Tuesday, January 29, 2008

Looking for Landslides in Asheville-Part III. 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:

Shopping around

According to Noe, the 1996 Geologic Hazards Ordinance was a huge step forward toward achieving a workable equilibrium between private property rights and public safety. Aspects of that ordinance, however, haven't sat well with the Housing and Business Association of Colorado Springs.

In a July 29, 1999 letter to City Planning, then HBA president complained that sending development proposals to the Colorado Springs Geologic Survey "bring[s] the state government into the local planning process." This is an uncalled-for intervention, said Wiepking, because the Regency Ridge landslide disaster was "an isolated incident" that affected only "a couple of homes in a hillside area."

Current HBA president Steve Wills agrees. "The Geologic Hazards Ordinance is fine as it is," he said. Strengthening it would only create "further levels of government."

"It's not the government's job to take care of every problem," Wills insisted. "There'll always be people who say the sky is falling and demand more laws, but it's not the job of the government to police every problem under the sun."

A growing number of geologists and public safety advocates, however, complain that the regulatory constraints of the Geologic Hazards Ordinance are too easily sidestepped. One of these critics is local geologist John Himmelreich, a member of the State Hazards Mitigation Team and the legislative and regulatory affairs chairman for the Association of Engineering Geologists.

A repository of information about development issues in Colorado Springs, Himmelreich notes that hillside development can be enormously lucrative. People with money want homes in scenic locales with spectacular views, and some of the most resplendent housing in Colorado Springs is situated in hillside subdivisions rife with geologic hazards. A home recently built on a local landslide area is valued just shy of $1 million.

For developers of such locales, the identification of geologic hazards is never good news. "It means that much less buildable acreage, and hazards mitigation always costs money that would not be otherwise be spent," said Himmelreich.

"Developers, meanwhile, are shrewd businessmen out to protect their investment. Every increase in regulation is that much less freedom to pursue a profit. It's as sound a business practice for them to seek out regulatory loopholes as it is for a corporation to take advantage of tax loopholes."

Given the big bucks at stake, developers often take to playing what Himmelreich calls "the development game," shopping around for "hired guns"--geotechnical and soils engineers willing to cut a corner here and leave a disadvantageous fact out there to deftly contour their soils and geotechnical reports in compliance with their clients' needs.

One of the things making it possible for developers to "shop around" like this is that the city does not have a staff geologist qualified to put soils and geotechnical reports to technical review.

City civil engineer Robin Kidder concedes the city does no technical reviewing. "It's kind of a trust issue, he explained. "We rely on the expertise and integrity of the consultants. All we do is make sure that all the required reports are included, and that the reports address the hazards that the city is aware of."

The city sends a fraction --about 10%--of its soils and engineering reports to CGS for technical review. CGS, however, does not accept the expertise or integrity of consultants on trust, and it is the close scrutiny of these reports--many the work of "hired guns"-- that some local developers characterize as "second guessing."

A modest proposal

Himmelreich and colleagues Don Coates and Jim Frobieter argue that the city could achieve a better balance between private property and public safety by making a few changes in its procedures for approving development proposals.

Coates is retired from the U. S. Geologic Survey and is now a local consultant who teaches at UCCS. Frohbieter is a geologist with Soils and Testing Engineering, Inc.

Geologic hazards will always be with us, and developments built on them will continue to fail, but the vast majority of the destruction and home loss could be eliminated, they say, were the city to:

Adopt HB-1041, 1970s State legislation designed to regulate hillside development, among other things. Springs leaders opted not to adopt 1041 because they viewed it as a threat to their home-rule powers, but adoption would allay the city's "inordinate fear" of lawsuit because it would provide the statutory authority necessary for regulating hillside development.

Require a series of "certifications of completion" signatures from developers and builders on every project. The developer would guarantee by each signing off that all the recommendations made in the soils and geologic hazards reports were carried out exactly and all the recommended mitigation's fully implemented. (Presently, developers are on their honor to do these things; the city doesn't do the inspections needed to verify compliance.)

Hire at least one (preferably more) full-time geologist qualified to perform technical reviews both on paper and in the field.

Rewrite the Geologic Hazards Ordinance of present to replace every "guideline" with a concrete minimum standard. "The present wording has too many 'may bes' and 'should bes,'" says Himmelreich. "There's too much wiggle-room."

Require developers to make full, up front disclosure to homebuyers of all hazards, risk-assessments, recommendations and mitigation associated with that property and structure.

City engineer Kidder agrees with several of the points made by the geologists.

