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,
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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
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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
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~.
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
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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