most economical development of the property,
it is necessary to fill certain wet areas. Approximately 1.6
2
4' ' 0
acres would be filled for the purpose of providing access roads
leading south from U.S. 158 at or near the intersection with
Juniper Trail. The roadway would be filled for a width of 40
feet to a height of 5 feet with a right of way of 60 feet. The
length of the roadway would be approximately 1,700 feet. A
second category of fill consists of 9.4 acres of wetland swales
which would be filled to an elevation of 5 feet for parking and
building adjacent to the major development on the higher
elevation areas. The total estimated fill area for the 60 acre
project is 11.0 acres.
This commercial site contains the''highest market value
property within the entire 1400 acre site. For economic reasons,
the developer needs. to be in a position to develop the acreage
specified including those areas with fill in order to be able to
pay the obligations to creditors outstanding for the entire
project.
II. Multifamily Site.
The in uItifamiIy site is located to the south of the
commercial site described in project I above and is generally
bounded by the Sea Scape Golf Course on its eastern boundary and
the North Carolina Power right of way for a main transmission
line on the west.. The property is presently zoned for
multifamily use and existing high ground within the multifamily
site would allow a density of approximately 225 townhouse or
condominium units on a total of 97 acres. No fill for creation
of land is required in the multifamily site. All. wetland impacts
consist of road crossings and total approximately 1.8 acres to
create approximately 2,000 -feet of roadway. Roads in this area
would be constructed with 40 feet of width and 28 feet of ABC
stone base an8 2 inches of I-2 asphalt paving. The largest
portion of the'" crossings are required to connect the eastern and
western areas of high ground presently divided by a large Swale
containing standing water.
III. Residential Subdivision Lots.
This area is already developed with roads and central water
system in place. The development consists of residential lots
located immediately adjacent to the Sea Scape Golf Course. No
permits are required for development within this section. The
properties in the section are identified as Kitty Hawk Woods,
Sections 6 and 7. The purpose of including these properties
within the permit narrative is to provide an example of a method
of development whereby wetland impacts are minimized. Within the
two sections of residential subdivided lots, all lots contain at
least 15,000 square feet, exclusive of wetlands. 1.11 addition,
all lots have been designed so that no wetland impacts will occur
upon creation of driveways to the residential building sites. In
some cases this has required the creation of lots in excess of
3

30,000 square feet. Approximately 50 acres is impacted by these
two residential subdivisions which are characteristic of other
areas within the ridge and swale systems of the Kitty Hawk Woods
project. Development of these areas occurred during the past two
years preceding the application and is referenced as an example
of the type of development sponsored by the Kitty Hawk Woods
Partnership.
h
IV. Eckner Street Ridge.
This area is a small ridge system 'located to the south of
Eckner Street, east of the North Carolina Power Ifyie transmission
right of way and west of the project described in III. It is
Separated from Kitty Hawk Woods, Sections 6 and 7 (III above) by
a large swale area containing extensive water systems.
Development of this ridge into single family lots, designed in
the same manner as project III, would result in approximately 20
residential lots. This development cannot occur without a zoning
change presently under discussion' with the Town of Kitty Hawk.
Present zoning allows for single family residential but requires
a much lower density and would not permit the development into as
many lots. No wetland fill is required for development of this
subdivision with the exception of certain driveway crossings for
Isolated areas of high ridge systems.
V. Maritime Forest.
This portion of the project consists of the central maritime
forest area and composes a majority of the acreage owned by the
Kitty Hawk Woods Partnership. The property is- bounded on its
..eastern side by the North Carolina Power line right of way. The
power line follows a high ridge system that has been cleared and
supports the ''power fine and the power line access road. On the
western side, this area is bounded by the main road running
through Kitty Hawk Woods and by residential lots fronting on that
road. On the nort'li, a residential subdivision exists that is not
included within the Kitty Hawk Woods project. The subdivision
was developed based upon plats recorded in the early 1970's and
is not associated with this project. On the south, the property
-bounds other areas that are generally similar to the maritime
forest composing this project. However, these areas are not
controlled by or connected with this project. The southern
properties are owned by various adjacent property owners.
The maritime forest area consists of two parcels, the
designation of which has been created for the purpose of these
permit applications. The first parcel is an area of 140 acres
located at the southern end of the maritime forest area owned by
the developer. This area has been designated as the donation '
area. The proposal calls for a donation of 140 acres to The
Nature Conservancy, the Town of Kitty Hawk or to some other
entity or organization capable of maintaining this acreage in its
4
a r
present state. The proposal calls for conveyance of this
property in fee simple, free and clear of any and all
encumbrances. At the time of the original meeting, participants
inspected the site and found it to be composed of high ridges
with swale systems. The ridges consist of loblolly pine, beach,
dogwood species and with the occurrence of an uncommon species
known as the southern twayblade. The wetlands are richly
forested with mature cypress tress. The proposal calls for the
creation of conservation easements along, with the donation and
would allow the 140 acre donation to serve as the nucleus on
which to create other public ownership in the maritime forest
area.
The.remaining area of this project consists of approximately
300 acres and is located to the north of the donation area. The
developer proposes to sell this property for approximately $5,000
per acre. The purchase price for this section as well as the
designation of donation area and sale areas are all somewhat
arbitrary. The price is designed so as to provide a sufficient
amount of money to apply against and retire the outstanding
obligations held by Great Atlantic Savings Bank, F.S.B. The
developer would receive no funds from the sale of any portion of
this project. THe price will be affected only by the amount of
funds available from other sales within the entire 1400 acre
project. Representatives of the FDIC have indicated that the
price is negotiable for this project subject to factors mentioned
within this paragraph. In combination, the donation and sale
parcels will allow for the control of most of the maritime forest
existing within the Town o Kitty Hawk with existing buffers in
the form of the North Carolina Power line easement and the main
road running through the woods in Kitty Hawk. One advantage to
the proposal is the fact that the entire acreage is presently
controlled by the Kitty Hawk Woods Partnership and is not
fragmented. In addition, only one lender carries mortgages on
this property and this lender supports the entire application
process.
VI. East Side of Kitty Hawk Woods Main Road.
Following the eastern boundary of the Kitty Hawk Woods main
road is a ridge system on which the main road itself is located.
This ridge is bounded on the east by the area described in
project V, the maritime forest. Present development Is limited
by the zoning ordinance for the Town of Kitty Hawk which requires
very low density development on a single family basis. The
developer proposes to develop lots fronting on the Kitty Hawk
Woods main road with an approximate total of 20 lots. A zoning
change is required in order to result in this many lots. The
nature of the change would'siill require a low density
development with 80,000 square foot lots. In some of the
original discussions, the area covered by this project VI had
been included iii the proposed donation or sale to the
5
0, ',
conservatory agencies. However, calculating the funds that could
be expected to result from a sale of the maritime forest and
comparing those amounts with the required payments to the
existing lenders indicated that the development of these
residential lots would be necessary. As a corollary, the price
of the maritime forest may be significantly reduced by the
development of these lots. No land would be created in these
areas from existing wetlands and very few, if any, wetland
crossings would be required based upon the nature of the
property.
VII. Ten Acre Lot Subdivisions (Kitty Hawk Woods, Phase I
and II).
These subdivisions have been platted and are composed of
approximately 25 ten acre lots. The property is bounded on the
east by the Kitty Hawk Woods main road and runs into the interior
of the soundside portion of the Kitty Hawk Woods-area. A road
system including bridges has been constructed within these
subdivisions. Development was done in a manner to minimize
wetland impacts and crossings were obtained under nationwide
permits following old relic road systems. The homesites have
been developed in a manner that would minimize any wetland
crossings and one particular site within these homesites has been
developed with a bridge system to cross a wet area. These sites
are referred to as an example of the type of development that can
occur in the ridge and Swale system of the maritime forest with
minimum impact on wetlands and on the ridge systems as well. The
only additional requirements that may occur within these
subdivisions would result from a widening of the existing covered
bridge road in order' to meet requirements of the Town of Kitty
Hawk. This widening would result in a wetland impact of 0.3
acres. The entire ten acre lot subdivision covers 210 acres.
VIII. Kitty Hawk Woods, Section 8.
This area is located to the west side of the main road
through the Kitty Hawk Woods and is north of the area in project
VII. The property is characteristic of the other properties in
that it contains wetland swales between ridges. It is presently
zoned to permit development in the same manner as those described
in project III with 15,000 square feet exclusive of wetland for
each residential lot. The property will support development of
approximately 60 lots in the same manner as project III allowing
for minimal impacts. The wetland impacts within this area are
approximately 1.0 acres for crossings supporting the road system.
Crossings cover a distance of 1,100 lineal feet. None of the
hots would require additional. fill -for development. The property ,
is bounded by a marsh area joining the high bridge creek running
through Kitty Hawk Woods. It is probable that the property would
be developed providing access to that creek with a boat ramp on
the western side of the property.
6
ft. •. . 4
IX. 100 Acres of Sound Front Property.
This property is located adjacent to and fronting on the
Currituck Sound, consists of 100 acres and is bounded on the east
side by the property described in project VII. Zoning
requirements in the Town of Kitty Hawk require development with a
density of 80,000 square feet, exclusive of wetlands. This will
result in approximately 25 lots within the subdivision. There
are approximately 15 lots located along the sound frontage with
the remaining lots in the center of the Opods. The road system
would be developed in the same manner as that shown in project VI
and wetland impacts for the main road system would occur only as
a result of widening and occasional crossings to expand the
existing relic road system. In addition, the property located
along the sound front is generally composed of two ridges. In
order to provide access to the ridge closest to the sound for
marketing purposes of this project, wetland crossings are
proposed for 'a number of the lots that front the Currituck Sound.
These crossing have been designed so as to minimize the number of
crossings and to permit driveway access to two lots through a
shared system of crossings where access could be obtained without
a crossing, that option has been maintained.
X. Radcliff Court, Old Subdivision Proiect.
The developer owns certain
located to the north of project IX.
and designates a number of small
systems. The developer desires to
subdivision and to fill 1.2 acres of
access to 4 waterfront lots.
Lots in an old subdivision
A platted subdivision shows
residential lots and road
extend the road within this
wet areas and thereby obtain
7
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DIVISION OF ENVIRONMENTAL MANAGEMENT
September 6, 1989
MEMORANDUM
TO: Steve Tedder
THROUGH: Alan Klimek('
Boyd DeVaneb-V
FROM: John Dorney?
RE: Kitty Hawk Woods Development and Wetlands
Attached is the plan for Kitty Hawk Woods development and
their proposed actions to mitigate for wetland fill. As you are
aware, Debra Sawyer and I have attended two meetings with the
developers to discuss agency concerns. We have told the
developers that Central and Regional office staff will recommend
to Paul that 401 Certification be denied because most of this
fill is for non-water dependent activities (e.g., fill for a
shopping center). The developers plan to meet with Paul to
discuss possible mitigation with hope to overcome staff
objections. Their mitigation proposal is attached.
Many of our concerns have been addressed in this final
submittal. Basically, we agree with the proposals but believe
that the developers could be required to donate some or all of
the 320 acres they have offered to sell to the state. This would
be better compensation for filling the valuable wetlands near
U.S. 158. If you believe that it would be helpful for us to meet
with Paul to discuss the development and proposed mitigation plan
before the developers meet with him, please let us know. Debra
Sawyer might want to be present as well.
JD/kls
Tedder.mem/D-2
Attachment

