Saturday, November 26, 2011

Transylvania County, NC Mountain Real Estate Landslide Report


It has been observed that mountain-view real estate can inspire blindness. 

Jackson County, NC landslide photo — SouthWings flyover 2010

Findings of fact: Western North Carolina mountain real estate is exposed to debris flows, underground landslides and slope failures.

Unstable land conditions such as those found throughout the Western North Carolina mountain region, including Transylvania County, can lead to irresolvable financial burdens.  Homes have no earth movement insurance protection and HOA members must pay assessments to repair their landslide-damaged roads.

By statute private subdivision roads, including those built on mountain slopes, do not have to meet minimum state Department of Transportation engineering criteria. This laissez-faire development environment increases the probability of costly road repairs. County Register of Deeds subdivision Plat documents indicate whether planned community roads were built to state specification.


USGS map showing high landslide risk for Western North Carolina
mountain counties

Map of Western North Carolina Landslide-Hazardous Counties

Western North Carolina counties on the Federal Emergency Management Agency Landslide Watch List: Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Cherokee, Clay, Graham, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, Wilkes and Yancey.  Landslide hazard maps have been published for Macon, Watuaga, Buncombe and Henderson Counties

Federal legislation under Robert T. Stafford Disaster Relief and Emergency Assistance Act requires states and counties to comply with hazard mitigation protocol or risk losing access to disaster emergency funds.

Western North Carolina landslide hazards became a
federal issue after September 2004 rain events precipitated slope failures throughout the region. The cost: five lives, widespread property damage and $72 million in federal aid. The benefit: initiation of the Western North Carolina Landslide Hazard Mapping Program in 2005.

Western North Carolina Landslide Hazard Mapping Program
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.  Governor Mike Easley Press Release October 2006
In June 2011 the General Assembly passed the Appropriations Act. This measure terminated funding for the Western North Carolina Landslide Mapping Program.

Two years prior to this action, May 2009, the North Carolina Association of Realtors advised members and other interested parties, that its lobbying efforts to halt the Safe Artificial Slope Construction Act had been successful. The bill was intented to provide hazardous-land disclosure and control over Western North Carolina development practices.

The North Carolina Geological Survey has released
visual-aid hazard maps for Macon, '06, Watauga '08, Buncombe '09 and Henderson '11. Maps for the other landslide-risk counties will not be forthcoming.

Unstable-land condition data is not confined to landslide maps, it can be found in Western North Carolina mountain soil surveys and respective county hazard mitigation plans.

Stafford Act Mandate: Acknowledge, Mitigate and Disclose Natural Hazards

These findings, extracted from the Transylvania County Multi-Jurisdictional Hazard Mitigation Plan, confirm the region's elevated landslide risk:
The entire jurisdiction of Transylvania County is equally susceptible to landslides.

The mission of the Transylvania County Multi-Jurisdictional Hazard Mitigation Plan is to either substantially reduce or permanently reduce the planning area’s vulnerability to natural hazards. The plan intends to promote sound public policy designed to protect citizens, critical facilities, infrastructure, private property, and the natural environment.

Accomplishment of this task is by increasing public awareness, documenting resources for risk reduction and loss-prevention, and identifying activities to guide the planning area towards the development of a safer, more sustainable community.

Make the public aware of hazards that present risks to people and property and measures they can take to reduce their risk and possible losses.

United States Geological Survey (USGS): phone conversations and GIS assistance provided by the USGS were key in developing the hazard vulnerability assessment for landslides and earthquakes. In addition, they provided significant data in the development of the Countywide Topographical Map, Earthquake Probability Map, and Landslide Susceptibility Map.

Recent erosion concerns in Transylvania County have stemmed from clearing on steep slopes. Specifically, clearing land for building home sites and roads to home sites have become a concern due to most of the good, more level sites having been built on already causing a push to build on more marginal sites. When steep slopes are cleared of their natural groundcover, the soil which has been held in place by dense vegetation becomes unstable. The shallow root system of grasses alone is not adequate to restabilize steep slopes. The result is heavy erosion from storm water which can lead to large amounts of sedimentation being carried down the slope causing flooding, property damage, road blockage, and in extreme cases the occurrence of mud slides.

The County land use map shows that most landslide susceptibility is in areas that are defined as having residential use and are identified as having a high incidence and susceptibility. To date there has been 1 residential structure destroyed, and no commercial, or industrial structures damaged or destroyed by landslides in the County as most of the designated areas are undeveloped at this time.

