Estate Planning Attorney inTigerville, SC

A developer wants his day in court after an energized Greenville County planning board reversed course on a housing project in northern Greenville County, quashing it a month after giving it the green light.

In a 4-2 decision at its July 25 meeting to reject Ethan Richard Estates, the Greenville County Planning Commission cited a new rule — Article 3.1 of the county's Land Development Regulations — that allows that body to reject subdivisions that are not "compatible with the surrounding land use density" or the site's environmental conditions. In June, that same body had approved the project.

Article 3.1, added in March, has given the planning commission broad, unprecedented powers to control the direction of growth in Greenville County. The commission invoked it in the rejection of at least three other proposed subdivisions in July and August.

The Ethan Richard Estates neighborhood was proposed along a rural section of Tigerville Road. Homes in the 31-house subdivision would have lot sizes averaging 0.56 acres within a 23.6-acre footprint. Its 11 neighboring lots average 4.8 acres each.

Critics of the project, more than 30 of whom showed up at the commission's public meeting in June, complained the development would perpetuate urban sprawl in an area where the nearest grocery store, in Travelers Rest, is 5.6 miles away.

The developer, Bruce Niemitalo, challenged the Greenville County Planning Commission's July decision to kill the project, saying in legal documents that the board's original approval of the project in June had prompted him to invest time and money for several weeks.

County records show the development company, Niemitalo Inc., purchased a lion's share of the proporty, 22.7 acres, in April for $330,000.

The commission had placed several conditions on the project's June approval, including widening a cul-de-sac in the subdivision so that fire trucks could get in and out.

Julie Turner, who owns a small horse farm across Tigerville Road from the proposed development, has helped organized grassroots opposition to the Ethan Richard Estates project. She was among those in the packed meeting room when the subdivision application was originally approved. Article 3.1, she said, was not properly considered at that meeting because discussion veered toward whether the 26.8-acre property was zoned.

Article 3.1, planning commission members have since clarified, applies regardless of any zoning-related development restrictions.

"We were livid for obvious reasons," Turner said. "We got together and tried to figure out if there was an appeal process."

Turner said her group approached Greenville County Councilman Joe Dill, who represents the Tigerville area, and learned he could take the matter to the County Council and have them send the subdivision back to the Planning Commission for reconsideration.

He did that on July 17, the County Council supported him unanimously, and the matter was added to the commission's July 25 meeting agenda the next day.

Turner and her neighbors have prepared dozens of pages of supporting documents in their battle against Ethan Richard Estates, including a photo illustration, which The News reviewed and was able to recreate, showing the proposed development in the context of surrounding properties.

"Not to belabor Article 3.1, but a picture can speak 1,000 words," she said in an email.

The county's Land Development Regulations are silent on how the planning commission can reconsider subdivision applications.

The minutes of the July 25 planning commission meeting reflect how unusual the situation was, and commission member Chris Harrison expressed reservations at the time:

Mr. Harrison stated he was an open minded person and was happy to reconsider (the Ethan Richard Estates preliminary subdivision application). He cautioned the Commission, this was the first time this had ever happened ... he felt this should not become a habit by any stretch of the imagination.

Niemitalo received official notice of the commission's reversal on Aug. 22 and filed an appeal in state court Sept. 21.

"The Planning Commission's purported reconsideration and revocation of its prior approval of Plaintiff's application was arbitrary, capricious, unreasonable and beyond its lawfully delegated authority," the appeal documents say.

In the appeal, Niemitalo also complains that his development team did not receive reasonable notice that the planning commission was reconsidering his project at its July meeting.

He says he learned about the planning commission's decision to take another look at his project at 3:30 p.m. July 25 — one hour before the meeting. The appeal documents include an email from Paula Gucker, the county's assistant administrator for community planning:

Hey there. Just in case no one in Subdivisions told you. [sic] Mr Dill sent Ethan Richards back for PC to reconsider. It is the last item on the agenda today. Mtg starts at 4:30.

The project's reconsideration was included in an agenda posted online a week before the July planning commission meeting. Dill's request to send the project back to the planning commission for reconsideration was also listed in the County Council's July 17 agenda.

In his appeal, Niemitalo asks the planning commission to stick to its original approval of the project and to pay damages.

Stokely Holder, an attorney for Niemitalo, declined to comment on details of the case.

"With all due respect to you and your profession, I have no intention of trying to litigate this matter in the media," Holder said in an email to The News.

County Attorney Mark Tollison also declined comment. The county has a couple more weeks to respond to the appeal in court.

"We are reviewing the appeal and are in the process of filing an appropriate response to Circuit Court on behalf of the Planning Commission," Tollison said in an email.

For years, residents who travel the intersection of State 290 and Tigerville Road north of Greer have been asking for changes to make the intersection safer. At first they wanted a four-way stop, only to be denied, not once but twice.

Now, after dozens of accidents, including one fatality, their efforts might yield a traffic signal after the Greenville County Legislative Delegation Transportation Committee approved $150,000 to fund it.

The funding is contingent upon the state Department of Transportation's approval and permitting of the project by Aug. 30.

Residents who live in and around the intersection of State 290 and Tigerville Road, along with state legislators who represent that area, want the improvements to make their community safer.

State Senators Tom Corbin, R-17 and Dwight Loftis, R-6, in a letter to the committee, said there have been more than 60 motor vehicle accidents there in the last five years, one of which involved a fatality during this past December.

“State 290 is one of the 10 most traveled routes in Greenville County and with the support of the committee, we believe that the red light will drastically cut down on motor vehicle accidents,” Corbin and Loftis said in their jointly signed letter.

