QUESTIONS FROM DWQ MEETING 9-1-2010

Convention Center, New Bern, NC

Hosted by NC 20

  1. Can a person applying for a General Major Variance today, after these “new interpretations to the rules”, be guaranteed that their variance can not only be transferred to a future owner multiple times if needed, but also will never expire?

Answer by Cyndi Karoly, DWQ – Yes, but the person applying must do so before April 11, 2011.

  1. How are you proposing to educate, communicate or convey the effect of the buffer rules and these new changes to all property owners of lots platted prior to August 1, 2000 since many of them still do not know the buffer rules even exist?

Answer by Cyndi Karoly, DWQ – There is no plan in place at this time to communicate with anyone who does not already have a variance. DWQ staff does not know how many people are affected by these rules and has no way of gathering property owner data. Perhaps some of the area real estate agents can help.

  1. Can a lot owner, using an existing variance that depicts a specific footprint, build a home with a different footprint that does not impact any greater area in either zone than the area permitted in the variance without having to reapply for a new varianceand if so can you please include this in your written changes being made to these rules?

Answer by Cyndi Karoly, DWQ –ONLY IF THE IMPACT OR NEW FOOTPRINT IS WITHIN THE ACTUAL AND EXACT FOOTPRINT APPROVED BY THE VARIANCE.

FOLLOW UP CONFIRMATION QUESTION – SO EVEN IF THE NEW FOOTPRINT IMPACTS LESS SQUARE FOOTAGE THAN WHAT WAS APPROVED IN EACH ZONE YOU CAN MOVE THE FOOTPRINT OUTSIDE THE APPROVED FOOTPRINT BY SHIFTING THE FOOTPRINT TO ONE SIDE OF THE LOT OR ANOTHER OR SHIFTING IT BACK AWAY FROM THE WATER?

ANSWER: IF THE NEW FOOTPRINT DOES NOT FALL WITHIN THE APPROVED FOOTPRINT IT IS CONSIDERED A CHANGE AND YOU WOULD HAVE TO GET APPROVAL FOR THE CHANGE EVEN IF IMPACTING LESS AREA.

  1. If a developer completed a residential subdivision prior to the adoption of the Buffer rules and the subdivision was designed in accordance with the then current Federal, State and local subdivision ordinances, posted the necessary bonds, built the necessary roads, installed water lines, electric lines, phone lines and provided wastewater disposal and spent significant sums of capitol in so doing, why isn’t he “vested” in the designed use of his project and why isn’t every current and future lot owner also vested since, in purchasing their lot, they in fact are paying their proportional share of all of these improvements?

Question was not answered by DWQ staff.

  1. Some General Major Variances say they will cease to exist, unless authorized, on April 11, 2011, some say they will expire 5 years from date of issue with no mention of expiring on April 11, 2011, and the latest guidance is that they will continue indefinitely. Which is the correct answer and how will all variance holders be notified of that fact?

Answer by Cyndi Karoly, DWQ – FIRST PART OF THIS QUESTION WAS ANSWERED WITH THE HANDOUT DWQ PROVIDED AT MEETING.

ON THE LAST PART OF THE QUESITON,NOTIFICATION, THE ANSWER WAS “HAVE THEM CALL US”.

AFTER THE MEETING CAROLYN BELLIS WHO ASKED THIS QUESTION SPOKE ALONE WITH SUSAN MASSENGALE, OF DWQ, ABOUT HOW THEY WERE GOING TO GET CURRENT ADDRESSES FOR HOLDERS OF VARIANCES SINCE MANY WERE NOT THE ORIGINAL APPLICANTS AND/OR VARIANCE RECIPIENTS. SUSAN WAS UNABLE TO ANSWER THE QUESITON SO CAROLYN SAID SHE WOULD HELP IN GETTING ADDRESSES THE PAMLICO COUNTYAREA. CAROLYN ALSO AGREED TO FIND PROPERTY OWNER ADDRESSES FOR THOSE WHO DO NOT YET HAVE VARIANCES BUT MAY NEED THEM. SUSAN SAID THEY NEEDED TO PUT THEIR HEADS TOGETHER AND FIGURE THIS OUT. CAROLYN GAVE SUSAN HER BUSINESS CARD AND SUSAN SAID SHE WOULD EMAIL HER.

  1. Is exempting lots platted prior to the adoption of the Buffer Rules being seriously considered and, if not, why not?

This question was never answered.

  1. Can we get a complete written explanation of the latest policy with regard to Variances: who is entitled to apply for one, transferability, how long they last, how they may be modified, etc.?

Answer by Cyndi Karoly, DWQ – We were told that the “handout” answered this question but what we were told verbally versus what the handout stated were sometimes two different things.

  1. The list of variances issued in PamlicoCounty that was complied by DWQ shows 168 variances issued,of which only 106 were a GMVs, the others were Minor Variances. Only 5% of all the variances are shown as actually having been completed with a home built. Some of these variances are 10 years old and yet 95% of the lots they represent still do not have homes built yet, how are you ever going to track the status of these, over possibly 20 more years, not to mention any new variances that will certainly be issued? Why not grandfather these lots?