"We do a pretty good job from the paper side," said Kidder, "but we're a little weak in the field. We don't do follow-up inspections to make sure that every avoidance and mitigation recommendation is followed. However, we have a request in City Council for another full-time field person who would do verification."

Kidder said he's also requested funding to develop a Web site that would consolidate "all the standard references--coal mine maps, landslide maps, all the stuff geologists use as starting points--and make them available in one spot for anybody's use."

Kidder agrees that Colorado Springs governance has always tilted lopsidedly toward nonregulation and pro-growth.

"Developers," he said , "are coming from the attitude where 'You're not going to tell me what to do with my land,' and yet they sell that land, and you have unsuspecting customers buying these homes and thinking they're going to be safe for a hundred years. And then those homes start to move."

"The people left with them are devastated. They can't live in them, they've lost all their equity, they have nowhere to turn."

Kidder believes, finally, that the city of Colorado Springs is decades behind other Colorado cities in dealing with this problem. "Adoption of HB-1041, he says "is way, way overdue."

"We had the potential to adopt it [25] years, but the conservative politics of this town weigh heavily in favor of land development and non-regulation. We're a good 10 to 15 years behind the rest of the state in terms of our regulatory controls and enforcement. Other areas in the state do far more than we're doing to protect the consumer."

Meanwhile, 4270 Regency Drive, where the Garrison dream home once stood, is now only a foundation and cracked concrete floor. The house was razed in 1996 and the Garrisons have moved out of state.

The problem continues, meanwhile. A July 24, 2000 letter from David Noe to Donna Fair reports that a landslide-hazard assessment found that a house "located immediately west of downtown Colorado Springs" at the base of a steep 20 foot-hill has suffered severe landslide damage and is subject to "a potentially dangerous and life-threatening situation for the occupants of the house, as well as for drivers on Communication Circle."

"Abandoning the house," Noe concluded, "would address the immediate danger."


The following press release was sent to City of Asheville Councilmember Carl Mumpower on July 13, 2007:

Press Release: Mountain Air Resort Landslide Alert

Mountain Air, the nationally known Burnsville, North Carolina resort community, is being sued by a group of property owners whose condominium units have been damaged by slope failures,

In 2003 the foundations of two of the five Austin View Villas began cracking and by late 2004 the foundations of the building began "sliding" down their steep embankment causing extreme structural instability. According to court documents the Villas have been uninhabitable since early 2005, (07 CvS 19). Current tax records show the value of each of the units to be $640,000.

A similar complaint was filed against Mountain Air Development Corporation by the Hemlock Bluff Villas Condominium Association, Inc. for damages caused by a landslide. The Hemlock Bluff units are adjacent to the Austin View Villas and in August 2004, two of the condo building were severely damaged by slope failures. This case has been settled out of court,(06 CvS 51).

On June 20, 2007 the Mountain Air Development Corporation placed a half page advertisement in the real estate section of The Wall Street Journal introducing the sale of their newest mountain slope properties...Settlers Edge offers unbelievable views...the Settlers Edge opportunity is very limited...just 16 spectacular homesites, 11 mountaintop estate homes, and 38 condominium homes. Readers of the Mountain Air promotion will find no mention that the property being marketed is in a high risk natural hazard area and that property owners in the resort have experienced landslide property damage.

Mountain slope property is Western North Carolina's most important salable asset. Unfortunately all of this real estate is in a state designated high risk natural landslide hazard region, (1998 Report/North Carolina Department of Emergency Management). Developers know that old landslide deposits and unstable soils are common geologic hazards and they profit on their ability to site and sell homes in these locations without state regulation and without client disclosure of property risks.

The financial risks for those who live on or near unstable slopes can be extreme. In North Carolina there is no insurance coverage available to protect homes and property from landslide damage regardless of the cause. Insurance companies know from experience that landslide events are predictable and costly and they will not insure this risk.

For more information about the Mountain Air lawsuits please visit http://www.wncsos.com/.

Lynne Vogel

Councilmember Mumpower's response on July 13, 2007:

Thank you for this. It remains that there have been no slides in Asheville City and the statistical significance of the number of slope issue incidents across WNC are so limited as to be statistically insignificant. It is my personal sense that government should be responding to the horses and not the zebras and that Asheville's draconian steep slope ordinances are a special interest indulgence.

It is my continuing belief that safety issues are being highlighted and exaggerated as a means to the deeper agenda of protecting views and impairing growth. Although I understand the agenda, I would question the ethics of the method and the intrusion represented in trying to artificially control property we do not own.

That said, I do not personally not note significant safety (the slide is to slow) or economic risks for the property owners you mention. Million dollar summer homes imply the capacities to assume the measured risks of building where you have access to those expensive views.

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