First, a slide covered portions of Sky Drive causing the road to giveaway causing $400K in damage. The second major event was on Cardinal Drive West where a slide caused $300K in damages to the infrastructure.

The USDA Soil Survey of April 1980 displays the general soil associations located within Transylvania County.

ASHE-EDNEYVILLE association: Moderately to very steep soils. They are well drained and comprise approximately 37 percent of the County’s land mass. They can be found on narrow ridge tops and rough steep slopes.

CHESTER-EDNEYVILLE-HAYESVILLE association: Rolling to sloping soils. They are well-drained soils and comprise approximately 20 percent of the County’s land mass. They can be found on broad ridge tops and steep slopes.

CHANDLER-FANNIN-WATAUGA association: Rolling to very steep soils. They are excessively drained soils and comprise approximately 21 percent of the County’s land mass. They can be found on narrow ridge tops and rough steep slopes.

BRANDYWINE-PORTERS-BURTON association: Moderately steep to very steep soils. They are well drained to moderately drained soils and comprise approximately 8 percent of the County’s land mass. They can be found on narrow ridge tops and rough steep slopes, mostly at elevations above 3,500 feet.

TALLADEGA-FLETCHER-FANNIN association: Rolling to very steep soils. They are well drained and comprise approximately 6 percent of the County’s land mass. They can be found on narrow sloping ridge tops and on very steep slopes.

Transylvania County Government not in Compliance with Stafford Rules

As documented Transylvania County mountain slopes are unstable. On the FEMA hazard index scale, landslides are ranked likely.

Even though county commissioners promised to make "the public aware of hazards that present risks to people and property and measures they can take to reduce their risk and possible losses," the county website provides no access to the Transylvania County landslide susceptibilty map or soil survey data. The soils referenced in the mitigation report are classified "poorly suited" or "unsuitable" for residential site development.

Realtors are following the county's example by not apprising clients of the need for caution when purchasing Transylvania County mountain real estate. These sales practices are approved by the North Carolina Real Estate Commission.

Western North Carolina Mountain Real Estate Hazardous-Land Disclosure

Because debris flows and slope failures are expected events, lawyers from the North Carolina Real Estate Commission advised Macon County Realtors in a May 2010 meeting that landslide/soil hazard maps are material facts.

The North Carolina Real Estate Commission is now vacillating on that earlier opinion in spite of the fact that the Residential Disclosure Property Statement raises the question of whether structures are located in federally-designated flood-risk areas.

Because the disclosure issue is complicated, the North Carolina Association of Realtors suggests that....
although it may not be required by law or regulation, disclosing the existence of landslide hazard maps, together with information about how a consumer can access them, may be a good "risk management" strategy for a firm to consider adopting. A buyer who discovers the existence of a landslide hazard map after closing may threaten or possibly even take action against a broker involved in the transaction based on an alleged negligent or fraudulent failure to disclose the existence of the map.

Monday, November 21, 2011

Western North Carolina Mountain Real Estate: Are Landslide Maps Material?


Western North Carolina landslide photo — SouthWings flyover 2010

Twenty-three Western North Carolina counties are on the Federal Emergency Management Agency Landslide Watch List because real property is exposed to debris flows, underground landslides and slope failures. Financial concerns: Homes have no insurance protection and HOA members are responsible for maintaining landslide-prone roads.

USGS map showing high landslide risk for Western North Carolina
mountain counties

Western North Carolina landslide hazards became a federal matter after September 2004 rain events precipitated slope failures throughout the region. The cost: five lives, widespread property damage and $72 million in aid. The benefit: initiation of the Western North Carolina Landslide Hazard Mapping Program in 2005.

Western North Carolina Landslide Hazard Mapping Program
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.  Governor Mike Easley Press Release October 2006
With the passage of the Appropriations Act in June 2011, the North Carolina General Assembly defunded the Western North Carolina Landslide Hazard Mapping Program.

Two years prior to this action, May 2009, the North Carolina Association of Realtors advised members and other interested parties that its lobbying efforts to stay the Safe Artificial Slope Construction Act had been successful. The bill's intent was hazardous-land disclosure and control over Western North Carolina steep-slope development practices.

North Carolina Association of Realtors Viewpoint re Hazardous-Land Disclosure

Lawyers from the North Carolina Real Estate Commission advised Macon County Realtors in a May 2010 meeting that hazardous-land data, i. e. landslide hazard maps and Western North Carolina county soil survey findings were material facts.

