ORDERS:
CONSENT ORDER OF DISMISSAL
Genevieve Peterkin and William Taber brought this action to challenge the Department of
Health and Environmental Control's authority and decision to issue a permit to Larry Shealy for the
construction of four broiler houses on land located in Calhoun County, South Carolina. The parties
to this action have now agreed to resolve their differences in an amicable manner and have agreed
to dismiss this action with prejudice. The dismissal of this action is predicated upon and made
possible by the mutual obligations, covenants, and restrictions set forth in the Settlement Agreement,
attached hereto and incorporated herein. I find this Settlement Agreement to be a reasonable
resolution of this matter and adopt it as part of the Order of this Court. Therefore, in light of the
Settlement Agreement between the parties, and in light of the parties' willingness to dismiss this
case, it is hereby
ORDERED, ADJUDGED AND DECREED
1. That the above captioned case is dismissed with prejudice;
2. That Petitioners shall have a continuing right to enforce the settlement agreement and the
covenants required by said agreement; and
3. That Agricultural Permit AG-18,379-AG is now a final DHEC permit to construct.
AND IT IS SO ORDERED.
___________________________
Stephen P. Bates
Administrative Law Judge
Columbia, South Carolina
September 16, 1998
WE SO MOVE AND CONSENT:
______________________________
James S. Chandler, Jr.
Attorney for the Petitioners
_______________________________
Michael M. Shetterly
Attorney for Respondent Larry Shealy
_______________________________
William A. Ready
Attorney for DHEC
(NOTE: SETTLEMENT AGREEMENT FOLLOWS)
ATTACHMENT AND PART OF CONSENT ORDER OF DISMISSAL FILED SEPTEMBER 16, 1998; DOCKET NUMBER 98-ALJ-07-0035-CC
STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW JUDGE DIVISION
Genevieve C. Peterkin and William T. )
Taber, ) Docket # 98-ALJ-07-0035-CC
)
Petitioners, )
)
vs. )
)
South Carolina Department of Health )
and Environmental Control, and )
Larry Shealy, )
)
Respondents. )
______________________________________________________________________________
SETTLEMENT AGREEMENT
______________________________________________________________________________
PARTIES
The South Carolina Department of Health and Environmental Control ("DHEC") is an agency
of State Government, authorized under the South Carolina Pollution Control Act to issue permits
to confined feeding operations in South Carolina. They are the Respondent in the above captioned
action, defending their discretion and authority to issue a permit to Larry Shealy.
Larry Shealy is a citizen and resident of the State of South Carolina, County of Calhoun. Mr.
Shealy applied for a permit to construct four broiler houses on appropriate property located in
Calhoun County. DHEC issued Mr. Shealy a permit dated December 18, 1997 to construct four
broiler houses on said property, Permit Number 18,379-AG.
Genevieve C. Peterkin is a citizen and resident of the State of South Carolina, County of
Georgetown. She and her family own land neighboring and adjoining Mr. Shealy's aforementioned
tract. She petitioned for review of Mr. Shealy's permit from DHEC, and DHEC's authority to issue
the permit. This petition is the subject of the above captioned proceeding.
William T. Taber is a citizen and resident of the State of South Carolina, County of Calhoun.
He is a neighboring resident of Mr. Shealy's aforementioned tract. He also petitioned the
Administrative Law Judge to review Mr. Shealy's permit and DHEC's authority and ability to issue
Mr. Shealy a permit.
BACKGROUND
As drafted, DHEC has authorized the Shealys to construct four broiler houses on the
aforementioned tract of land. The Petitioners, Peterkin and Taber have timely petitioned the
Administrative Law Judge Division to determine whether or not the permit should have been issued
under the South Carolina Pollution Control Act. Instead of litigating the aforementioned dispute,
all the parties have agreed to settle the matter under the following terms and conditions:
TERMS OF SETTLEMENT
Now, for and in consideration of the mutual covenants contained therein, the parties agree to
the following:
1. To dismiss, with prejudice, the above referenced action, and any and all claims or possible
claims asserted against each other.
2. The petitioners agree to withdraw their petition and allow the Shealys to go forward and
build the four broiler houses and operate them in accordance with the permit to construct #18,379-AG issued by DHEC, dated December 18, 1997.
