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1977-07-12 SpM Exhibits Comments regarding permit #35 issued to Elwood Barnes - May 31, 1977 After hearing the testimony presented at the appeal on July 5, and in reading and reviewing the materials submitted by the attorneys for both parties and for the State of North Carolina Attorney General's Office filed with the County Commissioners of New Hanover County, I personally find as fact the following and ask that this be entered into the minutes of the meeting held today 1 Permit was issued in accordance with the ordinance as in effect in New Hanover County 2 That the owner Barnes is complying with the ordinance 3 That all construction is according to the State and Local Codes and the lot conforms to the same for residential building 4 That the physical changes in the dune has not weakened it from its original condition as there was a jeep path cut through this lot 5 That the most expert testimony presented by Mr Tom Jarret of the Army Corps of Engineers could not say in his opinion that the dune has been materially weakened, and Mr Jarret has spent a year and a half, in Mississippi studying the effect of tidal waves on dunes 6 That if our ordinance is too vague in its requirements that those currently building under it not be made to stop because of interpreta- tions or opinions on this ordinance and when those local officials who enforce our local ordinance feel that those given permits are in compliance 7 That this appeal be denied and construction be allowed to continue as of the conclusion of this meeting July 12, 1977 Claud O'Shields, Jr Chairman, County Commissioners BEFORE THE NEW HANOVER COUNTY BOARD OF COMMISSIONERS STATE OF NORTH CAROLINA PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW COUNTY OF NEW HANOVER IN THE MATTER OF THE APPEAL FROM THE ISSUANCE OF SAND DUNE PERMIT NO 35 (File No 10859) TO MR ELWOOD BARNES This matter coming on to be-heard and being heard on July 5, 1977, before the New Hanover County Board. of Commissioners, Mr and Mrs Jack R Bayer, adjacent property owners, propose the following FINDINGS OF FACT 1 On May 30, 1977 Mr Elwood C Barnes altered the configuration of the existing natural dunes on his oceanfront lot located on the east side of U S Highway ~k421 approximately 1800 feet south of the Kure Beach Town limits by a Lowering the height of the frontal dune by approximately 3 feet on both sides of his lot, b Redistributing the sand mass of the .dune by pushing sand .forward, c Filling in an existing path over the dune, d Leveling a building site. on the top of the .dune, and e Removing the natural vegetation of the dune around the. building site 2 On May 31, 1977 Mr Robert M Williams, Jr the New Hanover County Sand Dune Protection Officer, issued Sand Dune Permit No 35, File ~r 10859, to Mr Elwood Barnes authorizing the. construction of a residence on the. aforementioned Barnes property 3 The adjacent property owners were not notified of the issuance of the aforementioned permit prior to the issuance thereof as required by the Sand Dune Protection Ordinance of New Hanover County In fact, the adjacent property owners were first notified of the issuance of said permit by letter from Mr Robert M Williams, Jr , New Hanover County Engineer, dated June 2, 1977, which letter was received by Mr and Mrs Sayer on June 4,1977 y 4 Mr Jack R Bayer protested the issuance of the permit by letters to Mr Robert M Williams, Jr and Mrs Vivian $ Wrig'nt dated June 6, 1977 5 The deed. conveying the aforementioned property to Mr and Mrs Elwood C Barnes was recorded in the New Hanover County Registry on June 7, 1977 6 Nir Barnes commenced construction of the house to be situated on the aforementioned lot on June 10, 1977 7 By letter of June 16, 1977 Mr Robert M Williams, Jr , County Engineer, informed Mr Jack R Bayer that, in his opinion, the application of Mr Barnes met the requirements of the Sand Dune Protection Ordinance of New Hanover County 8 On June 17, 1977 Mr and Mrs Jack R Bayer, through their attorney of record, filed formal objections to the issuance of the Barnes permit and gave formal notice of Appeal to the New Hanover County Board of Commissioners 9 By letter of June 20, 1977 Mr Robert M Williams, Jr , County Engineer, informed Mr Barnes that the Chairman of the New Hanover County Board of Commissioners had received a letter from the North Carolina Department of Natural and Economic Resources and the Petition filed by Mr and Mrs Bayer, both objecting to the issuance of the permit to Mr Barnes By said letter, Mr Williams advised that Mr Barnes cease construction. until the matter had been resolved 10 Mr Barnes continued construction on the aforementioned house through June 25, 1977 11 The actions of Mr Barnes in altering the natural configuration of the .dune have materially weakened the dune and reduced its effectiveness as a means. of protection from the effects of wind and water by a Moving the sand mass of the. dune forward, thereby increasing the likelihood that the sand mass of the .dune will be decreased by the action of wind and water, -2- b Creating a "funnel effect" which will increase wind and water erosion of the dune, and c Lowering