In July 2011 the Franklin, NC-based law firm of Coward, Hicks and Siler received a NCREC letter indicating that landslide hazard maps are not necessarily material facts. The North Carolina Association of Realtors had this response:
Monday, August 15, 2011

REC Statement on Disclosure of Landslide Hazards and Landslide Hazard Maps

It has been brought to the attention of the North Carolina Association of REALTORS® (NCAR) that conflicting information about the North Carolina Real Estate Commission’s (NCREC) position with regard to the disclosure of landslide hazards and landslide hazard maps has been repeatedly expressed in the public domain. The letter found here from Mr. Tom Miller, Legal Counsel for the NCREC, is intended to clarify any conflicting information and provide western North Carolina REALTORS® and their clients with certainty regarding past, pending or future transactions. This is a complicated topic that is hard to distill in one paragraph, but here are Mr. Miller’s points in summary:

1). The mere existence of the landslide hazard maps is not in itself a material fact that must be disclosed.

2). The NCREC does not currently require brokers, as a minimum standard of practice, to investigate slide hazards and warn clients of the potential for such hazards in absence of actual knowledge or the existence of circumstances that would lead a reasonably prudent broker to conclude that there is a potential hazard.

3). The NC Courts have also ruled that a real estate agent is under no duty to disclose unless they actually knew or should have known about a hazard on a specific piece of property.

We sincerely hope these materials will be helpful in clarifying much of the confusion regarding landslide hazard issues in western NC. We also strongly urge anyone with additional questions or concerns to follow up directly with the NCREC or with NCAR government affairs staff to discuss the issue further.

Additionally, although it may not be required by law or regulation, disclosing the existence of landslide hazard maps, together with information about how a consumer can access them, may be a good "risk management" strategy for a firm to consider adopting. A buyer who discovers the existence of a landslide hazard map after closing may threaten or possibly even take action against a broker involved in the transaction based on an alleged negligent or fraudulent failure to disclose the existence of the map. Although the Real Estate Commission or a court may well conclude that there is no basis for the claim, disclosing the existence of the map up front would make it more difficult for the buyer to assert such a claim in the first place. Whether a firm should adopt such a disclosure policy would be up to each individual firm, and any questions about whether the adoption of such a policy is advisable should be directed to the firm's own legal counsel.

Julie Woodson
Director of Political Communications
jwoodson@ncrealtors.org

Friday, November 18, 2011

Blue Ridge Mountain Club: A Watauga County, NC Hazardous-Land Subdivision



Western North Carolina landslide photo — SouthWings flyover 2010
Twenty-three Western North Carolina counties, including Watauga, are on the Federal Emergency Management Agency Landslide Watch List.

It has been observed that mountain-view real estate can cause blindness.

Blue Ridge Mountain Club aka Reynolds Blue Ridge aka Laurelmor

The Blue Ridge Mountain Club real estate development project was originally called Laurelmor. During the priced-per-view marketing period 2006-2007, Laurelmor lots were appraised for $500,000 to $1,000,000. In 2008, the Laurelmor name was replaced with Reynolds Blue Ridge. Today the former Laurelmor site is known as the Blue Ridge Mountain Club. Names can be changed but Watauga County unstable land conditions are constant.

Findings of fact: The Blue Ridge Mountain Club tract, along with all other Watauga County steep slope development subdivision sites are exposed to debris flows, underground landslides and slope failures.

Watauga County, NC Landslide Hazard Maps

These federally-required (FEMA) hazard maps show that significant portions of Watauga County are unstable. The North Carolina Geological Survey has determined that 70% of the region is moderately stable to unstable, with landslides occurring in designated low risk areas.




Rock Instability, Debris Flow Pathways, Stability
Index, Slope Movement/Deposits Hazard Maps


Watauga County Real Estate: Hazardous-Land Disclosure

Since landslides and slope failures are expected events, the North Carolina Real Estate Commission determined in 2010 that landslide/soil hazard maps are material facts.

Watauga County Planning and Inspections provides a link to the hazard maps but Realtors and developers are presently not sharing this data with their clients. This is the case for Lubert-Adler Partners, the financier for the Laurelmor/Reynolds Blue Ridge/Blue
Ridge Mountain Club endeavor.

Blue Ridge Mountain Club Remains a Lubert-Adler Investment

At 5,400-acres, the Blue Ridge Mountain Club residential development tract is one of the largest planned communities in Watauga County. Approximately 800-acres of the 6,200-acre subdivision are located in Wilkes County.