Answer by Cyndi Karoly, DWQ – This question was actually never answered but Cyndi did say that DWQ staff has been very surprised at the fact that in the more rural, coastal, counties people don’t build right away, after obtaining variances.

  1. Do you have a copy of the new “form” letter that you will be using for new variances that are issued which clears up the transferability and expiration issue? Will a new approval letter be sent to all holders of variances? And how do you plan to be sure these letters get sent to the current holder of the variance?

This question was never answered.

  1. The latest information we have received talks about Coastal General and Major Variances but not about Minor Variances. What happens with those as far as transferability, expiration, and application rights after 4-11-11?

Answer by Cyndi Karoly, DWQ – The handout answers this question.

  1. There is nothing to address a huge concern about the April 11, 2011 expiration date. It appears that Coastal Major variances may indeed be transferable and may “never” expire but the process to obtain a variance does appear to expire on April 11th, so what happens to the people who have not even applied for a variance? Will they be left out in the cold?

Answer by Cyndi Karoly, DWQ – There is no plan to extend the April 11, 2011 date because DWQ has been informed that all of the general major variances are probably illegal.

  1. If a person has a variance that will expire, what measure can he take physically on the property to secure the footprint, short of building a house?

This question was never answered.

  1. When a lot owner is denied a “staging area” around the footprint of the house for the purposes of building, what options are available to that person?

This question was never answered.

  1. The North Carolina Legislature saw fit, in the depressed economic climate, to extend the expiration dates of all permits issued by NC state agencies, (by way of cessation of the aging of permits for a specified period of time), yet DWQ has stated that all DWQ permits and variances are not subject to this extension. Why is it that the DWQ permits/variances are exempt from this legislation?

This question was never answered.

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Side Notes/Comments/Concerns

From the 9/1/10 Meeting

  1. It was a great concern that DWQ staff has no idea how many property owners are affected by the buffer rules. It seems odd that the Economic Impact Study, mandatory in the rule making process, would not have been based on the number of impacted properties. Was the Economic Impact Study actually done? Was it done correctly or haphazardly?
  1. Although a handout was brought and distributed by the DWQ staff, it was not in any way official. It was not on DENR/DWQ letterhead and was undated and unsigned. Also, what the handout stated versus what staff verbalized during the meeting was conflicting.
  1. The inconsistent application of the buffer rule variance process is of great concern. The way in which staff interprets the rules is not always consistent with the written rules. Also, the most recent upheaval is just one example of the aforementioned problem; August 3, 2010 a statement is posted on the DENR/DWQ website stating that all buffer rule variances are non-transferable. August 30, a statement, not a formal posting, was added to another area of the website stating that variances are transferable.
  1. Cyndi Karoly stated that the April 11, 2011 expiration of the Coastal Major Variance would likely not be extended because staff had been informed that all of these variances are illegal anyhow. The concern is obvious. First the expiration date is at issue, but maybe more importantly is the question of whether or not these existing variances are in fact illegal. If they are, at what point can those who hold them expect to be involved in a legal challenge?
  1. In mid August 2010, we were lead to believe, by DWQ staff, that a stakeholder committee was being formed to start the process of “revamping” and possibly combining all of the separate buffer rules within the state. We were actually led to believe that we could submit names of people willing to serve on the stakeholder committee. We were shocked to find out, during the 9/1/10 meeting, that in fact the stakeholder committee was already formed and had been meeting for approximately one year! Frankly to us this seems like “business as usual”. Sneak rules in under the radar, making sure to leave those affected completely shut out of any lawful process.
  1. We feel that this retroactive rule making process amounts to a regulatory taking. We feel that this sort of action infringes on our constitutional rights. We also believe that this type of rule making is bad for the State of North Carolina and for all property owners, now and in the future, within the State.

Solution/Resolution

To the Problems created by the

Retroactive Buffer Rules

  • We need to have North CarolinaState legislation that enacts a Law exempting pre-existing lots prior to the effective dates of the permanent Buffer Rules.
  • We need to have a Law that forever protects the rights of all North Carolina Property owners from retroactive rule making that affects pre-existing lots.
  • We need to have laws that require notification of potential rule making to all and any affected parties. This notification needs to be direct.
  • We need to have laws that require public hearings to be held in all affected counties, when a rule may affect people and/or property owners.
  • We need to have a law that all public hearings MUST be advertised in local news papers, at least two weeks prior to the hearing, and must clearly state the intent of the public hearing.
  • We need to require complete and correct Economic Impact Studies be performed as part of any and all environmental rule making.
  • We need to require scientific proof that a rule will benefit the environment and we need to have absolute proof, over a reasonable number of years, that the rule has measurably improved the environment. If after the agreed upon number of years there is no significant improvement of the environment, the rule should be abolished.