Thursday, January 28, 2010

Western North Carolina—Lethal Landslides

Western North Carolina Landslide Fatalities December 2003-September 2004

Heavy rainfall episodes in September 2004 set off landslides in 15 mountainous counties. The Macon County Peeks Creek debris flow killed five people and destroyed fifteen homes. On December 11, 2003 Trish Jones, a Haywood County resident, died because a broken water main saturated the soil on the slope above her home

These deaths should have provoked change in hazardous-land regulations and disclosure standards. Instead members of the North Carolina Association of Realtors persuaded state lawmakers that the matter required further deliberation.

The decision to put others in harm’s way has consequences.

Death by Landslide

When a landslide causes a fatality it is generally classified an accidental unavoidable event, but in one woman's death a coroner has concluded otherwise.

In January 2005 Eliza Kuttner was killed when a landslide covered her North Vancouver home. Sam Cooper, a reporter for the North Shore Outlook, has written extensively about the Kuttner landslide. In his December 2007 article, "Homeowners cry foul over DNV landslide risk report," Mr. Cooper discussed the ramifications of the district's geologic hazard report which found that 41 homes were at risk of lethal landslides.

Mr. Cooper provides an insight into who was responsible for Eliza Kuttner's death in his July 23, 2008 article, "Fatal landslide ‘predictable and preventable’: B.C. Coroner." The following is a copy of his report:
The Seymour-area landslide that killed Eliza Kuttner “was both predictable and preventable” yet “nothing was done” by government to deal with known safety problems, says the B.C. Coroner’s Report into Kuttner’s January 2005 death.

The report, obtained by The Outlook Tuesday, for the first time outlines the causes of the slide and reveals the post-mortem details of Kuttner’s death – essentially from suffocation and traumatic asphyxia when soaked soil from the backyard of 2175 Berkley Ave. slid from the crest of the steep Berkley-Riverside escarpment, unleashing a 90-metre mudslide that slammed through Kuttner’s Chapman Way home at the base, crushing and burying her.

Drawing far-reaching conclusions from the North Vancouver tragedy, Coroner Tom Pawlowski says similar events are possible across the North Shore and province as development pressure pushes lots onto ever steeper terrain. He makes 12 recommendations, urging governments to define standard levels of risk and coordinate to mitigate danger.

Pawlowski details the results of a report that Baumann Engineering completed for the B.C. Coroners Service, listing six specific causes of the January 19 landslide, including: the presence of development at the top and bottom of the 50-metre escarpment; presence of loose anthropogenic (man-influenced) fill at the crest of the escarpment that had been pushed over the slope since the area was first developed in the 1920s; the presence of a steep slope and gully immediately below 2175 Berkley Ave.; and the occurrence of an unusually heavy rainstorm that saturated escarpment soil.

In the report’s harshest criticism of District of North Vancouver officials, Pawlowski states the district commissioned two studies in 1980 following a series of dangerous slides on the Berkley-Riverside escarpment in 1979 that damaged houses at the base of the slope and backyards at the crest, but did not act on safety recommendations that would have affected properties at the crest of the slope, including 2175 Berkley Avenue.

“The (Klohn Leonoff) report recommended a number of risk reduction measures, such as the removal of fill and improvement of drainage for all properties, including those with low and very low risk ratings,” Pawlowski writes, noting that the Klohn Leonoff report warns "greatest danger from future sliding is to properties at the base of the slope."

“It appears that very little, if any, of this preventive work was carried out prior to the event which resulted in Ms. Kuttner’s death," Pawlowski states.

Quoting the Baumann report, Pawlowski writes “potential land-sliding in the Berkley-Riverside area was both predictable and preventable, but the perception that there was an unacceptable risk was not recognized by government or the residents of this area, and furthermore nothing was done to deal with this problem, which directly led to the occurrence of the fatal landslide.”

For lawyer Jay Straith, who has figured prominently in ongoing litigation stemming from the landslide, including representing the Perraults of 2175 Berkley Avenue, the report is a stinging rebuke of DNV officials.

“The Coroner’s Report shows the Klohn Leonoff report was right from the start but the politicians and bureaucrats did nothing about it,” Straith said in an interview Tuesday. “Mrs. Kuttner died as a result.”

