Buncombe County Real Estate — Hazardous-Land Subdivisions

October 4, 2009

David Gantt, Chairman
Board of Commissioners
205 College Street Suite 200
Asheville, North Carolina 28801

Dear Mr. Gantt:

Commissioners and members of the planning board have long been aware of Buncombe County’s hazardous-land designation. The first real estate landslide advisory came to the county from the North Carolina Department of Emergency Management in 1998.

As the result of a recent Federal Emergency Management Agency directive all real property in Buncombe County has been evaluated and assessed by address for expected disasters. Of specific concern are subdivisions located above a 15% grade. The reason: soils above this threshold are typically “not suitable” or “poorly suitable” for development— “Some are too unstable to used as a foundation for buildings or roads.” References: Buncombe County Soil Survey/ North Carolina Geological Survey

The Asheville Citizen-Times reported on August 30, 2009 that approximately 29% of Buncombe County real estate is threatened by landslide-triggering soils. Dale Neal’s article, “Landslide hazards charted,” is part of the newspaper’s “Dangerous Ground” investigative series.

With the confirmation that the county has permitted hazardous-land development for more than a decade, Mr. Neal asked Buncombe County planner Jim Coman to explain these FEMA disaster maps for at-risk property owners. Mr. Coman’s advice:

Owners of existing homes in high hazard areas could call in engineers to shore up shifting foundations or take other preventive measures to protect their property.

Whether the county institutes responsible landslide hazard mitigation planning is yet to be determined. What has been established is the fact that most Buncombe County steep slope building sites above a 15% grade are undermined by highly unstable soils.

I would like to draw your attention to the Subdivision Street Disclosure Statement and the reason for this letter.

Sample Subdivision Street Disclosure Statement

Pursuant to N. C. G. S. Section 136-102.6 _______, as the Declarant of _______,
issues this statement indicating that all of the roads within_______ are private. It is the obligation of _______ Homeowners' Association, Inc. (hereafter "Association") to maintain and keep in good repairs all of the private roads in _______Subdivision. It is mandatory for all property owners in _______ to be a member of the Association and the property owners, with the exception of the Declarant, have an obligation to pay assessments to maintain the private roads. The Declarant specifically states that the streets have not been constructed in such a manner to allow inclusion on the State highway system for maintenance.

Although commonly used to establish property owner liability for private roads this standardized conveyance statement was not intended as a disclosure document for roads in hazardous-land subdivisions. At this juncture county attorney Michael Frue should have determined that the disclosure statement, as written, is not valid: property owners cannot be legally forced to assume responsibility for risks not disclosed.

Mr. Frue can correct this error and protect property owners' interests by requiring the inclusion of a "Fair Warning" addendum on Buncombe County— steep slope— Subdivision Street Disclosure Statements. Mr. Frue is cognizant of the fact that property owners' liabilities linked to private road ownership in hazardous-land subdivisions are significant. Before assuming responsibility for developers' roads, property owners should be apprised of the following:

Please be advised this subdivision’s roads were built on likely unstable soils. Landslides and erosion are recognized chronic hazards above a 15% slope. Soil assessments for this subdivision can be found at the county Soil & Conservation Office. Buncombe County did not require geotechnical, hydrologic or soil studies for this subdivision. Should this subdivision’s roads be damaged by predictable natural occurrences, the members of the homeowners’ association will be liable for all costs.

There have been many parties involved in Buncombe County land development but the decision to grant a steep slope subdivision permit rests with the planning board. The Asheville Citizen-Times reported in a related "Dangerous Ground" article that the board has approved 413 subdivisions over the past six years. The number of hazardous-land subdivision permits granted since 1998 has not been tallied but is easily determinable.

Without disclosure of hazardous-land conditions on the Subdivision Street Disclosure Statement the planning board's practice of granting permits for steep slope private subdivision roads is questionable and deserves legal challenge.

Thank you for your interest in this matter.

Lynne Vogel
232 Wonderly Lane
Mars Hill, North Carolina 28754
wncsos.com