What likely would have remained a private dispute became public when the developer refused to repair the damaged roads within his subdivision.
Don Condren— Developer of Horseshoe Cove — Subdivision Street Disclosure Statement
At the time of sale of Horseshoe Cove lots Mr. Condren provided his clients with a form titled Disclosure of Private Roadway. By signing these documents, Horseshoe Cove property owners relieved Mr. Condren of all future financial obligations. These forms are currently titled Subdivision Street Disclosure Statements and are required for all developer-declared planned communities.
North Carolina General Statutes Section 136-102.6
If the street is designated by the developer and seller as a private street, the developer and seller shall include in the disclosure statement an explanation of the consequences and responsibility as to the maintenance of a private street, and shall fully and accurately disclose the party or parties upon whom responsibility for construction and maintenance of such street or streets shall rest, and shall further disclose that the street or streets will not be constructed to minimum standards, sufficient to allow their inclusion on the State highway system for maintenance.Assessing Horseshoe Cove Landslide Damage
Darell Bowen, a Horseshoe Cove property owner, summarized the situation in a June 19, 2003 letter:
It is very clear to me that every one of us in Horseshoe Cove is affected by the current situation. Our property values have declined substantially, if we could sell at all. Those of you that are renting are being affected by loss of rental income. At this point, none of us can rent or sell without first disclosing this situation to any potential tenants or buyers. Currently there is a potential danger to every one of our homes. Some areas are more dangerous than others. First of all, there are two spots on Bridle Drive, one on Stirrup and one on Creekside where the road could completely wash out very easily. If the one spot on Bridle goes, so goes the sewer, which will affect all of us. Secondly, there are some boulders placed up on Stirrup that are going to come loose at some point. When they do there is the potential to damage property and injure people down on Bridle and or Creekside. Lastly, we have to get the erosion under control or the whole mountain is going to continue to deteriorate.Litigation
After the engineering report is done, we may need to consider making some of these repairs now because I don’t think they can wait very long. As for the erosion, I observed many problems on individual lots and I think each of you need to deal with these problems as quickly as possible because they are making the overall situation worse. These problems on your individual lots will not be part of any action we take regarding the common areas. Please address them individually as soon as you can.
Facing extraordinary repairs the Horseshoe Cove property owners unanimously elected on May 31, 2003, to retain the Asheville law firm of McGuire, Wood and Bissette, P.A., to investigate their “possible causes of action against the developer of their community, Don Condren, Doncon, Inc., and possibly others, for faulty design, workmanship, and other failures which have led to road erosion, improper drainage, sewer problems and landslides in the Horseshoe Cove Area.”
The Horseshoe Cove road engineering report was given to Mary Euler, the property owners’ attorney, on November 6, 2003. Engineers from McGill Associates estimated construction cost repairs to range from $3,175,771 to $5,537,021.
Shortly after this report, Ms. Euler advised her clients of two facts: Litigation would be expensive, $50,000, and the process would be a long-term commitment. She also warned the property owners that Mr. Condren would likely declare bankruptcy if presented with a lawsuit.
Horseshoe Cove homeowners declined to pursue litigation: they formed the Horseshoe Cove Property Owners’ Association and assessed members $7,000 to cover the costs of the most urgent repairs ($300,000).
Most of the landslide-prevention measures recommended by McGill Associates were not undertaken and their findings were not publicized.
Donin Landslide— Maggie Valley, North Carolina— January 7, 2009
As a result of the Donin landslide the Asheville Citizen-Times published a series of Western North Carolina investigative reports. The newspaper found that the past and current practice of permitting hazardous-land residential development would significantly impact lives and property.
The newspaper provided a look at associated issues such as the unavailability of landslide insurance but they did not discuss the liability linked to private road ownership.
This landslide advisory web site was established in 2006 to publicize Western North Carolina’s hazardous-land conditions. Pam Williams, a Maggie Valley landslide victim, provided the documents for this report. Copies of the McGill Report, Bowen letter, legal correspondence and landslide photographs are posted.