Straith says the district’s case against the Perraults hinges on the argument that a fishpond in the backyard of 2175 Berkley Ave. caused the slide, but as Pawlowski makes no mention of the fishpond in listing causes for the slide, it bodes well for the Perraults.

Straith called Larry Perrault as soon as he read the report, and said Perrault was extremely relieved to hear the results.

“The coroner’s report will be before a court and for a judge to address,” Straith said.

The report does credit the district for “embarking on a number of landslide hazard management initiatives,” in the aftermath of the fatal slide.

District spokeswoman Jeanine Bratina said she could not respond to Straith’s comments relating to upcoming litigation. Asked about Pawlowski’s statement that the district did little if anything to act on the Klohn Leonoff recommendations, Bratina said, “It’s my understanding that many of the recommendations related to private property ... but the district did complete recommendations related to public property.”

Asked if the district will act on any of the 12 recommendations that Pawlowski makes in the report, Bratina said “The district has already done quite a lot (on recommendations) and been proactive.” Mayor Richard Walton was not available for comment.

In essence, the report concludes that lessons should be learned from the Kuttner tragedy, and provincial and municipal governments ought to standardize risk acceptance criteria and response, plus make geotechnical risk studies more widely accessible.

“There are numerous other escarpments in North Vancouver and the Lower Mainland where homes are located in similar circumstances in proximity to escarpments,” the report states. “Whenever development occurs on sufficiently steep ground, as was the case (with the Kuttner death) some degree of risk to human life and property will always be present ... even though such risk cannot be fully eliminated, it is possible to assess the level of risk and apply appropriate control measures.”

As of now in B.C., geotechnical consultants are obliged to keep risk studies confidential unless their clients authorize disclosure. Straith says the province is full of “time-bombs” like the Seymour-area slide and argues that full disclosure of geotechnical risks should be legislated. He believes Pawlowski’s recommendations are prodding government to do so.

“This is a strong recommendation for government to show some leadership.”
It has been five years since Eliza Kutttner's death and as the North Shore News reports the matter is not resolved.

"Landslide suit in court"
Upslope owner alleges others knew of slope risks

Jane Seyd
North Shore News
January 13, 2010

LARRY Perrault woke suddenly in the night on Jan. 19, 2005 to the sound of a terrible crash, coming from the ravine below his house on Berkeley Avenue.

He got up, thinking a massive tree had gone into the Seymour River. It was then that "the house started shaking," he said. "It sounded like a big D10 cat was going through our back yard, scraping rocks."

Outside, it was pitch black.

Perrault turned on an outside light that faced towards the fishpond in his back yard. "The fish pond was still there," he said. But when he shone the light beyond that, he got a shock. "I looked down and there was nothing there," he said. "Everything except the fish pond went down the hill."

Perrault, 51, testified in B.C. Supreme Court Tuesday about the night five years ago in North Vancouver when a massive landslide tore away the hillside below his house, sending a torrent of mud and debris through the home of Michael and Eliza Kuttner below. Eliza Kuttner was killed in the landslide, while her husband suffered serious injuries.

In the years since then, a number of lawsuits were launched and later settled out of court.

Last month, Larry Perrault and his wife Jacqueline also reached an out-of-court settlement for an undisclosed amount of money with the District of North Vancouver. The Perraults had sued the municipality, the former owners of their property and the real estate agents involved in the purchase of their house, saying nobody had warned them about the geotechnical hazards on the property and -- in the case of the municipality -- had blamed the Perraults for the slide.

A coroner's report into Eliza Kuttner's death determined the district was aware of landslide risk in the area after a study commissioned when three slides rocked the area in 1979.

The study had recommended remedial work be done to upland properties on the Blueridge escarpment -- including the property bought by the Perraults in 2004.

But little, if any, of the work had been done.

Perrault told Justice Deborah Kloegman the first time he heard of the report was the day of the mudslide, when a reporter showed a copy of it to his wife.

At first, Perrault said he was relieved to see the report, because he was afraid he had done something to cause the hillside to collapse. But his relief quickly turned to anger. "I was absolutely furious," he said, "that my family and I had been put at risk of being killed. For no reason."

On Monday, Perrault's lawyer Jay Straith outlined the case against Norman and Hazel Sibson, the former owners of the house, and the real estate agents involved in the sale, Jim Hendricks and Craig Clark.

