Fight to save Gadsden Creek from WestEdge development continues with legal appeal

Photographer

Gadsden Creek was transformed into a tidal drainage channel when the city filled 120 acres of marsh with garbage in the 1950s and '60s. What once was a sprawling wetlands along the Ashley River became a narrow body of water that runs atop the landfill. But over the years, it was "naturalized," and community activists now are trying to save it from development. Gavin McIntyre/Staff

The Friends of Gadsden Creek are not taking "no" for an answer. The group is pushing ahead in its effort to stop a new mixed-use development from replacing the waterway with a hotel, office buildings and condominiums.

A brief recently filed in the S.C. Court of Appeals disputes a decision by the S.C. Administrative Law Court that favored the WestEdge Foundation and the city of Charleston in a lawsuit pitting community activists against municipal and commercial interests.

WestEdge is overseeing development in one of the city's tax-increment financing districts. It plans to fill what's left of one of the last remaining tidal creeks on the Charleston peninsula.

GADSDEN CREEK: Gadsden Creek today is a manipulated remnant of what was once a sprawling wetland area along the Ashley River. Some in the city are hoping to protect it from nearby development. (Source: Esri)

The controversy over whether to save or destroy Gadsden Creek is a case study in how city-backed development can be leveraged to upgrade infrastructure and provide a public benefit.

It also shows how city-backed development continues to threaten African Americans on the West Side who have experienced a series of assaults over the decades, community activists say. This is just the latest project to encroach on the property, culture and history of Black people in Charleston, they say.

Ben Cunningham, an attorney with the South Carolina Environmental Law Project, which is representing Friends of Gadsden Creek, said the law isn't the only thing on his side. So is a moral imperative to administer justice.

The project to fill in what has become a 4-acre tidal channel and erect more buildings on the site would generate new property tax revenue and enable a massive flood- and pollution-mitigation project to proceed. As the issues are contested in court, residents of the low-income housing project Gadsden Green and nearby homes on Charleston's low-lying West Side wait in fear of the next hurricane, the next rain bomb, the next storm surge.

Until the new drainage project is complete, this neighborhood remains vulnerable not only to the forces of Mother Nature but also to toxins leaching into the creek from a massive garbage dump that replaced 120 acres of marshland along the Ashley River in the 1950s.

For now, though, it's all in limbo.

Hagood Avenue, which is prone to severe flooding, runs between Gadsden Creek and WestEdge on one side and the Gadsden Green public housing complex on the other. Gavin McIntyre/Staff

Gadsden Creek once was a significant tidal waterway that meandered into a pristine marsh. It was used regularly by Black residents for crabbing, fishing, religious ceremonies and recreation. The creek provided physical, spiritual and cultural sustenance.

In the 1940s the city designated the area where the Gadsden Green housing complex now stands an urban renewal project. It cleared away dozens of single-family homes and replaced them with public housing.

Then, in the 1950s, the city filled the adjacent marsh with garbage, bulldozing and compacting the material so that the Charleston peninsula could gain acreage on which to build.

Filling in marshland was not a new practice; today, much of the peninsula — around 40 percent — is filled land, some of it hazardous. But this particular landfill effort is best understood in the context of "urban renewal," which now is widely acknowledged to have been racially discriminatory, Friends of Gadsden Creek and their allies argue.

In the 1960s, more homes on the West Side and across the peninsula were demolished to make way for the Crosstown Expressway — now named the Septima P. Clark Parkway — displacing hundreds of African Americans and damaging what had been a cohesive Black neighborhood.

Efforts elsewhere downtown, such as the Ansonborough renewal project and the construction of the Gaillard Auditorium, also resulted in the displacement of Black residents.

So it's no wonder that African Americans on the West Side now fear WestEdge and its impacts, and that many of them want the creek preserved.

A woman wades through floodwaters beside the public housing complex Gadsden Green in 2020. File/Andrew J. Whitaker/Staff

WestEdge wanted the creek preserved, too. When the TIF district — a defined area of blight eligible for special public financing — was defined in 2008, the plan was to build around it. But years of study that included core sampling, water testing, consultations with experts, and revised predictions of sea level rise, along with financial concerns, forced planners to reconsider.

In a lengthy decision that systematically addressed all of the various concerns raised during legal proceedings, Chief Administrative Law Judge Ralph King Anderson III stated he was not convinced by the arguments of Friends of Gadsden Creek.

"In a perfect world, preserving and restoring the creek would clearly be the desired outcome," Anderson wrote. "The creek is a valuable resource. But this is a very unique situation, and the creek is tainted by a landfill that must be dealt with." Dangerous concentrations of lead, arsenic, chromium, mercury and PCBs are leaching into the waterway, washing onto adjacent land, and flushing into the Ashley River.

The surest way to cap the exposed portion of the landfill where the creek runs and prevent its continued erosion is to fill the drainage channel, he wrote.

