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.