the height of the dune by up to 3 feet or more at several points on Mr Barnes' lot 12 The actions of Mr Barnes in building a house on top of and in front of the frontal dune line will continue to materially weaken the dune and reduce its effectiveness as a means of protection from the. effects of wind and water by preventing the natural build. up of sand along the dune line at this point 13 If the property owners of the. undeveloped lots to the south of I~Ir Barnes' lot were allowed to use similar construction techniques and were allowed to place houses on or in front of the frontal dune line, the frontal dune system in this area would be materially weakened and its effectiveness as a means of protection from the effects of high wind and water would be reduced 14 The placement of the house behind the frontal dune line would result in less weakening of the frontal dune than the placement of the house on top and in front of the frontal dune 15 The placement of the house behind the frontal dune would provide greater security and stability to the house and to the property of adjacent lot owners 16 The placement of the house behind the frontal dune would enhance the stability of the frontal dune system in this area 17 The house could have been built on the site without a material lowering of the frontal dune line and without the unnecessary destruction of vegetation underneath the house CONCLUSIONS OF LAW 1 In the consideration of this appeal, the Board of County Commissioners are empowered to consider the matter ab initio and may take any action which the Shoreline Protection Officer could have taken -3- x t 2 The Shoreline Protection Officer could have required that Mr Barnes not lower the .dune, alter its configuration or unnecessarily destroy vegetation 3 The Shoreline Protection Officer could have required Mr Barnes to locate the house behind the frontal dune line 4 It would be in the best interest of the County, the adjacent property owners, Mr Barnes and the integrity and stability of the frontal dune system to require that Mr Barnes place-his home behind the frontal dune line 5 The administration of the County Sand Dune Ordinance in this case was inconsistent with the requirement of said Ordinance that adjacent property owners receive timely notification of applications for sand dune permits which may affect their property WHEREFORE, Mr and Mr Jack R Bayer, adjacent property owners, through their attorney of record, respectfully request the New Hanover County Board of Commissioners to take the following actions 1 To issue an order and amended permit requiring Mr Elwood Barnes to place his house behind the frontal dune line and to restore and revegetate said frontal dune 2 To study, in cooperation with the Department of Natural Resources and Community Development, the County Sand Dune Ordinance and its administration and enforcement in order to enhance both its procedural and substantive provisions, to prevent the recurrence of similar problems in the future, to insure that the residents of New Hanover County will be able to secure federal flood insurance and to prevent the unnecessary expenditure of public funds on shoreline protection projects R pectfully submitted, 1 ranklin E Martin L ttorney for Mr & Mrs Jack R Bayer 0 Box 266 217 Carolina Savings & Loan Building; Wilmington, North Carolina 28401 Telephone (919) 343-0196 -4- ~. STATE OF NORTH CAROLINA BEFORE THE BOARD OF COMMISSIONERS COUNTY OF NEW HANOVER In the matter of ) PERMIT NUMBER 35, issued ) to ELWOOD BARNES, ) for work affecting sand dunes, ) dated r7ay 31, 1977. ) FILE NUMBER 10859 ) FINDING OF FACTS AND CONCLUSIONS OF LAW THIS matter coming on to be heard and being heard before the BOARD OF COMMISSIONERS OF NEW HANOVER COUNTY upon an appeal by J R Bayer and wife, Maxine F Bayer, objecting to the issuance of Permit Number 35, File Number 10859, to Elwood Barnes for the construction of a dwelling on the east side of U S. Highway #421 approximately 1800 feet south of Kure Beach City limits, in New Hanover County; and having heard the testimony of witnesses and all other evidence presented by the parties, all of which were represented by Counsel, the Board makes the following FINDINGS OF FACT 1. That Rev Elwood Barnes applied for and was granted a building permit for the erection of a dwelling on an ocean front lot located on the east side of U.S Highway #421 approximatedly 1800 feet south of the Kure Beach City limits in New Hanover County. That in accordance with said permit approval was given for the location and construction of a 3 bedroom dwelling to be built on pilings in accordance with the plans and specifications therein submitted. J 2. No municipal sewage facilities presently serve the premises in question and sewage disposal by septic tanks is required subject to the approval of the New Hanover County Health Department in accordance with North Carolina law. The location of the septic tank for the house in question was approved by the New Hanover County Health Department by permit dated May 26, 1977. 