cc: Debra Sawyer

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The Pamlico Tar
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P0. Box 1854
Washington, NC 27889
919-946-7211
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? YES, f want to join! Please enter a membership in the category checked:
New Member Name
Address; `
Phone Zip
Gift Memberships: If you are giving this membership as a gift, please enter your
name below (we will send a special gift card in your name):
Donor Name:
Address Phone
7.m
? Check here if you would like to be billed for renewal of this gift membership
next year.
? Annual Dues of Membership .......... $ 10
? Family Membership ................. $ 15
? Patron Membership ................. $ 25
? Benefactor ....................... $ 100
? Conservator ...................... $ 500
? Lifetime ......................... $1000
Mail to: Pamlico-Tar River Foundation
P.O. Box 1854, Washington, NC 27889
Jesse type or print. Carefully describe al an-
ticipated development activities, including construc-
Ition, excavation, filling, paving, land clearing, and
stormwater control. If the requested information is
not relevant to your project, write N/A (not ap-
plicable). Items 1-4 and 8-9 must be completed for
all projects. .
a.
b.
C.
i •`APPLICANT-.._:.:...__:. _...... r,.
id. Describe the planned use of the project.
Shopping Center &`Offices on 66 Acres
225 Townhouse InitG on 97 AerPG _
127 Homes on Small Lots (15,000 Rq ft +
73 Homes on Large Lots ( 2 AcrPq,+)
'4 - LAND : AND WATER
- CHARACTERISTICS
a. Size of entire tract 1400 Acres
b. Size of individual lot(s)1500 sg ft to 10 Acre
c. Elevation of tract above mean sea level or Na-
tional Geodetic Vertical Datum - 2 ' to 2 5'
d. Soil type(s) and texture(s) of tract
Fripns Sands & rannhy T.nams
e. Vegetation on tract MArif-i,,,A Fnrsmc:L
Name KITTY HAWK T,?OODS PARTNERSHIP
Address P. O. BOX 749
City KITTY HAWK State N. C.
Zip 2 7 9 4 9 Day phone [phone]
X Landowner or Authorized agent
Project name (if any
Kittv Hawk Woods
If t6e9_T'PfAME1(Md EggM is not the landowner, also give
the address.
IJUL 10 MA
D.EM
2. LOCATION OF PROPOSED
PROJECT.
a. Street address or secondary road number
A,, I-I- y f} a W - we>Vs QW -?
b.. City, town, community, or landmark
Town of Kitty Hawk
c. County Dare
d. Is proposed work within city limits or planning
jurisdiction? S Yes
e. Name of body of water nearest project
Currituck Sound
3 DESCRIPTION AND. PLANNED,
USE OF PROPOSED PROJECT
Describe all development activities you propose
(for example, building a home, motel, marina,
bulkhead, or pier).
Development- of Shnnnina
CP_nt-er i-nwnhniisP iini 4rG and
si nq1 P fermi 1 y siihdi vi si nns
If you plan to build a marina, also complete
and attach Form DCM-MP-2.
b. Is the proposed activity maintenance of an ex-
isting project, new work, or both?
New Work
c. Will the project be for community, private, or
commercial use?
Commerical Use
f. Man-made features now on tract
Sinala Wami1y Homes
g. What is the CAMA Land Use Plan Classifica-
tion of the site? (Consult the local land use
plan.)
X Conservation X Transitional
Developed Community
Rural Other
h. How is the tract zoned by local government? Resid7
ntal
Commerical, Multifamily, single family,.
i. How are adjacent waters classified?SA-1
j. Has a professional archaeological. survey been
carried out for the tract? No
if so, by whom?
5 UPLAND DEVELOPMENTY
Complete this section if the project includes any
upland development.
a. Type and number of buildings, facilities, or
structures proposedShopping Center
(147,000 sq ft) , multifamily(225 'Unit
Single family (200 Lots)
b. Number of lots or parcels 200
c. Density (Give the number of residential units
and the units per acre.Multifamil :4UnitsXcm
Single Family: 2 Units acre Maximum
d. Size of area to be graded or disturbed
e. If the proposed project will disturb more than
one acre of land, the Division of Land
Resources must receive an erosion and sedimen-
tation control plan at least 30 days before land
disturbing activity begins. If applicable, has a
sedimentation and erosion control plan been
submitted to the Division of Land. Resources?
No, but will be sLbmitted
f. Give the percentage of the tract within 75 feet
of mean high water to be covered by im- -
permeable surfaces, such as pavement,
buildings, or rooftops. None
g.. List the materials, such as marl, paver stone,
asphalt, or concrete, to be used for paved
surfaces. Roads: 28' wide ABC stone
base with 20' Asphalt Paving
h. If applicable, has a stormwater management
plan been submitted to the Division of En-
vironmental Management? NOt Ye
L Describe proposed sewage disposal and/or waste
water treatment facilities. Cpn raj
SewacTe for Commercial and t4ulti-
family sites.
j. Have these facilities received state or local
approval? Not Yet
k. Describe existing treatment facilities.
Only septic tank and drainfield
systems used on single family
1. Describe location and type of discharges to
waters of the state (for example;, surface runoff,
sanitary wastewater, industrial/commercial
effluent, or "wash down"). Surface run off
onlv
m. Water supply source Private wells &County
n. If the project is oceanfront development, Mater
describe the steps that will be taken to main-
tain established public beach accessways or pro-
vide new access. Not (n ce a n f ran t
o. If the project is on the oceanfront, what will
be the elevation above mean sea level of the
first habitable floor? No Oceanfront
6 EXCAVATION AND FILL
INFORMATION
a. Describe below the purpose of proposed excava-
tion or fill activities (excluding bulkheads,
which are covered in Section 7).
Length Width Depth
Access channel
(MLW) or (NWL)
Boat basin
Other (break-
water, pier,
boat ramp,
rock jetty)
Fill placed in
wetland or below
MHW '
Upland fill
areas

M -t Ac
fill.
Work res o
See
Plats.

