20040187 Ver 1_COMPLETE FILE_20040205

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William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P. E. Director
Division of Water Quality
Coleen H. Sullins, Deputy Director
Division of Water Quality
Mcllhenny, LLC
Attn: Mr. Tom Mcllhenny
1604 Brices Creek Road
PO Box 1555
New Bern, NC 28563-1555
February 24, 2004
DWO # 04-0187
Pamlico County
Page 1 of 2
Subject Property: Oriental Hotel & Marina, Hodges Street, Oriental, NC
Raccoon Creek (03-04-13, 27-129-8, SC HQW (high quality) NSW (nutrient sensitive)]
APPROVAL of Neuse River Riparian Buffer Protection Rules MINOR VARIANCE [15A NCAC 2B.0233(9)(b)]
Dear Mr. Mcllhenny:
You have our approval, in accordance with the conditions listed below, to impact approximately 853 square feet (ft2) of
Zone 2 of the protected buffers to construct the proposed restaurant and deck at the subject property as described within
your variance request dated February 4, 2004 and received by the Division of Water Quality (DWQ) on February 5, 2004.
This letter shall act as your Minor Variance approval as described within 15A NCAC 2B .0233(9)(b). In addition to this
approval, you should obtain or otherwise comply with any other required federal, state or local permits.before you go
ahead with your project including (but not limited to) Erosion and Sediment Control and CAMA regulations.
This approval is only valid for the purpose and design that you described in your application. If you change your project,
you must notify us and you may be required to send us a new application. If the propertyis sold, the.new owner(s)
must be given a copy of this variance approval and is thereby responsible for complying with all,conditions. For
this approval to be valid, you must follow any conditions listed below.
Conditions:
1. Diffuse Flow -An additional condition is that all stormwater shall be directed as diffuse flow at non-erosive
velocities through the protected stream buffers and will not re-concentrate before discharging into the stream as
identified within 15A NCAC 2B.0233(5).
2. Certificate of Completion - Upon completion of all work approved within the 401 Water Quality Certification or
applicable Buffer Rules, and any subsequent modifications, the applicant is required to return the attached
certificate of completion to the 401 /Wetlands Unit, North Carolina Division of Water Quality, 1650 Mail Service
Center, Raleigh, NC, 27699-1650.
3. Removal of the Existing Buildings from Zone 1 - You must demolish and remove the existing buildings (i.e., pump
house and fuel dispenser stand, totaling 810 ft2) from Zone 1 of the protected buffers. The area shall be converted
to a vegetated buffer, diff use flow maintained and additional woody shrubs shall be planted as you proposed
within Part 2 of your application. The plantings shall include at least nineteen (19) native woody shrubs within the
retained portions of the protected buffers. You must ensure their survival for a period of at least five (5) years.
You are required to replace any of these trees or shrubs that die within this five (5) year period. You are required
to provide proof in writing that the trees have been planted within one year of the date of this letter. The proof of
plantings shall be submitted to the Wetlands/401 Unit and copied to the Washington Regional Office.
Requests for appeals of this decision shall be made to the Office of Administrative Hearings. If you do not accept any of
the conditions of this approval, you may ask for and adjudicatory hearing. You must act within 60 days of the date that
you receive this letter. To ask for a hearing, send a written petition which conforms to Chapter 150B of the North Carolina
North Carolina Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
919-733-1786 (phone), 919-733-6893 (fax), http://h2o.enr.state.nc.us/ncwetlands/
Mcllhenny, LLC
Page 2 of 2
February 24, 2004
General Statutes to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714. This
approval and its conditions are final and binding unless you ask for a hearing. This Minor Variance Approval shall expire
five (5) years from the date of this letter.
This letter completes the review of the Division of Water Quality under the Neuse River Riparian Buffer Protection Rules
(15A NCAC 2B .0233(9)(b)]. Please call Mr. Bob Zarzecki at [phone] if you have any questions or require copies
of our rules or procedural materials.
Sincerely,
M.,O Klimek, r, DWQ
cc: Frank H. Sheffield, Jr., Esq., Ward & Smith, P. x 867, New Bern, NC 8571 (FAX [phone])
Tom Steffens, DWQ Washington Regional OffTed Tyndall, DCM Morehead City District Office, 151-B Hwy. 24, Hestron Plaza II, Morehead City, NC 28557
File copy
Central Files
DW Q040187
February 24, 2004
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Subject: Re: Johnson-Lennon-Mcllhenny, LLC - Oriental Hotel & Marina - 040187
From: Tom Steffens <[e-mail]>
Date: Fri, 13 Feb 2004 08:48:54 -0500
To: Bob Zarzecki <bob.zarzecki @ncmail.net>
Bob Zarzecki wrote:
Tom or Stephen,
I got a call about this project today from Sam Poole (Ward & Smith, P.A.). He said
that they spoke to Alan (I asked Alan Klimek the Director and he said yes) and was
told that the WaRO approved it and it was being sent up to us to write up. We
received it yesterday. It hasn't gone through triage yet. There were no comments
attached to the application. Please submit your comments by responding to this
email. We'll be glad to send it back for additional review if you need us to. It
looks like they are proposing 4,080 sf of new impervious surface within the
buffers. Looks like they are removing existing buildings from Zone 1 and adding a
new restaurant/bar and deck to Zone 2. I only see plans for the restaurand/bar and
deck within Zone 2 (797sf). The condos appear to be outside of the buffer, but
their table says "Building & Conc. DWQ 50'" "Condos" 3283. Please clarify if you
can. Thanks.
