DENR claims violations pose ‘irreparable injury’

by Leah Justice

After numerous violations&bsp; of erosion and sedimentation laws, the state of North Carolina has filed a lawsuit against LGI Land Group, the developers of Chocolate Drop subdivision in Columbus.

The suit, filed March 26, in Polk County Civil Superior Court, is from the N.C. Department of Environment and Natural Resources (DENR), Asheville office and is ordering that the developers fix erosion and sedimentation issues on the mountainside.

The state lawsuit hands down a mandatory injunction that within 30 days LGI is to submit to DENR a proposed, revised erosion control plan designed and sealed by a licensed, professional engineer with appropriate training and expertise in the field of geotechnical engineering for both temporary and permanent repairs to the development.

The state is giving LGI 60 days to submit a proposed restoration plan addressing the removal of sedimentation from a nearby creek as well.

The suit claims that the development of over 122 acres has been conducted in violation of the Sedimentation Pollution Control Act of 1973 (SPCA) and a few state statutes regarding erosion and sedimentation.

The state’s lawsuit just adds to the legal challenges facing LGI. Seven Chocolate Drop subdivision property owners filed suits against the LGI back in March.

The property owners within the subdivision in their lawsuits claim that LGI frauded them by selling them unbuildable land. Nearby property owners down from the mountain have also sued due to sedimentation problems caused by the development.

LGI has also sued the Town of Columbus claiming that the town promised to take over maintenance of the roads and failed to do so. Town officials say the roads were not stable enough to take over. The town has since closed the entrance into Chocolate Drop due to safety concerns.

LGI began selling lots at Chocolate Drop in 2007 and sold out by early 2008, shortly before the real estate market collapsed. No houses have been built in the subdivision, due to no building permits being issued. A few of the property owners are trying to sell their lots.

DENR says in its lawsuit that LGI was sent several notices of violations over the past two years. Mitigation and repair plans LGI submitted to the state have been denied by DENR as insufficient to address the issues.

On Feb. 4, 2008, the state Division of Land Resources (DLR) sent LGI a notice of violation which described the violations and advised that in order to correct the violations, LGI should, among other things, submit a revised plan and provide measures to repair unstable fill slopes on the property. Repairs to failing slopes on the site were to be designed by a geotechnical engineer, according to the notice of violation.

The notice also instructed LGI to clean, repair and maintain erosion control measures until all areas were stabilized, with a permanent ground cover and to repair an eroding slope at Lot #43.”

Subsequent inspections, however, revealed that the site continued to be in violation during inspections of Jan. 25, April 8 and Aug. 27, 2008, DLR staff determined that off-site sedimentation had occurred since the previous visits.

On March 4, 2008, LGI engineer, Civil Consulting and Design, submitted a proposed revised plan, which also was&bsp; not approved by the state. LGI then retained a geotechnical engineer, Kessel Group, which prepared a report saying the slopes were not stable and recommended reconstructing slopes and the use of substantial rock buttresses and retaining walls.

Revised plans submitted by LGI to DENR on April 4, Sept. 29 and Nov. 20, 2008 were all denied state approval because, among other things, the plans did not address the geotechnical issues presented by failing slopes and did not implement recommendations of the Kessel report, DENR claims in its suit.

On March 5, 2009, DENR issued an order directing LGI to restore the waters and land affected by offsite sedimentation.

The suit claims that as of March 15, 2010 the development remains in violation and that since a Dec., 2009 inspection, numerous additional slope failures had occurred along the upper and lower roads on the site.

Also since the Dec., 2009 inspection, off-site sedimentation, severe in degree, had occurred.

Sediment had washed into the unnamed tributary to White Oak Creek and onto a homeowners’ property, DENR says.

Temporary erosion control measures had not been installed or, if present, had not been maintained so as to retain sedimentation on the property, claims the state.

As of filing the complaint, the state says that LGI has failed and refused to implement measures required by the March 5, 2009 restoration order.

Unstable, failing slopes on the site present a real and present threat of off-site sedimentaion into the waters of the state and onto property owned by other persons, claims the suit.

The suit also says that LGIs continued violation of the requirments pose an immediate irreparable injury to the state of North Carolina and its citizens.

Last year the state fined LGI $116,000 for not properly stabilizing slopes and not producing a geotechinal report. It is not known whether those fines were paid or additional fines were given by the state since last year.