b. Amount of material to be excavated from
below water level in cubic yards None
c. Type of material N/A
d. Does the area to be excavated include marsh-
land, swamps, or other wetlands? Nn
e. High ground excavation, in cubic yards NLA_
f: Dimensions of spoil disposal-area N ./A
g. Location of spoil disposal area NZA
h. Do you claim title to the disposal area? N
If not, attach a letter granting permission from
the owner.
L Will a disposal area be available for future
maintenance?/ N/A
If so, where?
j. Does the disposal area include any marshland,
swampiland,'or water areas? N/A
k. Will the fill material be placed below mean
high water? No
1. Amount of fill in cubic yards 0 5 .0 0 0 -
M. Type of fill material Sand
n. Source of fill material A(l; arrPni- TTpl and
o. Will fill material be placed on marsh or other
wetlands? YPs, on fore- stPd wP -1 arsr+S
p. Dimensions of the wetland to be filled
q. How will excavated or fill material be kept on
site and erocont lied? Road ri gl,t-af-w<
e?
Sllks`xa,aaaam an fPSC 1P GPP(gP(9
berms
r. What type of construction equipment will be
used (for example, dragline, backhoe, or
hydraulic dredge)? Baekhoe , dozers .
earthmovers
s. Will wetlands be crossed in transporting equip-
ment to the project site? NO If yes, explain
the steps that will be taken to lessen en-
vironmental impacts.
7 SHORELINE STABILIZATION
a. Length of bulkhead or riprap N/A
b. Average distance waterward of mean high water
or normal water level
c. Shoreline erosion during preceding 12 months,
in feet
d. Type of bulkhead material
e. Amount of fill, in cubic yards, to be placed
below mean high water
f. Type of fill material
2
1?& WDITIONAI?RMATION
In addition to the completed application form, the
following items must be submitted:
A copy of the deed (with state application only) or
other instrument under which the applicant claims
title to the affected property. If the applicant is not
claiming to be the owner of said property, then for-
ward a copy of the deed or other instrument under
which the owner claims title, plus written permis
lion from the owner to carry out the project.
An accurate work plat (including plan view and
cross sectional drawings) drawn to scale in black
ink on 8 Yz x 11 white paper. (Refer to Coastal
Resources Commission Rule 7J.0203 for a detailed
description.)
Please note that original drawings are preferred and
only high quality copies will be accepted. Blue-line
prints or other larger plats are acceptable only if 16
high quality copies are provided by the applicant.
(Contact the U.S. Army Corps of Engineers regard-
ing that agency's use of larger drawings.) A site or
location map is a part of plat requirements and it
must be sufficiently detailed to guide agency per-
sonnel unfamiliar with the area to the site. Include
county road (SR) numbers,. landmarks, and the like.
A stormwater management plan, if applicable, that
may have been developed in consultation with the
Division of Environmental Management.
A list of the names and complete addresses of the
adjacent waterfront (riparian) landowners. These
individuals have 30 days in which to submit com-
ments on the proposed project to.the Division of
Coastal Management. The applicant must advise
the adjacent landowners of this opportunity by sen-
ding a copy of the permit application to them by
registered or certified mail. This notification is re-
quired by G.S. 113-229(d).
(1) Name Seascape Golf Course Inc
Address Kitty Hawk, N. C.
(2) Name Charles Foy
Address Kitty Hawk, N. C.
(3) Name Outer Banks Contractors
Address Kitty Hawk, N.C.
(4) Walter Davis (6)
Midland, Texas
(5) Brian- Newman
Kitty Hawk, N.C. (7)
A list of previous state or federal permits issued
for work on the project tract. Include permit
numbers, permittee, and issuing dates.
C'AMA 87-011 1O/19/197
C'AMA 3R?1 111/29//87
A check for $100 made payable to the Depart-
ment of Natural Resources and Community
Development to cover the costs of processing the
application.
A signed AEC hazard notice for projects in ocean-
front and inlet areas.
A statement on the use of public funds. If the
project involves the expenditure of public funds, at-
tach a statement documenting compliance with the
North Carolina Environmental Policy Act
(N.C.G.S. 113A-1 to 10).
9 'CERTIFICATION AND PERMIS
SION TO ENTER ON LANMt..i- ?`
Any permit issued in response to this application
will allow only the development described in the
application. The project will be subject to condi-
tions and restrictions contained in the permit.
I certify that to the best of my knowledge, the pro-
posed activity complies with the State of North
Carolina's approved Coastal Management Program
and will be conducted in a manner consistent with
such program.
I further certify that I am authorized to grant, and
do in fact, grant permission to representatives of
state and federal review agencies to enter on the
aforementioned lands in connection with
evaluating information related to this permit ap-
plication and follow-up monitoring of project.
This is the 16 day of J i i n P ,
19 PC)
X
Landowner or Authorized agent Mgr. Partner
Send the completed application materials to the
Division of Coastal Management Office nearest you
and the U.S. Army Corps of Engineers. See the
map on the inside front cover for the appropriate
DCM office and addresses and phone number.
Kitty Hawk Land Company
Kitty Hawk, N.C.
Kenneth Wichard
Greenville, N.C.
3
ADDENDUM TO JOINT APPLICATION DCM-MP-1
GENERAL:
Kitty Hawk Woods Partnership owns 1400 acres of undisturbed marit-
ime forest, which is characterized in high developable ridges and
low, wetland swales under the jurisdication of U.S. Army Corps of
Engineers. A pre-application meeting was held on May 16, 1989 to
discuss proposed project's impacts on wetlands and the forest by
representatives of Corps, the landowner, Nature Conservancy, U.S.
Fish and Wildlife Service, N.C. Wildlife Resources Commissions,
N.C. Natural Hertiage Program, N.C. Division of Coastal Management,
and the Town of Kitty Hawk. The discussion emphasized 3 disciplines
necessary for permit approval:
(1) Avoidance of wetlands when possible, (2) Creation of wetlands
to offset loss, and (3) Donation of a significant portion of the
forest to preserve this unique habitat.
BACKGROUND:
The 1400 acre ownership is located between SeaScape Golfcourse
and Currituck.Sound in the Town of Kitty Hawk. Town zoning influe-
nces land use planning into 4 classes: Commercial (66 acres).
Multifamily k97 acres); single family residential, small lots (300
acres); and single family residental, large, 80,000 sq. ft. mini-
mum lots (937 acres). This two year ownership has developed 164
small lots near the golf course and 21 ten acre lots in the sensi-
tive Kitty Hawk Woods zoning.
PROJECT DESCRIPTION:
The maritime forest consists of a forested ridgeswale system
with north-south orientation. The ridges have elevations from 5'
to 25' above sea level (MHW). The depressional swales lie between
the 2' and 4' contours and are designated 404 wetlands by the Corps.
All wetlands are flagged, surveyed, and certified by Corps respre-
sentatives. The ridge flora contains mostly lobolly pine, oak ,
hickory, dogwood, beech, and holly. The plant composition of wet-
lands is largely red maple, red bay, and sweet gum except the deeper
wetlands which have cypress and black willow as well.
The. attached work drawings describe the proposed /7.7 acres
of fill activities on 7 projects:
(1) Commercial, Shopping Center, 60 Acre Proiect:
Access roads will require filling 1.6 acres of wetlands. The
road crossings to be filled will be 40' wide and 5' high located in
center of 60' rights-of-way for a distance of 1700 : An additional
9.4 acres of wetland swales will be filled to an elevation of 5' for
parking and building adjacent to the major development on high eleva-
tion areas. Total estimated fill area is 11.0 acres.
(2) MULTIFAMILY, 225 TOWNHOUSE- UNITS',' '97 ACRE PROJECT:
Road crossing of approximately 2,000' will require filling
wetlands totaling 1.8 acres. Access roads will have 40'
of width with 28' of ABC stone base and 2" I-2 asphalt
paving. No buildable land will be created by filling wetlands.
(3) Section 8, KITTY HAWK WOOODS SUBDIVISION, 100 ACRE PROJECT:
Subdivision road crossing will require filling 1.0 acres of
wetlands in 4 locations for a distance of 1,100'. All
residential lots will contain 15,000 sq. ft. minium of up-
land area and will not involve future filling by lot buyers.
(4) Section 9, KITTY HAWK WOODS SUBDIVISION, 100 ACRE PROJECT:
Only subdivision road crossings will require filling wetlands
as shown on work drawing. The Mulhp/z ev -d crossings will im-
pact 1.3 acres.
(5) Phase V, KITTY HAWK WOODS SUBDIVISION 110 ACRE PROJECT:
This is a low density (one house per 5 acres) development.
Road location follows relict road but town specifications
will require widening to 401. Fill of /./ acres is estab-
li,lhed as shown on drawings.
(6) Ph<aso I & II, KITTY HAWK WOODS SUBDIVISION 210 ACRE PROJECT:
Widening existing "Covered Bridge" road and additional 20' will
impact wetlands 0.5 acres.
(7) Radcli.ffo court, Old Subdj.,vis? on, PROJECT :
Extension of this road will require filling 1.2 acres of wet-
lands to obtain access to 4 waterfront lots.
MITIGATION
(1) The landowner has agreed to donate 140 acres of a re-
presentative portion of the woods in fee simple to the Nature
Conservancy and/or the Town of Kitty Hawk.
The forest has been undistured with trees up to 100
years of age. Cypress and ash occur in wetlands as well as
gum and maple. Ridge flora contains canopy trees of lobolly
pine, subcanopy trees of beech and dogwood. Southern tway-
blade, a rare plant, occurs in the ground cover on ridges.
The tract was visited by all participants at 5/16/89 pre-
application meeting, and the group agreed it was a substan-
tive gift resulting in protection of a unique ecotype.
(2) The landowner agrees to create /0 acres of wetlands to
offset filling of wetlands for purposes other than road cross-
ings. This will be done on a mutually agreed upon site near
the impact areas on property or a remote site on the Currituck
mainland.
The created wetlands will be excavated to the average table
level producing saturated soils with only seasonal inundation.
Vegetation will occur through natural succession from cattail-
grass community to cypress-gum-maple climax forest.
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A4 DEPARTMENT OF NATURAL RESOURCES & COMMUNITY 'DEVELOPMENT
/ .spry
6Z
Date
MEMO: to of subject
JUN
t`
V/- `-
r
_.a 10".
DIVISION OF ENVIRONMENTAL MANAGEMENT
June 20, 1989
MEMO TO: Steve Tedder
FROM : John Dorne??
Debra Sawyer,A
THROUGH: Boyd DeVane
Jim Mulligan
SUBJECT: Proposed Wet and Mitigation for Kitty Hawk Woods
Development
On June 7, 1989, Debra Sawyer, Gordon Cashion and I and
Robert Abernathy (Coastal Management) visited Kitty Hawk Woods to
examine a possible wetland mitigation proposal. The developer
wants to fill in about 12 acres of wetlands. For mitigation the
developer proposes to give to the Nature Conservancy (and the
Town of Kitty Hawk) 135 acres of undisturbed maritime forest (35
acres of upland and 100 acres of wetland). He is also willing to
discuss selling another 500 acres to the Nature Conservancy. A
recent DCM report rates this site as of high value and the Town
has a 80,000 square foot minimum zoning requirement on the site.
The developer has platted the area into 10 acre lots and has put
roads and bridges into most of the site. One demo home has been
built.
In order to gain access to the remainder of his lots
(especially those on the sound), the developer will need to cross
(and fill) several swales. The fill would total about 6 acres.
In another part of the property (along U.S. 158), he wants to
fill in another 6 acres of wetlands for a road alignment and
shopping center.
Based on the site visit (video tape available), we believe
that the maritime forest offered as mitigation is of exceptional,
irreplaceable value. Acceptance of the 135 acres as mitigation
for the 6 acres of road crossings from the residential
development would (in our judgement) be reasonable since this
activity would be water dependent. In addition, we believe that
the developer should place deed restrictions on all his lots
which would specifically prevent dredging, draining or filling of
the wetlands on each lot.
However, the shopping center is not a water dependent,
unavoidable use. Therefore, this fill should not be allowed.
,r A'.
vp
A MO/TO: Steve Tedder
('Jip e 20, 1989
.41a.ge Two
There are a few small pockets of wetlands (less than 1 acre
total) on his property where he plans to build most of the
shopping center. We believe that he could be allowed to fill
these with proper additional mitigation in the immediate
vicinity. However, filling of the large swales would clearly
remove their uses and these waters of the state.
If you, Chuck and Paul agree with this position, I can
contact the developer and discuss it with him. Other state
agencies are also extremely interested in our review of this
proposal. Rather than contacting the developer with DEM's
opinion, an initial intra NRCD meeting may be useful.
JD/jho
cc: Robert Abernathy, CZM
wetl.m
,\ ..
v
,;; ??zr
??c,
??
??
??
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5?
/JS
DIVISION OF ENVIRONMENTAL MANAGEMENT
June 20, 1989
r?,r
RECEIVED
WASHINGTON OFFICE
JUG Z 21989
MEMO TO: Steve Tedder
FROM ; John Dorne4p b• E. M.
Debra SawyerAA9->
THROUGH: Boyd DeVane L
Jim Mulligan?6 -
SUBJECT: Proposed Wetland Mitigation for Kitty Hawk Woods
Development
On June 7, 1989, Debra Sawyer, Gordon Cashion and I and
Robert Abernathy (Coastal Management) visited Kitty Hawk Woods to
examine a possible wetland mitigation proposal. The developer
wants to fill in about 12 acres of wetlands. For mitigation the
developer proposes to give to the Nature Conservancy (and the
Town of Kitty Hawk) 135 acres of undisturbed maritime forest (35
acres of upland and 100 acres of wetland). He is e.lso willing to
discuss selling another 500 acres to the Nature Conservancy. A
recent DCM report rates this site as of high value and the Town
has a 80,000 square foot minimum zoning requirement on the site.
The developer has platted the area into 10 acre lo=gs and has put
roads and bridges into most of the site. One demo home has been
built.
In order to gain access to the remainder of lots
(especially those on the sound), the developer will need to cross
(and fill) several swales. The fill would total about 6 acres.
In another part of the property (along U.S. 158), he wants to
fill in another 6 acres of wetlands for a road alignment and
shopping center.
Based on the site visit (video tape available), we believe
that the maritime forest offered as mitigation is of exceptional,
irreplaceable value. Acceptance of the 135 acres as mitigation
for the 6 acres of road crossings from the residential
development would (in our judgement) be reasonable since this
activity would be water dependent. In addition, we believe that
the developer should place deed restrictions on all his lots
which would specifically prevent dredging, draining or filling of
the wetlands on each lot.
However, the shopping center is not a water dependent,
unavoidable use. Therefore, this fill should not be allowed.
t?
iMEMO TO: Steve Tedder
June 20, 1989
Page Two
There are a few small pockets of wetlands (less than l acre
total) on his property where the plans to build most of the
shopping center. We believe that he could be allowed to fill
these with proper additional mitigation in the immediate
vicinity. However, filling of the large swales would clearly
remove their uses and these waters of the state.
If you, Chuck and Paul agree with this position, I can
contact the developer and discuss it with him. Other state
agencies are also extremely interested in our review of this
proposal. Rather than contacting the developer with DEM's
opinion, an initial intra NRCD meeting may, be useful.
JD/jho
cc: Robert Abernathy, CZM
wetl.m
L f
SHARP, MICHAEL AND OUTTEN
ATTO R N EYS AT LAW
SEA SCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
STARKEY SHARP
STEVEN D. MICHAEL
ROBERT L. OUTTEN
JOHN C. GRAHAM, III
TO: Participants in Meeting of May 16, 1989
1217
MAILING ADDRESS:
POST OFFICE DRAWER 1027
KITTY HAWK, NC 27949
FACSIMILE: [phone]
FROM: Starkey Sharp, Attorney for Kitty Hawk Woods Partnership
DATE: June 16, 1989
RE: Status of Application for Permits for Development and Fill
of Wetland Areas, Kitty Hawk Woods Partnership
On or about May 16, 1989, a meeting was conducted on the property
of Kitty Hawk Woods Partnership. The purpose of the meeting was
to review all areas of the property involved with a proposal made
by the partnership for development of the property. The proposal
includes an application to fill certain areas of 404 Wetlands.
In addition, the proposal also includes certain wetland
crossings.
The meeting was arranged to allow representation by as many of
the affected agencies as possible. Present at the meeting were
representatives of the U.S. Army Corp of Engineers, United States
Fish and Wildlife Service, North Carolina Wildlife Service, CAMA,
North Carolina Heritage Foundation, Nature Conservancy and the
Town of Kitty Hawk. In addition, the developer and property
owner was represented by Quentin Bell, project manager; John
Fussell, wetlands consultant; Linwood Stroud, surveyor and
engineer; and Starkey Sharp, attorney.
The purpose of this memo is to provide a report on the status of
the application process. Following the meeting, a method of
proceeding with the application was agreed upon. It was
determined that one application would be made and coordinated so
as to allow the single application to serve for the purpose of
obtaining all related permits affecting the project. In
addition, it was agreed that the application would encompass the
wetland impact on all portions of the entire project under
development by the Kitty Hawk Woods Partnership. The entire
property includes approximately 1400 acres. Since the time of
the meeting conducted in May, we have received the application
form and have proceeded to compile certain information to
supplement the application form. Among other matters, we are
attempting to complete physical surveys of all areas within the
project so we will be able to show the impact on all wetlands
that are contemplated. In addition, we are attempting to
complete area calculations to know the full extent of the wetland
impacts.
err
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Participants in Fleeting of May 16, 1989
June 16, 1989
Within the next two weeks, we expect to be in a position to
submit the completed application. THe application will be
accompanied by several attachments and exhibits. First, we
intend to provide an overall map for the Kitty Hawk area
including a composite map of all of the Kitty Hawk Woods
properties. In addition, we intend to identify individual
portions of the Kitty Hawk Woods development as separate
projects. Each project will be identified by number and will
have a separate detail map showing the nature of the proposed
development and all wetland impacts. There are approximately
nine projects within the entire development that will be
addressed.
Prior to formal submission of the application, it is our
intention to allow Jim Poteet of the U.S. Army Corp of Engineers
to review a preliminary format for the application. In this way,
we hope to be able to meet all technical requirements of the
application process for the Corp as well as those requirements of
any of the other interested agencies. If there are any special
requirements of a particular agency, such as a particular number
of copies or the size of any maps that may be provided, we would
like to be aware of those requirements as early as possible or
make certain that Jim Poteet is aware of them so that the
application will be correct in its format.
At the time of the meeting held in May, two yellow rain slickers
were left in my automobile. I assume that one of them belongs to
Jim Poteet but I am not certain as to the ownership of the other.
I would appreciate it if you would advise me if you are missing
one of these rain jackets and let me know how I can distinguish
them. I would then be glad to send these items directly to the
proper owners.
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Date: 6/14/89
Memo To: Starkey Sharp
RECEIVED
WASHINGTON OFFICE
JUN 2 71989

D. E. M.
From: Quentin Bell '
Subject: Comments - Robert Abernethy, CAMA
-------------------------------------------------------------
Robert Abernethy met with me today and briefly reviewed
our draft permit application. His comments are summarized-
as follows:
(1) Filling wetlands in both Conservation and Transition
classes in Town of Kitty Hawk are inconsistent with land use
plan. We should ask Town for variance now as it will take 2-
3 months for this process = 30 day.-advertisement, public hear-
ing, local approval, and CRC approval.
(2) The NRCD'S Division of Environmental Management has
jurisdiction over forested wetland-s under the 40'1 certification
program. We should include them in our pre-application process.
They will also review stormwater management on shopping center.
(3) We have significant open space requirements which
will count in our mitigation-donation proposal. For example
after the site plan for shopping center is approved by the
town, we request the developer to grunt a conservation ease-
on the 40% open areas. Also, the wetlands that we can't use
such as areas west of section 6 and 7 and the area between
Greenville Colony and Jean Quite canal should be donated.
(4) His comments-on my draft application are as follows:
(a) better maps! After vicinity maps, we need a map
with all projects showing how roads connect together, from
shopping cneter to multi-family. We need 82X11 maps as well
as blue line copies.
(b) Use as much narative as possible in addendum...
The form's answers look OK.
(c) Bad news- Wilson Laney, US Fish & Wildlife Service,
is in DC for 3 months. He was supportive for project and
will be a major loss.
Kitty 11awk11k)o41s
POST OFFICE BOX 749 KI I I Y I IAWK, NOR I I I CAROLINA-27949 919-261-2258
?s
Date: 6/22/89
Memo To : Distrributi o ist -
From: Quentin Bel
Subject: Proposal t Create
Preapplication Work
Wetlands
Pre-application meeting conclusions on mitigation
The 5/16/89 meeting emphasized "no
Kitty Hawk Woods will create wetlands on
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Location of wetlands restoration
tt AS, INGTO OFFICE
JUN2 71989
D.EM.
net loss" of wetlands; therefore,
a one-for-one basis as well as
* the Nat-ur.e Coaser'vancy. .4. J
None of the group wanted the forested ridges destroyed and converted
to wetlands to compensate for the proposed filling of roughly 15 acres of
swales. The integrity of this forested ridge-swale habitat is essential
to this maritime forest.. Also, there are not enough open or previously
cleared ridges in Kitty ffawk Woods which could be candidates for conversion
by excavating down to the.2.` or 3` elevation exemplified in most of our
swales.
Consequently, the-use of a remote site from this maritime forest is
recommended for our restoration work. The proposed site is located in
Tvrr.ell County south of Colu,ibia. It is a 26 acre farm: tract of which
22.8 acres are upland, non 404, farmland.
Proposal
Converting this farmland to wetlands is part of the mitigation plan.
If our 404 permit application requests 15 acres of fillings, then we would
create 15 acres of forested wetlands on this Tyrrell site.
{uo't A4 ,y:
The,Tyrrell soils map indicates the farmland contains a mix of
Altavista, Augusta, and Tomotley fine sands. The surrounding forest is com-
posed of loblolly pine-oak species on the higher elevations and black gum-
red mpale on the wetter sites. This Scuppernong River watershed flows into
the Albemarle Sound - the same estuary adjacent to Kitty Hawk Woods.
Rest oz,irg these drained fields to a wetlands condition will recessatate
blockin,, ditches and, perhaps, adding earthen berms. Removing surface drain-
age outlets should produce a permanent, high water table. Outplanting of
forest specie:, will be'done on an 8' x 8` spacing using red maple, cypress,
an(! sweet gun: seedl;_ngs available from North Carc7_ina and `Jir;inia nurseries.
1'I:is en ire farm parcel can be given ;.c: a State agency or un.versity to
conduct research on wetlands restoration.