Describing it as a "don't ask, don't tell" situation, Straith said both the owners and Realtors knew about geotechnical hazards in the area, but didn't tell the Perraults about it on the property disclosure form.

The Perraults are asking the judge to award them up to $268,000 -- minus the settlement from the district -- for costs incurred as a result of the landslide, plus damages for pain and suffering.

In court, Perrault told the judge about the impact the slide has had on his family.

"Everyone thought we were to blame," he said. "My son would come home from school at eight years old and say 'Is it true that we killed somebody?' It was very, very difficult."

In cross-examination, Harmon Hayden, the lawyer for the Sibson family, asked Perrault, "Are you familiar with the expression 'Buyer beware'? Are you aware that purchasers have to use a certain amount of due diligence for their own interests?"

Hayden also pointed to an early clause in the sale contract making it subject to a home inspection -- a clause the Perraults later waived.

"It was your decision not to have a house inspector?" Hayden asked. "It was your decision not to make any inquiries on the part of the municipality or to hire an engineer to assess the slope?"

"Yes," answered Perrault.

The trial continues.

Friday, January 22, 2010

Lawsuits Expected to Follow Wildflower Development Franklin, NC Landslides



Macon County Digitized Soil Hazards Map—
Additional Macon County landslide hazard maps are
available through the NCGS.


The legal issue: Property owners did not receive fair warning on Wildflower Subdivision Street Disclosure Statements that

—Land in this subdivision is steep slope. Soils above a 15% grade are generally "not suitable” or “poorly suited” for residential development— “Some are too unstable to be used as a foundation for buildings or roads.” References: Western North Carolina Soil Surveys.

Ultima Carolina, LLC—Wildflower Landslides Threaten Property Owners

Wildflower, an Ultima Carolina-designed residential community, has experienced numerous road construction related landslides.

After the November 17, 2009 Wildflower/Thompson Road landslide, state geologists notified Macon County officials of the need to notify residents outside the subdivision that the unstable mass “will probably continue to move.”

During its investigation, the North Carolina Geological Survey found more than twenty other post-landslide areas along the Wildflower development road network that "have the potential for continued movement, especially associated with heavy rainfall events.”

Wildflower is a 2,000-plus acre steep development site with a 30-mile private road system. Two homes have been completed. Lots that were selling for $100,000 to $300,000 are now priced
for $18,000 to $35,000.

Macon County officials have advised the developers, Robert Ullmann and Hardy Smith co-founders of Ultima Carolina LLC, that they are responsible for addressing and repairing the subdivision’s landslide-hazardous road conditions.

Landslide-Hazardous Subdivisions

Wildflower landslides were caused by a combination of factors: steep slope, (defined as land on or above a 15% grade), unstable colluvial soils and rain. Under Federal Emergency Management Agency definitions, Wildflower is a hazardous-land development.

Macon County, North Carolina Real Estate Hazardous-Land Determination

State emergency management personnel notified Macon County officials in 1998 to exercise caution when granting land disturbing permits for steep slope residential projects. This hazard mitigation directive was required by FEMA.

On September 16, 2004 the Peeks Creek landslide killed five people and destroyed 15 homes. Ultima Carolina commenced Wildflower land sales on November 6, 2004.

Wildflower Permit

When the Wildflower permit was granted to Ultima Carolina in 2004, Macon County had no rules governing land development.

Mr. Ullmann was frank when he told county commissioners five years ago that he had chosen to build an Ultima Carolina community in Macon County because of the absence of land-use regulations.

Stacy Guffey, the Macon County Planning Director at the time Ultima Carolina received their permit, recently acknowledged, “The truth is that when I worked for the county, a lot of us knew there would be problems with those roads. It’s really one of the reasons we felt such urgency to create a subdivision ordinance.”

Macon County Planning Board Fails to Disclose Wildflower Hazardous-Land Conditions

When Ultima Carolina clients purchased lots and signed Wildflower Subdivision Street Disclosure Statements, they did not know, nor were they advised that that they owned and would be responsible for a county-approved landslide-prone road system.

By failing to regulate and disclose the subdivision’s unstable building site conditions, Macon County planning board members have caused financial distress not only to Wildflower property owners but to others within striking distance of the Thompson road embankment failure.

