Tuesday, January 29, 2008

Looking for Landslides in Asheville-Part II. Lessons to be Learned from Colorado Springs

Article From:
Colorado Springs Independent
Risky Business
The politics of landslides-and building on landslides-in Colorado Springs

by Bob Campbell
August 16, 2000:

It's the customer's problem

Noe's observations about Springs development politics were voiced in remarkably similar fashion in a 1985 study by the UCCS Department of Geography and Environment.

This publication, "Environmental Hazards:Colorado Springs, Colorado," documents a long-standing history of pretending that we don't have geologic hazards, of regulating hillside development in the most minimal-fashion, and of either "watering down" or failing to enforce what regulations are on the books.

"The attitude of some public officials in Colorado Springs is ambivalent at best," the study observes. "Official policy leans toward caveat emptor (let the buyer beware) when possible hazards exist."

It's not as though public officials haven't had access to needed information. Since 1968, a slew of published studies have identified and discussed landslide sites in greater Colorado Springs.

The problem, according to the '85 UCCS report, is a tendency for Springs policymakers to ignore or plead ignorance of these studies. "The prevailing philosophy appears to be that if an assessment of the hazards ...is not available, then it follows that Colorado Springs has few natural or technological hazards to worry about."

An afternoon's perusal of city records will turn up numerous instances of this "ambivalent at best" attitude--as in a Jan. 27, 1998 letter from former city attorney Jim Colvin (he had retired only weeks earlier) to Richard Young of the law firm Holme Roberts & Owens.

(Colvin's letter is of particular relevance to this story because it was written as expert witness testimony on behalf of Gates Land Co. which was being sued by Ken Garrison, the Regency Drive homeowner.)

Garrison was suing Gates for failure to disclose that his property was situated on a landslide and unfit for traditional construction. Colvin, who was city attorney from 1971 to 1998 and its top legal advisor for 16 of those years, testified for Gates, who developed the Garrison property on a locale identified in previous geologic studies as a landslide and/or "unstable slope" area. (The suit was settled confidentially, out of court.)

In his testimony for Gates, Colvin professes that he was unaware during his tenure as city legal counsel of any of the geologic reports that map landslide areas in Colorado Springs. As City Attorney," he said, "I normally would have been aware of maps showing landslides, but from 1971 until 1995 I was not aware of any USGS or other maps showing an ancient landslide in the area."

Asked about this in a recent interview, Colvin said that the city did a geologic study as a result of the 1973 legislation requiring each city to identify mineral deposits in its community. "We had those studies done," said Colvin, "and they did not show ancient landslide areas. They showed areas of talis--the crumbly stuff that results from mountain erosion--but they didn't show that they were potential landslides. I was unaware of any other studies showing ancient landslides."

Compare this assertion to an assessment of the Garrison landslide by Michael West, one of Colorado's foremost landslide experts. West notes that the landslide complex that destroyed Garrison's home "was identified by the USGS prior to construction of the homes on Regency Drive," and that information about the landslide "was disseminated through published geologic maps available to geotechnical engineers, engineering geologists, developers, local government agencies and the general public."

According to West, the Garrison site should not have been built on. "Construction of permanent, habitable housing in a landslide complex involves high risk of renewed movement and structural damage," and "prudent engineering practice would [generally] dictate avoidance of known landslide areas as permanent building sites."

"Even...after the [Garrison ] property landslide," said Colvin, the City declined to bar construction "in identified ancient landslides, because as a matter of public policy they have determined that no such prohibition is warranted."

Asked why the city didn't consider landslides a cause for concern, Colvin said in an interview last week he considered the Regency Ridge area more of a "soils condition" problem than a landslide concern. "You don't have a landslide until you put weight on it and somebody sprinkles the ground and you create a slippery slope."

"I think it's interesting that this year, without the moisture, we haven't had any landslide problems," he continued. "We only have those problems in the years we get a lot of moisture, and that tells me that it's more of a soils condition problem than a landslide issue. Soils conditions can be dealt with with proper engineering."

Above all, don't get sued

An example of how the private/property/public safety debate drives decision making in Colorado Springs governance can be seen in an agenda item in the Oct.7, 1999 meeting of the Colorado Springs Planning Commission.

On this occasion, the Commission was considering approval of a 16.5 acre development in the Pinecliff community that contains a landslide area. Colvin, who represented the would-be developer of this property at this meeting, insisted that the city had no right to deny his client approval. Paul Tice, who spoke in his capacity as city planner, said the city should not let houses be put on a known landslide site.

Colvin in his argument returns again and again to the fact that the city is liable to a "takings" lawsuit if approval is denied. ("Takings" is a legal concept involving denial of property rights without just compensation.)

"The city has been very successful in avoiding liability for geologic disasters to date [by using] a "buyer beware" attitude," Colvin argued. "Requiring geologic studies is one thing, but for staff to take those studies and restrict where people can and cannot build homes makes the city liable as does geologic disasters."

Planning staff are "sticking their necks out," Colvin warned, if they make geologic hazards a basis for "telling [developers] where they can and cannot build."

Kent Petre, president of Development Management, Inc. the property's would-be developer agreed with Colvin at the Oct.7 meeting. "Staff's position," he insisted, "should be to note that a geologic study has been done and where it's available for public review, but not to determine where the lines are drawn for buildable or unbuildable areas."

Tice countered Colvin and Petre with the argument that the Geologic Hazard Ordinance requires the applicant to identify geologic hazards and then "design the project around those hazards, preferably by avoiding them."

"If a hazard is identified," said Tice, "staff would expect the project design to reflect that no construction would occur in unstable slope areas."

The comments of the Planning Commissioners closely parallel those of Colvin and Tice.

Commissioner Zane Bowers sided with Colvin, stating that city staff's recommendation to avoid construction on the unstable slope area constitutes "a taking of private property; there's no two ways about it."

Commissioner Tracy Nelson, however sided with Tice, arguing that avoidance of geologic hazards on behalf of public safety is a legitimate basis for denying approval.

"Approval of a development plan, he said, "infers to the property buyer that the lot approved is buildable. I wish we [the Planning Commission] could rely on the professional engineers and builders to do the right thing, but unfortunately that doesn't always happen. Sometimes they intentionally ignore the hazards, which I know for a fact happens all the time."

Colvin maintains his position today. "As soon as you tell a developer you can't build somewhere, on the basis that you've reviewed their geologic hazards study, he said in a recent interview, "you've opened yourself up to major big time liability."

"You can always take the position, Colvin continued, "that you don't want any development to occur anywhere where there might be a chance of hazard. That's a zero-risk mentality and you don't get very far with a zero-risk mentality. That means you don't let people drive cars because there might be accidents."

To be continued...



Colorado House Bill 1041 (1974) defines a geologic hazard as "...a geologic phenomenon which is so adverse to past, current, or foreseeable construction or land use as to constitute a significant hazard to public health and safety or to property.

In North Carolina there is no statute recognizing the dangers of geologic hazards.

In June 2006 Buncombe County received applications for 23 major subdivisions encompassing more than 3000 acres of mountain slope development. Some of these applications were for High Carolina (1284 acres), Brittain Knob (279 acres), Phoenix Cove (73 acres), and Town Mountain Cove (175 acres). When this land is added to the approved and on going mountain resort development projects such as Reynolds Mountain, The Settings, Versant, Crest Mountain and Southcliff thousands of homes will have been built on landslide prone slopes.

The Buncombe County Hazard Mitigation Plan (August 23, 2004) determined that the steep slopes and fragile soils of Western North Carolina place Buncombe County at high risk of landslides. This report was issued just weeks before the catastrophic slope failures of September 2004.

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