About two months after our attorney submitted his assessment to the State Agency, the Department Manager responded in his April 2012 letter that the Department is in charge of and the one with the authority to determine if an activity is exempt from permitting requirements. It is not up to us or our attorney to make that determination.
He also wrote that the enclosed viewing deck with a roof deck does not appear to be exempt because it is supported not only by the tree but also by wooden pilings cemented into the ground. However, he welcomed us to:
1. Provide a study from a qualified professional engineer, showing that the tree house or viewing deck would not cause a measurable impact to the natural functioning of the coastal system. This study is needed to determine if we qualify as a minor structure, exempt from permitting requirements.
2. We must either apply for and be granted an after the fact permit or remove the tree house within 21 days.
We reviewed the Agency’s application form and were confused. The application title is “Application for a Permit…” It is not clear if the form is also for applying for an exemption from permit requirements as defined in Administrative Code 62B-33.004 (2)(c). The application contains a fee schedule for permit for minor structures and activities, non-habitable major structure or a major structure. It has check boxes and section for requesting a waiver. But is a waiver or an exemption the same or different?
So we looked to the Merriam Webster dictionary for clarification. Here, “Exemption” means “freedom from being required to do something that others are required to do” or “a source or amount of income that is not taxed”; while the term “Waiver” means “the act of choosing not to use or require something that is usually required.”
If we follow the Agency’s permit application form for minor activities and structures, “Exemption from permit requirements” does not mean exemption from a permit, but it means application for a permit with request for waivers of certain requirements.