South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Dollar General Opposition Lawsuit Moving Forward -Brevard NC
May 13th, 2020

By Matt McGregor, The Transylvania Times

The South Carolina Environmental Law Project (SCELP) is moving forward with a lawsuit claiming the construction of the Dollar General on U.S. 276 is a violation of the Endangered Species Act.

As previously reported, the construction allegedly threatens an adjacent population of an endangered species, the Elktoe Mussel.

In the letter addressed to Transylvania County government, the Broadway Group, LLC (project overseer and developer of the project), and the N.C. Department of Environmental Quality, Michael Corley, the upstate director of the South Carolina Environmental Law Project, said he's representing a group under the name "Concerned Citizens of Transylvania County."

The April 17 letter expressed intent for "a productive conversation on these issues rather than litigation."

"While personal reactions obviously hold no legal weight here, I must express our collective shock that a non-essential commercial retail store could receive all necessary permits to be constructed entirely within a floodplain, with no permanent stormwater treatment, discharging into trout waters, on the banks of a creek holding a population of endangered mussels, all in the face of immense public outcry," he said in the letter.

"Unless construction progress dictates otherwise, we intend to wait 10 days for a voluntary discussion on this issue before moving forward with formal ESA action."

Since it was sent, Corley said construction has proceeded "at least as fast as prior to my letter."

"It's disappointing," he said. "It would be nice if the pause button had been hit on this project while we work these issues out."

Both conversations with the county and the developers have been "cordial," he said, "but not immediately productive either."

"It became clear that we needed to go ahead and file the initial steps on these legal proceedings," Corley said. "No information that we've received in the interim has changed our minds. In fact, I've had a lot more experts who have put their eyes on this thing since then and all of them, equally, are as shocked as I am that at this day and time you can get a permit to fill and obstruct a floodplain in proximity to this endangered species."

A 60-day notice letter was sent out by SCELP on May 4, which is required to initiate legal proceedings.

"If the situation then is the same as it is now, then we will file that lawsuit as soon as the notice period expires, but we have to see where things are then," Corley said.

The issues addressed in the lawsuit will be interrelated among the Elktoe Mussel and building in the floodplain.

"That's a bad practice from a water quality standpoint, and not just water quality but erosion and water volume in blocking off the floodplain in this area," he said. "Where these mussels are located exacerbates the harm to the species, so it's an Endangered Species Act claim, but the content will be overlapping between the mussels themselves and the floodplain component of the project."

He said he would be "thrilled" if the Dollar General were to be built on another nearby site that made more sense.

"Frankly, this is a terrible site from an environmental perspective," he said. "It just doesn't make sense to be building one on a site that could potentially result in the death of a critically endangered species, or even increase flooding, and many other environmental consequences."

Transylvania County has granted a floodplain development to this project, he said, and one condition of it granting this permit is that the project obtains state and federal permits.

"One way this thing could stop is if the county asks for proof that there is not going to be any harm to the Elktoe and the project would be put on hold until the question was answered," he said. "I'm not a zealot. If the evidence comes back that there is actually not going to be any impact to these mussels, I'd be surprised by it, but I'd move on to one of the many other things I'm working on. However, until then, I think it's very much appropriate that the project be paused if the question can't be answered in a reasonable way."

The permit was filed for the construction on Nov. 4, 2019, with the Transylvania County Building Permitting and Enforcement office.

The site itself will make the seventh store in the county, below the old Carr's Hill Baptist Church, built in 1893, sitting on the hill off Becky Mountain Road that over looks the property.

Broadway Construction Co., LLC, is the general contractor that submitted the application for the construction site. James Allison and the estate of Edgar M. Holden are listed as the property owners.

The Dollar General building would be 9,100 square feet and 18 feet high, with an estimated project cost of $441,050. A public outcry formed against the development on Facebook, with the hashtag, #NoDollarInTheHoller.

Since then, the group has attended at least two Transylvania County Commissioner meetings, where it was told the county was "limited in what it can do" to prevent the construction due to liability issues. There is no zoning in much of the county, and as County Manager Jaime Laughter presented in a January meeting, zoning is often opposed by some in communities because it is seen as an infringement on property rights. If there is no zoning, local governments aren't allowed to coerce or pressure a property owner to change the use or development plans.

"Local government can't be seen as being as discriminatory even if a project is undesirable," she said.

In February, local filmmaker James Suttles and music group Pretty Little Goat shot a music video of a protest song against the store.

On Wednesday at noon, a press conference was held by the Citizens of Transylvania County announcing its intent to file the citizen suit under the Endangered Species Act.

Representatives of the group who attended were Steep Canyon Rangers' singer and guitarist Woody Platt, Brevard City Councilman Mac Morrow, Christy Blakely and Corley.

More from this event will be in Monday's issue.

Source (external link)