3 Before beginning construction of this dwelling Rev Barnes proposed to level off the area upon which the house was to be constructed by filling in the lower areas of his lot and building up the sand dune LAW OFFIC E9 BURNEY GURNEY BAREFOOT SC GAIN If0 NORTH FIFTH AVENUE-POST OFFICE BOX B9 WILMINGTON N C. 28401 in front of the proposed dwelling with sand from the dunes on either side of the proposed dwelling 4 Rev. Barnes was advised by the New Hanover County Engineering Department that a permit would be required for this purpose as it would involve work in a sand dune area that is subject to the Sand Dune Protection Ordinance of New Hanover County. ~ 5 Rev Barnes filed an application for a Permit Affecting Sand Dunes describing the work to be performed, the location of tcKZd~.~.1m, work, and the names and addresses of adjoining property owners The .~. Board finds as a fact that the application was filed on a farm furnished by the Shoreline Protection Officer and contained all of the information required of the applicant The Board further finds as a fact that the application contained no requirement that applicant notify adjoining property owners of the application for the permit. ~6 The Board finds as a fact that an investigation of the proposed work was made by the County Engineering Department under the direction of Robert M Williams, Jr , the Shoreline Protection Officer, who made an on site inspection of the proposed work 7 As a result of said investigation it was determined that the proposed sand dune work would not be in violation of the Sand Dune Protection Ordinance of New Hanover County, and accordingly, a permit was granted on May 31, 1977 (Permit Number 35, File Number 10859) by Robert M Williams, Jr , the Shoreline Protection Officer of New iianover County. The findings of the Shoreline Protection Officer as set forth in said permit were as follows "Work is consistent with the requirements of the Sand Dune Protection Ordinance This permit is issued contingent upon the condition that there are no valid objections to the work by adjacent property owners." 8 Said permit contained the following requirements "No lowering of a dune to a height lower than 15 feet above mean sea level or removal of vegetation or disturbance of dunes except incidental to construction of residence and driveway will be permitted " 9. The work performed by Rev. Elwood Barnes under the aforesaid -. permit did not result in a lowering of a protective dune to a height lower than 15 feet above mean sea level or the removal of vegetation or disturbance of dunes except incidental to the construction of his residence on the premises. CONCLUSIONS OF LAW 1. The building permit for the construction of aforesaid dwelling by Rev Elwood Barnes is valid and proper in all respects. 2 Permit Number 35 for Work Affecting Sand Dunes was issued by the Shoreline Protection Officer in accordance with the requirements of the Sand Dune Protection Ordinance of New Hanover County, based upon its investigation, on site inspection, and findings set forth in said permit, and the same is in all respects valid 3 The work performed by Rev Elwood Barnes pursuant to the aforesaid Permit Number 35 for Work Affecting Sand Dunes, has been completed in accordance with the requirements of said permit. Removal of vegetation and disturbance of dunes was incidental to the construction of said residence and was minor in nature and did not constitute a material weakening of a protective dune or reduce its effectiveness as a means of protection from the effects of high wind and water The removal of small amounts of sand from the areas on either side of the dune to level the lot and build up the dune area in front of the dwelling was accomplished for the purpose of strengthening the forward dune and increasing its effectiveness as a means of protection from the effects of high wind and water 4 The Board further concludes as a matter of law that the sand dune work authorized by Permit Number 35 issued to Rev Elwood Barnes is not in violation of the Sand Dune Protection Ordinance of New Hanover County, that the objections to said Permit which are the subject of this appeal should not be sustained THIS APPEAL IS THEREFORE DISMISSED STATE OF NORTH CAROLINA BEFORE THE NEW HANOVER COUNTY BOARD OF COMMISSIONERS COUNTY OF NEW HANOVER IN THE MATTER OF THE APPEAL ) FROM THE ISSUANCE OF SAND ) DUNE PERMIT NO 35 (File No.) 10859) TO MR ELWOOD BARNES ) PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE DEPARTMENT OF NATURAL RESOURCES AND COMMUNITY DEVELOPMENT (DNRCD) This matter coming to be heard and being heard on July 5, 1977, before the New Hanover County Board of Commissioners pursuant to NCGS 104B-3, et sect, and Section 2.5 of the Ordinance to Preserve and Promote the Protection of the Outer Banks of New Hanover County By Maintaining the Existence of Natural and Constructed Dunes, the Department of Natural Resources and Community Development proposes the following FINDINGS OF FACT 1 On May 30, 1977, Mr Elwood Barnes began the construction of a house on his ocean front lot located on the east side of U S 421 approximately 1,800 feet south of the Kure Beach City limits 2. On May 30, 1977, Mr. Barnes altered the configuration of the existing natural dunes on his above referenced lot by a. Lowering the height of the frontal dune by approximately 3 feet on both