- Bob
Bob,
There was note attached to the application when it was sent up, but now its gone. I
Ihave been on site here and multiple discussions led to what you see. They are
removing 840 sqft from Zone I, with a building and fuel tank system, and asking for
500 odd sqft for Zone II, I recommended Issue with conditions that the applicant
plant low woody shrubs between the deck and the bulkhead to replace what is now turf
grass. Its a tight fit for the project, and I think we are coming out ahead in the
long run.
Thanks for the Goldboro site info, an NOV is forthcoming.
? or Comm?
toms
1 of 1 2/13/2004 2:45 PM
WARD AND SMITH, P.A.
A'CTORNEYS AT LAW
040187
ROBIN L. CARBERRY
[phone]
Fax [phone]
[e-mail]
February 4, 2004
VIA HAND DELIVERY
RECEIVED
FEB - 5 2004
Mr. Tom Steffens
Division of Water Quality DYYQ_Y ARD
North Carolina Department of Environment and Natural Resources
943 Washington Square Mall
Washington, NC 27889
RE: Minor Variance Request WETLANDS/ 401 GROUP
Protection and Maintenance of Riparian Area Rules
Johnson-Lennon-McIlhenny, LLC/General FEB I 1 2004
Our File 031235-0001
Dear Mr. Steffens:
WATER EQUALITY SECTION
Enclosed please find a Minor Variance Request Form which we are filing on behalf of our client,
Johnson-Lennon-McIlhenny, LLC.
Please do not hesitate to contact us with any questions or comments you may have regarding this
application.
Kind regards.
Yours very truly,
Robin L. Carberry
Legal Assistant
RLC:rlc
NBMain\574552\1
Enclosure
cc: Mr. Thomas McIlhenny (w/enc.)
Mr. Frank Allen (w/enc.)
Frank H. Sheffield, Jr., Esq.
1001 COLLEGE COURT YO BOX 867 NEW BERN, NC 28563-0867
GREEN% LLE NEW BERN RALEIGH
(252) 215-400) [phone] [phone]
WILMINGTON
[phone]
OFFICE USE ONLY: Date Received Request # _
State of North Carolina FEB - 5 2004 (( Vrr??
Department of Environment and Natural Resources 4 ®1
1 8 7
Division of Water Quality ?+
DWQ-WARD
Variance Request Form - for Minor Variances
Protection and Maintenance of Riparian Areas Rules
NOTE. This form may be photocopied for use as an original.
Please identify which Riparian Area (Buffer) Protection Rule applies.
? Neuse River Basin: Nutrient Sensitive Waters Management Strategy
Protection and Maintenance of Riparian Areas Rule (15A NCAC 02B
.0233)
o Tar-Pamlico River Basin: Nutrient Sensitive Waters Management
Strategy Protection and Maintenance of Riparian Areas Rule (15A
NCAC 026 .0259)
? Catawba River Basin: Protection and Maintenance of Existing Riparian
Buffers (15A NCAC 02B.0243)
Part 1: General Information
(Please include attachments if the room provided is insufficient.)
1. Applicant's name (the corporation, individual, etc. who owns the property): Johnson-Lennon-
Mcllhenny, LLC___.
2. Print Owner/Signing Official (person legally responsible for the property and its compliance)
Name: Mr. Tom .____-----.-----._.? _
Title: W TIAMS 49T?GROUP
.........
--...
Street address: 1604 Brices Creek Road, PO Box 1555
City, State, Zip: New Bern, NC 28563-1555_
Telephone: [phone]
Fax: _ WATER-01JAUTYSKMOM
3. Contact person who can answer questions about the proposed project:
Name: Frank H. Sheffield, Jr., Esq.
Telephone: (252 ) 672-5400
Fax: (252 ) 672-5477
Email: [e-mail]____
4. Project Name (Subdivision, facility, or establishment name - consistent with project name on
plans, specifications, letters, operation and maintenance agreements, etc.):
Oriental Hotel and Marina
Version 2: November 2002
5. Project Location:
Street address: Hodges Street
City, State, Zip: Oriental. NC 28571 _
County: Pamlico
Latitude/long itude: 35.03656/76.70000
6. Directions to site from nearest major intersection (Also, attach an 8 1/2 x 11 copy of the USGS
topographic map indicating the location of the site):
Turn left onto Hodges Street from NC Highway 55 East. The Oriental Hotel and Marina is 1/4
mile down Hodges Street on the right hand side.