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KITTY HAWK WOODS:
THE 135-ACRE TRACT PROPOSED FOR MITIGATION--
A BRIEF DESCRIPTION OF THE TRACT AND ITS ECOLOGICAL SIGNIFICANCE
,ASH, 'uTGN r{
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[larch 1989
Prepared by John Fussell,
Environmental Services, Inc.
L
:INTRODUCTION
Kitty Hawk Woods development company is proposing to
donate a 135-acre tract of land in Kitty Hawk Woods to the
Nature Conservancy (or some other environmental
organization). The purpose of this donation is to serve
as mitigation for proposed work elsewhere that will require
dredge-and-fill permits from the U.S. Army Corps of Engineers.
The proposed work is the filling of 6-7 acres of swamp forest
adjacent to US 158.
In February 1989, Kitty Hawk Woods development company
requested that I evaluate the proposed 135-acre donation tract,
as.to its ecological significance and thus its suitability
to serve as mitigation for the proposed work.
DESCRIPTION OF THE TRACT
The proposed mitigation tract is located within the
southern part of Kitty Hawk Woods, based on the overall
boundaries of Kitty Hawk Woods being as delineated by
Lopazanski, Evans, and Shaw (1989). See Figure 1 for the
approximate boundaries of the mitigation tract.
The northeastern boundary of the tract is the centerline
of a powerline right-of-way. Beyond the powerline right-of-way
is a large area-of undisturbed forest, which is similar to the
`forest within the mitigation tract.- To the northwest of the
tract, and contiguous with it, is a large tract (about 350 acres)
of undisturbed forest. To the southwest, there is an asphalt
facility, although it is not immediately adjacent to the

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tract. To the southeast, there is some residential development;
this also is not immediately adjacent to the tract.-
This consultant evaluated the tract duringa two-hour
survey on 24 March 1989, and another two-hour survey on.
25 March. In addition to this time spent within the '
immediate tract, the consultant has been over much of Kitty
Hawk Woods, while doing 404 wetland delineations. This
work has involved literally dozens of hours; much of this work
was done on a 170-acre tract that lies north of and almost
contiguous with the mitigation tract. The 170-acre tract
is very similar geologically and botanically to the mitigation
tract.
Geologically, the tract consists of a series of low
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vQ o idges and,interlying swales. This ridge-and-swale topography
??is readily apparent in aerial photos. The ridges are relict
90
beach ridges (see Fisher 1967); each ridge delineates a
shoreline of the Atlantic at some.point in time. It is not
known (by this consultant) whether these ridges are of Holocene
age (formed during the current high sealevel) or of.
Pleistocene age (formed during the previous high sealevel).
Within the tract, the ridges are low, only about five
feet higher than the interlying swales, and the swales are
much wider than the ridges. This is typical of the
whole Kitty Hawk Woods-area. On the tract, the swales
average about. 300' in width. The main ridges average about
125' or less.: In addition to these, some of the swales have

-3-
"ridge islands" that parallel the main ridges, but are not
continuous: They are about 50' wide.
Except for their lower slopes, the ridges are sandy and
moderately well-drained. The Soil Survey of the Outer Banks
classifies the soil of the ridges as Fripp fine sand. The soil
in the swales is typically saturated with water throughout the
year. During-rainy periods in winter and early spring, these
swales may be flooded with up to two feet of water.
According to the Soil Survey, the soil within the swales is
Conaby soil.
On 24 & 25 March, during unusually high water levels,
about as high as they get during an average year, there was
a noticeable surface flow of water within some of the swales.
This:flow was toward the south.
The ridges are vegetated with a forest of Loblolly
.Pine and several species of hardwoods. Typically, the canopy
consists primarily of the pine, with the hardwoods
barely beginning to transgress the canopy. The dominant
hardwood species are Beech, Water Oak, Laurel Oak, Hickory,
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a.nd Sweet Gum.
For a barrier island site, the trees are, on the average,..
mature and rather large. The tallest pines grow up to about
100' high, and the DBH of the largest pines averages about 18".
The forest probably hasn't been logged in about 60-80 years.
One fairly common species that"is worthy of note is
Hop Hornbeam. On the Outer.Banks, this species is limited to
Kitty-Hawk Woods and Nags Head Woods.
-4-
Common understory/shrub level species are Red Bay,
Flowering Dogwood, and Cane. Partridgeberry may be 'the most
'common ground cover species. Two noteworthy ground cover
species are Beech-drops and Squaw-root, both parasitic species.
.The-Squaw-root is scarce to absent across much of eastern
North Carolina (see Radford, Ahles, and Bell 1968).
Ferns are most common in the shallower swales and along the
edges of the larger swales. Common are Marsh.Fern, Virginia
Chain-fern, and Netted Chain-fern. Elsewhere in Kitty Hawk
Woods, Southern Twayblade (Listera australis) has been found,
along a ridge-swale ecotone. This rare species might also occur
within the proposed mitigation tract.
The swales are vegetated with swamp forests; dominant
.species are Sweet Gums Black Gum, Red Maple; and, in many of
the__swales, Bald Cypress. The swamp forest trees are also
notably large for a barrier island site. The canopy is about
100' in height, and the larger trees average about 18" DBH.
The last logging was probably about 60-80 years ago.
During field work (primarily delineations of 404 wetlands)
.in adjacent areas, this consultant made lists of birds that
were observed, especially during May 1988. It is evident
that the Kitty Hawk Woods has, for a barrier island forest,
a high diversity, as well as a high overall population, of
summer resident, winter resident, and permanent resident
forest birds. This high diversity and high population is
undoubtedly related to the large areal extent of the forest,
and-to the maturity and height of the forest.
-5-
For a'barrier island forest, the diversity and total
"populations of amphibians, reptiles, and mammals are
probably also noteworthy. However, this consultant was less
observant about these animal groups.
In Appendices 1-3 are listed vascular plants, birds,
amphibians, reptiles, and mammals that the consultant has
observed in Kitty Hawk Woods, within or adjacent to the
proposed mitigation tract. All of the bird list is based on
actual data recorded in the field. Some of the plant
information was also recorded in the field. It should be
stressed that the rest of the plant list and the lists
of amphibians, reptiles, and mammals were based on memory.
These lists should be regarded as preliminary.
SIGNIFICANCE OF THE PROPOSED MITIGATION TRACT
Below, the term "maritime forest" will be used in the
broad sense, i.e. all forests on the barrier islands of
North Carolina are considered. to be maritime forests. This
is consistent with the use of the term by Lopanzanski,
Evans, and Shaw (1988) in An Assessment of Maritime Forest
Resourc,es'on the North Carolina Coast.
Also, it should be stressed that the proposed mitigation
tract is representative of the whole Kitty Hawk Woods and that,
for the most part, the significant values of the mitigation
tract will be much the same as those for the total forest area.
The significance of the proposed mitigation tract is
as follows:
1) The maritime forest is today the most threatened
plant community in North Carolina. Furthermore,

-6-
10
-because. these forests lie near the sea, and are
subject to extreme conditions resulting from wind,
salt spray, and other stresses, they are plant
communities that are especially likely to suffer
irreversible harm from fragmentation. It is the
current feeling of the scientific community that
even the most well-planned development within the
maritime forests will nevertheless lead to their
degradation.: To truly be preserved, maritime forests
need to be set aside in their natural state in the
largest contiguous blocks possible. The setting aside
',.of the 135-acre mitigation tract, especially
if combined with an even larger (350-acre)
contiguous tract to the north that is being offered
for sale to the Nature Conservancy, could indeed lead
to'true protection for a large block of maritime forest.
2) The Kitty Hawk. Woods is unique among the state's
maritime forests. It is very different in structure
and overall plant composition from all other maritime
forests in the state. It is strikingly different
from the maritime forests that occur at Cape Hatteras
(Buxton Woods) and southward, with their 'domianance by
broad-leaf evergreen species. However, in spite
of their proximity, Kitty Hawk Woods is also quite
different from Nags Head Woods. Compared to Nags Head
Woods, Kitty Hawk Woods has lower elevations, less
elevational diversity, more extensive wetlands (with
much Bald Cypress in many of the eastern swales), and
is more extensive and more protected from the effects of
wind and salt spray. Of course beauty is in the eye.
of the beholder, but many would consider Kitty Hawk
Woods to be the most aesthetically appealing maritime
forest in the state. The presence of Bald Cypress
should be stressed especially; Kitty Hawk Woods is
the only maritime forest in the state in which
Bald Cypress is a major species.
3) The preservation of a portion of Kitty Hawk Woods
could be of great scientific value. An understanding
of the geology and ecology of Kitty Hawk Woods could
be very helpful in understanding the geological
formation of the northern Outer Banks area, and an
understanding of the botanical composition of the
forest could greatly aid in our understanding of the
state's maritime forests in general. For instance ,
are the relict beach ridges in Kitty Hawk Woods of
Pleistocene age? Is this the primary reason that the
plant species composition of Kitty Hawk Woods is unique?
4) For a barrier island site, the Kitty Hawk Woods has a
high diversity of vascular plants, and a high diversity
and overall population of summer resident, winter
resident, and permanent resident forest birds. There
is probably a high diversity of amphibians, reptiles,
and mammals as well. Areas such as Kitty Hawk Woods
-7-
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a
ar'e very important to migrating passerines, such as
warblers.
5) One notably rare species has been found in Kitty
Hawk Woods--this is Southern Twayblade. Because of
the size of the forest, other rare species may occur
as well., The Swainson's Warbler was regularly found
in the forest until about 1975. It has not been
reported in more recent-years, but may still occur..
6) It should be stressed that the mitigation"tract, which
is located roughly in the center of the forest inso-
far as distance from the ocean is concerned, appears
to be representative of the overall Kitty Hawk
Woods". Furthermore, it contains several swales in
which Bald Cypress is a major species. Bald Cypress
does not occur all across Kitty Hawk Woods--it is
mostly limited to the central and eastern sections.
Most of this consultant's bird observations in Kitty
Hawk Woods were made in the central section of the'
forest north of and contiguous with the proposed
mitigation tract. That section had about the same
percentage of ridge uplands and swale wetlands as the
mitigation tract, and the same forest composition--
both structural and species-wise, and was roughly the
same distance inland from the ocean. Therefore,
those bird data should be representative of the
mitigation tract.
7) The majority of the mitigation tract lies within the
540-acre section of Kitty Hawk Woods considered to be
most significant--"relatively undisturbed"-- by
Lopazanski, Evans, and Shaw. The southern boundary
of this most significant area appears to have been
drawn somewhat arbitrarily, and it is suggested
that the authors would consider all of the mitigation
tract to be within the`most significant section of the
forest if they were to visit the immediate site.
8) It should also be stressed that the wetland swales that-
flow through the proposed mitigation area pass through
undeveloped natural forest for a mile before they
reach the mitigation site. (This mile-long tract of
forest is also being offered to the Nature
Conservancy.) Thus, there is an excellent potential
for the waters of the mitigation tract to remain in
a nearly pristine state.
9) It should also be stressed that because of the extent
of wetlands in the vicinity, it is likely that any
future development that might occur to the east, south,
and southwest of the mitigation area will be of very
low density, and will not significantly detract from
the ecological value of the mitigation tract.
-8-
References Cited:
Fisher, J.J. 1967. Development Pattern of Relict Beach
Ridges, Outer Banks Barrier Chain, North Carolina.
Unpublished doctoral thesis, University,of North Carolina,
Chapel Hill.
Lopazanski, M.J., J.P. Evans, and R.E. Shaw. 1988. An
Assessment of Maritime Forest Resources on the North Carolina
Coast. N.C. Deparment, of Natural Resources and Community
Development, Division of Coastal Management.
Radford, A.E., H.E. Ahles, and C.R. Bell. 1968. Manual of the
Vascular Flora of the Carolinas. University of North Carolina
Press, Chapel Hill.
U.S. Department of Agriculture, Soil & Conservation Service.
1977. Soil Survey of the Outer Banks of North Carolina.
i