Other options presented by Friends of Gadsden Creek — installation of a tidal gate at the culvert, construction of a berm along Hagood Avenue, and elevation of adjacent streets — failed to convince the judge that the acute flooding and contamination problems could be solved, or that they could be adequately addressed without spending many millions of dollars more on work that falls outside the purview of the TIF district.

Cunningham said a restored creek would provide a natural solution to saltwater storage and stormwater drainage. Pluff mud and spartina grass already have accumulated atop portions of the landfill, and there's no reason why a properly excavated and repaired creek, with a restored cap, couldn't keep the contaminants at bay, he said, citing testimony by Joshua Robinson, an engineer and hydrologist who appeared in court on behalf of Friends of Gadsden Creek.

Adding a berm (earthen barrier) along Hagood Avenue, raising the roadway and installing a culvert gate could control the influx of tidal waters. The western side of Hagood Avenue is within the TIF district, but most of the eastern side isn't, according to city officials. And the street is controlled by the S.C. Department of Transportation, which would need to participate in any authorized road improvement project that would likely cost tens of millions of dollars and take years to complete.

But that's better than the current plan, Cunningham said. Besides, he said, the city damaged the community repeatedly over the decades, and therefore the city must remedy that damage. Using high costs as an excuse to avoid doing the right thing merely extends the injustice.

"The community shouldn't have to forfeit the last greenspace," he said. "Is it too much to ask to preserve and enhance the last remnant of an ecological system that's culturally valuable to that area? ... What's the city willing to do for the community?"

He said he rejects the rhetoric that admits the injustices of the past in one breath then dismisses them in the next.

"That was terrible, but what can we do about it now?" goes the sentiment, Cunningham said. "I have a real problem using that as a springboard for more development. ... The city is putting the nail in the coffin of what it started years ago."

The WestEdge complex towers over part of Gadsden Creek. WestEdge, located in a TIF district, is spearheading a large-scale project to address flooding and contamination issues on the West Side. Gavin McIntyre/Staff

The scope and cost of addressing the flooding and contamination issues are enormous, which is precisely why the city designated the area a TIF district. Tax increment financing — selling bonds and incurring debt to be paid off with future property tax revenue — enables officials to raise the money required to upgrade public infrastructure (which is the only allowed use of the funds). The $15 million remediation project would address three related issues at once: nuisance tidal flooding, stormwater drainage and landfill pollution.

The tax revenue needed to pay back the accumulating debt would be derived by developing the rest of WestEdge.

Michael Maher, CEO of the nonprofit WestEdge Foundation, said a regular development project could never solve these problems, and the costs are difficult for any municipality to bear alone. By creating a TIF district, the city finally can generate the funds required to do the necessary infrastructure work.

The TIF district designation expires in about 15 years, so the delay prompted by the lawsuit has both financial and quality-of-life repercussions, he said. Each day of legal limbo is one less day WestEdge has to build out the project and ensure the flow of new tax revenues, and it's one more day that West Side residents must endure the threats posed by flooding and contamination.

Maher said the project's public benefit is significant, assured and lasting. Other solutions would not be as effective and would add significant costs. A berm would inhibit access to the creek, block the view, and potentially slow the outflow of stormwater. A raised Hagood Avenue could worsen stormwater flooding at and around Gadsden Green.

He said he appreciated concerns about gentrification but noted that WestEdge will cause no displacement of residents. People who choose to live in the new apartments there are not buying single-family homes that already exist in the neighborhood and therefore not adding much pressure to the real estate market for such homes, he said.

Adding high-density residential inventory helps to moderate the rising costs of housing, and the Publix supermarket is an obvious gain for West Side inhabitants, Maher said. About half of WestEdge residents hold jobs in the hospital district across the way, which keeps cars off the roads and healthcare workers close to their place of employment.

All of it is a consequence of public dollars. That's the nature of tax increment financing, Maher said. So it's important to spend those dollars wisely and efficiently.

"It's not a perfect solution," he said of the current plan, "but it's the best solution we have."

The current plan also calls for a landscaped drainage pond, historical interpretation of the West Side, new access to Brittlebank Park and education and job training initiatives.

Michael Maher, CEO of the WestEdge Foundation, discusses Gadsden Creek challenges and his company's proposed solutions as he stands by the waterway on May 2, 2022. File/Staff

Any alternative approach would likely require a new round of review and permitting by the Department of Health and Environmental Control and the Army Corps of Engineers.

Matthew Fountain, the city's director of stormwater management, said a berm and elevated Hagood Avenue likely would contain tidal water but, without expensive check valves, pumps and pipes, would do nothing to improve rain-caused flooding west of the road. At best, he said, a berm would only drain stormwater when the tide is low.

"It wouldn't improve (neighborhood) flooding; it would only make the flooding no worse," he said.

Pumping water into the creek could change its ecology, an issue the Corps of Engineers would likely want to consider, Fountain said.

Restoring the creek (which should never have been designed to run across the landfill in the first place, he said) would entail extensive excavation and removal of the garbage, the installation of some kind of waste-containment system, including cut-off walls along the sides of the waterway. All the garbage would need to be transported somewhere else, and dirt trucked in and deposited in its place.