7. Stream to be impacted by the proposed activity:
Stream name (for unnamed streams label as "UT to the nearest named stream):
Raccoon Creek
Stream classification [as identified within the Schedule of Classifications 15A NCAC 2B
.0315 (Neuse) or.0316 (Tar-Pamlico)]:
8. Which of the following permits/approvals will be required or have been received already for
this project?
Required: Received: Date received: Permit Type:
CAMA Major
X CAMA Minor
-------- ------------- ----- -
_ 401 Certification/404 Permit
On-site Wastewater Permit
NPDES Permit (including stormwater)
Non-discharge Permit
Water Supply Watershed Variance
Others (specify) _.-__ .
Part 2: Proposed Activity
(Please include attachments if the room provided is insufficient.)
Description of proposed activity [Also, please attach a map of sufficient detail (such as a plat
map or site plan) to accurately delineate the boundaries of the land to be utilized in carrying
out the activity, the location and dimension of any disturbance in the riparian buffers
associated with the activity, and the extent of riparian buffers on the land. Include the area
of buffer impact in ft2.] : Additional condominiums and a restaurant will be constructed at the
Oriental Hotel and Marina.
2. State reasons why this plan for the proposed activity cannot be practically accomplished,
reduced or reconfigured to better minimize or eliminate disturbance to the riparian buffers:
The planned location for the restaurant is in Zone 2. The Drevious structures tpump house
and fuel dispenser stand) were located in Zone 1. It is not possible to move the restaurant
further back out of Zone 2 as construction of six condominiums is planned behind the
Variance Request Form, page 2
Version 2: November 2000
3. Description of any best management practices to be used to control impacts associated with
the proposed activity (i.e., control of runoff from impervious surfaces to provide diffuse flow,
re-planting vegetation or enhancement of existing vegetation, etc.):
The area of encroachment primarily involves a deck. Water can penetrate through the deck,
creating diffuse flow. Applicant is prepared to plant shrubs and other appropriate vegetation
for filtration of diffuse flow.
4. Please provide an explanation of the following:
(1) The practical difficulties or hardships that would result from the strict application of this
Rule. Strict application of the Rule would result in inadequate space for construction of the
restaurant.
The planned construction is an improvement over the previous structures, which were
completely located in Zone 1. Previous structures included a pump house and fuel dispenser
stand comprising 810 sq. ft. in impervious surface. _______ _ ______
(2) How these difficulties or hardships result from conditions that are unique to the property
involved. As this is a Marina, positioning of the restaurant in closest proximity to the water is
advantageous from a business and an aesthetic perspective.
(3) If economic hardship is the major consideration, then include a specific explanation of the
economic hardships and the proportion of the hardship to the entire value of the project.
The restaurant is an integral part of the revitalization project. It replaces a prior structure,
which was a popular social and tourist destination.___
Part 3: Deed Restrictions
By your signature in Part 5 of this application, you certify that all structural stormwater best
management practices required by this variance shall be located in recorded stormwater
easements, that the easements will run with the land, that the easements cannot be changed or
deleted without concurrence from the State, and that the easements will be recorded prior to the
sale of any lot.
Variance Request Form, page 3
Version 2: November 2000
Part 4: Agent Authorization
If you wish to designate submittal authority to another individual or firm so that they may provide
information on your behalf, please complete this section:
Designated agent (individual or firm): Frank H. Sheffield. Es
Mailing address: Ward and Smith P.A. PO Box 867 ._.....
City, State, Zip: New Bern, NC 28571
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Part 5: Applicant's Certification
I, ______Tom Mcllhenny __ ___-____-__._ ........... (print or type name of person listed in Part I, Item 2),
certify that the information included on this permit application form is correct, that the project will
be constructed in conformance with the approved plans and that the deed restrictions in
accordance with Part 5 of this form will be recorded with all required permit conditions.
Signature:
Date:
Title:
-ECG,
Variance Request Form, page 4
Version 2: November 2000
35.038044
-76.71727 Ex ent -76.66844
35.00899
The National Map
http://nmviewogc.cr.usgs.gov/
Geographic Coordinate System (NAD83)
N
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IMPERVIOUS CALCULATION- TOTAL PROJECT
N
N
m
m
co
co
m
W
m
M
N
m
a
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It
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BUILDING & CONC. CAMA 75'
LAMA LAND AREA
% IMPERVIOUS AREA
BUILDING & CONC. DWQ 50'
DWQ LAND AREA
% IMPERVIOUS AREA
TOTAL LAND AREA *
TOTAL BUILDING & HARD SCAPE
iJvlNLi%J%D
3820
12415
31
3283
8163
40
PHASE 11
RESTAURANT
1289
5967
22
797
3719
21
TOTAL
5109
18382
28
4080
11882
34
37048
15343
9706
2291
46754
17634
TOTAL % IMPERVIOUS AREA
41 24 38
* ASSUMED PROPERTY LINE AS PROPOSED
Rfax-IP * Pg 3/3
Feb 03 04 06:46p 9193889322 p.3
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