Saturday, May 15, 2010

The Hills of Rivermist Landslide: Should Centex be Charged with Criminal Negligence

The Hills of Rivermist Subdivision San Antonio, Texas

View of The Hills of Rivermist Subdivision prior
to retaining wall failure. Circle marks landslide.

Dave's Landslide Blog

The Hills of Rivermist Landslide January 25, 2010

Rodolfo Gonzalez/Austin American-Statesman

When sections of a retaining wall collapsed in the The Hills of Rivermist the city of San Antonio declared a state of emergency. More than 80 property owners were forced to evacuate their homes in two affected subdivisions—twenty-seven residences have since been deemed unsafe. The news media continues to report that Rivermist property owners outside the hazard zone are seeing evidence of earth-movement related structural distress in their homes.

San Antonio officials are obliging Centex, the developer of the Hills of Rivermist, to build a new stabilization wall at an estimated cost of $4-5 million. For legal reasons Centex has proffered a buyback for the condemned properties shown below.

Centex: Reckless Endangerment

Centex officials have not put forth an explanation of why The Hills of Rivermist wall was constructed without permit or inspection. It has been established that the Centex-contracted wall did not meet design and construction standards for Bexar County’s highly unstable expansive soils.

Research compiled by Homeowners of Texas, Inc. shows that 94.6% of soils providing foundations for homes and roads in The Hills of Rivermist Subdivision are shrink and swell composition.

According to 1970s Federal Housing Authority data and the 1960s Bexar County Soil Survey findings, structures built on expansive soils will experience severe structural damage.

In a related matter, San Antonio City Council members were apprised of a soil-related property condemnation at 3008 Clearview Drive.

Underground Landslide?

David Petley, Wilson Professor, Department of Geography, Durham University, U.K. believes the retaining wall failed because of a rotational slip in the slope. If Professor Petley’s assessment is correct The Hills of Rivermist Subdivision is located on a slow-moving subsurface landslide. These destructive dormant phenomena are easily identifiable prior to development, occur world-wide and are activated by rain and alterations to the landscape.

Homeowners of Texas, Inc.

The New York Times reported in March of 2009 that hazardous-land development poses serious threats to lives and property in all states.

Although not referenced in The Times article, Texas homes are at elevated risk of earth movement damage due to the state’s endemic “shrink and swell” soils. By industry intent and legislative approval this relevant information does not appear on developers’ Web sites or on sales contracts.

The consequence: owners are the last to know that land under their homes will be moving.

Homeowners of Texas, Inc. a consumer-watch group, intends to change the industry's business practices.

Texas Hazardous-Land Real Estate Development

It is illegal to fail to disclose hazardous-land conditions (material fact) on real estate conveyance documents, so why would a company like Centex (PulteGroup, Inc.) risk litigation?

The answer is the perpetrators face only civil liability charges.

In Texas, homeowners’ causable actions against developers and builders for new home construction defects are in large part constrained by binding arbitration agreements.

Centex: Habitual Offender

The Hills of Rivermist property owners did not know that Centex has a history of using hazardous-land tracts for residential development.

One of the most significant Centex-negligence cases involved city of Denver and other Colorado property owners whose homes experienced soil caused structural damage. As a result of this class-action lawsuit settlement Centex agreed to compensate approximately 1,500 former clients for stabilization/repair expense.

During the 1990s more than 15,000 Denver property owners sued over expansive soil issues. The Colorado Geological Survey estimates that unstable soils result in more than $20 million in costs annually— $4 billion countrywide.

Civil versus Criminal Negligence

Hills of Rivermist homeowners have suffered irreparable harm: evacuation, limited access to their homes and property devaluation. In order to receive compensation, these parties are forced to pursue legal actions through the courts and binding arbitration.

The Centex-precipitated landslide disaster also threatened lives, which raises the question of criminal negligence.

A common definition of criminal negligence is "the failure to use reasonable care to avoid consequences that threaten or harm the safety of the public and that are the foreseeable outcome of acting in a particular manner."

The evidence suggests that Centex deliberately ignored known hazardous-land conditions and commissioned a landslide-prevention wall that was likely to fail.

Rivermist property owners deserve more than civil hearings. They are entitled to know why Centex corporate actions endangered their lives.


Wayne Caswell, Communications Director said...

Thanks for referencing Homeowners of Texas in your article. Our large and growing repository of Rivermist media coverage is at I do have one correction.

You said that “It is illegal to fail to disclose hazardous-land conditions (material fact) on real estate conveyance documents,” but that seems to only apply to soil movement and NOT soil contamination, which is so prevalent in Texas on lands once used for cotton farming. On Jan. 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (a.k.a. the Brownfields Law). It put builder/developers on an “honor system” to remediate hazardous soil, gave them a current-year tax deduction for any environmental cleanup costs, removed the duty to disclose hazardous conditions to homebuyers, and shielded builders from liability. The Brownfields Law amended the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) by providing funds to assess and clean up brownfields, clarified CERCLA liability protections, and provided funds to enhance state and local response programs. The desired effect was to provide developers and builders with incentives to redevelop contaminated properties. See and related links.

Wayne Caswell, Communications Director said...

I forgot to mention the irony that HUD (Dept. of Housing and Urban Development) requires full builder disclosure of both “expansive soil” and “contamination” on forms related to mortgage loan guarantees, but states and cities encourage urban sprawl on to lands unsuitable for building. Also ironic is that USDA produces the Web Soil Survey showing Rivermist on highly expansive soil that it calls “very limited” for building, but USDA has been pushing homeownership in rural settings on expansive soil with a zero-down mortgage program. These actions may increase the tax base and political power of public officials, but it puts homebuyers and taxpayers at risk, and between FHA, Fannie Mae, Freddie Mac, VA and USDA, taxpayers now guarantee over 90% of the U.S. mortgage market.

PE, retired said...

What about City of San Antonio government? Where were they when this 1,000 ft. long, 30 ft. high retaining wall was being built? (It's kinda hard to miss a 1,000 ft. long, 30 ft. high retaining wall!)

Did San Antonio's Building Department review the plans for the 1,000 ft. long, 30 ft. high retaining wall? If not, then why not?

Did they make sure that the wall was designed by a registered professional engineer, and that the construction drawings were signed and sealed by the registered professional engineer? If not, then why not?

Did Centex have a construction permit for the wall? If not, then why not?

Did San Antonio's Building Department inspectors review the wall during construction to assure that it was being built according to plans prepared by a licensed PE? If not, then why not?

Did San Antonio's Building Department require as-built construction plans, sealed by a licensed PE? Did they compare the as-built plans against the signed and sealed permit plans to assure that the wall was built according to the licensed engineer's design? If not, then why not?

Did San Antonio's Building Department issue a certificate following construction (similar to an occupancy permit for a house) certifying that the wall was engineered by a licensed PE and build according to the plans that the licensed PE prepared and sealed? If not, then why not?

SERIOUS questions for BOTH Centex AND the City of San Antonio.