South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Dollar General Store Lawsuit Settled-Brevard NC
June 25th, 2020

By Matt McGregor, Transylvania Times

A settlement has been reached between the South Carolina Environ-mental Law Project (SCELP) and the developer (Broadway Group, LLC) of the Dollar General on U.S. 276.

According to a press release from the nonprofit law group, "SCELP, our clients, and the Dollar General's developer have taken full advantage of the ESA (Endangered Species Act) notice period in order to settle the claims via the developer's agreement to voluntarily plant native vegetation in the remaining floodplain, install additional storm water improvements and make significant changes to the store design. We are pleased with this effective and efficient outcome reached through co-operative efforts."

Michael Corley, the SCELP upstate director, said the settlement reached is "significant and positive," and that the Broadway Group, LLC, and its agents "have been extremely reasonable and level-headed in arriving at a mutually agreeable settlement."

The modifications include the developer to convert the temporary, construction-phase sed-iment skimmer pond to a permanent level-spreader with rip-rap berm for the purpose of improving water quality and mitigating erosion of the stream buffer area along Hogsed Creek; implement a com-prehensive planting plan, including wetland and floodplain-appropriate na-tive trees, shrubs, bushes and grasses throughout the site for benefits to storm water management, pollutant mitigation, erosion and sediment control and floodplain and wetland restoration; enclose trash and cardboard processing areas on all sides to prevent trash, litter and cardboard from washing into the waterways; and complete a variety of 'country store' building fa├žade upgrades, alter-native signage, shielded lighting and 'lights-on' only on when employees are on site.

"This is an effort that has received our utmost attention and energy, and we believe the resolution of the matter has resulted in the maximum community benefit possible, going well beyond any relief available under the Endangered Species Act," Corley said in an email to the Concerned Citizens of Transylvania County, the group he represented in the case. "I know that the responsibility of under-taking this effort on your behalf has weighed heavily on me and nothing we've done has been undertaken without the utmost deliberate thought and attention.

"The resolution of this settlement agreement and 'lessons learned' from this project provide good momentum for sensible land planning in the county, and we are excited to move on from concerns related to the Dollar General store so as to direct our attention to those constructive efforts."

In May, SCELP initiated legal proceedings under the Endangered Species Act (ESA) by serving a Notice of Intent to the Broadway Construction, LLC.

As previously reported, the construction of the Dollar General allegedly threatened an endangered species, the Elktoe Mussel, which is a violation of the ESA, according to SCELP.

In the April 17 letter addressed to Transylvania County government, the Broadway Group, LLC, and the N.C. Department of Environmental Quality, Corley said that the construction "is very likely" to cause a violation of Section 9 of the ESA.

In May, SCELP moved forward with the lawsuit after finding that construction "proceeded at least as fast as prior to my letter."

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.

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

A permit was filed for the construction on Nov. 4, 2019, with the Transylvania County Building Permitting and Enforcement office. The site will house the seventh Dollar General store in the county and sits below the old Carr's Hill Baptist Church, which was built in 1893.

A public outcry formed against the development on Facebook, with the hashtag, #NoDollarInTheHoller.

Since then, the group 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 May 13, a press conference was held by the Citizens of Transylvania County announcing its intent to file the citizen suit under the ESA.

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

In an email statement regarding the settlement, Blakely said, "We learned that even if a judge were to require a U.S. Fish and Wildlife Service environ-mental assessment of the project impacts, the Service could choose alternative actions, such as relocating the endangered mussels to a more suitable habitat. As such, our goals were to see water quality, storm water management and erosion protection measures incorporated into the project, in line with what Fish and Wildlife and the Wildlife Resources Commission recommend."

She added the community wants to see Transylvania County land development procedures evolve.

"For example, the U.S. Fish and Wildlife and N.C. Wildlife Commission agencies typically provide assessments in conjunction with a NCDEQ (Department of Environ-mental Quality) or USACE (Corps of Engineers) analysis of a project," she said. "A county storm water ordinance and review process could help these expert agency evaluations take place at the appropriate time of the permitting stage and would provide crucial feedback to the county, applicant, and to the residents about how natural resources and adjacent properties could be impacted.

"Likewise, with modernizing the county's 2009 Floodplain Manage-ment Ordinance: floodplains are a natural extension of river ecosystems and the agencies have expert guidance for how development should be handled in the floodplain and other environmentally sensitive areas."

In addition, she said the community will continue to request the county require "responsible development" in its planning processes to "protect public and private property, and the community's natural resources."

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