By Jesse Wood
July 21, 2014. A local business owner has filed a civil lawsuit in Watauga County Superior Court against CCC-Boone LLC, the developers of The Cottages of Boone, the largest student housing development in the county that opened in the fall of 2013.
Sam Abdin, the owner of The Car Company of Boone dealership on N.C. 105, located below the 60-acre development, filed the lawsuit on July 16 due to the flooding of his property that has caused an estimated $400,000 in damages during several floods that have occurred since construction began on The Cottages property. The floods in question, all of which took place in 2013, occurred in late January, April and May – and two in early July.
The 50-page complaint filed in the courthouse claims that flooding damaged 65 vehicles – some of which were either completely totaled or severely marked down due to the required flood-damage label. Abdin mentioned that $25,000 of car parts and tools, stored in the basement of his house on the same property, was lost. He also noted the costs of cleaning up the flood debris, which included construction materials from The Cottages of Boone, the flood-aftermath landscaping and the placement of additional layers of gravel placed on his property over the past two years.
The complaint includes exhibits of photos and video of knee-level floods on Abdin’s property.
Abdin said he recouped about $70,000 from his insurance company before he said he declined to take any more money from the insurance company. Then his insurance rates doubled. Prior to the construction of The Cottages of Boone, which was built on property almost exclusively covered in trees and vegetation, Abdin’s land experienced “little to no flooding” since Abdin opened The Car Company of Boone in 1988, according to documents filed at the Watauga County Courthouse.
“If CCC’s actions are not redressed by this Court, it will [bring] the stinging message to the community [that] it is acceptable for a large national company to swoop into a community and drive a local business of 25 years to the brink of bankruptcy for no reason other than its own malicious pursuit of profit,” the lawsuit states.
Abdin’s attorney Tyler Moffatt of Moffatt & Moffatt, PLLC, said that this isn’t a complicated issue.
“I can literally sum up the 50-page complaint in about two sentences,” Moffatt said. “They took a mountain that used to be covered in trees, cut it in half and covered it with asphalt and concrete, and they didn’t realize who it might possibly effect downhill and downstream of them.”
John Vawter, principal of Capstone Collegiate Communities, which is based out of Birmingham, Ala., declined to comment due to this issue being a legal matter.
Abdin’s property receives water runoff from multiple sources – a three-foot culvert that takes in water runoff from the hillside bordering The Cottages development, a nine-foot culvert that takes in water from underneath Ingles shopping center and a stormwater grate from N.C. 105. Abdin said he has a four-foot culvert underneath his property. Abdin added that he wanted to install a bigger culvert when his culvert collapsed years ago, but the Town of Boone wouldn’t grant that request.
“I’ve been here for more than 25 years and people come by a car from me because they trust me,” Abdin said. “I am not here to take anybody’s money, but at the same time I expect people to treat me the same way.”
While Abdin’s home and dealership off of N.C. 105 are located in the Town of Boone, the development of The Cottages of Boone is located in Watauga County. Primary regulatory oversight of the development was conducted by the Watauga County Planning Department. However, a small section of The Cottages of Boone, including a portion of the road entering the development, is under the town’s jurisdiction.
Both the Boone Planning and Inspections Department and the Watauga County Planning Department approved CCC-Boone’s sedimentation and erosion plan in early 2012 – before violation notices were issued for sediment control issues during the construction phase, according to Abdin’s complaint that was filed at the courthouse.
“Approximately two months after CCC received approvals from the County Planning and Boone Planning Department, reports prepared by the respective planning departments began to reveal the erosion and sediment control issues cropping up at The Cottages of Boone project,” the complaint reads.
In July 2012, a Soil Erosion and Sedimentation Control Inspection Report (SESC Report) prepared by the Boone Planning and Inspections Department indicated that the project was not in compliance with the town’s Unified Development Ordinance for “failure to maintain erosion control measures.”
A month later, the Watauga County Planning Department filed a similar SESC Report and noted that this project wasn’t in compliance with the Sedimentation Pollution Control Act of 1973 for “insufficient measures to retain sediment on site.” During the same month, the county’s planning office also prepared a Sedimentation Inspection Report (SIR) and found again that the project wasn’t in compliance with the Sedimentation Pollution Control Act of 1973. It then issued a violation.
In October 2012, the N.C. Department of Environment and Natural Resources Division of Water Quality mailed a notice of violation to the developers and the county sent an email to a CCC representative during the same month, enclosing a copy of the notice of violation and “provided that this notice of violation is ‘actually the third instance of your grading contractors causing the stream near the project to be polluted.’”
Similar reports were filed for months through July 2013. Before allowing to proceed with the completion of the development, the town and county planning departments erosion and sediment concerns were fixed and met with “satisfaction,” both directors of the town and county planning departments said.
“Upon information and belief, CCC was abundantly aware of the erosion control, sediment runoff, surface water runoff, storm water runoff and debris water runoff problems created by The Cottages of Boone project and despite numerous citations by various regulatory bodies, CCC continually failed to maintain all measures necessary to address the problems it created by constructing The Cottages of Boone project,” Abdin’s complaint reads.
Watauga County Planning Director Joe Furman said that his office wasn’t contacted by Abdin about this issue.
“I wish he would have called,” Furman said of Abdin’s flooding problems and the lawsuit.
Furman recalled that his office received one complaint regarding The Cottages of Boone and flooding issues, and that occurred more than a year ago during construction of the project.
Furman added, “Water control law is difficult anyway because there are not any state or federal regulations or any really good court decisions about water going from someone’s property onto somebody else’s.”
Furman also pointed to something known as the Common Enemy Doctrine.
“Under the so-called common enemy rule as well as under the civil law, however, water which naturally flows from higher to lower land may continue to do so without subjecting the upper owner to any liability therefor. The dominant owner is entitled to drain the surface water in a natural watercourse from his land over the servient owner’s land, and if any damage results, the servient owner is without remedy, but if the volume of water is substantially increased or the manner or method of drainage is substantially changed and actual damage results, the servient owner is entitled to relief,” according to the water section of the American Jurisprudence.
Boone Planning Director Bill Bailey noted the “fuzziness” that Furman spoke of regarding the courts not “really addressing” this issue and also about being a good neighbor – something else that Furman touched upon in a brief interview. Bailey also mentioned that the town and county have the same regulations as far as soil erosion control, which are modeled after ordinances handed down from the state.
Bailey said that at least two property owners – not including Abdin – have called his office complaining about sediment erosion from The Cottages of Boone development. But with that being a development in the county, Bailey said his office cannot provide any recourse to the affected property owners.
Bailey attributed Abdin’s flooding problems to the development because it “wasn’t occurring before.”
“It’s occurring now, and to me the only change has been The Cottages,” Bailey said.