Stephen Cannon, senior pastor at Locust Hill Baptist Church on State 290 (also Locust Hill Road), said his family — wife and three children — live at the intersection.

He said in their five years there, they’ve seen both the number and the severity of the wrecks increase.

Additionally, he said, he has a 14-year-old daughter who’s about to start driving soon and "I’m telling you, it scares me to death to put her on the road multiple times in that intersection.”

Dangerous

A reason it’s dangerous, he said, is that the two sections of Tigerville Road don’t correctly align.

“You end up trying to cross over to Tigerville Road, many times having to go out and around a vehicle to try to cross over the road,” he said.

And just from "living there and having so much experience" with that intersection, Cannon said he’s found that there’s no room for driver error.

“If a car is pulling down that road at 55 to 60 miles an hour, you’re going to bail out down an embankment (southbound), you’re going to bail out northbound 290 into a retention pond,” he said.

And, he said, “It’s not as if you’re pulling out from Tigerville Road onto State 290 and speeding up to 55 miles an hour all the time.”

A lot of residents pull out onto that road, having to slow back down to turn into the church parking lot, to go the restaurant there, and to the Dollar General store -all three of which are at or close to the intersection.

“You’re having to pull out onto a busy road, cars are flying down the road, and then you immediately have to slow back down which makes the intersection even more dangerous,” Cannon said.

State 290 takes northbound traffic directly to U.S. 25 North and its southbound traffic to Wade Hampton Boulevard in Greer. Westbound Tigerville Road also leads to U.S. 25 North, just outside the Travelers Rest city limits. Eastbound Tigerville Road is a popular route to North Greenville University.

The average daily traffic count on State 290 near that intersection rose to 6,600 in 2018 from 5,100 in 2014, according to DOT figures. Traffic on State 14, also a two-lane main connector route from Wade Hampton Boulevard in Greer and northern the reaches of the county — grew to 3,700 in 2018 from 3,300 in 2014.

Sections of Wade Hampton Boulevard average more than 30,000 vehicles a day depending on the intersections near it.

Denied

State Representative Mike Burns, R-17, said the community asked for a four-way stop at the intersection four years ago “when we couldn’t get anything else and were denied.”

“The reason we were denied is there was too much unequal traffic and it would be fool’s gold to do that,” he said. “Then we started having the plethora of accidents.”

“We again asked for the four-way stop and we again were told ‘No, we can’t have it. it would be fool’s gold because the traffic was too unequal.’”

An email statement credited to District Engineering Administrator, Stephanie Jackson-Amell said, "a 4 way stop sign that was warranted by our recent intersection study. Traffic volumes have increased since our previous studies which did not meet warrants."

The project was most recently re-submitted under a different scope — the request for a traffic signal.

An emailed comment attributed to Brandon Davis, DOT District 3 traffic engineer, said the traffic in the area (Tigerville Road and State 290) has increased by 18% from 2016-2018 according to the SCDOT traffic counts.

"We pulled the crash data for the intersection and the number of right angle collisions over the same time frame had increased approximately 50%," Davis said.

"I say approximately because we only had about half of 2019 crash data, we know of a two right angles that were not picked up due to the date of the incident," he said. "We felt, at the district, that the implementation of a four-way stop could greatly help the number of right angle collisions we are seeing at this intersection.

"The intersection does not have the recommended left turn lanes for the installation of a signal and the volumes do not indicate a signal is necessary," Davis said. "Our intention is to determine if the implementation of the four-way stops makes the intersection safer for the traveling public before moving to signalization without all the lanes we would recommend for signalization."

The DOT wants five to six months to evaluate the impact a four-way stop has on that intersection, said Terry Bragg, director of operations for CoTransCo, the contractor that works with the transportation committee.

If that does not stop the accidents or if it causes undue delays to either one of the roads, then they’d approve a signal without turning lanes at the intersection, he said.

The state owns all of those roads, he said, and the state would have to grant encroachment permits before any work can be done on them.

"We have partnered with Greenville CTC to allow a signal installation without left turn lanes if it is then determined needed," Jackson-Arnell said. "There is a waiting time on the signal for the four- way to be reviewed before signal will be installed."

Stop sign fears

Burns and Cannon said the community doesn’t mind a four -way stop being put up until a red light got installed.

But both cited concerns.

There’s a grade from this intersection on both sides of State 290 and “it is in the belly at the bottom of the hill,” Burns said.

“Our fear is you’re going to back traffic up at a four way stop, back up to the church during rush hour times and on the other end you’re going to back it up to that hill," he said. "Those gravel trucks, logging trucks and all of these trucks coming from North Carolina cutting through to go to (Interstate) 85, they’re going to pop that hill and there that four-way stop’s going to be."

“We believe a signalized intersection is much safer,” he said.

The potential for traffic backup on southbound 290, especially when there’s a blind hill, Cannon believes, “could create an even more dangerous situation than what we face right now.”

'More safe, not less safe'

In support of the community, “we want to make it more safe, not less safe,” he said.

When the DOT transforms the intersection to a four-way stop, there will be advance “stop ahead” signs warning traffic about the new stop signs “before you pop over that hill,” Bragg said.

Burns told the committee that he can speak to Corbin, Loftis and the folks in Columbia. He said he believes they can get the DOT to grant the permit.

“It’s not a done deal, but we will diligently do that if we can get your approval,” he said.

A petition of more than 2,200 signatures from community residents supported the traffic signal there, Cannon said.

Close to 100 people filled a Greenville County Square conference room Thursday to witness the committee’s vote and show their support.

They erupted into applause after the committee’s vote approval of the funding.