THE STATE OF SOUTH CAROLINA
In The Court of Appeals
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Vulcan Materials Company, Putnam Properties, Inc., Allen M. Knight, and The Timmerman Family Partnership, Respondents,

v.

Greenville County Board of Zoning Appeals and the County of Greenville, Appellants.

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Appeal From Greenville County
Joseph P. Watson, Circuit Court Judge
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Opinion No. 3237
Heard December 8, 1999 - Filed August 7, 2000
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AFFIRMED
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Donald A. Harper and Cynthia Buck Brown, both of The Harper Law Firm, of Greenville, for appellants.

Larry D. Estridge, of Womble, Carlyle, Sandridge & Rice; and Gregory J. English, of Wyche, Burgess, Freeman & Parham, both of Greenville, for respondents.

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FACTS

In 1989, Vulcan began to explore the possibility of mining granite in Greenville County. To that end, Vulcan leased three tracts of land from three different owners:

the Timmerman Family Trust, Allen Knight, and James Putnam.⁽¹⁾ Aggregately, the leased properties are known as the Princeton site.

To assess the quantity and quality of the Princeton site's granite deposit, Vulcan extracted 360 granite samples from the site beginning sometime in 1990. These samples were analyzed by geologists who produced an initial assessment of the deposit on January 24, 1992. Vulcan expended nearly a million dollars to extract and analyze the samples.

Vulcan's mining engineers utilized the geologist's assessment to prepare a mining development plan for the site. After several revisions and additional sampling, the mining plan was finalized in June or July of 1995.

While the mining plan was being developed, Vulcan simultaneously pursued the various permits and studies required by state and federal regulators to mine the site. These efforts produced the following results: (1) an archeological survey of the site, completed in June of 1996; (2) an air permit application, submitted in July of 1995;⁽²⁾ (3) an NPDES⁽³⁾ draft discharge permit, obtained in November of 1995; (4) a protected species survey, completed in May of 1996; (5) a wetlands' delineation, approved in November of 1995; and (6) a draft wastewater treatment permit, issued in November of 1995. Additionally, Vulcan applied for a mine operating permit from the South Carolina Department of Health and Environmental Control (DHEC) in July of 1995. After reviewing the permit application, DHEC indicated it would issue Vulcan a mine operation permit as soon as this zoning litigation was resolved.

By 1994, Vulcan had identified a portion of the 585 acre Princeton site where it planned to extract granite. Naturally, the timber, topsoil, and rock layers which covered the granite deposit had to be removed before extraction could begin, so Vulcan arranged for the site's owners to harvest the timber from atop the deposit and for Thrift Brothers, Inc. to remove the covering layers of soil and rock, known as overburden. Ordinarily, Vulcan would have removed the overburden itself; however, in this case, Vulcan allowed Thrift to remove the overburden on Vulcan's behalf. The arrangement was mutually beneficial as Vulcan needed the overburden removed to expose the granite it sought and Thrift needed the extracted soil and rock in a near-by highway project. As both parties benefitted from the arrangement, no other compensation was exchanged.

Thrift utilized the overburden to improve State Highway 25 pursuant to a contract with the South Carolina Department of Transportation. Because the excavation of rock and soil for a highway project, known as a borrow pit operation,⁽⁴⁾ does not require a mining permit, Thrift was able to remove the overburden before Vulcan obtained its mine operating permit.

Although Thrift's only concern was the operation of a borrow pit, Vulcan ensured Thrift's actions supported its mining operation. Originally, Thrift wanted to establish the borrow pit as close as possible to Highway 25 to reduce its transportation costs, but Vulcan insisted Thrift limit its borrow pit to that area which covered the granite deposit Vulcan planned to extract. Thrift operated the borrow pit from October, 1994 until August, 1995. In all, approximately fifteen acres of overburden were removed to a depth of between 25 to 35 feet. After the overburden was removed, Vulcan hired a contractor to grade the site and seed it to control erosion. Vulcan also established a retention pond and installed a silt-fence around the borrow pit. By the end of this process, a pit of more than two acres remained with outcroppings of granite still exposed. By July of 1996, Vulcan had invested approximately $1,900,000 in the Princeton site.

In early 1996, community opposition to the Princeton site began to develop. When DHEC conducted a public hearing on Vulcan's mine operating permit in April, 1996, local residents voiced their concern over the effects of the mine on the local groundwater. DHEC responded by ordering Vulcan to perform a hydrology study to predict the mine's impact on local groundwater elevations.⁽⁵⁾

On May 23, 1996, the Dunklin Homeowner's Association held a meeting to explore the possibility of prohibiting mining at the Princeton site by having the site zoned for residential use only. Jimmy Forbes, the executive director of the