The engineering techniques required to repair and stabilize the slipping road system will likely cost millions. Should Ultima WNC Development, LLC, the entity responsible for correcting the landslide impairments, declare bankruptcy, the obligation will fall on the Wildflower Homeowners’ Association.

It is not known whether Wildflower property owners will take action against Ultima Carolina and the county for failing to disclose material information on sales contracts and Subdivision Street Disclosure Statements but the evidence shows they have an excellent case.

Wednesday, January 13, 2010

Colluvial Soils Cause Wildflower Development Franklin, NC Landslides



Macon County Digitized Soil Hazards Map—
Additional Macon County landslide hazard maps are
available through the NCGS.

Wildflower Development Franklin, NC Landslide —November 17, 2009

It will be months before the North Carolina Geological Survey completes its investigation of the Thompson Road-Wildflower subdivision landslide and related road endangerment areas. State geologists told county officials:
The lowermost portion of the deposit spilled over a steep road cut for a driveway above Thompson Road. Large trees, many with root balls still attached, were pushed over, snapped off, and partially buried by a debris flow in the toe area. Unstable embankment material remains below the eastward and westward extensions of the main scarp. This unstable material will probably continue to move.

The other failure areas along the Wildflower development road network have the potential for continued movement, especially with heavy rainfall events.
Citing safety concerns, the NCGS advised Macon County officials that they should warn down slope property owners of the possibility of future land sliding.

The Wildflower subdivision landslides were set in motion by a developer’s attempt to build a steep slope 30-mile road system on highly-unstable colluvial soils.

As noted in the following histories, these types of slope failures are well-documented in Western North Carolina.

The Cascades Subdivision Landslide

A little over three years ago a road-building crew caused a massive landslide on Eagles Nest Ridge in Haywood County, North Carolina. Luckily, no homes were in the path of what Jeff Schmerker called “A Whopper of a Slide.” The Mountaineer—September 12, 2006



Photo 1-View looking up the track of the August 31, 2006 embankment failure-debris flow from the development road near lot 107.

Photo 2-View looking downslope at the debris deposit and damage to lot 107
Photo 3-View of cracks in embankment extending northeast from the head scarp of the August 31, 2006 embankment failure-debris flow
Photos compliments of the North Carolina Geological Survey

The Cascades Subdivision landslide occurred in a 700-acre development which was being built by Maurice Wilder of Clearwater, Florida.

After the landslide Dennis Franklin, contractor for the project, notified county officials and instituted temporary measures to stabilize the area. Marc Pruett, Haywood County’s erosion control supervisor, said that without notification he probably would not have known about the slide since no homes or residents were in danger.

Maggie Valley engineer Kevin Alford, who investigated the slide for a Cascades property owner, said that the failed section of the road bed occurred because:
The upper road was built out of shot material (from) where they had to blast the roadway in there. It got too heavy. The sliding material acted like a bulldozer, scouring the slope of almost all soil and vegetation. It wiped out a path down to bedrock. It was like an elliptical -shaped bulldozer. It is an amazing thing when you see that kind of material go down the mountain. When you get up in the mountains and start building roads, there are good ways to build roads and bad ways to build roads. In a situation like that I think it would have been reasonable to do subterranean work to find out what was there. When you have a large amount of uncompacted rock fill that gets a lot of water in it, you have potential for slope failures. There is still more material up there, so it could happen
again.
North Carolina Geological Survey’s Findings

Geologists investigating the landslide site found that the collapsed slope embankment was composed of highly unstable woody debris and graphitic-sulfidic bedrock fragments. Rain on this weak, improperly-constructed, roadbed probably precipitated the landslide.

During the course of their survey the geologists determined that the still standing ~ 300 foot long road embankment showed evidence of additional failures. They warned that if the fragile embankment is not properly stabilized, this land mass will pose future threats.

Recommendations to the developer included a professional investigation of the failed site in conjunction with extensive and expensive stabilization measures or removal of the remaining roadbed. It is unknown whether Mr. Wilder followed the safety recommendations outlined by the North Carolina Geological Survey. All developers conducting business in the state are left to their own best judgment on landslide remediation.

In their assessment report the NCGS referenced other Western North Carolina landslides caused by contractors' use of graphitic-sulfidic road fill.