Appendix`'1. Species of Vascular Plants Observed in.Kitty
Hawk Woods--within or in vicnity of Proposed
135-Acre Mitigation Tract.
* denotes species that was seen within the tract or that can
be safely assumed to occur within the'tract.
Ophioglossaceae
*Botrychium sp. Grapefern
Osmundaceae
*Osmunda cinnamomea Cinnamon Fern
*Osmunda regalis Royal Fern
Pteridaceae
*Pteridium aquilinum Bracken
Aspidiaceae
*Athyrium asplenioides Southern Lady Fern
Polystichum acrostichoides Christmas Fern-
*Thelypteris palustris Marsh Fern
Blechnaceae
*Woodwardia virginica Virginia Chain-fern
*Woodwardia areolata Netted Chain-fern
Aspleniaceae
*Asplenium platyneuron Ebony Spleenwort
Polypodiaceae
*Polypodium polypodioides Resurrection Fern
Pinaceae
*Pinus taeda Loblolly Pine
Pinus echinata Short-leaf Pine
. Appendix', 1 (continued).
Taxodiaceae
*Taxodium distichum
Typhaceae
*Typha latifolia
Sparganiaceae
.*Sparganium americanum
Poaceae
*Arundinaria gigantea
*Uniola laxa
*Glyceria septentrionalis
Cyperaceae
.*Cyperus spp.
*Cladium jamaicense
*Carex sp.
Arecaceae
Sabal minor
Araceae
*Peltandra virginica
Bromeliaceae
y
*Tillandsia usneoides
Liliaceae
*Smilax rotundifolia
*S.milax bona-nox
*Smilax glauca
*Smilax walteri
*Smilax laurifolia
Bur-reed
Cane
Sedge
Saw Grass
Sedge
Dwarf Palmetto
Arrow Arum
Spanish Moss
Common Greenbrier
Saw Greenbrier
Glaucous Greenbrier
Walter's Greenbrier
Bamboo-vine
Appendix 1(continued).
Orchidaceae
*Tipularia discolor Crane-fly Orchid
'Sauraceae
*Saururus cernuus Lizard's Tail
Salicaceae
*Salix caroliniana Swamp Willow
Myricaceae
*Myrica cerifera Wax Myrtle
Juglandaceae
*Carya sp. Hickory
Betulaceae
*Ostrya virginiana Hop Hornbeam
*Carpinus caroliniana Ironwood
Fagaceae
*Fagus grandifolia Beech
*Quercus alba White Oak
*Quercus falcata Southern Red Oak
L
*Quercus-nigra Water Oak
4
*Quercus laurifolia Laurel Oak
Ulmaceae
*Ulmus americana American Elm
Urticaceae
*•Boehmeria cylindrica False Nettle
Appendix 1` (continued).
Aristolochiaceae
*Hexastylis arifolia Wild Ginger
Magnoliaceae
*Liriodendron tulipifera Tulip Tree
*Magnolia virginiana Sweet Bay
Lauraceae
*Persea borbonia Red Bay
*Sassafras albidum Sassafras
Saxifragaceae
*Decumaria barbara Climbing Hydrangea
Hamamelidaceae
*Liquidambar.styraciflua Sweet Gum
*Hamame'l.is virginiana Witch-hazel
Rosaceae
*Rubus sp.
*Sorbus arbutifo.lia Red Chokeberry
*Prunus serotina Black Cherry
Anacardiaceae

*Rhus radicans ;. Poison Ivy`

Aquifoliaceae
*Ilex opaca .Holly '
Celastraceae
*Euonymus-americanus Strawberry Bush
Aceraceae
*Acer rubrum Red Maple
a
Appendix 1 (continued).

Balsaminaceae
*Impatiens capensis Jewel-weed,
Rhamnaceae
*Berchemia scandens Rattan-vine
Vitaceae
*Parthenocissus quinquefolia Virginia Creeper
Apiaceae
*Hydrocotyle verticillata Whorled Pennywort
*Hydrotocyle ranunculoides Floating Pennywort
Nyssaceae
*Nyssa sylvatica Black Gum
Cornaceae
*Cornus florida Flowering Dogwood
Ericaceae
*Chimaphila maculata. Spotted Wintergree:
*Monotropa uniflora Indian Pipe
Symplocaceae
*Symplocos tinctoria Horse Sugar
Oleaceae
*Fraxinus sp. Ash
Loganiaceae
*Gelsemium sempervirens Yellow Jessamine
•y
Q
+ Appendix 1 (continued).
Verbenaceae
*Callicarpa americana
Orobanchaceae
*Epifagus virginiana
*Conopholis americana
Rubiaceae
*Mitchella repens
*Galium sp.
Caprifoliaceae
*Lonicera sempervirens
Beauty-berry
Beech-drops
Squaw-root
Partridge Berry
Bedstraw
Coral Honeysuckle
Appendix 2. Birds Observed in Kitty Hawk Woods--
within or adjacent to Proposed
135-Acre Mitigation Tract:
_ (List does not include any birds that are restricted to
habitats that don't occur within the tract. However, aerial
feeding birds that feed above the tract are included.)
Status designations are: PR- Permanent Resident
SR- Summer Resident
WR- Winter Resident
T- Occurs only during migration
SPECIES ASSUMED STATUS
Great Blue Heron
Green-backed Heron
Wood Duck
'Osprey-
Sharp-shinned Hawk
Red-shouldered Hawk
Red-tailed Hawk
Ameriigan.. Kestrel
Mourning Dove
Yellow-billed Cuckoo:
Eastern Screech-Owl
Belted Kingfisher
Red-bellied Woodpecker
Yellow-bellied Sapsucker
Downy.Woodpecker
Northern Flicker
Pil.eated,Woodpecker
Eastern Wood-Pewee
Acadian Flycatcher
Eastern Phoebe
Great Crested Flycatcher
Purple Martin
Barn Swallow
Blue Jay
American Crow
Carolina Chickadee
Brown Creeper
.Carolina. Wren
{ Winter Wren
Golden-crowned Kinglet
Ruby-crowned Kinglet
4! Baue-gray;Gnatcatcher
X Veery-
?z 1
Hermit Thrush
Wood .Thrush
F
American Robin
WR
SR
PR
SR
WR
PR
WR?
WR
PR
SR
PR
WR
PR
WR
PR
PR
PR
SR
SR
WR
SR
SR
SR
PR
PR
PR
WR
PR
WR
WR
WR
SR
T
WR
WR
(powerline)
Appendix 2 (continued).
SPECIES
Gray Catbird
:Brown Thrasher
Cedar Waxwing
European Starling
White-eyed Vireo
Solitary Vireo
Red-eyed Vireo
Northern Parula
Black-throated Blue Warbler
yellow-rumped Warbler
Black-throated Green Warbler
Pine Warbler
Prairie Warbler
Blaekpoll Warbler
Black-and-white Warbler
.American Redstart
Prothonotary Warbler
Worm-eating Warbler
Ovenbird
Northern Waterthrush
Common Yellowthroat
Scarlet Tanager
Northern Cardinal
Rose-breasted Grosbeak
Indigo-Bunting
Rufous-sided Towhee
Fox Sparrow
Song Sparrow
Swamp Sparrow
White-throated Sparrow
Dark-eyed Junco
Red-winged Blackbird
Common Grackle
Brown-headed Cowbird
American Goldfinch
ASSUMED STATUS
PR
PR
WR
PR
SR
WR
SR
SR
T
WR
T
PR
SR
T
T
T
SR
T
SR?
T
SR
T
PR
T
SR
PR
WR
WR
WR
WR
WR
PR
PR
PR
WR
• I:
Appendix 3. Amphibians, Reptiles, and Mammals Noted
in Kitty Hawk Woods--
- within or adjacent to Proposed {
135-Acre Mitigation Tract.
AMPHIBIANS
Green Treefrog
Squirrel Treefrog
Southern Leopard Frog
REPTILES
Eastern Mud Turtle
Black Racer
Eastern King Snake
Rough Green Snake
Cottonmouth
Timber(Canebrake) Rattlesnake
MAMMALS
Opossum
Raccoon
Gray Fox
Eastern Gray Squirrel
Whitetail Deer
ls;q
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711

Ale-as ype or print. Carefully describe all an-
ticipated development activities, including construc-
tien, excavation, filling, paving, land clearing, and
stormwater control. If the requested information is
not relevant to your project, write N/A (not ap-
plicable). Items 1-4 and 8-9 must be completed for
all projects. .
1 -'APPLICANT _.:.
a. Name KITTY HAWK r>>OODS PARTNERSHIP
Address P. O. BOX 749
City KITTY HAWK State N. C.
Zip 2 7 9 4 9 Day phone (919) -261-22 58
X Landowner or Authorized agent
b. Project name (if any)
Kitty Hawk [goods
c. , If the applicant is not the landowner, also give
the owner's name and address.
2. LOCATION OF PROPOSED
PROJECT
a. Street address or secondary road number
b. City, town, community, or landmark
Town of Kitty Hawk
c. County Dare
d. Is proposed work within city limits or planning
jurisdiction? Yes
e. Name of body of water nearest project
Currituck Sound
3 DESCRIPTION AND PLANNED,
USE OF PROPOSED PROJECT
a. Describe all development activities you propose
(for example, building a home, motel, marina,
bulkhead, or pier).
nevPlnnment of Shonninn
C'_entPr, townhniisa iini is anti
sl nql P fami 1 W s»hrli vi si nns
If you plan to build a marina, also complete
and attach Form DCM-MP-2.
b. Is the proposed activity maintenance of an ex-
isting project, new work, or both?
NPw work
c. Will the project be for community, private, or
commercial use?
Commerical Use
'??l -"' I 1,'I,"Q_ d l- -
d. escribe the planned use of the project.
Shop
.?2inci Center & Offices on 66 Arres
225 Townhouse Units on 97 AcrPG
127 Homes on Small Tots (15,000 s= ft +
73 Homes on Larae Lots l 2 Acra +)
'T - LAND AND WATER 1?=
-- CHARACTERISTICS
a. Size of entire tract 1400 Acres
b.. Size of individual lot(s)1500 sg ft to 10 Acre
c. Elevation of tract above mean sea level or Na-
tional Geodetic Vertical Datum - 2 ' to 2 5 _
d. Soil type(s) and texture(s) of tract
Fri-pps Sands & Conoh?z Loams
e. Vegetation on tract maxit i me Fnrs=.c:+-
f. Man-made features now on tract
V mrni I m Nnmoc
g. What is the CAMA Land Use Plan Classifica-
tion of the site? (Consult the local land use
plan.)
X Conservation X Transitional
Developed Community
Rural Other
h. How is the tract zoned by local government? Renal
Commerical, Multifamily, single family,
i. How are adjacent waters classified?5A-1
j. Has a professional archaeological survey been
carried out for the tract? No
If so, by whom?
5UPLAND DEVELOPMENT: ?g
Complete this section if the project includes any
upland development.
a. Type and number of buildings, facilities, or
structures proposedShopping Center
(147,000 sq ft), multifamily(225;Unit
Single family (200 Lots)
b. Number of lots or parcels 200
c. Density (Give the number of residential units
and the units per acre. ultifamil :4UnitsKci
Single Family: 2 Units acre Maximum
d. Size of area to be graded or disturbed
e. If the proposed project will disturb more than
one acre of land, the Division of Land
Resources must receive an erosion and sedimen-
tation control plan at least 30 days before land
disturbing activity begins. If applicable, has a
sedimentation and erosion control plan been
submitted to the Division of Land. Resources?
No, but will.be siblritted
f. Give the percentage of the tract within 75 feet
of mean high water to be covered by im-
permeable surfaces, such as pavement,
buildings, or rooftops. None
g. List the materials, such as marl, paver stone,
asphalt, or concrete, to be used for paved
surfaces. Roads : 28' wide ABC stone
base with 20' Asphalt Paving
h. If applicable, has a stormwater management
plan been submitted to the Division of En-
vironmental Management? Nn yPt
i. Describe proposed sewage disposal and/or waste
water treatment facilities. Central
Sewage for Commercial and Multi-
family sites.
j. Have these facilities received state or local
approval? Not Yet
k. Describe existing treatment facilities.
Only septic tank and drainfield
systems used on single family
1. Describe location and type of discharges to
waters of the state (for example surface runoff,
sanitary wastewater, industrial/commercial
effluent, or "wash down"). Surface run off
onlv
in. Water supply source Private wells &County
n. If the project is oceanfront development, Water
describe the steps that will be taken to main.
tain established public beach accessways or pro-
vide new access. Not nraanfrnnt
o. If the project is on the oceanfront, what will
be the elevation above mean sea level of the
first habitable floor? No O anfront
6 EXCAVATION AND FILL
INFORMATION
a. Describe below the purpose of proposed excava-
tion or fill activities (excluding bulkheads,
which. are covered in Section 7).
Length Width Depth
Access channel
(MLW) or (NWL)
Boat basin
Other (break-
water, pier,
boat ramp,
rock jetty)
Fill placed in
wetland or below
MHW
Upland fill
areas

l7. f Ac
fill.
[fork res of
See
Plats .