3. Mr. Shealy agrees not to place any more poultry houses on the tracts of land covered by
Permit #18,379, other than the four that are currently permitted. The property covered by this
agreement are the two tracts of land which are more accurately described as:
(1) All that certain piece, parcel or tract of land, with improvements thereon
situate, lying and being in Amelia Township, Calhoun County, South Carolina,
containing 107.40 acres, more or less and shown on a plat prepared for Larry O.
Shealy, Jr., and Karen B. Shealy by Donald J. Smith, Jr., R.L.S., dated January
31, 1990, and recorded in the office of the Clerk of Court for Calhoun County as
Plat 3435-A, and bounded and measuring as follows: On the North by lands now
or formerly of Peterkin, measuring thereon 621.14 feet, more or less; on the East
by lands now or formerly of Peterkin, measuring thereon 4021.06 feet, more or
less; on the South by Road S-9-80, measuring thereon 2358.20 feet, more or less;
on the Northwest by lands now or formerly of Peterkin, measuring thereon 1319.60
feet, more or less; and on the West by lands nor or formerly of Peterkin, measuring
thereon 3208.03 feet, more or less.
Being the same property conveyed to Larry O. Shealy, Jr. and Karen B. Shealy
by deed of Julian C. Adams, dated March 19, 1990, and recorded March 19, 1990,
in the office of the Clerk of Court for Calhoun County in Deed Book 46 at Page 309.
(2) All that certain piece, parcel or tract of land, with improvements thereon, situate,
lying and being in Amelia Township, Calhoun County, South Carolina, containing
38.47 acres, more or less, and shown on a plat prepared for Larry O. Shealy, Sr.,
and Zelda S. Shealy, by Donald J. Smith, Jr., R.L.S., dated January 31, 1990,
recorded in the office of the Clerk of Court for Calhoun County as Plat 3437-A,
and bounded and measuring as follows: On the North by Road S-9-80, measuring
thereon 2502.17 feet, more or less; on the East by lands now or formerly of
Peterkin, measuring 558.35 feet, more or less; on the South by lands now or
formerly of Peterkin, measuring thereon 2428.90 feet, more or less; and on the
West by S.C. Highway 419, measuring thereon 767.47 feet, more or less.
Being the same property conveyed to Larry O. Shealy, Sr., and Zelda S. Shealy
by deed of Julian C. Adams, dated March 19, 1990, and recorded March 19, 1990,
in the office of the Clerk of Court for Calhoun County in Deed Book 46 at Page 313.
4. Mr. Shealy further agrees to sign a Covenant running with the two aforementioned tracts
of land, disallowing them or any future owner from building more than the four currently permitted
houses.
5. The Shealys agree to provide screening from the poultry houses, on the northern,
northwestern, western and southwestern sides of the houses. The screening shall consist of a
vegetated buffer containing three staggered rows of trees--one row of pine trees, two rows of cedar
trees. The trees in each row must be set no more than 6 feet apart. The trees can be planted initially
as seedlings, and the vegetated buffer shall be installed and maintained at the Shealy's expense so
long as the poultry houses are in operation. The parties agree that the row of trees providing
screening can be interrupted to allow reasonable access to the property. The parties shall agree in
good faith on the points of entry and the width of the access. The parties agree to work with one
another in good faith as to any alteration in the exact type of trees and the placement thereof.
6. The parties agree that this is a full and complete settlement. By signing this document,
neither party admits the truthfulness of the other parties' allegations.
7. Petitioners agree not to protest any county permits, or any other permits necessary to build
the four broiler houses described in the aforementioned permit to construct.
8. Both parties agree to cooperate fully with the other in order to effectuate the intent and
meaning of this agreement.
9. This documents represents a full understanding of the agreement between the parties, and
revokes any former agreements or offers made.
10. The agreement shall be governed by the laws of the State of South Carolina.
11. Any term or clause found herein to be illegal or enforceable shall not render the remainder
of this agreement invalid.
Agreed this 14th day of September, 1998.
Witness:
________________________ _______________________________
Larry Shealy
________________________
________________________ _________________________________
James S. Chandler, Jr. Genevieve C. Peterkin
________________________
Randall McGee
________________________ __________________________________
William T. Taber
________________________
________________________ ____________________________________
Betty Treacy SC Department of Health and Environmental
Control
________________________
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