Some excavation already is planned by WestEdge in preparation for filling in the creek, but the clearance effort needed to revitalize the drainage channel could pose dangers.

"(E)xcavation of uplands to create tidal marsh adjacent to Brittlebank Park is not authorized," the Army Corps wrote in its 2019 permit for work related to deep tunnel drainage construction. "The potential negative impacts associated with excavating a portion of a former landfill and restoring tidal flow to this area far outweighs the potential environmental benefits of the proposed mitigation activities."

Arthur McFarland, former co-president of the Charleston Area Justice Ministry, speaks at the 2019 Nehemiah Action Assembly at Mt. Moriah Missionary Baptist Church in North Charleston. File/Grace Beahm Alford/Staff

The Charleston Area Justice Ministry has made the Gadsden Creek issue one of its advocacy priorities, throwing its support behind the effort to preserve the waterway.

Arthur McFarland, a retired municipal court judge, advocate for the West Side community and former co-president of the Justice Ministry, called for a comprehensive approach to the various issues facing the neighborhood. He said he's afraid that focusing too narrowly on Gadsden Creek flooding and contamination could result in the persistence — or emergence — of other problems.

For example, the Charleston Housing Authority plans to upgrade the Gadsden Green housing complex. But the timing and exact scope of work are not yet defined. Residents, he said, are concerned about the potential for disruptive impacts. That project needs to be prioritized and made part of a broader effort to improve the whole area, McFarland said.

More affordable housing is needed there, along with green space and other amenities, he said. Those, too, should be part of a comprehensive plan.

He said he is dubious of claims that TIF revenue will provide significant benefits to nearby residents, other than some infrastructure improvements that the city was obligated to provide in any case.

"This tests the sincerity of WestEdge and the city," McFarland said. "I think the Gadsden Green community is not primary, or even close to being primary, in their consideration. What the people of that area believe is they will gain absolutely nothing. In the long run, they will lose."

City Councilman Keith Waring, who has paid close attention to the issue, said he is sympathetic toward those seeking to save the creek and wonders whether a compromise is possible. Perhaps more funding can be secured by tapping into federal infrastructure money, enabling engineers to devise a viable alternative solution, he said.

Waring is concerned that Friends of Gadsden Creek is downplaying the contamination problem and hopes the legal appeal isn't merely a stalling tactic, he said. After all, nothing much can be done until the flooding problem is solved.

Councilman Keith Waring, pictured here at a 2020 press conference, has been paying close attention to the Gadsden Creek controversy. He said he hopes a compromise can be reached soon. File/Staff

As for Gadsden Green, perhaps the Housing Authority should transfer control of the complex to the city, and the city should design a large-scale low-income and affordable housing initiative for the area, replacing what's there with hundreds of new and improved units, Waring proposed.

He remains uncertain about the fate of the 4-acre "channelized and relocated tidal creek," as the Army Corps of Engineers called it in 1981.

"I don't think we can save all the creek," he said.

Maher welcomes feedback and looks forward to discussing the addition of project-related public amenities. But any conversation that belittles the contamination problem, cost challenges and urgent need for flood mitigation, or ignores the requirements of tax-increment financing, is not likely to be very productive, he said.

"We’ve got significant challenges, and these challenges require investments," he said. "Who will benefit if a ‘restored’ creek continues to flood the neighborhood?"

The appeals process could take many months, or even years, to complete. Litigants can ask to leapfrog over the Court of Appeals in order to bring the case before the South Carolina Supreme Court and achieve a quicker resolution, but that request has not yet been made.

Gadsden Creek, photographed here on May 4, 2022, has been altered and relocated over the years. Originally, it was a robust tidal creek embedded in 120 acres of marsh along the Ashley River. Today, it's just 4 acres and runs atop a landfill. Andrew J. Whitaker/Staff

Contact Adam Parker at [email protected].

Photographer

Adam Parker has covered many beats and topics for The Post and Courier, including race and history, religion, and the arts. He is the author of "Outside Agitator: The Civil Rights Struggle of Cleveland Sellers Jr.," published by Hub City Press.

The new rate will increase taxes by $42 per year for an owner-occupied home worth $300,000. County residents did not see a tax hike last year. Read moreProperty tax hike, $11M in staff raises coming for SC's fastest-growing county

The North Charleston Library — the first of several planned libraries in Dorchester County — is set to open in August. The county is partnered with Dorchester District Two to share the library with Fort Dorchester High School. Read moreDorchester County's North Charleston Library to open in August with tech focus

The Korn Ferry Tour announced it would extend its partnership with the BMW Charity Pro-Am for another four years. The golf tournament has been held in Greenville and Spartanburg counties since 1992. Read moreKorn Ferry Tour commits to 4 more years with BMW charity golf tournament

Greenville County Council narrowly passed a second reading of its budgets for the next two years after a compromise on a reduction of the proposed tax rate increase just hours before the vote. Read moreAfter compromise, Greenville County passes tax increase with budget