b. Amount of material to be excavated from
below water level in cubic yards None
c. Type of material N/A
d. Does the area to be excavated include marsh-
land, swamps, or other wetlands? Nn
e. High ground excavation, in cubic yards _N/A
f: Dimensions of spoil disposal-area N ZA
g. Location of spoil disposal area -N/A
h. Do you claim title to the disposal area? N/$_
If not, attach a letter granting permission from
the owner.
i. Will a disposal area be available for future
maintenance?? N/A
If so, where?
j. Does the disposal area include any marshland,
swamoiand,'or water areas? N/A
k. Will the fill material be placed below mean
high water? No
1. Amount of fill in cubic yards 10 S ,_0 0 0 -
m. Type of fill material Sand
n. Source of fill material Ad3 a(--pn+ TTpl and
o. Will fill material be placed on marsh or other
wetlands? yam on forPCt-Prl watt ands
p. Dimensions of the wetland to be filled
q. How will excavated or fill material be kept on
site and erosion cont) bled? Rn a r1 r i qh t - n f -W
-Silks an fpsnl7P GPP1aPr1
berms
r. What type of construction equipment will be
used (for example, dragline, backhoe, or
hydraulic dredge)? Backhoe, dozers
earthmovers
s. Will wetlands be crossed in transporting equip-
ment to the project site? NO If yes, explain
the steps that will be taken to lessen en-
vironmental impacts.
7 SHORELINE STABILIZATION
a. Length of bulkhead or riptap N/A
b. Average distance waterward of mean high water
or normal water level
c. Shoreline erosion during preceding 12 months,
in feet
d. Type of bulkhead material
C. Amount of fill, in cubic yards, to .be placed
below mean high water
f. Type of fill material
2
?s
'ars
' s DITIQNAI . :ORMATION
In addition to the completed application form, the
following items must be submitted:
A copy of the deed (with state application only) or
other instrument under which the applicant claims
title to the affected property. If the applicant is not
claiming to be the owner of said property, then for-
ward a copy of the deed or other instrument under
which the owner claims title, plus written permis
sion from the owner to carry out the project.
An accurate work plat (including plan view and
cross sectional drawings) drawn to scale in black
ink on 8 Vz x 11 white paper. (Refer to Coastal
Resources Commission Rule 7J.0203 for a detailed
description.)
Please note that original drawings are preferred and
only high quality copies will be accepted. Blue-line
prints or other larger plats are acceptable only if 16
high quality copies are provided by the applicant.
(Contact the U.S. Army Corps of Engineers regard-
ing that agency's use of larger drawings.) A site or
location map is a part of plat requirements and it
must be sufficiently detailed to guide agency per-
sonnel unfamiliar with the area to the site. Include
county road (SR) numbers, landmarks, and the like.
A stormwater management plan, if applicable, that
may have been developed in consultation with the
Division of Environmental Management.
A list of the names and complete addresses of the
adjacent waterfront (riparian) landowners. These
individuals have 30 days in which to submit com-
ments on the proposed project to .the Division of
Coastal Management. The applicant must advise
the adjacent landowners of this opportunity by sen-
ding a copy of the permit application to them by
registered or certified mail. This notification is re-
quired by G.S. 113-229(d).

(1) Name Seascape Golf Course. Inc
Address Kitty Hawk , N.C. .
(2) Name Charles Foy
Address Kitty Hawk, N.C.
(3) Name Outer Banks Contractors
Address Kitty Hawk, N.C.
(4) Walter Davis
Midland, Texas
(5) Brian Newman
Kitty Hawk, N.C.
A list of previous state or federal permits issued
for work on the project tract. Include permit
numbers, permittee, and issuing dates.
C'AMA 3871 l I/- 1 1 /99 /82 z
/vGaA G `ZVllh't/JL'
A check for $100 made payable to the Depart-
ment of Natural Resources and Community
Development to cover the costs of processing the
application.
A signed AEC hazard notice for projects in ocean-
front and inlet areas.
A statement on the use of public funds. If the
project involves the expenditure of public funds, at-
tach a statement documenting compliance with the
North Carolina Environmental Policy Act
(N.C.G.S. 113A-1 to 10).
9 CERTIFICATION AND PERMIS. '
SION TO ENTER ON LAND.
Any permit issued in response to this application
will allow only the-development described in the
application. The project will be subject to condi-
tions and restrictions contained in the permit.
I certify that to the best of my knowledge, the pro-
posed activity complies with the State of North
Carolina's approved Coastal Management Program
and will be conducted in a manner consistent with
such program.
I further certify that I am authorized to grant, and
do in fact, grant permission to representatives of
state and federal review agencies to enter on the
aforementioned lands in connection with
evaluating information related to this permit ap-
plication and follow-up monitoring of project.
This is the -16 day of Joni ,
191_.
X
Landowner or Authorized agent Mgr. Partner
Send the completed application materials to the
Division of Coastal Management Office nearest you
and the U.S. Army Corps of Engineers. See the
map on the inside front cover for the appropriate
DCM office and addresses and phone number.
(6) Kitty Hawk Land Company
Kitty Hawk, N.C.
(7) Kenneth Wichard
Greenville, N.C.
3
ADDENDUM TO JOINT APPLICATION DCM-MP-1
GENERAL:
Kitty Hawk Woods Partnership owns 1400 acres of undisturbed marit-
ime forest, which is characterized in high developable ridges and
low, wetland swales under the jurisdication of U.S. Army Corps of
Engineers. A pre-application meeting was held on May 16, 1989 to
discuss proposed project's impacts on wetlands and the forest by
representatives of Corps, the landowner, Nature Conservancy, U.S.
Fish and Wildlife Service, N.C. Wildlife Resources Commissions,
N.C. Natural Hertiage Program, N.C. Division of Coastal Management,
and the Town of Kitty Hawk. The discussion emphasized 3 disciplines
necessary for permit approval:
(1) Avoidance of wetlands when possible, (2) Creation of wetlands
to offset loss, and (3) Donation of a significant portion of the
forest to preserve this unique habitat.
BACKGROUND:
The 1400 acre ownership is located
and Currituck Sound in the Town of Kit
nces land use planning into 4 classes:
Multifamily (97.acres); single family
acres); and single family residental,
mum lots (937 acres). This two year
small lots near the golf course and 21
tive Kitty Hawk Woods zoning.
between SeaScape Golfcourse
ty Hawk. Town zoning influe-
Commercial (66 acres) ;
residential, small lots (300
large, 80,000 sq. ft. mini-
ownership has developed 164
ten acre lots in the sensi-
PROJECT DESCRIPTION:
The maritime forest consists of a forested ridgeswale system
with north-south orientation. The ridges have elevations from 5'
to 25' above sea level (MHW). The depressional swales lie between
the 2' and 4' contours and are designated 404 wetlands by the Corps.
All wetlands are flagged, surveyed, and certified by Corps respre-
sentatives. The ridge flora contains mostly lobolly pine, oak ,
hickory, dogwood, beech, and holly. The plant composition of wet-
lands is largely red maple, red bay, and sweet gum except the deeper
wetlands which have cypress and black willow as well.
The attached work drawings describe the proposed 177 acres
of fill activities on 7 projects:
Access roads will require filling 1.6 acres of wetlands. The
road crossings to be filled will be 40' wide and 5' high located in
center.of 60' rights-of-way for a distance of 1700 : An additional
9.4 acres of wetland swales will be filled to an elevation of 5' for
parking and building adjacent to the major development on high eleva-
tion areas. Total estimated fill area is 11.0 acres.
(1) Commercial, Shopping.Center, 60 Acre Project:

Is
(2)

,#I.-
MULTIFAMILY, 225 TOWNHOUSE' 'UN'ITS',' '9'7 ACRE' PROJECT:
Road crossing of approximately 2,000' will
wetlands totaling 1.8 acres. Access roads
of width with 28' of ABC stone base and 2"
paving. No buildable land will be created
(3) Section 8, KITTY HAWK WOOODS SUBDIVISION
Subdivision road crossing will require filling 1.0 acres of
wetlands in 4 locations for .a distance of 1,1001. All
residential lots will contain 15,000 sq. ft. minium of up-
land area and will not involTUBDIVISION, fu ure filling by lot buyers.
(4) Section 91 KITTY HAWK WOODS 0 ACRE PROJECT:
require filling
will have 40'
I-2 asphalt
by filling wetlands -
• 100 ACRE 'PROJECT: ?-?-
Only subdivision road crossings will require filling wetlands
as shown on work drawing. The Mullrplz r -d crossings will im-
pact 1.3 acres.
+?-6

(7)
Phase V, KITTY HAWK WOODS SUBDIVISION 110 ACRE PROJECT:
This is a low density (one house per 5 acres) development.
Road location follows relict road but town specifications
will require widening to 40'. Fill of /./ acres is estab-
lished as shown on drawings. fK
Phadd I & II, KITTY HAWK WOODS SUBDIVISION 210 ACRE PROJECT:
Widening existing "Covered Bridge" road and additional 20'
impact wetlands 0.3 acres.
(1) The landowner has agreed to donate 140 acres of a re-
presentative portion of the woods in fee simple to the Nature
Conservancy and/or the Town of Kitty Hawk.
The forest has been undistured with trees up to 100
years of age. Cypress and ash occur in wetlands as well as
gum and maple. Ridge flora contains canopy trees of lobolly
pine, subcanopy trees of beech and dogwood. Southern tway-
blade, a rare plant, occurs in the ground cover on ridges.
The tract was visited by all participants at 5/16/89 pre-
application meeting,.and the group agreed it was a substan-
tive gift resulting.in protection of a unique ecotype.
MITIGATION Radcli,ffo Cdurt, Old Subdi.,yis;„On, PROJECT :
lands to obtain access to 4 waterfront lots.
Extension of this road will require filling 1.2 acres of wet-
(2) The landowner aqrees to create /O acres of wetlands to
offset filling of wetlands for purposes other than road cross-
ings..Thi:s will be done on a mutually agreed upon site near
/Va the impact areas on property or a remote site on the Currituck
mainland.
The created wetlands will be excavated to the average table
level producing saturated soils with only seasonal inundation.
Vegetation will occur through natural succession from cattail-
grass community to cypress-gum-maple climax forest.