When developers build roads in a subdivision or planned community North Carolina law stipulates that they declare their subdivision roads either private or public. Mr. Wilder's roads were recorded as private. If private, property owners are required to sign the following liability document:

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.

No Escape Clause in the Subdivision Street Disclosure Statement

If the Wilder landslide had occurred after lots had been sold The Cascades property owners, without exception, would have been obliged to repair the damage.

The use of the Subdivision Street Disclosure Statement as a conveyance document for streets in hazardous-land subdivisions has not been legally challenged so property owners remain at uninformed risk. The following material information is omitted on Steep Slope Subdivision Street Disclosure Statements:

—Land in this subdivision is steep slope. Soils above a 15% grade are generally "not suitable” or “poorly suited” for residential development— “Some are too unstable to be used as a foundation for buildings or roads.” References: Western North Carolina Soil Surveys/North Carolina Geological Survey.

Horseshoe Cove Subdivision Landslides

The Horseshoe Cove Subdivision landslides provide an example of the financial consequences of sharing ownership of roads built on unstable soils. Below are some photographs of the damage caused to the subdivision's roads. Engineering evaluations commissioned by the property owners found that their subdivision had been built on colluvial soils.



Post-development hazardous-land determination did not invalidate the terms of the Horseshoe Cove Subdivision Street Disclosure Statement. Collectively the Horseshoe Cove property owners paid $300,000 to repair roads and drainage. The preventive landslide techniques (Costs: $2,868,000-$5,230,000) recommended by McGill engineers were not pursued.

The Federal Emergency Management Agency

Members of various influential groups, such as the North Carolina Association of Realtors and the Home Builders Association have persuaded legislators that Western North Carolina landslides and other regional geologic hazards are immaterial threats to property owners.

Federal officials disagree.

Although the Federal Emergency Management Agency cannot force North Carolina to provide hazardous-land real estate disclosure they are requiring all disaster-designated counties to evaluate and assess real property for landslides, wildfires, and flooding as part of their hazard mitigation plans. These unpublicized real estate risk compilations are under the purview of county planning boards. Ask to see them.

Monday, January 11, 2010

Ultima Carolina, LLC—Liability under Interstate Land Sales Full Disclosure Act



Macon County Digitized Soil Hazards Map—
Additional Macon County landslide hazard maps are
available through the NCGS.

Ultima Carolina, LLC

Ultima Carolina, LLC was formed in 2004 by Robert Ullmann and Hardy Smith to develop residential communities in Western North Carolina. There are four subdivisions under Ultima Carolina sponsorship in the state: Avalon, Black Bear Falls, Fontana Trace and Wildflower.

The Ultima Carolina community under discussion is located in Macon County, NC. Wildflower, also known as Wildflower Development Franklin, NC, is a steep-slope 2,000-plus acre development site with a 30-mile road system. The entity responsible for the Wildflower Subdivision is Ultima WNC Development, LLC.

Wildflower’s private subdivision roads became a matter of public concern on November 17, 2009 when a section of one road failed, setting off a landslide. State geologists warn that the Thompson Road landslide, unless stabilized, is a danger to property owners outside the subdivision. During the course of their investigation, geologists found more than 20 road construction hazard areas.

The county is holding the developers accountable for addressing the subdivision’s landslide-prone road conditions. This engineering project will be costly: Wildflower roads were built on colluvial soils.

When the Smoky Mountain News reported on December 16, 2009 that these “Road failures cast uncertainty on Wildflower’s future,” it did not consider the consequences for Wildflower property owners. The question of whether the developers repair the subdivision's road hazards is moot: The Wildflower Homeowners’ Association owns and is legally responsible for the subdivision roads.

Prior to the North Carolina Geological Survey's Wildflower landslide report, property owners were unaware of their outsize responsibilities because the state does not require developers to disclose hazardous-soil conditions on sales contracts and Subdivision Street Disclosure Statements.

Although Wildflower property owners have no redress under North Carolina statute they do under federal law.

Wildflower Property Report

Ultima Carolina, LLC sales practices are governed by federal law under the Interstate Land Sales Full Disclosure Act (“ILSFDA”). All purchasers of land in ILSFDA-defined subdivisions must receive a highly formatted full disclosure document titled The Property Report prior to signing sales contracts.

Full disclosure would include identifying the soil compositions within the subdivision and whether or not they are recommended as a road construction base.