When Lubert-Adler and partner Bobby Ginn initiated land sales (November 2006) the Ginn-LA joint venture was officially recorded as Laurelmor.



Plaintiffs in a number of lawsuits allege that the business partners sold questionably-appraised lots and did not disclose that Laurelmor and four other jointly-owned properties were encumbered by $675 million cross-collateralized Credit Suisse liens. Please see Lubert-Adler, The Ginn Development Company et al Charged with Fraud.

In June 2008 Lubert-Adler and the Ginn Development Company defaulted on its obligations. A restructure agreement with the Credit-Suisse lien holders allowed Lubert-Adler Partners to retain control over the Laurelmor project.

Reynolds Capitol Group settled the approximately $30 million Ginn-LA Laurel Creek LTD., LLLP liens in December 2008. New owners were recorded as BR Development Group LLC and Blowing Rock Resort Venture LLC: management is currently provided by Reynolds Signature Communities. The Laurelmor name was retired in September 2009.

Legal Questions re Blue Ridge Mountain Club Real Estate Sales

A review of the Blue Ridge Mountain Club real estate website finds that the developer is not apprising prospective clients of adverse building site conditions.

As a condition of contract, experts recommend that all mountain home sites be independently evaluated for slope stability.



Rendering of a Blue Ridge Mountain Club Cottage


Other than taking legal action against a developer for failing to disclose material risk information, those who suffer property damage have no recompense. Homeowners'  insurance policies will not cover landslide losses.

Blue Ridge Mountain Club property owners face another unaddressed financial risk. It is joint ownership of the planned community’s private roads.

This legal obligation emanates from the Subdivision Street Disclosure Statement which all initial North Carolina HOA property owners are obliged to sign. In essence this legal document states that neither the state nor the county shall be responsible for maintenance and repair of any streets within the subdivision. Developers' use of this standardized conveyance document for hazardous-land subdivision roads is disputable.

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 ____________ Subdivision are private. It is the obligation of _____________ Homeowners' Association, Inc. (hereinafter "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 in ___________ Subdivision in accordance with the recorded Declaration for Planned Community. The Declarant specifically states that streets have not been constructed in such a manner to allow inclusion on the State highway system for maintenance.

Western North Carolina Landslide Hazard Maps

Federal legislation under Robert T. Stafford Disaster Relief and Emergency Assistance Act requires states and counties to comply with hazard identification/mitigation/disclosure protocol or risk losing access to disaster emergency funds.

Western North Carolina landslide hazards became a federal concern after September 2004 rain events precipitated slope failures throughout the region. The cost: five lives, widespread property damage and $72 million in federal aid. The benefit: initiation of the Western North Carolina Landslide Hazard Mapping Program in 2005.

Western North Carolina Landslide Hazard Mapping Program
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.  Governor Mike Easley Press Release October 2006
For suspect reasons, the General Assembly defunded the once-considered critical Western North Carolina Landslide Mapping Program in June 2011 with the passage of the Appropriations Act.  Two years prior to this action, May 2009, the North Carolina Association of Realtors advised members and other interested parties, that its lobbying efforts to stay the Safe Artificial Slope Construction Act had been successful. The bill's intent: hazardous-land disclosure and control over Western North
Carolina development practices.

The North Carolina Geological Survey has released visual-aid hazard maps for Macon, '06, Watauga '08, Buncombe '09 and Henderson '11. Maps for other landslide-risk counties will not be forthcoming.

Monday, November 14, 2011

Western North Carolina Mountain Real Estate: Landslide Risk Counties


It has been observed that mountain-view real estate can inspire blindness. 

Jackson County, NC landslide photo — SouthWings flyover 2010

Western North Carolina mountain real estate is exposed to debris flows, underground landslides and slope failures.

Unstable land conditions, such as those found throughout the Western North Carolina mountain region, can lead to irresolvable financial burdens.  Homes have no earth movement insurance protection and HOA members must pay assessments to repair their landslide-damaged roads.

By statute, private subdivision roads do not have to meet minimum state Department of Transportation engineering criteria. This laissez-faire development environment increases the probability of costly road repairs. County Register of Deeds subdivision Plat documents indicate whether planned community roads were built to state specification.


USGS map showing high landslide risk for Western North Carolina
mountain counties

Map of Western North Carolina Landslide-Hazardous Counties

Western North Carolina counties on the Federal Emergency Management Agency Landslide Watch List: Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Cherokee, Clay, Graham, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, Wilkes and Yancey.  Landslide hazard maps have been published for Macon, Watuaga, Buncombe and Henderson Counties