sides of his lot; b Redistributing the sand mass of the dune by pushing sand forward; c. Filling in an existing path over the dune; d Leveling a building site on the top of the dune; and e Removing the natural vegetation of the dune around the building site. 3 On May 31, 1977, the New Hanover County Sand Dune Protec- tion Officer issued Sand Dune Permit No. 35, File Number 10859 to Mr. Elwood Barnes authorizing the construction activity which had taken place on May 30, 1977 4 The adjacent property owners were not notified of the issuance of the above referenced permit to Mr Barnes until receipt of a letter dated June 2, 1977, from the County Engineer 5. The actions of Mr Barnes in altering the natural con- figuration of the dune have materially weakened the dune and reduced its effectiveness as a means of protection from the effects of wind and water by ~' a -2- a Moving the sand mass of the dune forward and thereby increasing the likelihood that the sand mass of the dune will be decreased by the action of wind and water; b Creating a "funnel effect" which will increase wind and water erosion of the dune; and c. Lowering the height of the dune by up to 3 feet or more at several points on Mr Barnes' lot. 6 The actions of Mr Barnes in building a house on top of and in front of the frontal dune line will continue to materially weaken the dune and reduce its effectiveness as a means of pro- tection from the effects of wind and water by preventing the natural build up of sand along the dune line at this point. 7 If the property owners of the undeveloped lots to the south of Mr Barnes' lot were allowed to use similar construction techniques and were allowed to place houses on or in front of the frontal dune line, the frontal dune system in this area would be materially weakened and its effectiveness as a means of protec- tion from the effects of high wind and water would be reduced 8. The placement of the house behind the frontal dune line would result in less weakening of the frontal dune than the place- ment of the house on top and in front of the frontal dune. 9 The placement of the house behind the frontal dune would provide greater security and stability to the house and to the property of adjacent lot owners. 10. The placement of the house behind the frontal dune would enhance the stability of the frontal dune system in this area 11. The house could have been built on the site without a material lowering of the frontal dune line and without the unneces- sary destruction of vegetation underneath the house. C~~I~,jCLUSiC~Id~ CF LAW 1 In the consideration of this appeal, the Board of County Commissioners are empowered to consider the matter ab initio and may take any action which the shoreline protection officer could have taken '~ , -3- 2 The Shoreline Protection Officer could have required that Mr Barnes not lower the dune, alter its configuration or unneces- sarily destroy vegetation 3 The Shoreline Protection Officer could have required Mr Barnes to locate the house behind the frontal dune line 4 It would be in the best interest of the county, the adja- cent property owners, Mr Barnes, and the integrity and stability of the frontal dune system to require that Mr. Barnes place his home behind the frontal dune line. 5. The administration of the County Sand Dune Ordinance in this case was inconsistent with the requirement of said ordinance that adjacent property owners receive timely notification of applications for sand dune permits which may affect their property Wherefore, the Department of Natural Resources and Community Development respectfully requests the New Hanover County Board of Commissioners to take the following actions 1 To issue an order and amended permit requiring Mr Elwood Barnes to place his house behind the frontal dune line and to restore and revegetate said frontal dune 2 To study,in cooperation withthe Department of Natural Resources and Community Development, the County Sand Dune Ordinance and its administration and enforcement in order to enhance both its procedural and substantive provisions, to prevent the recurrence of similar problems in the future, to insure that the residents of New Hanover County will be able to secure federal flood insurance, and to prevent the unnecessary expenditure of public funds on shoreline protection projects. Respectfully submitted, RUFUS L. EDMISTEN Att~~~ G neral Amos Daws~ Attorney for Department of Natural Resources and Community Development Department of Justice P O Box 629 Raleigh, N. C 27602 Telephone (919 ) 733-5725 i ~ t -4- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Proposed Findings of Fact and' Conclusior~ of Law has been deposited in the United States Mai 1, postage prepaid, in the manner specified by Rule 5 of the Rules of Civil Procedure, addressed to each of the other parties in this matter as follows Mr Frank Martin Attorney at Law Carolina Savings and Loan Building Wilmington, N. C., 28401 Mr. Elwood Barnes 114 South Channel Drive Wrightsville Beach, N. C., 28480 This the ^~~ ay of July, 1977. Amos Dawson Attorney for Department of Natural Resources and Community Development Department of Justice P. O. Box 629 Raleigh, N. C 27602 Telephone (919) 733-5725