Land sales for the Wildflower Development Franklin, NC were initiated on November 6, 2004. Ultima Carolina registered the Wildflower Subdivision with the Department of Housing and Urban Development on January 26, 2005. The developer's name is recorded as Ultima WNC Development, LLC.

As noted in the excerpt below: selling lots prior to registration is a violation of the Act as is the omission of material fact.

Interstate Land Sales Full Disclosure Act

Requirements Relating to the Sale or Lease of Lots
Sec. 1404.

(a) It shall be unlawful for any developer or agent, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce, or of the mails --

(1) with respect to the sale or lease of any lot not exempt under section 1403 --

(A) to sell or lease any lot unless a statement of record with respect to such lot is in effect in accordance with section 1407;

(B) to sell or lease any lot unless a printed property report, meeting the requirements of section 1408, has been furnished to the purchaser or lessee in advance of the signing of any contract or agreement by such purchaser of lessee;

(C) to sell or lease any lot where any part of the statement of record or the property report contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein pursuant to sections 1405 through 1408 of this title or any regulations thereunder; or…
Relevant Information for Wildflower Property Owners

1998—The Federal Emergency Management Agency requires the state to notify Macon County and 22 other counties that land under their jurisdiction is landslide-hazardous.

2000— Western North Carolina real estate landslide hazard mapping program is instituted.

September 16, 2004— The Peeks Creek landslide kills 5 people and destroys 15 homes in Macon, N. C. Fourteen other Western North Carolina counties are declared federal disaster areas in September 2004.

November 6, 2004— “Wildflower Celebrates Its Grand Opening.”

February 2005—North Carolina General Assembly North Carolina General Assembly recognizes the urgent need to accelerate Western North Carolina real estate landslide hazard mapping program.

October 2006—Macon County real estate landslide hazard maps are released with a press statement from then-governor Mike Easley:
These maps will show which areas are prone to landslides, and that will help developers, county officials, and residents decide where to safely build homes, roads, and other structures.
It is not known whether Ultima Carolina, LLC provided their clients with fair warning of the subdivision’s hazardous-soil conditions. If this material information was not included:
A plaintiff need not prove reliance or the defendant's fraudulent intent in order to recover under ILSFDA.137 Instead, the purchaser must only establish a material omission or misrepresentation, however innocent or unintentional, by the developer.138
Reference: “Litigation Involving the Developer, Homeowners’ Associations, and Lenders”—E Richard Kennedy—April 2004

Wednesday, January 6, 2010

North Carolina Association of Realtors Rule on Landslide-Hazard Disclosure











Photographs of the Donin home on 93 Wildcat Run Road before and after the January 7, 2009 landslide—Asheville Citizens-Times

Donin Landslide—January 7, 2009 —Maggie Valley, North Carolina

Bruce and Lorraine Donin survived the swift-moving landslide that destroyed their Wild Acres Subdivision home. Trish Jones, another Wild Acres property owner, did not survive the landslide that covered her home in December 2003.

Water was the trigger for both landslides: the cause unstable soils.

Western North Carolina Mountain Real Estate

According to data compiled by the North Carolina Geological Survey all steep-slope building sites in Western North Carolina are threatened by the same conditions that caused loss of life and property in the Wild Acres Subdivision. Steep slope is defined as land at or above a 15% grade. Western North Carolina steep-slope real estate development became a federal concern in 1998.

1998— Federal Emergency Management Agency requires the state to notify 23 Western North Carolina county governments that land under their jurisdiction is landslide-hazardous.

2000— Western North Carolina real estate landslide-hazard mapping program is instituted.

September 16, 2004— The Peeks Creek landslide kills five people and destroys fifteen homes in Macon County. Homes and roads in fourteen other Western North Carolina counties experience landslide damage. The region receives two federal disaster declarations in September 2004.

February 2005 —North Carolina General Assembly recognizes the critical need to accelerate Western North Carolina real estate landslide-hazard mapping program.

October 2006—Macon County real estate landslide-hazard maps are promoted by then-governor Mike Easley:
These maps will show which areas are prone to landslides, and that will help developers, county officials, and residents decide where to safely build homes, roads, and other structures.
January 2008—Watauga County real estate landslide-hazard maps are released.