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Date: 6/14/89
Memo To: Starkey Sharp
From: Quentin Bell
Subject: Comments - Robert Abernethy, CAMA
--------------------------------------------
Robert Abernethy met with me today and briefly reviewed
our draft permit application. His comments are summarized
as follows:
(1) Filling wetlands in both Conservation and Transition
classes in Town of Kitty Hawk are inconsistent with land use
plan. We should ask Town for variance now as it will take 2-
3 months for this process - 30 day.-advertisement, public hear-
ing, local approval, and CRC approval.
(2) The NRCD'S Division of Environmental Management has
jurisdiction over forested wetlands under the 401 certification
program. We should include them in our pre-application process.
They'will also review stormwater management on shopping center.
(3) We have significant open space requirements which
will count in our mitigation-donation proposal. For example
after the site plan for shopping center is approved by the
town, we request the developer to grant a conservation ease-
on the 40% open areas. Also, the wetlands that we can't use
such as areas west of section 6 and 7 and the area between
Greenville Colony and Jean Quite canal should be donated.
(4) His comments on my draft application are as follows:
(a) better maps! After vicinity maps we need a map
with all projects showing how roads connect together, from
shopping cneter to multi-family. We need 8hxll maps as well
as blue line copies.
(b) Use as much narative as possible in addendum...
The form's answers look OK.
(c) Bad news - Wilson Laney, US Fish & Wildlife Service,
is in DC for 3 months. He was supportive for project and
will be a major loss.
Kitty HawkVRmN
Residentln! Funk s
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA-27949 919-261-2258

DISTRIBUTION LIST FOR PRE-APPLICATION
MATERIAL STATE AND FEDERAL PERMITS FOR
KITTY HAWK WOODS PROJECT
Robert K. Abernethy
Division of Coastal Management
NC Dept. of Natural Resources and
Development
Rt. 6 Box 203
Elizabeth City, North Carolian 27909
Phone: [phone]
Fred Annand
The Nature Conservancy
Carr Mill, Suite 223
Carrboro, North Carolina 27510
Phone: [phone]
John Fussell
1412 Shepard Street
Morehead City, North Carolina 28557
Phone: [phone]
Wilson Laney
US Fish and Wildlife Service
P.O. Box 33726.
Raleigh, North Carolina 27636-3726
Phone: [phone]
Dave Monroe
Town Of Kitty Hawk
P.O. Box 549
Kitty Hawk, North Carolina 27949
Phone: $919) 261-3552
Jim Poteat
Regulatory Branch
US Army Corps of Engineers
P.O. Box 1890
Wilmington, North Carolina 28402-1890
Phone: [phone]
Kitty HawkWoods
Resldentlal Estates -
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 17949 919-261-2258
Deborah Sawyer
Division of Environmental .Mangement
NC Dept. of National Resources and
Community Development
P.O. Box 1507
Washington, North Carolina 27889
Phone: [phone]
Richard Shaw
Division of Coastal Management
NC Dept. of National Resources and
Community Development
P.O. Box 27687
Raleigh, North Carolina 27611 - 7687
Phone: [phone]
Dennis Stewart
NC Wildlife Resources Commission
111 Garner Road
Greenville, North Carolina 27834
Phone: [phone]
Alan Weakley
National Heritage Program
NC Dept. of National Resources and
Community .Development
P.O. Box 27687
Raleigh, North Carolina 27611-7687
Phone: (919) .733-7701
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State of North Carolina
Department of Natural Resources and Community Development
Division of Parks and Recreation
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor Dr. William W. Davis
William W. Cobey, Jr., Secretary Match 17, 1989 Director
Mr. Quentin Bell, Project Manager
Kitty Hawk Woods Estates
P.O. Box 749
Kitty Hawk, N.C. 27949
Dear Mr. Bell:
We are very interested in your proposal for "land banking" a segment of
undisturbed maritime forest and wetlands in Kitty Hawk Woods to offset
development elsewhere in the forest. Natural Heritage Program staff
biologists d're generally familiar with the ecological resources of the
Kitty Hawk Woods, but have not actually visited the 140-acre section
which is proposed for donation. We are willing to accept your
invitation to visit your property in order to evaluate the resources of
the proposed reserve and assess the potential for maintaining those
natural resources after development of the surrounding area is
completed.
The N.C. Nature Conservancy may be interested in playing a role if the
proposed, land donation is found acceptable by the regulatory agencies.
The proximity to The Nature Conservancy's Nags Head Woods Preserve
offers fhe potential for a natural area reserve in Kitty Hawk Woods to
be managed as a "satellite" to the Nags Head Woods Preserve and would be
a welcome addition for purposes of research, education, and preservation
of biological'diversity.
We have introduced your proposal, in preliminary fashion, to staff of
some other agencies and the Division of Coastal Management's newly
created ad hoc scientific advisory panel for the proposed maritime
forest AEC, and received initial favorable reactions. The general sense
among ecologists and conservation biologists is that the only way to
ensure the survival of intact maritime forests remnant areas is to
arrange for formal protection by donation, easements, or acquisition.
Low density development within a maritime forest area is likely to
result in the long-term deterioration of the plant communities and
natural ecosystem.
There are a variety of feasible options available for landowners who are
willing to assure the protection of natural areas. Our enclosed
publications explain an array of those alternatives and the tax
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Equal Opportunity Affirmative Action Employer
f,
o •
incentives for donations.of'land or conservation easements. We will be
pleased'to discuss these options with you in more detail.
< .,The ridge,and'swale topography and pattern of wetlands in Kitty Hawk
Woods may provide a situation in which a larger area of undisturbed
maritime 'forest and wetlands system can beassured of protection, beyond
f'` the 140-acre'section whichz°..'ou proposefor'donation. Residential
; development will occur on tidgecrests accessible to the roads in your
? subdivision,?and the larger"porrions'of the residential lots will be too
wet` and inaccessible forldavelopment. Means may be adopted to guarantee
h, that'the interior portionsof the residential lots (with deep "swampy"
'swales) may be added to'the`natural area reserve. That could be
,accomplished ideally prior'to'sale of the lots by application of
conservation easements or''fee simple donation, or, less desirably, by
,,,,,use ofrestrictive covenants"and management agreements with lot buyers.
,;lWe will'wish'to discuss these possibilities for designing the most
viable and, manageable natwral'area reserve.
We would 'like to arrange a time with you to visit the property and to
discuss your pr9Posal and alternative preservation designs in greater
detail in the hear future.'? Please telephone me so that we can select a
`datefor;that visit.
Sincerely,
Charles E. Roe, Head
Natural•Heritage Program
phone [phone]
Enclosures
cc: Jim Poteat, U.S. Corps of Engineers
Rich Shaw, N.C. Division of Coastal Management
Fred Annand, NC Nature Conservancy
CER/cer

CRC 2/89

Ad Scientific Advisory Panel
Hoc,
,
3'for the proposed
Maritime Forest AEC
Mike Lopazanski
Vince'Bellis a ; Natural Resource Management
F, Dept. of Biology Duke University
East Carolinar,University

n
'Jon' Evans Jim Parnell
ornithologist
''Dept'of Botany% UNC-Wilmington
Duke University

John: Fussell,; Tom Perry
Forester
;Ecologist Raleigh
Morehead City

Tom Quay
Ralph Heath
'
Wildlife Ecologist
Hydrogeologist
.; Raleigh
Raleigh ;

34 z,,
' Al Radford
Paul Hosier Plant Ecologist
Dept. of Biology Chapel Hill
UNC-Wilmington"",
Larry Zucchino
Landscape Architect and
Applied Ecologist
Paton-Zucchino & Assoc.
Raleigh

