UPDATE: Declaratory Ruling is a Success!

As many of you have probably read in the May TOOLBOX BASE has been embroiled over the course of the last three months with the NCDEH in a situation surrounding setbacks required for septic systems and a “verbal opinion” that treated easements the same as property lines—requiring a 10 foot setback. BASE’s contention was the verbal opinion was not a sufficient factual explanation for something which will impact a large number of existing lots in North Carolina. To that end, BASE attorney Craig Bromby (Hunton & Williams) drafted a Petition for Declaratory Ruling before the NC Commission of Public Health.

The crux of the issue was that based upon this so called “verbal opinion” NCDEH was requiring a horizontal separation distance/setback from any part of the sanitary sewage treatment and disposal system (initial and/or repair area) to a “right-of-way/encroachment agreement/easement” to maintain at least a 10-foot horizontal setback (5-foot horizontal setback for lots/tracts that comply with the criteria per Rule .1951(a); 25-foot horizontal setback for systems exceeding 3,000-gallons per day) to the nearest edge of an existing or proposed right-of-way/encroachment agreement/easement. In other words they were treating easement lines as a property lines, and subsequently requiring a 10 foot horizontal setback from an easement, or a 25 foot setback from a drainage easement.

Unfortunately, this “interpretation” had significant legal holes. Interpreting the term “property line” to include the boundaries of easements lacks any basis or correlation to the statutory authority provided by N.C. Gen. Stat. § 130A-335. BASE initially claimed that the establishment of a setback from the boundary of an easement is thus not authorized, and the boundary of an easement cannot therefore be lawfully included within the term “property line.”

UPDATE: As of last week BASE’s Attorney Craig Bromby received notice from NCDENR/NCDEH that they intended to step back from their position. This effectively means that BASE can rescind its Declaratory Ruling, and that in essence BASE has been successful pointing out to NCDENR/NCDEH that their interpretation was flawed. In their response NCDEH stated that after exhaustive research of case law they found they could not support easement lines being viewed as property lines. Therefore, setbacks shall be required fromproperty lines as specified in Rule .1950. Setbacks shall not be required from easements (includingdrainage easements).