April 2009— Buncombe County real property hazardous-land data is provided to planning boards.

August 2009—Buncombe County real estate landslide-hazard maps are released.

Members of the North Carolina Association of Realtors do not believe that their clients should receive fair warning that Western North Carolina mountain real estate is landslide-hazardous.

Here is what the Association had to say about hazardous-land disclosure on May 15, 2009:
Mountain Property Development and Disclosure Legislation

Legislation to regulate mountain property transactions and require local governments to more stringently regulate development in those counties was thwarted and instead the issues will be studied. Reps. Ray Rapp (D-Madison), Phil Haire (D-Jackson), and Susan Fisher (D-Buncombe) introduced HB 782 (Safe Artificial Slope Construction Act), which would require local governments to enforce more rules for development in the mountains and amend the residential property disclosure statement to include disclosure of certain mountain property. In response to opposition from REALTORS® from the western part of the state and most other mountain legislators, this bill was turned into a study bill to research landslides and have public hearings. There is to be a bipartisan, eight member panel which will report to the legislature in May of 2010.

Tuesday, January 5, 2010

Wildflower Development Franklin, NC Subdivision Street Disclosure Statement



Soil Hazards Map—Macon County, North Carolina—NCGS

Ultima Carolina, LLC— Wildflower Development Franklin, NC

On November 6, 2004 Robert Ullmann and Hardy Smith, co-partners of Ultima Carolina, LLC, initiated land sales for their Wildflower Subdivision under the name Ultima WNC Development, LLC. Prior to this event, Ullman & Smith established and recorded the Wildflower Homeowners' Association, Inc.

First time purchasers of lots in private road subdivisions must sign Subdivision Street Disclosure Statements. These documents transfer ownership of the subdivision roads from developers to property owners.

The standardized Subdivision Street Disclosure Statement forms presented to Wildflower purchasers were authorized on October 1, 1975 by the North Carolina General Assembly. The statute reads in part:
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 such street or streets shall rest....
Wildflower Subdivision Street Disclosure Statement

Pursuant to N. C. G. S. Section 136-102.6 Ultima WNC Development, LLC, as the Declarant of Wildflower, issues this statement indicating that all of the roads within Wildflower are private. It is the obligation of the Wildflower Homeowners' Association, Inc. (hereafter "Association") to maintain and keep in good repairs all of the private roads in the Wildflower Subdivision. It is mandatory for all property owners in Wildflower 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.

When Wildflower property owners agreed to the terms specified by the Subdivision Street Disclosure Statements, they did not know, nor were they advised, that their 30-mile road system would require extraordinary maintenance and repairs.

Wildflower Subdivision—Thompson Road Landslide

On November 17, 2009 a major Wildflower mountain road collapsed, dumping a half-acre of debris on an adjacent down slope home site. The North Carolina Geological Survey was asked to investigate the landslide because the site failure poses a threat to property owners outside the subdivision. State geologists report that the Thompson Road landslide was not an aberration: there are more than 20-road endangerment areas within the subdivision.

Rainfall triggered the Thompson Road landslide but the underlying cause was unstable colluvial soils.

The developers, Ullmann and Smith, knew or should have known from the Macon County Soil Survey that Wildflower’s proposed road system was ill-advised because of hazardous-soil conditions.

Although Ullmann & Smith were remiss in their obligations, the Macon County planning board bears primary responsibility for the Thompson Road landslide and other potential hazardous-road construction issues. It was the Macon County planning board that issued the permit for the Wildflower Subdivision with full knowledge that the land tract was not safe for residential development.

Wildflower property owners would have been dutifully apprised of their future responsibilities if they had received the following addendum.

Wildflower Subdivision Street Disclosure Statement Addendum

Please be advised that Wildflower's private mountain roads were built on, costly to maintain, unstable colluvial soils. Roads built on this base are likely to be affected by landslides and erosion.

Soil assessments for Wildflower Subdivision roads are available at the Macon County Soil & Conservation Office.

Even though Macon County steep-slope real estate was designated landslide-hazardous in 1998 the developer, Ultima Carolina, LLC, was not required to conduct geotechnical, hydrologic or soil suitability 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 repairs.

Litigation

Property owners could argue, rightfully, that because the county and the developers withheld material information the Wildflower Subdivision Street Disclosure Statement is invalid.