4 3 + ,r

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KITTY HAWK WOODS:
THE 135-ACRE TRACT PROPOSED FOR MITIGATION--
A BRIEF DESCRIPTION OF THE TRACT AND ITS ECOLOGICAL SIGNIFICANCE
March 1989
Prepared by John Fussell,
Environmental Services, Inc.
INTRODUCTION
Kitty Hawk Woods development company is proposing to
donate a 135-acre tract of land in Kitty Hawk Woods to the
Nature Conservancy (or some other environmental
organization). The purpose of this donation is to serve
as mitigation for proposed work elsewhere that will require
dredge-and-fill permits from the U.S. Army Corps of Engineers.
The proposed work is the filling of 6-7 acres of swamp forest
adjacent to US 158.
In February 1989, Kitty Hawk Woods development company
requested that-- evaluate the proposed 135-acre donation tract,
as to its ecological significance and thus its suitability
to serve as mitigation for the proposed work.
DESCRIPTION OF THE TRACT
The proposed mitigation tract is located within the
southern part of.,Kitty Hawk Woods, based on the overall
boundaries of Kitty Hawk Woods being as delineated by
Lopazanski, Evans, and Shaw (1989). See Figure 1 for the
approximate boundaries of the mitigation tract.
The northeastern boundary of the tract is the centerline
of a powerline right-of-way. Beyond the powerline right-of-way
is'a large area of undisturbed forest, which is similar to the
forest within the mitigation tract. To the northwest of the
tract, and contiguous with it, is a large tract (about 350.acres)
of undisturbed forest. To the southwest, there is an asphalt
facility, although it is not immediately adjacent to the
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tract. To the southeast, there is some residential development;
this also is not immediately adjacent to the tract:
This consultant evaluated the tract during a two-hour
survey on 24 March 1989, and another two-hour survey on
25 March. In addition to this time spent within the
immediate tract, the consultant has been over much of Kitty
Hawk Woods, while doing 404 wetland delineations. This
work has involved literally dozens of hours; much of this work
was done on a 170-acre tract that lies north of and almost
contiguous with the mitigation tract. The 170-acre tract
is very similar.geologically and botanically to the mitigation
tract.
Geologically, the tract consists of a series of low
ridges and interlying swales. This ridge-and-swale topography
is readily apparent in aerial photos. The ridges are relict
beach ridges (see Fisher 1967); each ridge delineates a
shoreline of the Atlantic at some point in time. It is not
known (by this consultant) whether these ridges are of Holocene
age (formed during the current high sealevel) or of
Pleistocene age (formed during the previous high sealevel).
Within the tract, the ridges are low, only about five
feet higher than the interlying swales, and the swales are
much wider than the ridges. This is typical of the
whole Kitty Hawk Woods area. On the tract, the swales
average about 300' in width. The main ridges average about
125' or less. In addition to these, some of the swales have
n a _
"ridge islands" that parallel the main ridges, but are not
continuous. They are about 50' wide.
Except for their lower slopes, the ridges are sandy `and
moderately well-drained. The Soil Survey of the Outer Banks
classifies the soil of the ridges as Fripp fine sand. The soil
in the swales is typically saturated with water throughout the
year. During rainy periods in winter and early spring, these.
swales may be flooded with up to two feet of water.
According to the Soil Survey, the soil within the swales is
Conaby soil.
On 24 & 25 March, during unusually high water levels,
about as high as they get during an average year, there was
a noticeable surface flow of water within some of the swales.
This flow was toward the south.
The ridges are vegetated with a forest of Loblolly
Pine and several species of hardwoods. Typically, the canopy
consists primarily of the pine, with the hardwoods
barely beginning to transgress the canopy. The dominant
hardwood species are Beech, Water Oak, Laurel Oak, Hickory,
and Sweet Gum.
For a barrier island site, the trees are, on the average,
mature and rather large. The tallest pines grow up to about
100' high, and the DBEs of the largest pines averages about 18".
-The forest probably hasn't been logged in about 60-80 years.
One fairly common species that is worthy of note is
Hop Hornbeam. On the Outer Banks, this species is limited to
Kitty Hawk Woods and Nags Head Woods.
-4-
Common understory/shrub level species are Red Bay,
Flowering Dogwood, and Cane. Partridgeberry may be the most
common ground cover species. Two noteworthy ground cover-
species are Beech-drops and Squaw-root, both parasitic species.
The Squaw-root is scarce to absent across much of eastern
North Carolina (see Radford, Ahles, and Bell 1968).
Ferns are most common-in the shallower swales and along the
edges of the larger swales. Common are Marsh Fern, Virginia
Chain-fern, and Netted Chain-fern. Elsewhere in Kitty Hawk
Woods, Southern Twayblade (Listera australis) has been found,
along a ridge-swale ecotone. This rare species might also occur
within the proposed mitigation tract.
The swales are vegetated with swamp forests; dominant
species are Sweet Gum, Black Gum, Red Maple, and, in many of
the swales, Bald Cypress. The swamp forest trees are also
notably large for a barrier island site. The canopy is about
100' in height, and the larger trees average about 18" DBH.
The last logging was probably about 60-80 years ago.
During field work (primarily delineations of 404 wetlands)
in adjacent areas, this consultant made lists of birds that
were observed, especially during May 1988. It is evident
that the Kitty Hawk Woods has, for a barrier island forest,
a high diversity, as well as a high overall population, of
summer resident, winter resident, and permanent resident
forest birds. This high diversity and high population is
undoubtedly related to the large areal extent of the forest,
and to the maturity and height of the forest.
For a barrier island forest, the diversity and total
populations of amphibians, reptiles, and mammals are
probably also noteworthy. However, this consultant was less
observant about these animal groups.
In Appendices 1-3 are listed vascular plants, birds,
amphibians, reptiles, and mammals that the consultant has
observed in Kitty Hawk Woods, within or adjacent to the
proposed mitigation tract. All of the bird list is based on
actual data recorded in the field. Some of the plant
information was also recorded in the field. It should be
stressed that the rest of the plant list and the lists
of amphibians, reptiles, and mammals were based on memory.
These lists should be regarded as preliminary.
SIGNIFICANCE OF THE PROPOSED MITIGATION TRACT
Below, the term "maritime forest" will be used in the
broad sense, i.e. all forests on the barrier islands of
North Carolina are considered to be maritime forests. This
is consistent with the use of the term by Lopanzanski,
Evans, and Shaw.,-(1988) in An Assessment of Maritime Forest
Resources on the North Carolina Coast.
Also, it should be stressed that the proposed mitigation
tract is representative of the whole Kitty Hawk Woods and that,
for the most part, the significant values of the mitigation
tract will be much the same as those for the total forest area.
The significance of the proposed mitigation tract is
as follows: .
1) The maritime forest is today the most threatened
plant community in North Carolina. Furthermore,
-o-
because these forests lie near the sea, and are
subject to extreme conditions resulting from wind,
salt spray, and other stresses, they are plant
communities that are especially likely to suffer
irreversible harm from fragmentation. It is the
current feeling of the scientific community that
even the most well-planned development within the
maritime forests will nevertheless lead to their
degradation. To truly be preserved, maritime forests
need to be set aside in their natural state in the
largest contiguous blocks possible. The setting aside
of the 135-acre mitigation tract, especially
if combined with an even larger (350-acre)
contiguous tract to the north that is being offered
for sale to the Nature Conservancy, could indeed lead
to true protection for a large block of maritime forest.
2) The Kitty Hawk Woods is unique among the state's
maritime forests. It is very different in structure
and overall plant composition from all other maritime
forests in the state. It is strikingly different
from the maritime forests that occur at Cape Hatteras
(Buxton'Woods) and southward, with their domianance by
broad-leaf evergreen species. However, in spite
of their proximity, Kitty Hawk Woods is also quite
different from Nags Head Woods. Compared to Nags Head
Woods, Kitty Hawk Woods has lower elevations, less
elevational diversity, more extensive wetlands (with
much Bald Cypress in many of the eastern swales), and
is more extensive and more protected from the effects of
wind and salt spray. Of course beauty is in the eye
of the beholder, but many would consider Kitty Hawk
Woods to be the most aesthetically appealing maritime
forest in the state. The presence of Bald Cypress
should be stressed especially; Kitty Hawk Woods is
the only,,maritime forest in the state in which
Bald Cypress is a major species.
3) The preservation of a portion of Kitty Hawk Woods
could be of great scientific value. An understanding
of the geology and ecology of Kitty Hawk Woods could
be very helpful in understanding the geological
formation of the northern Outer Banks area, and an
understanding of the botanical composition of the
forest could greatly aid in our understanding of the
state's maritime forests in general. For instance,
are the relict beach ridges in Kitty Hawk Woods of
Pleistocene age? Is this the primary reason that the
plant species composition of Kitty Hawk Woods is unique?
4) For a barrier island site, the Kitty Hawk Woods has a
high diversity of vascular plants, and a high diversity
and overall population of summer resident, winter
resident, and permanent resident forest birds. There
is probably a high diversity of amphibians, reptiles,
and mammals as well. Areas such as Kitty Hawk Woods
-7-
are very important to migrating passerines, such as
warblers.
5) One notably rare species has been found in Kitty
Hawk Woods--this is Southern Twayblade. Because of
the size of the forest, other rare species may occur
as well. The Swainson's Warbler was regularly found
in the forest until about 1975. It has not been
reported in more recent years, but may still occur.
6) It should be stressed that the mitigation tract, which
is located roughly in the center of the forest inso-
far as distance from the ocean is concerned, appears
to be representative of the overall Kitty Hawk
Woods. Furthermore, it contains several swales in
which Bald Cypress is a major species. Bald Cypress
does not occur all across Kitty Hawk Woods--it is
mostly limited to the central and eastern sections.
Most of this consultant's bird observations in Kitty
Hawk Woods were made in the central section of the
forest north of and contiguous with the proposed
mitigation tract. That section had about the same
percentage of ridge uplands and swale wetlands as the
mitigation tract, and the same forest composition--
both structural and species-wise, and was roughly the
same distance inland from the ocean. Therefore,
those bird data should be representative of the
mitigation tract.
7) The majority of the mitigation tract lies within the
540-acre section of Kitty Hawk Woods considered to be
most significant--"relatively undisturbed"-- by
Lopazanski, Evans, and Shaw. The southern boundary
of this most significant area appears to have been
drawn somewhat arbitrarily, and it is suggested
that the',authors would consider all of the mitigation
tract to`be within the most significant section of the
forest if they were to visit the immediate site.
8) It should also be stressed that the wetland swales that
flow through the proposed mitigation area pass through
undeveloped natural forest for a mile before they
reach the mitigation site. (This mile-long tract of
forest is also being offered to the Nature
Conservancy.) Thus, there is an excellent potential
for the waters of the mitigation tract to remain in
a nearly pristine state.
9) It should also be stressed that because of the extent
of wetlands in the vicinity, it is likely that any
future development that might occur to the east, south,
and southwest of the mitigation area will be of very
low density, and will not significantly detract from
the ecological value of the mitigation tract.
-8-
References Cited:
Fisher, J.J. 1967. Development Pattern of Relict Beach
Ridges, Outer Banks Barrier Chain, North Carolina.
Unpublished doctoral thesis, University of North Carolina,
Chapel Hill.
Lopazanski, M.J., J.P. Evans, and R.E. Shaw. 1988. An
Assessment of Maritime Forest Resources on the North Carolina
Coast. N.C. Deparment of Natural Resources and Community
Development, Division of Coastal Management.
Radford, A.E., H.E. Ahles, and C.R. Bell. 1968. Manual of the
Vascular Flora of the Carolinas. University of North Carolina
Press, Chapel Hill.
U.S. Department of Agriculture, Soil & Conservation Service.
1977. Soil Survey of the Outer Banks of North Carolina.
Appendix 1. Species of Vascular Plants Observed in Kitty
Hawk Woods--within or in vicnity of Proposed
135-Acre Mitigation Tract.
* denotes species that was seen within the tract or that can
be safely assumed to occur within the tract.
Ophioglossaceae
*Botrychium sp.
Grapefern
Osmundaceae
*Osmunda cinnamomea
*Osmunda regalis
Cinnamon Fern
Royal Fern
Pteridaceae
*Pteridium aquilinum
Bracken
Aspidiaceae
*Athyrium asplenioides Southern Lady Fern
Polystichum acrostichoides Christmas Fern
*Thelypteris palustris Marsh Fern
Blechnaceae
*Woodwardia virginica
*Woodwardia areol,ata
Virginia Chain-fern
Netted Chain-fern
Aspleniaceae
*Asplenium platyneuron
Polypodiaceae
*Polypodium polypodioides
Pinaceae
*Pinus taeda
Pinus echinata
Ebony Spleenwort
Resurrection Fern
Loblolly Pine
Short-leaf Pine
Appendix 1 (continued).
Taxodiaceae
*Taxodium distichum Bald Cypress
Typhaceae
*Typha latifolia Common Cat-tail
Sparganiaceae
*Sparganium americanum Bur-reed
Poaceae
*Arundinaria gigantea Cane
*Uniola laxa
*Glyceria septentrionalis
Cyperaceae
*Cyperus spp. Sedge
*Cladium jamaicense Saw Grass
*Carex sp. Sedge
Arecaceae
Sabal minor Dwarf Palmetto
Araceae
*Peltandra virginica Arrow Arum
Bromeliaceae
*Tillandsia usneoides Spanish Moss
Liliaceae
*Smilax rotundifolia Common Greenbrier
*Smilax bona-nox Saw Greenbrier
*Smilax glauca Glaucous Greenbrier
*Smilax walteri Walter's Greenbrier
*Smilax laurifolia Bamboo-vine
Appendix 1 (continued).
Orchidaceae
*Tipularia discolor Crane-fly Orchid
Sauraceae
*Saururus cernuus Lizard's Tail
Salicaceae
*Salix caroliniana Swamp Willow
Myricaceae .
*Myrica cerifera Wax Myrtle
Juglandaceae
*Carya sp. Hickory
Betulaceae
*Ostrya virginiana Hop Hornbeam
*Carpinus caroliniana Ironwood
Fagaceae
*Fagus grandifolia Beech
*Quercus alba White Oak
*Quercus falcata Southern Red Oak
*Quercus nigra Water Oak
*Quercus laurifolia Laurel Oak
Ulmaceae
*Ulmus americana American Elm
Urticaceae
*Boehmeria cylindrica False Nettle
Appendix 1 (continued).
Aristolochiaceae
*Hexastylis arifolia
Magnoliaceae
*Liriodendron tulipifera
*Magnolia virginiana
Lauraceae
*Persea borbonia
*Sassafras albidum
Saxifragaceae
*Decumaria barbara
Hamamelidaceae
*Liquidambar styraciflua
*Hamamelis virginiana
Rosaceae
*Rubus sp.
*Sorbus arbutifolia
*Prunus serotina
Anacardiaceae
*Rhus radicans
Aquifoliaceae
*Ilex opaca
Celastraceae
*Euonymus americanus
Aceraceae
*Acer rubrum
Wild Ginger
Tulip Tree
Sweet Bay
Red Bay
Sassafras
Climbing Hydrangea
Sweet Gum
Witch-hazel
Red Chokeberry
Black Cherry
Poison Ivy
Holly
Strawberry Bush
Red Maple
a a- - .
• Appendix 1 (continued).
Balsaminaceae
*Impatiens capensis Jewel-weed
Rhamnaceae
*Berchemia scandens Rattan-vine
Vitaceae
*Parthenocissus quinquefolia Virginia Creeper
Apiaceae
*Hydrocotyle verticillata Whorled Pennywort
*Hydrotocyle ranunculoides Floating Pennywort
Nyssaceae
*Nyssa sylvatica Black Gum
Cornaceae
*Cornus florida Flowering Dogwood
Ericaceae
*Chimaphila maculata Spotted Wintergreen
*Monotropa uniflora Indian Pipe
Symplocaceae
*Symplocos tinctoria Horse Sugar
Oleaceae
*Fraxinus sp. Ash
Loganiaceae
*Gelsemium sempervirens Yellow Jessamine

Appendix 1 (continued).
Verbenaceae
*Callicarpa americana
Orobanchaceae
*Epifagus virginiana
*Conopholis americana
Rubiaceae
*Mitchella repens
*Galium sp.
Caprifoliaceae,.
*Lonicera sempervirens
Beauty-berry
Beech-drops
Squaw-root
Partridge Berry
Bedstraw
Coral Honeysuckle

Appendix 2. Birds Observed in Kitty Hawk Woods--
within or adjacent to Proposed
135-Acre Mitigation Tract.
(List does not include any birds that are restricted to
habitats that don't occur within the tract. However, aerial-
feeding birds that feed above the tract are included.)
Status designations are: PR- Permanent Resident
SR- Summer Resident
WR- Winter Resident
T- Occurs only during migration
SPECIES
Great Blue Heron
Green-backed Heron
Wood Duck
Osprey
Sharp-shinned Hawk
Red-shouldered Hawk
Red-tailed Hawk
American Kestrel
Mourning Dove
Yellow-billed Cuckoo
Eastern Screech-Owl
Belted Kingfisher
Red-bellied Woodpecker
Yellow-bellied Sapsucker
Downy Woodpecker
Northern Flicker
Pileated Woodpecker
Eastern Wood-Pewee
Acadian Flycatcher
Eastern Phoebe
Great Crested Flycatcher
Purple Martin
Barn Swallow
Blue Jay
American Crow
Carolina Chickadee
Brown Creeper
Carolina Wren
Winter Wren
Golden-crowned Kinglet
Ruby-crowned Kinglet
'Blue-gray Gnatcatcher
Veery
Hermit Thrush
Wood Thrush
American Robin
ASSUMED STATUS
WR
SR
PR
SR
WR
PR
WR?
WR
PR
SR
PR
WR
PR
WR
PR
PR
PR
SR
SR
WR
SR
SR
SR
PR
PR
PR
WR
PR
WR
WR
WR
SR
T
WR
T
WR
(powerline)
4 - ? 4

Appendix 3. Amphibians, Reptiles, and Mammals No in Kitty Hawk Woods--
within or adjacent to Proposed
135-Acre Mitigation Tract.
AMPHIBIANS
Green Treefrog
Squirrel Treefrog
Southern Leopard Frog
REPTILES
Eastern Mud Turtle
Black Racer
Eastern King Snake
Rough Green Snake
Cottonmouth
Timber(Canebrake) Rattlesnake
MAMMALS
Opossum
Raccoon
Gray Fox
Eastern Gray Squirrel
Whitetail Deer
?- *3! "
Appendix 2 (continued).
SPECIES ASSUMED STATUS
Gray Catbird PR
Brown Thrasher PR
Cedar Waxwing WR
European Starling PR
White-eyed Vireo SR
Solitary Vireo WR
Red-eyed Vireo SR
Northern Parula SR
Black-throated Blue warbler T
Yellow-rumped Warbler WR
Black-throated Green Warbler T
Pine Warbler PR
Prairie Warbler SR
Blackpoll Warbler T
Black-and-white Warbler T
American Redstart T
Prothonotary Warbler SR
Worm-eating Warbler T
Ovenbird SR?
Northern Waterthrush T
Common Yellowthroat SR
Scarlet Tanager T
Northern Cardinal PR
Rose-breasted Grosbeak T
Indigo Bunting SR
Rufous-sided Towhee PR
Fox Sparrow WR
Song Sparrow WR
Swamp Sparrow WR
White-throated Sparrow WR
Dark-eyed Junco WR
Red-winged Blackbird PR
Common Grackle PR
Brown-headed Cowbird PR
American Goldfinch WR